Kelly v Byrne

CourtHigh Court
JudgeMr. Justice Hogan
Judgment Date07 Oct 2013
Neutral Citation[2013] IEHC 450
Docket Number[2008 No. 546 P]

[2013] IEHC 450


[No. 546 P/2008]
Kelly v Byrne





KELLY v BYRNE UNREP CLARKE 13.4.2011 2011/30/8237 2011 IEHC 174






Disclosure - Open court - Statement made in civil proceedings - Whether the Director of Public Prosecutions may access document for deployment in criminal proceedings

The defendant, Thomas Byrne, a former solicitor, was charged with over 50 counts of offences under the Criminal Justice (Theft and Fraud Offences) Act 2001. It had been alleged that throughout his work as a solicitor, Mr. Byrne engaged in defrauding a number of banks and credit institutions via property transactions. The criminal trial for these offences was set to commence on the 8 th October 2013.

The core issue to be decided in this case was whether the Director of Public Prosecutions was entitled to access a statement made by Mr. Byrne in the course of civil proceedings that were brought by John Kelly against Mr. Byrne in the Commercial Court. The statement in question was opened in open court, the key question being whether the Director of Public Prosecutions could access the statement for the purposes of using it in the subsequent criminal proceedings.

Mr. Byrne objected to the making of the order, having primarily argued that the statement would be inadmissible before the court on trial. The statement was supposedly inadmissible as it was procured involuntarily—having been prepared under the Commercial Court procedures.

Hogan J. held that the admissibility of the statement was not a matter for him to decide—the correct place for a decision on the admissibility of a statement being a matter for the presiding judge at the criminal trial. It was also held that where a document has already been opened in the open court and there are no reporting or other restrictions, the open administration of justice means that the public are entitled to have access to such documents. Moreover, the Director of Public Prosecutions, as a person with the authority to prosecute crimes ‘in the name of the People’, was decided to have good reason to access such documentation, especially given that the document was relevant as material which may have been presented as evidence in the prosecution.

The court therefore decided to provide the Director of Public Prosecution with a copy of the statement in question.


1. Where a party to litigation makes a statement in the course of civil proceedings which is subsequently opened in open court, is the Director of Public Prosecutions entitled to have access to that statement for the purpose of possibly deploying that statement in a subsequent criminal prosecution against that self-same litigant? This, in essence, is the issue presented by the present application on the part of the Director of Public Prosecutions.


2. The defendant in the civil proceedings, Thomas Byrne, is presently charged with over 50 counts in respect of a variety of offences under the Criminal Justice (Theft and Fraud Offences) Act 2001. Mr. Byrne is a former solicitor, but it is alleged that in the course of his practice as a solicitor he defrauded a variety of banks and credit institutions by means of property transactions involving clients and loans from a number of financial institutions. This criminal trial is scheduled to begin, tomorrow, 8 th October, 2013, and it will, I have been informed, last approximately ten weeks. Given the imminence of the trial, it is especially important to describe the nature of the present application with some circumspection lest there be any suggestion that the trial might inadvertently be contaminated by adverse pre-trial publicity.


3. The document which is sought is a statement made by Mr. Byrne in the course of civil proceedings brought by Mr. Kelly as plaintiff against Mr. Byrne as defendant. Those proceedings were heard and determined by Clarke J. in the Commercial Court in a judgment delivered on 13 th April, 2011: see Kelly v. Byrne [2011] IEHC 174. There is no doubt but that this statement was opened - or, at least, effectively opened - in open court. It would appear from the affidavit of Ms. Irvine, a solicitor in the Office of the Director of Public Prosecutions, that the transcript of these civil proceedings is replete with references to this statement. Mr. Byrne was, moreover, cross-examined on this statement in the course of those proceedings.


4. The Director already stands possessed of a copy of this transcript and it may be surmised that the prosecution will endeavour to lay the transcript before the jury. The plaintiff in the present proceedings, Mr. Kelly, has indicated that he will abide the order of the court. This is also the approach which is taken by the Court Service, albeit that they are not formally a party to the proceedings. The application is, however, steadfastly opposed by...

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2 cases
  • Defender Ltd v HSBC Institutional Trust Services (Ireland) Ltd
    • Ireland
    • High Court
    • 15 October 2018
    ...of the plaintiff in the Thema Case amounts to a loss of privilege, regard will be had to the decision of Hogan J. in Kelly v Byrne [2013] 2 IR 389 which deals not with the status of witness statements, but the status of an affidavit that had been referred to during a court hearing. In reac......
  • Michael Lowry v Mr. Justice Michael Moriarty
    • Ireland
    • High Court
    • 17 December 2014
    ...NOT AVAILABLE] ALLIED IRISH BANK v TRACEY (NO 2) UNREP HOGAN 21.3.2013 2013 IEHC 242 KELLY v BYRNE UNREP HOGAN 7.10.2013 2013/28/8257 2013 IEHC 450 CONSTITUTION ART 40.3.2 Civil Practice and Procedure – Notice to Produce – O. 31, r. 17 and r. 18 Rules of the Superior Courts – Discovery 2014......

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