Harrison v Commissioner for an Garda Siochána and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Jordan |
| Judgment Date | 19 May 2023 |
| Neutral Citation | [2023] IEHC 371 |
| Court | High Court |
| Docket Number | [2015/2414P] |
[2023] IEHC 371
[2015/2414P]
THE HIGH COURT
JUDGMENT of Mr. Justice Jordan delivered on the 19 th day of May 2023
. The Plaintiff issued a Personal Injuries Summons on the 26 March 2015 in which he sought damages including aggravated and exemplary damages for alleged negligence, breach of duty, breach of statutory duty, bullying, harassment, breach of contract of employment and/or the intentional or reckless infliction of emotional suffering. The claim related to the Plaintiff's employment as a member of An Garda Siochána.
. A full Defence was delivered on behalf of the Defendants on the 28 April 2016. The Plaintiff later sought Discovery.
. By Order of Mr. Justice Cross dated the 22 nd day of May 2017, the Defendants were directed to provide Discovery of the following categories of documentation:
-
a. All documents evidencing and recording in relation to the Plaintiff's employment contract.
-
b. All documents evidencing, recording, or relating to safety statements, safety procedures, guidelines for risk assessments and incident reports conducted by the First Named Defendant its servants or agents which relate to the Plaintiff during his employment from November 2008 until May 2014.
-
c. All documents relating to the Code of Practice conducted by the First Named Defendant for its employees including but not limited to the procedures addressing disciplinary procedures bullying and/or harassment protective and preventative guidelines in the workplace from November 2008 to May 2014.
-
d. All documents, records, notes, correspondence, memorandum, and any other document provided or part thereof however arising whether stored in electronic format or otherwise touching or concerning or relating to the Plaintiff's personnel file disciplinary records and performance appraisals from November 2008 to May 2014.
-
e. Copies of all PULSE entries on the PULSE system records of and concerning the Plaintiff to include the Plaintiff's family and their respective motor vehicles …
-
f. All documents evidencing, recording, and/or relating to the monitoring and/or investigations of incidents of bullying and/or harassment and/or any issue raised by the Plaintiff in the workplace to include all complaints made by the Plaintiff between the period from November 2008 to May 2014 to include the “profile” referred to in an email of September 2014.
-
g. All documents evidencing, recording, and/or relating to complaints threats investigations made against or made by the Plaintiff during the course of his employment concerning bullying and harassment from November 2008 to May 2014.
-
h. All documents evidencing, recording, and/or relating to managerial reviews and/or disciplinary reviews conducted by the First Named Defendant concerning the decision to commence to prosecute the Plaintiff during the course of his employment from November 2008 to May 2014.
-
i. All documents evidencing, recording, and/or relating to the Plaintiff's transfers from one station to another from November 2008 to May 2014.
-
j. All documents evidencing, recording, and/or relating to the procedures used when a member of An Garda Síochána makes a protected disclosure including but not limited to when the Plaintiff made a protected disclosure.
. An affidavit of Discovery was sworn by Chief Superintendent Terry McGinn on the 4 th of January 2018 listing a total of 1184 documents in the first part of the first schedule. In the second part of the first schedule a claim of privilege was made in respect of a total of 87 documents each of which were listed and described in the schedule. A claim of Legal Professional Privilege was made in respect of 14 of the documents, Litigation Privilege was claimed in respect of 58 of the documents while Public Interest Privilege was claimed in respect of the remaining 15 documents.
. The Plaintiff issued a motion for inspection of documents on the 26 April 2018. In the grounding affidavit the Plaintiff's solicitor exhibited a letter of the 09 January 2018 in which the Plaintiff's solicitor took issue with the claim of public interest privilege and sought precise averments as to the public interest engaged. The balance of the affidavit relates to the provision of inspection facilities in respect of the balance of the 1184 documents which had been discovered in the affidavit. These facilities were provided to the Plaintiff following the issuing of the motion so the issue that remains is the claim of privilege.
. A supplemental affidavit was sworn by Chief Superintendent Terry McGinn on the 03 December 2019.
