Legal Advice & Privilege

Cases

McMullen v Kennedy

[2008] I.E.S.C. 69

JUDGMENT of Mr. Justice Fennelly delivered the 17th day of December, 2008.

1. This is an appeal from a judgment of Murphy J in the High Court refusing the application of the appellant for inspection of documents discovered in the second part of the first schedule of discovery, in respect of which legal professional privilege is claimed.

2. This matter occurs in the context of a long-running saga of litigation involving the plaintiff and a number of other parties including two firms of solicitors and a barrister (since deceased). The history of that litigation can be found in my judgment in McMullen v McGinley [2005] 2 IR 445. Macken J also outlines it in some detail in the judgment she is about to deliver.

3. In the present proceedings the appellant sues a firm of solicitors, Giles J Kennedy & Co (hereinafter “the defendant”). The action, as is explained in the statement of claim, arises out of an action for damages for negligence brought by the appellant against his former solicitors, Kent, Carty & Co. The appellant’s complaint in that action was that he had been led to accept a settlement of earlier litigation on the understanding that, if dissatisfied, he could resume and continue with the action. The settlement provided for “liberty to apply.” When he sought to re-enter the proceedings, it was held that this did not give him “liberty to re-enter.”

4. The plaintiff failed in the action against the solicitors, who had acted for him at the time of the settlement, Kent, Carty & Co. Carroll J held that the solicitors had not been at fault. Rather, they had relied on counsel, the late Mr Noel Clancy. Mr Clancy gave evidence in the action on behalf of Kent, Carty & Co and accepted responsibility. The decision of Carroll J was upheld by this Court on appeal.

5. The plaintiff’s subsequent action against Mr Clancy also failed for reasons given in the judgment of this Court in McMullen v McGinley, cited above.

6. The defendant acted for Kent, Carty & Co in their defence of the negligence claim against them. In the course of his handling of the claim, he made a report in the form of a letter dated 17th May, 1989 to the underwriters. That letter, which ran to seven pages, contained a paragraph which is the essence of the plaintiff’s claim in the present proceedings. It reads as follows:
“On Friday, the 28th April, 1989, our Mr. Kennedy took the opportunity to have an unofficial without prejudice word with Mr Clancy. He advised Mr Clancy as to what was happening to assess Mr Clancy’s attitude. Mr Clancy advised that as far as he was concerned, the claimant did quite well and he would be in a position to give evidence that the claimant was advised of the situation. We were aware, at the time of our discussion, that Mr Clancy was acting for the claimant instructed by Messrs. O’Connors in respect of a rather serious motor accident. Accordingly, it would appear as if Mr Clancy may still have some influence over the claimant. As a tactic, we indicated to Mr Clancy that our client, the insured herein, wished to join him in the proceedings and we were not keen to do so. This ‘little chat’ might provide an opportunity and incentive to Mr Clancy to dissuade the claimant.”
7. The circumstances in which that letter, a communication between a solicitor and his client’s underwriters, came to be disclosed to the plaintiff are explained in my judgment in McMullen v McGinley. In essence, it formed part of a file of papers handed in to court by counsel in the course of the hearing before McGuinness J of the plaintiff’s action against Mr Clancy. The letter was not read by the judge and was not part of the evidence in those proceedings. The file of which it had become part was handed in error to the appellant at the end of the hearing. The appellant sought to introduce it into evidence on the hearing of the appeal in that case. That application was refused for reasons explained in my judgment in that case.

8. In his statement of claim in the present action, the appellant refers to that letter and quotes the above paragraph. He goes on to plead that the defendant “never varied the tryst he had obtained from Mr Clancy…” He refers to a statement of counsel for Kent Carty & Co in this Court at the hearing of the appeal in that case that “he doubted if he could have succeeded in resisting the complaint of [the appellant] without the evidence of Mr Clancy.” The statement of claim describes the letter from the defendant as “graphic and disturbing.” The plaintiff seeks:
“A declaration that contrary to Law, Natural Justice and the Right of Access to the Courts The Defendant acted improperly in putting to the Plaintiff’s Counsel “Incentives” to ensure by underhand, deceitful and coercive means that the said Counsel, Mr Clancy, complied in the giving of privileged testimony against his Lay Client, The Plaintiff, herein (whether or not the said Evidence is deemed to have been true).”
9. The plaintiff also claims damages under a number of headings:
a. Unlawful and improper interference in the just resolution of a of a well set out claim in Negligence in a matter which in normal circumstances is well within the day to day knowledge of a qualified practitioner.

