Logue v Redmond

• Jurisdiction: Ireland
• Judge: Mrs Justice Macken
• Judgment Date: 04 March 1999
• Neutral Citation: [1999] IEHC 220
• Court: High Court
• Date: 04 March 1999

[1999] IEHC 220

THE HIGH COURT

1994 Number 3012P

LOGUE v. REDMOND & ORS

BETWEEN

DONAL LOGUE

PLAINTIFF

AND

DANIEL REDMOND GERARD KEALY IRELAND AND THE ATTORNEYGENERAL

DEFENDANTS

Abstract:

Practice - Discovery - Privilege - Public interest privilege - Legal-professional privilege - Role of Court in balancing competing interests - Plaintiff seeking damages for false imprisonment and wrongful arrest - Plaintiff seeking discovery of documents containing communications between Gardai and DPP - Whether Court should examine documents sought - Whether disclosure of documents would damage public interest - Whether plaintiff must establish that disclosure is necessary - Whether extent to which documents may assist plaintiff relevant in assessing competing interests.

The question as to whether a party to litigation will be permitted to refuse to produce particular evidence is a matter within the sole competence of the courts. The documents in the present case are not of such a kind which, because of their very nature, would be automatically protected and, given the likely assistance many of them will be to the plaintiff in promoting his claim, public policy does not justify their non-disclosure. The High Court so held in saying that the documents sought were not privileged with the exception of documents 15 and 20 in category one.

1 JUDGMENT of Mrs Justice Mackendelivered on the 4th day of March 1999.

2 The Plaintiff by its Notice of Motion sought an Order for inspection of certain documents in which privilege has been claimed on the part of the Defendants, and in the course of the Motion has suggested that the Court might inspect those documents to ascertain whether the Defendants claim to privilege is valid. In the proceedings the Plaintiff claimed damages for wrongful arrest, false imprisonment, defamation, and breach of his constitutional rights. The Defence delivered on behalf of the Defendants to the claim of the Plaintiff is substantially in the form of atraverse.

3 This judgment is in respect of the second relief sought by the Plaintiff by the Notice of Motion dated the 1 lth of June 1998, and arises out of an Order made by the Master on the 16th January, 1998 by which the Defendants were compelled to make discovery in the usual way, and pursuant to which the Defendants did in fact make an Affidavit of Discovery. The Affidavit was sworn by Inspector Patrick G. Delaney.

4 The proceedings were commenced by the Plaintiff who is an Anaesthetist by profession, but who also carries on business as a publican in Co. Wexford. The Defendant Redmond is a Garda Sergeant and the Defendant Kealy is a Garda.

5 In the course of his Affidavit of Discovery, Mr. Delaney on behalf of the Defendants has listed certain documents in the Second Part of the First Schedule, in respect of which documents, he claims privilege. It is this claim to privilege which is disputed by the Plaintiff.

6 It is agreed between Mr. Kennedy on behalf of the Plaintiff and Mr. O'hOisin. on behalf of the Defendants that:

7 2 (a) Not all documents which are listed in that part of the Schedule are in contention; and

8 3 (b) The documents which are in contention can be categorised under three separate headings. These are as follows:

9 (i) Documents concerning the prosecution of the Plaintiff.

10 (ii) Documents, being internal memoranda passing between the Gardai relating to these present proceedings; and

11 (iii) Documents relating to complaints by the first Defendant thatthreatswere made by the Plaintiff against him.

12 As to the first of these, the documents in question listed in the second part of the first schedule are:

13 1, 2, 15, 18-21 (inclusive) and 31.

14 As to category (ii), the documents are:

15 8, 9, 10, 11 (inclusive), 15a, 17. 23,25 and 33.

16 As to category (iii), the documents are:

17 34-45 (inclusive) and 49.

18 Before I move to the submissions of the parties, I should clarify the List of Documents included both in the second and the third categories above. As to the second category, it is agreed by the parties that a 15a should have been included and should read as follows:

19 15a

20 (a) Copy Report Chief Superintendent Murphy to Superintendent. Wexford, headed: "Code 6.28" That notification of civil proceedings against Sergeant Redmond 18897B Wexford (undated). Date stamped 6th July, 1993.

21 (b) Note from Superintendent Smith to Chief Superintendent (Murphy) attaching correspondence received from Sergeant D. Redmond, under cover of note: Date Stamped 5 July, "93.

