Johnston v Church of Scientology and Others

• Jurisdiction: Ireland
• Judge: Keane C.J.,Mrs. Justice Denham
• Judgment Date: 27 February 2001
• Neutral Citation: 2001 WJSC-SC 3513,2001 WJSC-SC 3493
• Court: Supreme Court
• Docket Number: [1995 No. 9640P and S.C. No. 145 of 1999]
• Date: 27 February 2001

2001 WJSC-SC 3493

THE SUPREME COURT

Denham J.

Murphy J.

Murray J.

Appeal No.: 145/1999

Record No.: 9640P/1995

JOHNSON v. CHURCH OF SCIENTOLOGY & ORS

BETWEEN:

MARY JOHNSON

PLAINTIFF/RESPONDENT

v

CHURCH OF SCIENTOLOGY, MISSION OF DUBLIN, LIMITED JOHN KEANE TOM CUNNINGHAM GERARD RYAN

DEFENDANTS/APPELLANTS

Citations

BULA LTD V TARA MINES LTD 1994 1 ILRM 111

LONRHO LTD V SHELL PETROLEUM 1980 QB 358

YATES V CIBA GEIGY AGRO LTD UNREP BARRON 29.4.1986 1986/8/1947

HORGAN V MURRAY 1999 1 ILRM 257

NORTHERN BANK FINANCE V CHARLTON UNREP FINLAY 26.5.1977 1977/6/1129

BULA LTD V TARA MINES LTD UNREP MURPHY 11.1.1991 1991/1/164

MURPHY V DONOHOE 1996 1 IR 123

HALSBURYS LAWS OF ENGLAND 4ED V13 PARA 39

QUINLIVAN V CONROY 1999 1 IR 271

IRISH NATIONWIDE BUILDING SOCIETY V CHARLTON UNREP SUPREME 5.3.1997 1997/9/3049

PHELAN V GOODMAN 2000 2 ILRM 378

LONRHO LTD V SHELL PETROLEUM 1980 1 WLR 627

RSC O.31 r12

RSC O.31 r12(1)

RSC APPENDIX C NO 10 PARA 7

Synopsis:

Practice and Procedure

Discovery; agency; defendants seek to appeal against order of discovery granted to plaintiff in relation to particular documents held by non-party deemed to be within power of defendants; whether documents in issue are in possession, custody or power of defendants; whether it had been established on the facts of the case that non-party holding relevant documents had been acting as agent for first named defendant in relation thereto; whether defendants have an enforceable legal right to obtain said documents

Held: Appeal allowed; a document is in the power of a party when that party has an enforceable legal right to obtain the document.

Johnston v. Church of Scientology - Supreme Court: Denham J., Murphy J., Murray J. - 27/02/2001 - [2001] 1 IR 689 - [2001] 2 ILRM 110

The plaintiff had instituted proceedings against the defendants seeking damages for conspiracy, misrepresentation and breach of her constitutional rights. As part of the proceedings the plaintiff sought a number of documents. The defendants claimed that there should not be discovery, inter alia, on the basis of sacerdotal privilege. In the High Court Mr. Justice Geoghegan held that the auditing process in the Church of Scientology was not analogous with Roman Catholic confession. Sacerdotal privilege did not apply to in relation to counselling of a parishioner by a parish priest. Even if a form of sacerdotal privilege existed, in this case the plaintiff had waived that privilege. The jurisdiction of the Court to order discovery could not be ousted by a private contract. The High Court so held in ordering discovery and production of documents. The defendants appealed submitting that the documents in question were not in their power, possession or procurement. Mrs. Justice Denham, delivering judgment, held that the original discovery order was based on the premise that the documents were in the possession of the English Church of Scientology. However the first named defendant was a separate corporate body to the English Church of Scientology. The documents now in issue between the parties originated in England, were created by the English Church of Scientology and had never been in Ireland. It had not been established by the plaintiff that the English corporation created or had custody of the documents as the agent for the first named defendant. According the appeal would be allowed.

