Wolinksa v Commissioner of and Garda Síochána and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 01 July 2025
• Neutral Citation: [2025] IEHC 382
• Court: High Court
• Docket Number: Record No. 2013/3273P

Between/

Lidia Wolinska

Plaintiff

and

The Commissioner of An Garda Síochána, The Director of Public Prosecutions and Garda Neil Carberry

Defendants

[2025] IEHC 382

Record No. 2013/3273P

AN ARD-CHÚIRT

THE HIGH COURT

Malicious prosecution – Discovery – Privilege – Plaintiff seeking to challenge the assertion of privilege made by the defendants over documents which were ordered to be discovered – Whether the documentation was needed to address the ingredients of the tort of malicious prosecution

Facts: The plaintiff, Ms Wolinksa, claimed damages to include aggregated damages for malicious prosecution. The plaintiff applied to the High Court seeking to challenge the assertion of privilege made by the defendants, the Commissioner of An Garda Síochána, the Director of Public Prosecutions and Garda Carberry, over documents which were ordered to be discovered by the High Court on 27 July 2016. The parties agreed that the issue in the application related to documents which were listed from numbers 92 to 109 under the sub-heading “Public Interest privilege and Legal Advice Privilege” and the document listed at number 110 under the sub-heading “Public Interest Privilege” in the First Schedule, Second Part to the affidavit of Superintendent Finucane dated 28 November 2023. In the Second Part of the First Schedule to the affidavit of Superintendent Finucane sworn on 22 June 2023, public interest privilege and legal advice privilege was claimed over eighteen documents and public interest privilege was claimed over the PULSE record. The central argument made by the plaintiff was that the documentation was needed to address the ingredients of the tort of malicious prosecution. It was accepted that in the normal course, the documents would be covered by the public interest privilege and legal advice privilege but in circumstances where the claim was centred on malicious prosecution, it was submitted that those documents were required to be disclosed and produced.

Held by the Court that it was adopting the approach referred to in Nic Gibb v The Minister for Justice and Others [2013] IEHC 238 in the review of the scheduled documentation in this case. The Court proposed making an order that the defendants produce to the plaintiff’s solicitors those documents which the Court had indicated in this judgment subject to the directions and redactions outlined by the Court. As the defendants had carriage of the documents in the First Schedule Second Part of the affidavit as to documents (the scheduled documents), the Court held that they should carry out the necessary redactions to those documents which had been ordered to be produced, as the Court set out in this judgment, and make same available for the Court’s attention only in the first instance.

The Court also proposed making an order that privilege applied to those documents which the Court had directed should not be produced.

Discovery ordered.

REDACTED

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 1 ^st day of July 2025

CONTENTS

INTRODUCTION	2
Preliminary	2
DISCOVERY	3
Documentation over which privilege is claimed	4
Public Interest Privilege and Legal Advice Privilege	4
Public Interest Privilege	6
Applicable Principles	7
INSPECTION OF SCHEDULED DOCUMENTS	10
PROPOSED ORDER	15

INTRODUCTION

Preliminary

1 In this application, the plaintiff seeks to challenge the assertion of privilege made by the defendants over documents which were ordered to be discovered by the High Court (Moriarty J.) on 27 ^th July 2016.

2 By Notice of Motion dated 21 ^st March 2022, the plaintiff had sought the following reliefs:

• (1) An Order pursuant to O. 31, r. 15 of the Rules of the Superior Courts 1986, as amended for inspection of the documents scheduled in the affidavit of discovery of Mr. Martin Gallagher sworn on 4 ^th November 2016;

• (2) An Order for further and better discovery of the documentation referred to in the first and second part of the first schedule of the aforementioned affidavit of Mr. Martin Gallagher sworn on 4 ^th November 2016.

3 The order of discovery initially made by the High Court on 27 ^th July 2016 included the following:

• (A) Category

  • (i) All files, notes, documents, records and memoranda in the possession, power or procurement of the first and/or third named defendants, their servants or agents, relating to the plaintiff's attendance at Pearse Street Garda Station on the 5 ^th and 6 ^th February 2011;

  • (ii) Discovery of all further files, notes, documents, records and/or memoranda relating to any subsequent communications by the first and/or third named defendants, their servants or agents and to the second named defendant.

• (B) (i) All records, files, notes, documents and memoranda relating to the plaintiff's attendance at Pearse Street Garda Station on 28 ^th July 2011 and all communications relating to her attendance.