22 (c) Letters from the Plaintiffs Solicitors addressed to Sergeant Redmond (see 22.6. 93 (d) 22.6.93) headed "Donal Logue v you. Ireland & The Attorney General".

23 Further as to document 33, again in the second category, it is accepted that the description appearing in Mr. Delaney's Affidavit is incorrect, and that the correct description should read as follows:

24 2 "33. Statement by first Defendant made following questions by Senior Counsel (undated)."

25 As to the third category, the Notice of Motion listed only numbers 40, 44 and 49, but again the parties have agreed that the true and appropriate way in which to read the Schedule is to accept that the document, originally listed at 33, is in fact a general description of a file, and the documents listed from 34-45 (inclusive) are the individual documents appearing in that file. I am therefore, for the purposes of this Motion, ignoring the original description of document number 33, which has been changed as above, and I deal with the matter on the basis that in the third category, the documents at issue are documents 34-45 (inclusive), all of which are included in the investigation file (originally described as 33), and document 40.

26 The claim to privilege is set out in Mr. Delaney's Affidavit in the following terms as to the various categories:

27 2 "4. The objection is on the grounds that the disclosure of the said documents would be contrary to the public interest for the following reasons:

28 (a) The said documents were brought into existence by the Garda Siochana for the purposes of communicating with the Office of the Director of Public Prosecutions for the purpose of informing the Director and his staff of matters relevant to the exercise of his function in the initiation of a prosecution against the Plaintiff herein and in discharge of his office.

29 (b) That the said documents of their nature may make reference to the opinion of the Garda authorities on the involvement of the Plaintiff in an offence and the said documents contain confidentialinformation obtained by the Gardai during the course of the investigation of the alleged incident relating to theseproceedings.

30 (c) A number of the documents contain confidential information obtained by the investigating officer appointed by the Garda Complaints Board and the Members of the staff of the Board during the course of theinvestigation.

31 (d) Communications between the first named and second named Defendants and their legal advisors, concerning the subject matter of these proceedings for the purposes of giving and receiving advice.

32 5. I also object to produce the said documents set forth in the second part of the First Schedule hereto, on the grounds of legal professional privilege, in that the said documents consist of a communication to the Director of Public Prosecutions made for the purpose of giving or receiving legal advice with reference to litigation, consisting of a criminal prosecution".

33 It is clear from the foregoing that although 4(a) and (c) are "public policy" grounds, 4(d) and 5 are, in reality, claims based on legal professional privilege.

34 It was submitted by Mr. Kennedy for the Plaintiff, that all of the documents in the three categories above are relevant to the case made by the Plaintiff. He argued this would be a Jury action, in which the credibility of the parties would be to the forefront. He argued that if it transpires that the documents disclose that the Defendants said one thing in one matter, and another thing in respect of a different matter, this might advance thePlnintiff's case and damage the Defendants" case. He said therefore, that insofar as the ???query???ory (i) documents are concerned, these are ones which should be disclosed.

35 As to the documents in Category (ii) he says that these may include views ???query???sed in the documents which again would be of assistance or might assist in the case ???query???roy the Plaintiff and damage the Defendants" case. Finally, insofar as the question of ???query???ce concerns category (iii), Mr. Kennedy submitted that, if the claim concerning the ???query???great was not made bona fide, then an issue as to credibility would arise, and that be of particular interest to the Plaintiff and, in turn, to a Jury.

36 On the question of privilege he submitted that the State is not entitled to rivilege on a "blanket" basis, and in support of this he cited the decision in nach v. Ireland, the Attorney General and Ors. [1993] 2I.R 458.

37 Mr. Kennedy submitted that there could be no claim to privilege arising in of the category (ii) documents, on their face. Nor does the Breathnach case suggest documents going to the DPP are privileged as a class. Further, he says anything merely between the Gardai themselves, cannot be privileged.

38 Mr. Kennedy says that if the Court is satisfied that documents were genuinely ???query???I for the purposes of securing legal advices, or for the purposes of giving legal advice, ???query???ed if they contain legal advice, they are clearly privileged, and an instance of this is ???query???t number 20, where it is accepted by Mr. Kennedy that this document is protected by ???query???le ???query???rofessional privilege. He submitted however, that the mere fact that the documents ???query???added are listed as being legally professionally privileged, does not...