O'Neill and Others v an Taoiseach and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy,
• Judgment Date: 18 March 2009
• Neutral Citation: [2009] IEHC 119
• Court: High Court
• Docket Number: [No. 18528 P/2004]
• Date: 18 March 2009

O'Neill & Ors v An Taoiseach & Ors

BETWEEN/

MARTHA O'NEILL, ELIZABETH O'BRIEN AND FRANK MASSEY

PLAINTIFFS

AND

AN TAOISEACH, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2009] IEHC 119

[No. 18528 P/2004]

THE HIGH COURT

PRACTICE AND PROCEDURE

Discovery

Necessity - Relevance - Whether documents necessary for disposing fairly of matter - Privilege - Public interest privilege - Whether documents privileged - Rules of the Superior Courts 1986 (SI 15/1986), O 31, r 12 - Compagnie Financiere du Pacifique v Peruvian Guano Company (1882) 11 QBD 55; KA v Minister for Justice [2003] 2 IR 93 and Ryanair Ltd v Aer Rianta [2003] 4 IR 264 applied; Burke v DPP [2001] IR 760 considered - Appeal allowed, discovery refused (2004/18528P - Murphy J - 18/3/2009) [2009] IEHC 119

O'Neill v An Taoiseach

Facts: On appeal from an Order of the Master of the High Court, an order had been made directing the defendants to make discovery of documents, being an archive of a private statutory inquiry into the Dublin Monahan bombings, the MacEntee Commission. The Commission was established pursuant to the Commissions of Investigations Act 2004. The substantive proceedings of the plaintiffs had sought orders as to the obligation of the State to conduct an investigation in the deaths of their respective relatives. The plaintiffs argued that the defendants were required to lift on affidavit documents in the archive and to identity any claim of privilege being made in respect thereof.

Held by Murphy J. that the plaintiffs had failed to establish that discovery of the archive of the MacEntee Commission was either relevant or necessary in the context of the proceedings. The archive was subject to statutory privilege which prohibited its disclosure to the plaintiffs. The Court could not direct the defendants to disclose or publish any evidence given or the contents of any documents. The appeal would be allowed against the order of the Master of the High Court.

Reporter: E.F.

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

COMMISSIONS OF INVESTIGATION ACT 2004 S43(2)

O.31 r12(1)

O.31 r12(3)

BURKE v DPP 2001 1 IR 760

COMPAGNIE FINANCIERE ET COMMERCIALE DU PACIFIQUE v PERUVIAN GUANO CO 1882 11 QBD 55

HANNON v CMRS OF PUBLIC WORKS & ORS UNREP MCCRACKEN 4.4.2001 2001/11/3168

O.31 r12(1)

RYANAIR PLC v AER RIANTA CP UNREP SUPREME 2.12.2003 2003/46/11374

FRAMUS v CRH 2004 2 IR 20

A (K) v MIN JUSTICE & ORS 2003 2 IR 93

MURPHY v DUBLIN CORP 1972 IR 215

AMBIORIX v MIN FOR ENVIRONMENT (NO 1) 1992 IR 277

COMMISSIONS OF INVESTIGATION ACT 2004 S11

COMMISSIONS OF INVESTIGATION ACT 2004 S11(1)

COMMISSIONS OF INVESTIGATION ACT 2004 S11(3)

COMMISSIONS OF INVESTIGATION ACT 2004 S11(5)

COMMISSIONS OF INVESTIGATION ACT 2004 S12

COMMISSIONS OF INVESTIGATION ACT 2004 S45

COMMISSIONS OF INVESTIGATION ACT 2004 S39

NATIONAL ARCHIVES ACT 1986 S40

NATIONAL ARCHIVES ACT 1986 S41

NATIONAL ARCHIVE ACT 1986 S2(2)

NATIONAL ARCHIVE ACT 1986 S43(2)

CULLY v NORTHERN BANK FINANCE 1984 ILRM 683

CENTRAL BANK ACT 1942 S31

O'BRIEN v IRELAND 1995 1 IR 568

SKEFFINGTON v ROONEY 1997 1 IR 22

B (M) v COMMISSION TO INQUIRE INTO CHILD ABUSE & RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP O'NEILL 7.11.2007 2007/5/806 2007 IEHC 1

COMMISSION TO INQUIRE IN TO CHILD ABUSE ACT 2000 S27

COMMISSIONS OF INVESTIGATION ACT 2004 S11(3)(B)

COMMISSIONS OF INVESTIGATION ACT 2004 S11(3)(C)

COMMISSIONS OF INVESTIGATION ACT 2004 S11(3)(D)

1 Mr. Justice Roderick Murphy, delivered the 18th day of March, 2009.

1. Introduction

2 This is an application by way of an appeal of the Order of the Master of the High Court, dated 7 ^th May, 2008, whereby he made an order directing the Defendants within six weeks to make discovery on oath of documents which are or have been in the possession of the Defendants, namely the archive of a private statutory inquiry into the explosions collectively known as the Dublin-Monaghan bombings of 1974. Mr. Patrick MacEntee S.C., Q.C., was appointed in May 2005, as the sole member of the Commission of Inquiry (the MacEntee Commission). The final report was made in March, 2007.

