Randall v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr Justice Kennedy
• Judgment Date: 10 September 2024
• Neutral Citation: [2024] IEHC 540
• Court: High Court
• Docket Number: [Record No. 2024/1792P]

Between

Jonathan Randall

Applicant

and

The Commissioner of An Garda Síochána

Respondent

[2024] IEHC 540

[Record No. 2024/1792P]

THE HIGH COURT

Discovery – Disclosure – Necessity – Plaintiff seeking discovery of an investigation file – Whether discovery was necessary

Facts: The plaintiff, Mr Randall, instituted proceedings to obtain discovery of a Garda investigation of sexual abuse allegedly perpetrated on him as a child in 1979. The plaintiff sought discovery of the investigation file and disclosure of the identity of the deceased suspect. It was common ground that the plaintiff had met the “arguable wrong” criterion and also common ground that the information sought was in the possession of the defendant, the Commissioner of An Garda Síochána. However, there was a dispute as to the extent to which the entire investigation file (as opposed to the wrongdoer’s identity) was necessary to enable the wrongdoers to be pursued. The parties agreed that the decision of Collins J in Blythe v Commissioner of An Garda Commissioner [2023] IECA 255 comprehensively canvassed the applicable principles, noting the consensus that threshold conditions must be satisfied before a disclosure order may be made but that, even where such conditions are satisfied, the order is a matter for judicial discretion. At para. 62, Collins J endorsed the synopsis provided by Saini J in Collier v Bennett [2020] 4 WLR 116. Accordingly, the High Court (Kennedy J) concentrated on (using the Collier terminology) necessity, the “Mixed Up In Condition” and the “Overall Justice Condition”.

Held by Kennedy J that necessity was dispositive of the motion. It was common ground – and he agreed – that the disclosure of the identity of the deceased wrongdoer was necessary and he accordingly directed the defendant to disclose that information. However, Kennedy J was not satisfied that the plaintiff had sufficiently discharged the onus of demonstrating that the disclosure of the entire investigation file was necessary for the purposes of identifying appropriate defendants, initiating proceedings and seeking redress. Kennedy J found that the disclosure request had gone far beyond what Collins J described as a request for “a specific and limited piece of information (or documentation) which is needed in order to confirm that such a cause of action or complaint is well-founded”. The plaintiff’s broad assertion was not sufficient to satisfy Kennedy J that disclosure of the entire file was essential, rather than helpful. Kennedy J considered that observations of Peart and Costello JJ in Komady Ltd v Ulster Bank Ireland Ltd [2014] IEHC 325 and European Property Fund Plc v Ulster Bank Ireland Ltd [2015] IEHC 425 were pertinent.

Kennedy J directed the defendant to disclose the identity of the deceased suspect to the plaintiff on the basis of the latter’s undertaking that the materials would only be used for the purposes of identifying the suspect and seeking legal advice with a view to obtaining redress, if available. The plaintiff had not satisfied Kennedy J that the discovery of the entire investigation file should be directed, but Kennedy J gave the plaintiff leave to bring a further application if it proved necessary to do so. Kennedy J held that the Court may, if necessary, review the documents in the event of any such application if the parties were not able to resolve the issues through constructive engagement. He awarded costs to the defendant subject to a stay to allow the plaintiff to bring claims against the alleged wrongdoer(s), to be adjudicated in default of agreement.

Relief granted in part.

JUDGMENT of Mr Justice Kennedy delivered on the 10th day of September 2024 .

1 . The Plaintiff instituted these proceedings to obtain discovery of a Garda investigation of sexual abuse allegedly perpetrated on him as a child in 1979. On foot of his complaint in 2019, a suspect was identified, and a file was sent to the Director of Public Prosecutions (“the DPP”). However, no prosecution could be brought as the suspect had died some years earlier. The DPP explained her conclusion to the Plaintiff, who requested the identity of the suspect, but the DPP rejected the request. The Plaintiff now seeks discovery of the investigation file and disclosure of the identity of the deceased suspect. The notice of motion is drafted in broad terms, seeking a declaration that he is entitled to access to all documents, records, statements and information in the Defendant's power, possession and/or procurement, pertaining to the investigation, and an order directing the Defendant to make discovery accordingly. The Defendant is neither consenting nor objecting to the disclosure of the suspect's identity but does object to the provision of the investigation file.