Judgment of Mrs. Justice Denham delivered on 27th day of February, 2001.[nem diss]

1. Proceedings

1 This is an appeal by the Church of Scientology, Mission of Dublin, Limited, John Keane, Tom Cunningham and Gerard Ryan, the defendants and appellants, hereinafter referred to as the defendants, from a reserved judgment of the High Court (Unreported, High Court, Geoghegan J., 30th April, 1999) and order dated 4th June, 1999. Mary Johnson, the plaintiff and respondent, hereinafter referred to as the plaintiff, instituted an action against the defendants in 1995 in which she seeks, inter alia, (a) Damages for conspiracy, misrepresentation and breach of her constitutional rights; (b) Damages for libel; (c) A declaration that the payments made by the plaintiff to the first named defendant, its servants or agents, in the sum of £1,915.45 ought to be set aside as having been procured by the undue influence of the first named defendant, its servants or agents; and, (d) An order directing the first named defendant, its servants or agents, to repay to the plaintiff the sum of £1,648.06 being the balance of the said sum of £1,915.45 due and owing to the plaintiff. The plaintiff brought a motion for further and better discovery against the defendants. On the hearing of the motion before the High Court the main issue raised was that of sacerdotal privilege in relation to counselling notes. The defendants claimed that there should not be disclosure of the documents on the basis of sacerdotal privilege. The High Court rejected this claim. The issue of sacerdotal privilege has not been appealed and is not an issue before this Court. There were other issues before the High Court relating to the nondisclosure of documents. It was submitted that the documents were in the procurement of the defendants. It is the issue of the possession, custody or power of documents which is at the kernel of this appeal.

2. The High Court

2 The High Court (Geoghegan J.) ordered that certain documents must be procured by the first named defendant. He stated:

3 "Of course there is another argument for non-disclosure being made. It is suggested that in the case of some of the documents which would be material, they are no longer in the possession or procurement of the Defendants in that they have been sent to branches of the Church of Scientology in the U.K. I do not find it credible that these documents are not procurable and I think it likely that this is being used as a method of defeating discovery in the Irish Courts. It was the Mission of Dublin in the Church of Scientology which the Plaintiff joined and any documents prepared in connection with her membership would seem to be clearly in the possession and ownership of one or more of the Defendants. The argument has been made on behalf of the Defendants that even if it were true that on request to England, documents would be returned, this does not mean that they are within the procurement of the Defendants within the meaning of the Rules of the Superior Courts. I accept that proposition in circumstances where the requesting party and the retaining party have no institutional link with each other and are fully at arms length with each other. In such a case the test is whether the documents could be recovered by action and not whether as a matter of probability they would be voluntarily handed over on a request. But I do not accept that that is the position where two branches of the same institution are involved. There would seem to be strong prima facie evidence here that any documents relating to the Plaintiff and in the possession of an English branch of the Church of Scientology are being held by the English branch as agents for the Defendants or one or other of them. I will therefore direct that the documents which come within this category must be procured by the First named Defendant and included in a Supplemental Affidavit of Discovery if not already discovered and must be produced for inspection to the Plaintiff if requested and the Plaintiff must be given copies thereof.

4 Some of the other discovery sought by the Plaintiff seems to me to be excessive. However, I am prepared to make an Order in the terms of paragraph 2 of the Notice of Motion, that is to say; an Order directing the Defendants to make further and better discovery of the documentation described in paragraphs 9 and 10 in the Affidavit of Dympna Murphy but limited to such of the documents as are mentioned in those paragraphs as refer to the Plaintiff and which are not fully and adequately discovered already. Otherwise I will make all the Orders as set out in the Notice of Motion of 3rd July, 1998.

5 With reference to the documents now in England, it is worth noting what the Fourth named Defendant swore in his Affidavit of Discovery of 30th July, 1997 in paragraph 3. He said the following:-

"The counselling notes were last in my possession, power or procurement in 1995. At that time the documents were transmitted by me to the Church of Scientology at East Grinstead, Sussex in the United Kingdom. I am now making arrangements for this documentation to be returned to the Dublin Mission."

6 This clearly re-enforces my view that those documents are within the procurement of the Defendants."

7 The Order of the High Court dated 4th June, 1999 stated:

8 "IT IS ORDERED that within 6 weeks from the date hereof or from the date of lifting of the stay hereinafter granted whichever date shall be the later

9 1) the Defendants do make available for inspection the originals of all documents being discovered and discovered and disclosed by the Defendants pursuant to the Order of the Master made on the 11th day of April 1997.

10 2) the Defendants do make further and better discovery of the documentation described in paragraphs 9 and 10 of the said affidavit of Dympna Murphy but limited to such of the documents as are mentioned in those paragraphs as refer to the Plaintiff and originals or copies of which would routinely be procurable at the request of the Defendants and which are not fully and adequately discovered already.

11 3) the Defendants do disclose to the Plaintiff those documents in respect of which the Defendants have maintained a claim of sacerdotal privilege.

12 4) the Defendants do list each and every document in respect [of which] a claim to legal professional privilege is maintained."

3. Grounds of Appeal

13 Against that judgment and order, in an amended notice of appeal, the defendants have...