3 In the substantive proceedings, the plaintiffs seek various declarations and orders to the effect that the State is under a duty to carry out an investigation and/or public inquiry in respect of the deaths of their relatives, Edward O'Neill, John O'Brien, Anne Marie O'Brien, Jacqueline O'Brien and Anna Massey respectively, who died in the Dublin-Monaghan bombings, on 17 ^th May, 1974. The plaintiffs' claim is based upon Article 40.3 of the Constitution and Article 2 of the European Convention on Human Rights. The plaintiffs are seeking discovery of the MacEntee Commission archive. They argue that, at a minimum, the defendants are required to list on affidavit the documents in the archive and to specifically identify any claim of privilege being made in respect of each.

4 The defendants oppose discovery on the basis that the documents sought are not relevant to the substantive proceedings; that the documents sought are not necessary for disposing fairly of the matter or saving costs; and that the entirety of the archive is subject to public interest privilege. The heads of public interest privilege invoked by the defendants are national security, the protection of lives, the relationship between the State and external agencies and entities and statutory privilege. The defendants argue that the plaintiffs' case involves a discrete legal issue, namely whether the defendants have a duty to hold a public inquiry into the deaths of the plaintiffs' relatives under the Constitution and the European Convention on Human Rights. They submit that the documentation gathered under the MacEntee Commission's terms of reference bears no relation to this net legal issue.

2. The MacEntee Commission

5 The MacEntee Commission was established pursuant to the Commissions of Investigation Act 2004, (the 2004 Act). Its terms of reference were as follows:

"To undertake a thorough investigation and make a report on the following specific matters considered by the Government to be of significant public concern:-"

(1) Why the Garda investigation into the Dublin and Monaghan bombings was wound down in 1974?

(2) Why the Gardaí did not follow up on the following leads:

(i) information that a white van, with an English registration plate, was parked outside the Department of Posts and Telegraphs in Portland Row and was later seen parked in the deep sea area of the B & I Ferry port in Dublin, and the subsequent contact made with a British Army officer on a ferry boat leaving that port;

(ii) information relating to a man who stayed in the Four Courts Hotel between the 15 and 17 May 1974 and his contacts with the UVF;

(iii) information concerning a British Army corporal allegedly sighted in Dublin at the time of the bombings; and

6 (3) In relation to the missing documents:

7 (i) the exact documentation (departmental, Garda intelligence and any other documentation of relevance) that is unaccounted for;

8 (ii) the reasons explaining why the documentation went missing;

9 (iii) whether the missing documentation can now be located; and

10 (iv) whether the systems currently in place are adequate to prevent a re-occurrence of such documentation going missing."

11 In accordance with section 43(2) of the 2004 Act, the archive of the MacEntee Commission was deposited with the Department of the Taoiseach upon submission of the Commission's final report. The cover letter of the Commission's sole member, dated 12 ^th March 2007, stated that:

"The commission hereby gives notice that its archive includes material that continues to have duties of privilege, confidentiality and secrecy attaching to its contents. In particular instances the contents of this material give rise to risks to the lives of persons, to risks to the security of the State, and to risks of damaging the relationships between this State and external agencies and entities. In all instances this material was disclosed to the commission on the express assurance that it was to be used solely for the purposes of this statutory investigation in private and that none of this material would be disclosed to any person, agency or entity without the prior written consent of the donors of that material."

3. Principles governing discovery applications

12 The starting point in any application for discovery is Order 31 Rule 12(1) of the Rules of the Superior Courts, which provides:

"Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or make such order on such terms as to security for the costs of discovery or otherwise and either generally or limited to certain classes of documents as may be thought fit."

13 Order 31 Rule 12(3) states:

"An order shall not be made under this rule if and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs."

14 The import of O. 31 r. 12 was addressed by Keane C.J. in Burke v. D.P.P. [2001] I.R. 760, where he stated that the rule made blanket discovery a thing of the past. It is well established in the jurisprudence of the courts that a party is not " entitled to discovery based on mere speculation or on the basis of what has been traditionally characterised as a fishing expedition" (Acquatecnologie v. Minister for the...