b. Damages and or punitive Damages for engaging in improper manipulation of Evidence which should not have been given in the manner in which it was or not at all, to the complete detriment of the Plaintiff and the due and apposite resolution of a Civil Claim in Negligence.

c. Damages for entering into a conspiracy which as an Officer of the Court and a Practitioner of Law and as an Agent for his Clients’ Underwriters/Insurers, (Admiral Ireland), the Defendant would positively have been fully aware to be a dangerous and manipulative arrangement.

d. Damages/costs and expenses incurred as a direct result of the said interference; these to include the Costs of the Plaintiff’s own solicitors who brought the Action against Kent Carty, namely Collins Crowley and Co. together with the Taxed Bills of Costs which the Defendant is presently using as a threat of Bankruptcy as against this Plaintiff.

e. Damages for the distress and shame heaped upon this Plaintiff in losing his Action against his former Lawyers, in whom he had placed such trust, the extreme worry of being threatened daily with a Hearing in Bankruptcy by his Defendant with his Bills, which this Defendant was at all times fully aware had been attained fraudulently and with the unfair advantage of the knowledge that as early as May 1989 the compliance of the Plaintiff’s former Counsel, Mr. Clancy, had been achieved with “little chats”, “incentives”, and improper coercion.

f. General Damages for the complete disruption of the Plaintiff’s life and well being.
10. The entire of the plaintiff’s claim, therefore, is based on the contention that the defendant improperly sought to influence the outcome of his negligence action against Kent Carty & Co by influencing Mr Clancy to give evidence in their defence and that the evidence he would give would accept that he, Mr Clancy, rather than the solicitors were responsible for the error in the settlement document.

11. By an order of 18th October 2001, the High Court (O’Caoimh J) struck out the appellant’s present claim. By an order of 27th July 2005, this Court allowed the appellant’s appeal against that order. The appellant was allowed to proceed with his claim.
12. On 6th July 2006, the Master made an order directing the defendant to make discovery of the following documents:

1. The Defendant’s litigation file in the proceedings in which he acted for Kent Carty
2. The Defendant’s letter to Admiral Ireland in May 1989 togther with any subsequent correspondence between the Defendant and Admiral Ireland concerning the content of same or of any follow up contact between the Defendant and Mr Clancy
3. Any document recording the communication by the Defendant of all or any part of the said letter (whether by letter or conversation) to any person other than Mr Clancy prior to July 1999
4. Any correspondence or memoranda concerning evidence to be adduced on behalf of Kent Cart at the hearing in May 1992

13. The Defendant’s affidavit of discovery was sworn on 11th October 2006. The second part of the first schedule to the affidavit lists documents 162 to 491 under the description:
“Letters, drafts and memorandum made prepared on a confidential Solicitor/ Client basis during the preparation and defence of the proceedings High Court Proceedings, Michael Colin Geoffrey McMullen – Hugh A. Carty, John P. Carty, Pamela Madigan and Rocca Caira practising as Kent Carty & Company, Solicitors, cases for the opinion of counsel, opinions of Counsel and instructions to Counsel prepared and given in anticipation of and during the progress of this action.”
14. The defendant, in his affidavit, claims privilege in respect of these documents on the “grounds that same consist of privilege (sic) communications between myself and my client, Counsel and witnesses, Counsel’s advice on drafts prepared in connection with and for the purposes” of the plaintiff’s action against Kent Carty & Co.

15. It should be noted, however, that the letter of 17th May 1989 is expressly admitted on the face of the defence, though its contents are not admitted. Murphy J ordered inspection of that document. The defendant has withdrawn its appeal against that order. Thus, that document is available to the plaintiff insofar as discovery makes it so.