2 . Although the Plaintiff's affidavit provides further detail about the traumatic event, in view of its sensitivity, I do not propose to detail that evidence, save to note that the Plaintiff has stated that, as a 4-year-old, he was subject to a horrific episode of gross sexual abuse, molestation and rape perpetrated by an unidentified priest. Although he was too young to understand the full significance of what had been done to him, the wrongdoing had a significant impact on his development and his mental health. He made a complaint and provided a detailed statement to An Garda Síochána in 2019. The Garda investigation is complete, having identified the (deceased) suspect, but An Garda Síochána require a court order in order to disclose his name. The affidavit states that the Garda documentation, records, statements and information are relevant and necessary to enable him to identify and seek redress against the person who sexually assaulted him, and that there is no alternative way for him to access the information. Without such orders, he will be left without a remedy, as he will be unable to seek advice or to institute proceedings. He undertakes that the materials will only be used for the purposes of identifying the suspect and seeking legal advice with a view to obtaining redress, if available. Although the suspect is deceased, it was recognised in submissions that the Plaintiff could also rely on disclosed material for the purpose of seeking any redress to which he may be entitled from any parties who might be vicariously responsible for the alleged actions. There was no replying affidavit.

The Plaintiff's submissions

3 . The Plaintiff submitted that he required the discovery order to compel the Defendant to disclose information which will assist the Plaintiff in identifying the wrongdoer, thereby enabling the Plaintiff to sue the wrongdoer for redress. Such orders are versatile with the terms adapted to fit the circumstances, as appropriate, and granted at the Court's discretion, when necessary and proportionate. He had satisfied the threshold conditions (showing a strong case that a (very serious criminal or civil) wrong had been committed, that the Defendant had become “ mixed up” in the alleged wrongdoing, that the information sought was in the Defendant's possession and necessary for bringing court proceedings (or for pursuing some other legitimate remedy arising from the alleged wrongdoing) and that he had no other practicable or more appropriate means of obtaining the information). He also acknowledged the judicial discretion which required the Court to balance the disclosure interest against any public and/or private interests or objection and to consider the nature and substance of the case and/or the nature and seriousness of the injury he has suffered.

4 . The Plaintiff submitted that the “ Arguable Wrong Condition” was clearly satisfied (and the Commissioner did not dispute this). The Garda investigation identified a “ possible suspect”, and the Court has the Plaintiff's uncontroverted evidence as to the traumatic assault. The only reason given for not prosecuting was the death of the suspect. The information to identify the suspect and the investigation file are clearly in the Defendant's possession. There is no other way of accessing or obtaining the information. Accordingly, the Plaintiff satisfies the “ Possession/Necessity Condition”.

5 . The Plaintiff submitted, citing Norwich Pharmacal Co. v Commissioners of Customs and Excise [1974] AC 133 (“ Norwich Pharmacal”), that the “ Mixed up Condition” does not require direct facilitation or involvement by a defendant in the wrongdoing, noting that Collins J. left the issue open in Blythe v Commissioner of An Garda Commissioner [2023] IECA 255 (“ Blythe”), and also that, as appears from obiter comments of Collins J. in Blythe (at para. 131), the Norwich Pharmacal jurisdiction may extend beyond requiring the disclosure of the identity of the alleged wrongdoer to requiring the disclosure of a “ missing piece of the jigsaw” to confirm that a wrong has been committed or to enable a claim to be properly brought.

6 . Accordingly, the Plaintiff submitted that the application satisfies the three applicable criteria and that, with respect to the “ Mixed Up Condition”, the application falls within the exceptional type of case identified by Collins J in Blythe. The Court has jurisdiction to order the disclosure of the investigation file and such disclosure would be proportionate to ensure the Plaintiff will have an effective remedy in respect of a very serious wrong.

The Defendant's Submissions

7 . The Defendant accepted that the Plaintiff meets both the strong case threshold and the possession condition, and that the disclosure of the identity of the suspect is necessary for the Plaintiff to institute civil proceedings. However, he does not accept that the Plaintiff has demonstrated that the investigation file is necessary to commence proceedings. The Defendant submitted that if, during the course of any proceedings which might be brought by the Plaintiff, matters arose which left him at an...