Folens Company Ltd v Minister for Education

• Jurisdiction: Ireland
• Judge: MR. JUSTICE COSTELLO,Costello J.
• Judgment Date: 02 March 1981
• Court: High Court
• Date: 02 March 1981

1981 WJSC-HC 558

THE HIGH COURT

No. 2890P/1976

Folens & Co v Min for Education

BETWEEN:

FOLKNS AND COMPANY LIMITED

Plaintiffs

and

THE MINISTER FOR EDUCATION THE ATTORNEY GENERAL ANDIRELAND

Defendants

1 JUDGMENT OF MR. JUSTICE COSTELLODELIVERED THE 2nd DAY OF MARCH 1981

2 Judgment of Costello J.determined 2nd March 1981

3 The plaintiffs wish to inspect certain documents, which are in the possession of the Minister for Education, whose existence has been disclosed in an affidavit of documents sworn in these proceedings but in respect of which privilege has been claimed. Their motion is brought in an action in which the plaintiffs claim that in the year 1971 at the request of the Minister they drew up a detailed plan and estimate for the printing of a children's encyclopaedia in the Irish language. They say that there were numerous meetings in a supervisory committee appointed by the Minister and directly between the Plaintiffs and the Minister's agents during which it was agreed by the Minister's agents that the encyclopaedia would be published in sixteen volumes at the rate of two volumes per year from the year 1972 and that it was agreed or alternatively represented that the Minister would purchase five thousand copies of each volume at a price of £3 per copy for distribution to primary and post-primary schools. The plaintiffs say that as a result of the agreements and representations which they set out in their statement of claim they expended a sum of £82,466 in the preparation of the encyclopaedia before publication. They say that they were told by letter of the 16th January, 1976 that no funds would be available for the cost of the publication and claimed that as a result they lost the sum of £82,466 as well as a profitof £500,000 which they say they would have made on sales of the encyclopaedia. The defence of the three defendants in these proceedings contains traverses of all the material statements of fact on which the plaintiffs rely and the defendants whilst accepting that the plaintiffs put forward certain proposals relating to the publication by them of a children's encyclopaedia plead that none of these proposals was accepted. It seems clear from the pleadings that the important issues in the case are (a) whether or not an agreement as pleaded by the plaintiff was concluded and (b) whether or not actionable representations were made on the Minister! behalf.

4 An order for discovery was made on the 7th July, 1977 and the affidavit of discovery filed on the Minister's behalf was sworn on the 8th December, 1978. In this affidavit objection was taken to the production of a number of documents which were referred to in its second schedule. Those now in dispute were described as follows:-

"Memoranda of meetings between officials of the said Department" (i.e. the Department of Education)" and the plaintiffs; departmental memoranda covering normal departmental procedures in dealing with enquiries; departmental minutes between offices of the said Minister" (i.e. the Minister for Education)"and other Ministers and Departments; memoranda of views expressed by public servants in discharge of their duties and as advisers to the Minister; memoranda of comments made or queries raised by the said Llinister".

5 In the course of his submissions on the defendants behalf Mr. Lardneraccepted that certain of the documents in respect of which privilege was claimed, namely the minutes of meetings which the plaintiffs representatives had attended should be produced but he urged that the rest of the documents were, firstly, not relevant to anything that had passed between the parties and that in any event it was not in the public interest that these other documents should be disclosed. He accepted that the Court should look at the documents referred to in the second schedule to satisfy itself that (a) the documents were not relevant and (b) were in fact confidential ones which should not bedisclosed.

6 The general principles which I should apply in this case have been established in Murphy .v. Dublin Corporation (l972)I.R. p. 215) and in Geraghty .v. Minister for Local Government (l975) I.R. p.300. It was pointed out by Mr. Justice Walsh in Murphy's case that in the ordinary day-to-day administration of the executive branch of Government matters could arise for which disclosure could be contrary to the public interest and that

"Where documents come into existence in the course of carrying out of the executive powers of the State, their production may be adverse to the public interest in one sphere of Government in particula circumstances. On the other hand, their non-production may be adverse to the public interest in the administration of justice. As such documents may be anywhere in the range from the trivial to the vitally important, somebody or some authority must decide which course is calculated to do the least injury to the public interest, namely, the production of the document or the possibility of the denial of right in the administration of justice. It is self evident that this is a matter which falls into the sphere of the judicial power for determination".

7 The principles enunciated in Murphy's case were applied in Geraghty'scase and in the course of doing so Mr. Justice Kenny examined documents in respect of which claims...