16. By notice of motion dated 9th March 2007, the plaintiff sought full and unimpeded access to all the documents listed in the first part of the second schedule. In his grounding affidavit, referred to the letter of 17th May 1989. He said that it confirmed his “worst fears that pressure and threats had been applied to his counsel ro give evidence at all and indeed the evidence which he had averred.” He continued:
“When Mr Kennedy met Mr Clancy in April 1989…..Mr Clancy was still in your deponent’s employ and for Mr Clancy to agree to act against his Client’s interests and in fact give a version of the events in 1985, though accepted in Primary Evidence in the High Court by Ms. Justice Mella Carroll, was entirely new to your Deponent, would per se indicate coercion.”
17. In the same affidavit, as in his argument before the High Court and this Court the Plaintiff maintained that there is an “irreconcilable conflict” between the evidence given by both Ms Pamela Madigan and Mr Carty and the contents of the privileged section of the affidavit of discovery.

18. Murphy J held that no basis for fraud or illegality or for a claim based on a conspiracy or arrangement had been established. He held that privilege had been waived in respect of the letter of 17th May 1989. Otherwise, he upheld the claim of privilege. Before ruling finally, he inspected three documents which appeared to be connected with the letter of 17th May. He found no evidence of undue influence, improper incentives and/or coercion to induce the plaintiff’s counsel to collaborate or undertake to give evidence in the action against Kent Carty & Co.

19. The essence of the case for the appellant on this appeal is that he has produced evidence that privilege is being used to hide and cover up unlawful and, as he says “nefarious activities.” Those activities are very clearly specified. He says that Mr Clancy, to his own total surprise, gave evidence against him in the negligence action brought by him against Kent Carty & Co. That evidence defeated his claim. It was procured by the actions of the defendant, who conspired and agreed with Mr Clancy or offered incentives to or brought pressure to bear on Mr Clancy to give that evidence. That is the gist of his action.

20. In support of his application to be allowed to inspect otherwise privileged documents, he relied in essence on the existence of an irreconcilable conflict between the evidence given respectively by Hugh A. Carty and Pamela Madigan in the action brought by the plaintiff against Mr Clancy. It was the plaintiff who called these witnesses. The plaintiff asked Ms Madigan whether she had at any stage spoken or sought to influence the testimony that Mr Clancy was giving. She answered: “At no stage did I speak with Mr Clancy” and that she had had “no contact with Mr Clancy.” Mr Carty was asked whether he was aware of any attempt to get Mr Clancy to give evidence in a particular way that was favourable to his office. He answered:
“I wouldn’t seek, nor do I believe would Mr Clancy make any effort if I did seek, to assist me in that…….There is no doubt that I at no stage and I would know, nor did anybody in my office, ever contrive to get Mr Clancy to do anything. If Mr Clancy gave evidence I would expect he wopuld give truthful evidence and I have little doubt that he did.”
21. When asked whether he had discussed the professional negligence action against Kent Carty, he replied: “Never at any stage.”

22. The irreconcilable conflict to which the appellant refers is between that sworn evidence and the contents of the privileged section of the affidavit of discovery. He says that the items as described show that there were at least twenty nine contacts between the defendant or his office on the one hand and Kent Carty & Co on the other. He points very specifically to two items numbered 324 and 325 both dated 28/04/89. No 324 is described as: “Att. Noel Clancy.” No 325 is described as “Att. Pamela Madigan.” It should be noted that 28th April 1989 is the date of the conversation between Mr Kennedy and Mr Clancy, as recorded in the letter of 17th May 1989. That letter does not suggest that Ms Madigan was party to the conversation.

23. At this point, it is important to note that the “irreconcilable conflict” to which the appellant refers is based essentially on a suggestion that the evidence of both Ms Madigan and Mr Carty was false and untruthful. Neither of those persons is party to or on notice of the present application. Hence they have no opportunity to reply to these serious allegations that they gave perjured evidence. Even more pertinent is the fact that neither the Plenary Summons nor the statement of claim in the action allege that either of these persons were party to or privy to the acts alleged against the defendant.

