McDonald -v- R.T.E. & ors, [2001] IESC 6 (2001)

Docket Number:112/98
Party Name:McDonald, R.T.E. & ors
Judge:Fennelly J. / Murphy J. / McGuinness J.

JUDGMENT BY: Fennelly J.


Record No 112/98Murphy J.

McGuinness J.

Fennelly J.


Plaintiff and



JUDGMENT delivered the 25th day of January, 2001 by Fennelly J.

I fully agree with the judgment of Mrs Justice McGuinness. In particular, I agree that, on the facts of this case, the Garda Siochana did not waive any public interest privilege attaching to the documents in their possession. I would emphasise only that, if the facts were otherwise, it would not necessarily follow that a privilege of this character could be effectively waived by the action of individual officers of the Garda Siochana.


Record No: 112/98

Murphy J

McGuinness J

Fennelly J









Notice Parties

Judgment of Mr Justice Francis D Murphy delivered the 25th day of January, 2001.


I have read the judgment about to be handed down by Mrs Justice McGuinness and I have considered the files referred to therein. I agree with the judgment of my colleague and the order which she proposes.

I would like to add certain observations in relation to the manner in which the Courts may resolve a conflict between the public interest in preserving the confidentiality of documents pertaining to the exercise of the Executive powers of the State and the interest of the individual in obtaining a fair hearing of legal proceedings. The landmark decision of this Court in Murphy .v. Corporation of Dublin [1972] IR 227 and its affirmation in Ambiorex Ltd & Ors .v. The Minister for the Environment & Ors [1992] 1 IR 277 made it clear that this conflict must be resolved by the Judicial power and not by the Executive. In many cases - including the instant case - the Courts perform this task by reading the documents identified in the affidavit of discovery and for which privilege is claimed on the grounds of public interest immunity. It is important to note that this is not the only manner in which the Court can discharge this important function and in some cases it may not be an effective method of doing so. I think it well to draw attention to the comments of Walsh J in this regard in the Murphy Case where he explained (at page 234):-

It is clear that, when the vital interests of the State (such as the security of the State) may be adversely affected by disclosure or production of a document, greater harm may be caused by ordering rather than by refusing disclosure or production of the document. In such a case a Court should refuse the order but would do so on their own decision.

He then went on to deal with the evidence which might be appropriate to enable a Court to make that decision. He said (at page 234):-

The evidence that the Courts might choose to act upon to arrive at that decision would be determined by the Courts, again having regard to the circumstances of the case again, taking the example of the safety of the State, it might well be that the Court would be satisfied to accept the opinion of the appropriate member of the Executive or of the head of the government as sufficient evidence of the fact upon a claim being made for non disclosure or non production, as the case may be, on that ground.

In the Ambiorex Case Finlay CJ, in setting out the practical conclusions which were applicable to a claim of privilege by the Executive, stated, amongst other things (at page 283) that:-

"There is no obligation of the Judicial power to examine any particular document before deciding that it is exempt from production, and that it can and will in many instances uphold a claim of privilege in respect of a document merely on the basis of a description of its nature and content which it (the Judicial power) accepts."

In general the examination of disputed documents may be the best method for the Court to exercise this important jurisdiction. Cases do arise, however, where the examination of documents by a judge without any information as to the significance of particular documents or any explanation as to how they might benefit one party or embarrass the other could lead to an injustice. The present case illustrates how this might happen. One objection to the production of all of the papers contained in what is described as the Oliver File is that the production of the entire thereof might disclose a limitation on the extent of the information available to the gardaí in relation to an ongoing investigation. If a problem of that nature existed it might not be identified by a judge reading the documents contained in the file.

However in the present case the documents have been examined by my colleagues and myself as well as by the learned trial Judge with the benefit of detailed information and helpful arguments and I am satisfied that in those circumstances this procedure is an appropriate one to enable the judicial power to be exercised. I draw attention to the fact that it may not always be so.

JUDGMENT BY: McGuinness J.