. In a further supplemental affidavit sworn by the Plaintiff's Solicitor on the 22 April 2022 it is asserted that the Defendants are in default of the Court Order in failing to provide a sufficiently detailed description over each document over which each claim of privilege has been made. Essentially Mr. Collins as the Plaintiff's Solicitor challenges the claim of public interest privilege and each claim of privilege.
. At paragraph 16 of the Legal Submissions on behalf of the Plaintiff it is stated that the Plaintiff is challenging the claim of privilege and, in particular, is challenging the claim of public interest privilege.
. It is submitted that the principal issues to be decided upon in respect of the motion before the Court are as follows:
-
(i) Whether the Affidavit of Discovery contains a sufficiently detailed description of the documents over which a claim of privilege has been made?
-
(ii) Whether the Defendants can claim Legal Advice Privilege over the documents listed at 1–14 of the second part of the first schedule of the affidavit of discovery?
-
(iii) Whether the Defendants can claim Litigation Privilege over the documents listed at 15–72 of the second part of the first schedule of the affidavit of discovery?
-
(iv) Whether the Defendants can claim Public Interest Privilege over the documents listed at 73–87 of the second part of the first schedule of the affidavit of discovery?
. The Plaintiff at paragraph 2.4 of his written submissions submits that both the affidavit of discovery and the supplemental affidavit are deficient in detail and fail to establish any reasonable basis upon which privilege could be claimed.
. It is submitted on behalf of the Defendants that guidance as to the manner in which privilege should be asserted was given by the Supreme Court in Bula Ltd v Crowley [1991] 1 I.R. 220 where it was held that (p222):
“what was required … was an individual listing of the documents with the general classification of privilege claimed in respect of each document indicated in such fashion by enumeration as would convey to a reader of the affidavit the general nature of the document concerned in each individual case together with the broad heading of privilege being claimed for it. Such a requirement irrespective of what may have been a habitual form of affidavit of discovery in the past, seems necessary to comply with the principles laid down by this Court.”
. It is submitted on behalf of the Defendants that the requirement is to provide sufficient detail to allow the Plaintiff to consider whether or not a claim of privilege should be challenged. It is pointed out that this issue was further considered by Kelly J in Irish Haemophilia Society Ltd v Lindsay & Blood Transfusion Service Board [2001] IEHC 240 in which he held “ There is in my view no necessity to describe the documents in greater detail than has been done here. To do so would run the risk of diluting or perhaps even destroying the privilege which is being asserted.”
. It is further submitted on behalf of the Defendants that in the case of each document over which a claim of privilege has been made the affidavit of discovery provides sufficient detail as to the general nature of the document as well as setting out the particular form of privilege being claimed in each case. It is submitted that to provide any further information would have the effect of diluting or undermining the privilege being claimed.
. The Court is satisfied that sufficient detail has been provided in respect of the documents and the form of the privilege/basis for the privilege claimed in each case. The Court had no difficulty in this respect and is satisfied that the Defendant's description and detail concerning the documents and the privilege claimed is adequate even if it did require a supplemental affidavit to meet the threshold in that regard.
. The far-reaching consequences of an assertion of privilege over documentation is considered by Finlay C.J. in Smurfit Paribas Bank Ltd v A.A.B Export Finance Ltd [1990] 1 I.R. 469 at 477;
“The existence of a privilege or exemption from disclosure… clearly constitutes a potential restriction and diminution of the full disclosure both prior to and during the course of legal proceedings which in the interests of the common good is desirable for the purpose of ascertaining the truth and rendering justice. Such privilege should, therefore, in my view only be granted by the Courts in instances which have been identified as securing an objective which is in the public interest… can be said to outweigh the disadvantage arising from the restriction of disclosure of all the facts.”
. It is the party seeking to assert privilege over documentation which bears the burden of proving that this claim for privilege is valid. As Kelly J points out in Irish Haemophilia Society Ltd v Lindsay & Blood Transfusion Service Board;
“… The obligation and onus is on a party asserting legal professional privilege to prove that such a claim is justified…”
...
To continue reading
Request your trial