Privilege

24. It is not contested, nor could it be, that the documents listed in the first part of the second schedule are the subject of legal professional privilege, for the very reasons given in the description given to them in the affidavit od discovery. The context is somewhat different from the normal situation, where provilege is claimed in respect of documents generated in the subject litigation. Here they came into existence in earlier litigation in which the solicitor, who is now the defendant, acted for former clients.

25. It follows that the privilege belongs to the former clients, not the solicitor. Neither Kent Carty & Co nor any of the partners in that firm are on notice of this application. In my view, the Court should not make any order impinging on the rights of those parties without hearing them. However, I believe that the present appeal may be dismissed on another basis.

26. Finlay C.J. in his judgment in Smurfit Paribas v A.A.B. Export Finance [1990] 1 I.R. 469 at 476 identified the purpose and object of legal professional privilege as being to satisfy “the requirement of the superior interest of the common good in the proper conduct of litigation which justified the immunity of communications from discovery in so far as they were made for the purpose of litigation as being the desirability in that good of the correct and efficient trial of actions by the courts.”

27. The decision of this Court in Fyffes plc v D.C.C. plc and others [2005] 1 IR 59 approved the dictum of Lord Bingham C.J. in Paragon Finance v. Freshfields [1999] 1 WLR 1183, at p. 1188:-
“The nature and basis of legal professional privilege has been often and authoritatively expounded … At its root lies the obligation of confidence which a legal adviser owes to his client in relation to any confidential professional communication passing between them. For readily intelligible reasons of public policy the law has, however, accorded to such communications a degree of protection denied to communications, however confidential, between clients and other professional advisers. Save where client and legal adviser have abused their confidential relationship to facilitate crime or fraud, theprotection is absolute unless the client (whose privilege it is) waives it, whether expressly or impliedly.” (Emphasis added).
28. The Court has been referred to the decision of O’Sullivan J in Crawford v Treacy [1999] 2 IR 171, where the headnote refers to “moral turpitude.” It suffices, for present purposes to restate the general proposition that privilege cannot be permitted to cover up crime or fraud. I have no difficulty in accepting that an agreement or conspiracy whereby the defendant, the late Mr Clancy and the partners in Kent Carty & Co agreed to procure the giving of false evidence by Mr Clancy would be illegal and that legal professional privilege cannot conceivably be used to prevent an affected party from having access to documents tending to prove its existence.

29. In my view, the appellant has not been able to point to any evidence whatsoever in support of such a contention. I need hardly repeat that the content of Mr Kennedy’s letter suggests improper behaviour on his part. The appellant has drawn the attention of the Court to remarks made to that effect by members of this Court at earlier hearings. That misbehaviour appeared to consist, however, in seeking to induce Mr Clancy to persuade his client (the present appellant) to withdraw his claim against Kent Carty & Co by threatening him with the possibility of being joined himself as a party to the action. It does not lend any support to the suggestion made by Mr McMullen on the present appeal that the defendant was party with Ms Madigan and Mr Carty to an attempt to influence Mr Clancy as to the content of the evidence he would give in the action. As I have already stated, the appellant makes no such allegation against either Ms Madigan or Mr Carty in his pleadings. He has given them no notice of his intention of doing so in the course of the present application or of his wish to encroach on the legal professional privilege which is theirs. Nonetheless, the central plank of his argument before this Court on the hearing of the appeal was that there was such conflict between the evidence given by those two persons in the course of the earlier High Court proceedings and the contents of the affidavit of discovery that their evidence was false.

30. In my opinion, the appellant has come nowhere close to establishing that proposition.

31. I would dismiss the appeal.

 

Tromso Sparebank v Beirne and Ors (No. 2)

[1989] ILRM 257
Costello J.

An order for discovery was made in this action on 10 February 1987. The affidavit of discovery of the plaintiff bank was sworn on 29 April 1987 by Mr Odd Simonsen. The affidavit of discovery of the fourth-named defendant, the Northern Bank Ltd, was sworn on 18 May 1987 by John Francis Brennan, the general manager of the Northern Bank Ltd.