Record No. 112/98

Murphy, J.

McGuinness, J.

Fennelly, J.










JUDGMENT of Mrs Justice Catherine McGuinness delivered the 25th day of January 2001

This is an appeal against the order and judgment of Geoghegan J. on the hearing of a motion by the plaintiff for further and better discovery by the Notice Parties.

The Proceedings

In order to appreciate the significance of the issues arising on this appeal, it is necessary to summarise the background to the proceedings themselves and to the motion which was before the High Court.

This motion forms part of a defamation action brought by the plaintiff, who claims to have been libelled in the course of a radio broadcast entitled "Death of a Farmer" which was first broadcast on 25th April 1992 and subsequently repeated on 27th April 1992, 5th December 1992 and 7th December 1992. The subject matter of the programme was the murder in July 1991 of Thomas Oliver, a farmer, of Cooley, County Louth. At the time the Provisional I.R.A. claimed responsibility for Thomas Oliver's murder.

Some two years previous to Mr. Oliver's death, in October 1989, the plaintiff, Mr McDonald, together with other persons, was arrested by the Gardai on suspected possession of firearms at Castlecarragh, Riverstown, Dundalk. The plaintiff was arrested on lands which had been leased to Mr Thomas Oliver, near to where an arms dump had been found by the Gardai. The plaintiff and his companions claimed to have been out looking for a wounded calf. The plaintiff and his companions were held in custody for forty-eight hours in Dundalk pursuant to Section 30 of the Offences Against the State Act. All those concerned were subsequently released and no charges were brought against either the plaintiff or those who were arrested with him in connection with the incident.

The plaintiff was not named at any stage in the course of the programme broadcast by the defendants. However, in the course of an interview with Reverend Denis Faul certain words were spoken by Fr. Faul which the plaintiff claims referred to the incident of his arrest in 1989 and by implication connected him with the death of Thomas Oliver.

The plaintiff issued his defamation proceedings on the 7th May 1992. In his

statement of claim dated 13th May 1992 he asserts that the words used by Fr. Faul in their natural and ordinary meaning meant and were understood to mean:-"(a) That the plaintiff was a member of the Provisional I.R.A. a proscribed and illegal organisation;

(b) That the plaintiff was party to the murder of the late Thomas Oliver; (c) That the plaintiff has (sic) possession and control of illegal firearms; (d) That the plaintiff was a criminal."

The plaintiff totally denies all these allegations and states that subsequent to the broadcast he was the victim of a wide ranging social boycott which affected him and his family and divided the community.

In the course of the proceedings an order and cross-order for discovery were made by consent on the 10th July 1992. On the 9th October 1992 Julian Vignoles swore an affidavit of discovery on behalf of the defendants. The plaintiff swore an affidavit of discovery on the 13th November 1992. The defendants delivered their defence on the 30th October 1992. The defence contained a denial that the broadcast referred to the plaintiff and denied the libellous content. Paragraph five of the defence contained a "rolled-up plea" and paragraph six contended that the defendants had what amounted to a "public interest qualified privilege" - a duty on the part of the defendants to impart the information in question.

Notices for particulars and replies thereto were exchanged. The proceedings were listed for hearing on the 11th May 1995.

On the 5th May 1995 the solicitors for the defendants sent a brief letter to the solicitors for the plaintiff containing additional particulars.

When the matter was called on before the High Court on 11th May 1995 it appears that no judge was available and the case was adjourned until the following day. The defendants had served subpoenas on a number of members of the Garda Siochana to give evidence at the trial. These Gardai, including Superintendent Michael Staunton of Dundalk, attended at the court on 11th May. At the request of the defendants' legal advisors the Garda members consulted with the defendants and their counsel and solicitors. The plaintiff's solicitors did not request a consultation with the Garda members but observed that the consultation between the Gardai and the defendants was taking place.

On 12th May 1995 a further brief letter containing additional particulars was sent by the defendants' solicitors to the plaintiff's...

To continue reading