  • (ii) All directions, communications and documents, notes, memorandum, records of the defendants relating to the prosecution of the plaintiff and Mr. [Liam] Drumgoole up to and including the subsequent abandonment of the prosecution case of the plaintiff and Mr. Drumgoole.

4 The background to the case relates to the plaintiff's claim for damages to include aggregated damages for malicious prosecution.

5 The plaintiff alleges that she was out socialising with friends on or about 5 ^th and 6 ^th February 2011 at O'Reilly's Bar on Tara Street in Dublin city centre, and that while talking to a doorman she was attacked, manhandled and assaulted by the same doorman and as a consequence of which, she sustained severe personal injuries.

6 The plaintiff alleges that she immediately attended Pearse Street Garda Station to report the alleged assault to the third named defendant. The plaintiff further alleges that the following day, the third named defendant contacted the plaintiff, and it is alleged that he maliciously, falsely and untruthfully informed the plaintiff that CCTV coverage revealed that the plaintiff had attacked the doorman and had not been assaulted but, rather, had fallen down. The plaintiff further contends that CCTV footage of the incident contradicts this alleged assertion by the third named defendant.

7 The plaintiff claims that following this, a decision was made to prosecute her. This was ultimately withdrawn by the second named defendant (“the DPP”) on or about April 2012 and struck out on 21 ^st May 2012.

8 The gravamen of the plaintiff's case centres around the initial decision to prosecute her and the subsequent withdrawal of that prosecution, and reference is also made to the prosecution of the doorman, Mr. Drumgoole. It is alleged that the third named defendant informed the plaintiff that if she proceeded with her complaint against Mr. Drumgoole she would be prosecuted for an offence but that if she withdrew her complaint, she would not be prosecuted for an offence.

9 In her Statement of Claim delivered on 17 ^th December 2013, the plaintiff pleads and alleges that it was expressly and unequivocally stated to her by the third named defendant that the DPP had directed that the plaintiff be prosecuted for an offence and it is alleged that it was further expressed and/or implied that the DPP was aware of the situation and was responsible for the decision to prosecute.

10 It is pleaded and alleged that the communications between the DPP and the third named defendant are fundamentally relevant to the plaintiff's case and necessary in order to establish whether there was an ulterior motive to prosecute the plaintiff by the third named defendant as alleged, and/or to what extent the DPP was involved in that decision.

11 It is further pleaded that if the DPP did not direct on the matter, this would directly controvert the representations made by the third named defendant and demonstrate bad faith in the defence of the proceedings.

12 The defendants delivered a Defence on 18 ^th November 2014.

DISCOVERY

13 On foot of exchanges seeking voluntary discovery, the matter ultimately came on for hearing before the High Court (Moriarty J.) on 25 ^th July 2016 when it was fully contested and on 27 ^th July 2016 an Order was made by Moriarty J. directing discovery to be made in the manner set out above.

14 On 4 ^th November 2016 the defendants' affidavit for discovery was sworn and a number of documents were discovered.

15 The matter came before the High Court in or around March 2024 and further directions were made to file further affidavits in the matter.

16 Subsequently, an affidavit was sworn by Superintendent John Finucane on 24 ^th June 2024 and by Sandra Manthe, who is a solicitor in the judicial review section of the Office of the Director of Public Prosecutions, on 26 ^th June 2024 and a replying affidavit on behalf of the plaintiff was sworn by James McSweeney solicitor on 24 ^th October 2024, where he exhibited a letter of 10 ^th May 2024.

Documentation over which privilege is claimed

17 In an affidavit dated 28 ^th November 2023, Superintendent John Finucane swore an affidavit as to documents.

18 At paragraph 9 of that affidavit, Superintendent Finucane avers that the defendants object to producing the documents set forth in the Second Part of the First Schedule and asserts public interest privilege and legal advice/professional privilege over those documents.

19 The parties agree that the issue in this application therefore relates to the following documents which are listed from numbers 92 to 109 under the sub-heading “ Public Interest privilege and Legal Advice Privilege” and the document listed at number 110 under the sub-heading “ Public Interest Privilege” in the First Schedule, Second Part to the affidavit of Superintendent John Finucane dated 28 ^th November 2023.

Public Interest Privilege and Legal Advice Privilege

Document No. Date Des...