The Northern Bank Ltd, has applied by way of two motions to have, firstly, the plaintiff bank produce for inspection certain of the documents in respect of which privilege is claimed in the affidavit of Mr Simonsen and, secondly, for further and better discovery of certain documents alleged to have been omitted from his affidavit. The plaintiff bank has applied by motion for an order for the production for inspection of certain documents in the affidavit of Mr Brennan in respect of which it is claimed that privilege was wrongly sought.

In order to deal with the issues which arise in these three motions, I should briefly summarise certain of the salient facts. The plaintiff bank is a savings bank carrying on business in Tromso, Norway. The plaintiff bank has a customer called Brodrene Johnsen Alvestad, which was engaged in the sale of fish products in Norway and abroad. At the end of 1985 Alvestad was approached by a Mr Grimson, now one of the defendants in this action, who told them that he could arrange for the sale of their products and for finance for the sale. A meeting between Mr Grimson and representatives of Alvestad took place in London in December 1985, and a further meeting took place in January 1986 which was attended by representatives of the plaintiff bank. Mr Grimson then indicated that the business could be effected by means of letters of credit or by a bank guarantee. Later, and particularly in March of that year, he confirmed that a Mr Beirne, who is the first-named defendant in these proceedings, could arrange the finance.

The transaction was a very large one involving the sale of dried fish to Nigeria at a consideration of over £21 million. As the negotiations developed, it was agreed that there would be three promissory notes made by Mr Beirne which would be endorsed by a Mr Keaveney, the manager of the branch of the Northern Bank Ltd in Carrick-on-Shannon. During these negotiations Mr Keaveney was contacted by the plaintiff bank, and in the course of discussions he spoke of the honesty and integrity of Mr Beirne and confirmed his view that Mr Beirne had sufficient funds to cover the transaction.

On 18 March, a representative of Alvestad went to Carrick-on-Shannon with Mr Grimson and Mr Forde, the second-named defendant in these proceedings. They were conveyed to Carrick-on-Shannon by Rolls Royce and by helicopter and landed on the grounds of a large house near Carrick-on-Shannon which was said to be part of the estate owned by Mr Beirne. At this meeting in Carrick-on-Shannon, Mr Keaveney, it is alleged, on behalf of the Northern Bank Ltd, endorsed the first promissory note for £7,090,000, which was that day brought to London and there signed by Mr Beirne and transferred to the plaintiff bank. A second promissory note for £4,755,000 was executed by Mr Beirne and endorsed by Mr Keaveney in London on 5 May 1986 and transferred to the plaintiff bank. The execution of the third promissory note was not proceeded with, the authority of Mr Keaveney having been called in question and the bona fides of the whole transaction having been questioned. The first two promissory notes were later presented for payment and dishonoured.

The plaintiff bank’s claim against the Northern Bank Ltd, as endorser of the two promissory notes, is as holder in due course or, alternatively, as holder for value of both promissory notes. In addition, the plaintiff bank claims that Mr Keaveney made representations to the plaintiff bank concerning the honesty and integrity of Mr Beirne, that these were false representations and that the plaintiff bank entered into the transaction on foot of the representations. The plaintiff bank claims damages for fraud or, in the alternative, damages for negligent misrepresentation. Furthermore, damages for negligence and breach of duty of care are claimed, based upon the Northern Bank Ltd’s employment of Mr Keaveney at a time when it is said that his honesty was suspect and based upon an allegation of their failure to take steps to ensure that Mr Keaveney complied with the bank’s internal procedures. The defence of the Northern Bank Ltd raises a great number of issues. It puts the plaintiff on proof of the validity of the promissory notes. It is denied that the Northern Bank Ltd holds the promissory notes in good faith and pleads that the plaintiff bank had notice of the defects in the title of Alvestad, and when the transaction to it took place and denies negligence and pleads that if there was negligence the plaintiff bank was guilty of contributory negligence.

