Seamus McLaughlin v Aviva Insurance

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 15 November 2011
• Neutral Citation: [2011] IESC 42
• Court: Supreme Court
• Docket Number: [Appeal No: 146/2011]
• Date: 15 November 2011

McLaughlin v Aviva Insurance (Europe) Plc & Cmsr of an Garda Siochana

Between/

Seamus McLaughlin

Plaintiff/Respondent

and

Aviva Insurance (Europe) Public Limited Company

Defendant/Respondent

and

The Commissioner of An Garda Síochána

Notice Party/Appellant

[2011] IESC 42

Denham C.J.

Hardiman J.

O'Donnell J.

[Appeal No: 146/2011]

THE SUPREME COURT

PRACTICE & PROCEDURE

Discovery

Non party discovery - Garda Síochána - CCTV - Privilege - Public interest privilege - Criminal investigation - Whether public interest privilege could apply to documents not generated by gardaí - Whether public interest privilege could apply to documents procured from party to civil proceedings - Whether public interest privilege could apply to property of party seeking discovery - Whether privilege claimed existed only until prosecution concluded or decision not to prosecute made - Whether privilege existed only for limited time - Whether civil proceedings should await conclusion on criminal proceedings - Whether documents sought constituted material part of criminal investigation - Whether onus on party claiming privilege to establish privilege - Whether risk that evidence would be destroyed - Murphy v Corporation of Dublin [1972] IR 215 and Conway v Rimmer [1968] AC 910 approved - Breathnach v Ireland (No 3) [1993] 2 IR 458 and Corbett v Director of Public Prosecutions [1999] 2 IR 179 distinguished - Appeal allowed, privilege declared (146/11 - SC - 15/11/2011) [2011] IESC 42

McLaughlin v Aviva Insurance

Facts The plaintiff had brought proceedings against Aviva Insurance over an insurance policy in relation to a fire at his premises. The Insurance company had refused to indemnify the plaintiff on the basis that it believed that the plaintiff was responsible for setting fire to the premises and that the claim made by the plaintiff was fraudulent. The plaintiff had given items of CCTV footage to the Gardaí and sought the return of same in order to pursue his case. The Gardaí sought to claim privilege over the items and refused to hand over the items. The plaintiff brought proceedings against the Commissioner of An Garda Síochána and Kelly J in the High Court (14/02/11) held that the claim of public interest/investigative privilege sought by the Commissioner be disallowed. The items in question were a DVR recorder and reports prepared in respect of same. The Commissioner had submitted that privilege had been asserted as a decision of the Director of Public Prosecutions was awaited as to whether a prosecution would be initiated. In addition it was submitted that the documents ought not to be disclosed to the suspects of the investigation and the items were privileged pursuant to public interest/investigative privilege. The Commissioner appealed the ruling to the Supreme Court.

Held by the Supreme Court (Denham C.J. and O'Donnell J. agreeing, Hardiman J. dissenting) in allowing the appeal. Denham C.J. held that general documents material to an ongoing criminal investigation by An Garda Síochána should not be required to be disclosed in civil proceedings. However, after the verdict in the criminal trial or after it has been decided not to prosecute, there was no need for the privilege. The fact that the items were not originally created by a prosecutor did not exclude them from privilege. They were now items in a criminal investigation by An Garda Síochána and they attracted privilege on the basis of public interest and investigative privilege. O'Donnell J. held that it was very well established that the police could retain items against their true owner. The public immunity sought to be asserted was limited in time, and as a result the parties to the litigation had the choice whether to proceed without the material or they could wait until the issue of public interest immunity fell away. In a dissenting judgment Hardiman J held there was no rule of law whereby a civil case which was ready to proceed must yield in priority even to a criminal case actually in being. Much less, was there a rule to the effect a civil action must yield to a purely hypothetical criminal case which might, or might not, ever actually come into being. The High Court judgment was correct in principle and particularly in its finding that the Commissioner had failed to establish any element of privilege in circumstances where he had got the documents voluntarily from one party to the proceedings.

Reporter: R.F.

MURPHY v DUBLIN CORP & MIN FOR LOCAL GOVT 1972 IR 215 1973 107 ILTR 65

CONWAY v RIMMER & ANOR 1968 AC 910 1968 2 WLR 998 1968 1 AER 874

BREATHNACH v IRELAND & ORS (NO 3) 1993 2 IR 458 1992 ILRM 755 1993/1/123

ABRAHAMSON & ORS DISCOVERY & DISCLOSURE 2007

CORBETT v DPP 1999 2 IR 179 2000/3/1148

AMBIORIX LTD & ORS v MIN FOR...