R v R

CourtHigh Court
JudgeMiss Justice Corroll
Judgment Date05 February 1981
Neutral Citation1981 WJSC-HC 1106
Docket NumberRecord No. 6M/1980
Date05 February 1981

1981 WJSC-HC 1106


Record No. 6M/1980
R.v. R.





Judgment of Miss Justice Corrolldelivered the 5th February 1981


On the first day of this action submissions were made on behalf of Fr. Brendan McDonnell that he is entitled to claim privilege in respect of communications made to him as marriage counsellor in relation to Mr. and Mrs. R.


Two cases were cited, Cook .v. Carroll 1945 I.R. 515 and Pais .v. Pais 1973 Weekly Law Reports 830.


The Irish case of Cook and Carroll is a judgment of Mr. Justice Gavan-Duffy in which he held that where the relationship of Parish Priest and parishioner exists on a matter of confidentiality, the communications are privileged.


In deciding the issue he expressly mentioned Article 44(1) (2) of the Constitution which recognised the special place of the Catholic Church - and which has now been repealed.


The principles on which his judgment are based are taken from the writings of John Henry Wigmore on Evidence and concern four fundamental conditions, the presence of which are essential to the establishment of privilege. These are:


2 "(1) The communications must originate in a confidence that they will not be disclosed;


(2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation;


(3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and


(4) the injury which would enure to the relation by the disclosure of the communications must be greater than the benefit there by gained for the correct disposal of litigation. These four conditions being present a privilege should be recognised and not otherwise."


The relationship of Parish Priest and parishioner is a relationship different to that of Priest as marriage counsellor to spouse and this latter relationship must be examined to see if the fourconditions apply.


The nature of the relationship is such that a priest acting as marriage counsellor will be consulted by a spouse or spouses in order to get advice in connection with difficulties in their marriage.


I consider that confidentiality is an essential element in that relationship. I can imagine nothing less conductive to frank and open discussion between priest and the spouses, possibly leading to admissions of faults and failings on both sides, than the possibility that total confidentiality will not be observed.


Therefore the first two conditions are fulfilled.


The Constitution guarantees that the State will protect the family (Article 42). The provision of confidential marriage counselling which may help a married couple over a difficulty in their marriage is protection of the most practical kind for the family and should be fostered. The Article (now repealed) concerning the special position of the Catholic Church, while it may have influenced the...

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