I turn now to the first motion of the defendant, that is, an application for an order for the production and inspection of certain documents. The first part of this motion relates to documents in Section A, Part II of the First Schedule of Mr Odd Simonsen’s affidavit. These are: (1) copies of documents, the originals of which are in the possession of Alvestad; (2) documents which relate to the transaction by which the fish was sold and the promissory notes executed and endorsed; (3) the originals of copy documents which are not privileged; and (4) copies of documents which were obtained by the plaintiff bank from their customer Alvestad for the purpose of supplying them to their legal advisers so that they could obtain legal advice on them in respect of these present proceedings.

Privilege is claimed for these documents and in support of that claim reliance is placed on a statement in the White Book ( the Supreme Court Practice ), 1988 ed., para.24-5-10, and the decisions of the Court of Appeal in England on which the statement in the White Book is based. The statement is to the effect that original or copy documents obtained or prepared by a party for the purpose of obtaining a solicitor’s advice in view of pending or anticipated proceedings are privileged. The cases on which that statement is based are The Palermo (1883) 9 PD 6 and Watson v Cammell Laird & Co Ltd [1959] 2 All ER 757. The defendant submits that the principle in the White Book is too wide, and that the decisions which established it should not be followed. The defendant submits that no privilege should attach to copies of documents which themselves are not privileged, even if the copies were obtained for the purpose of obtaining legal advice. In support of these submissions Mr Cooke SC has referred me to the views of Lord Denning MR in Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223, at p.244. In the course of his judgment the former Master of the Rolls referred to the two decisions to which I have referred and the principle which is to be extracted from them:

If the original document is privileged (as having come originally into existence with the dominant purpose aforesaid), so also is any copy made by the solicitor. But, if the original is not privileged, a copy of it also is not privileged — even though it was made by a solicitor for the purpose of the litigation: see Chadwick v Bowman (1886) 16 QBD 561. There are some cases which appear to give a privilege to copies on their own account, even when the originals are not privileged. They range from The Palermo (1883) 9 PD 6 down to Watson v Cammell Laird & Co (Shipbuilders and Engineers) Ltd [1959] 1 WLR 702. But these cases are suspect. They were adversely commented on in the Sixteenth Report of the Law Reform Committee on Privilege in Civil Proceedings (1967) (Cmnd.3472). Since Waugh’s case [1980] AC 521 it is open to us to reconsider them. In my opinion, if the original is not privileged, neither is a copy made by the solicitor privileged. For this simple reason, that the original (not being privileged) can be brought into court under a subpoena duces tecum and put in evidence at the trial. By making the copy discoverable, we only give accelerated production to the document itself. This was pointed out by Winn LJ’s committee in the Report of the Committee on Personal Injuries Litigation in July 1968 (Cmnd.3691), para.304.

In reply to the views of the former Master of the Rolls, Mr Kelly SC on behalf of the plaintiff bank, referred me to a recent decision R. v Board of Inland Revenue, ex p. Goldberg [1988] 3 WLR 522, which expressly disapproved of the comments of the Master of the Rolls.

In this situation what should the attitude of the High Court in Ireland be? I think the High Court should be slow to refuse to follow a principle established in English law since 1883. But if high legal authority in England questions the validity of the principle so that it appears it may well be changed either by judicial decision or by the legislature, then it seemed to him that the Irish court was justified in not following it, should it consider it to be erroneous.

The conclusion I have come to is this: I see no reason why legal professional privilege should apply to the copy documents with which this case is concerned. Legal professional privilege primarily exists so that a litigant can have recourse to his legal advisers in circumstances which enable him to have complete confidence that the communications made to him and from him will be kept secret. It is well established that this privilege extends to documents which come into existence after litigation is commenced, either for the purpose of obtaining or giving legal advice: see Anderson v Bank of British Columbia (1876) 2 Ch D 644, at p.649. But I cannot see that the protection of the interests of a litigant requires the privilege to be extended to copies of documents which came into existence prior to the contemplation of litigation, documents which are themselves not privileged and which the other side could probably inspect as a result of a third party discovery order and which they could have produced at the trial pursuant to a subpoena duces tecum. The rules of court are designed to further the rules of justice and they should be construed by the court so that they assist in the achievement of this end. If inspection of documents cannot conceivably injure the interests of one party and may well assist the other to ascertain the true facts of the case prior to trial I do not think that the court should put a gloss on the rules which would prevent this result and so I will order inspection of the documents referred to in Section A.

I now turn to the second part of this motion, being an application on the part of the Northern Bank Ltd for an order for production for inspection of the documents set out in Section B, Part II of the First Schedule of Mr Odd Simonsen’s affidavit of discovery. This section comprises three letters, Nos.98 to 100 in the affidavit. Two of these letters are between the legal advisers of the plaintiff bank to one another and one is between the legal advisers of the plaintiff bank and the plaintiff bank itself. Quite clearly, prima facie these letters would be covered by legal professional privilege. They came into existence for the purpose of advising the plaintiff bank in relation to the transaction which is now in suit, and the privilege exists even though litigation was not contemplated when they came into existence. The defendant’s argument is that the privilege had been waived because the plaintiff bank had alleged in its pleadings that it is the holder of the notes in good faith; and that as this is now an issue in the proceedings, the steps taken, including the legal advice taken when obtaining the notes, becomes relevant and the privilege is waived.

I cannot accept that this is so. It seems to me that there was not a waiver of the privilege because of the plea that has been made in these proceedings. It is important, it seems to me, to maintain the principle of legal professional privilege and something much more definite must be done than merely pleading the plaintiff’s case on which the action is based. It seems to me, therefore, that I should not allow inspection of these documents because they are privileged. I will allow inspection of all documents in Section A, Part 2 of the First Schedule but not the documents in Section B.

I now turn to the defendant’s second motion which is for further and better discovery. The documents that are the subject matter of this application are set out in an affidavit sworn by Mr Lawson on 15 March 1988 in paragraph 11 and particularised in greater detail in the affidavits of Mr Hallan and Mr Borgerson of 21 November 1988. Mr Lawson refers to three classes of documents. The first class of documents referred to relate to dealings between the plaintiff bank and its customer Alvestad prior to the transaction with Messrs Grimson, Forde and Beirne. I do not think that these documents are relevant to any of the issues that concern the court in this case. They are very peripheral to any issues that could arise and it seems to me that they are, strictly speaking, not relevant to any of them and I do not think that I should order discovery.

The second class of documents referred to in Mr Lawson’s affidavit relate to the plaintiff bank’s own involvement in the transaction in suit and took place between Alvestad and Messrs Grimson, Forde and Beirne. In the light of subsequent developments, it appears that the defendant bank were correct in their view that all documents had not been produced for inspection or had not been referred to in the affidavits of discovery, and a supplementary affidavit of discovery was sworn. I must, however, accept the averment now made that all documents relating to the matters to which I have just referred have now been discovered and so I cannot go behind this averment and order any further documents to be discovered.

However, this is not the situation in relation to the third class of documents referred to in Mr Lawson’s affidavit and more particularised in the affidavits of Mr Hallan and Mr Borgerson. These documents relate to the plaintiff bank’s internal procedures generally and in particular to its internal records relating to the promissory notes. The plaintiff bank has not denied that it has such documents, but has denied their relevance. The affidavits of Mr Hallan and Mr Borgerson, whose evidence I accept, make clear that it is highly probable that either the Board of the plaintiff bank, or a committee of the plaintiff bank, must have sanctioned this transaction either prospectively or retrospectively. It is highly probable that minutes of such decisions exist. It is also highly probable that written submissions to the committee requesting the making of submissions for sanction of the engagement which was subsequently undertaken would also exist. It is probable that memoranda would have been prepared of the negotiations which took place and notes kept by the participants from January 1986 onwards. It is very possible that reports of these negotiations were kept. In addition, and this is another aspect of the case on which the plaintiff bank seeks discovery, it seems to me that the plaintiff bank would have written limits and details to establish which officers of the bank could bind the bank, and correct procedures to be followed when engagements over a certain size are entered into, and there should be records of the lending limits at different levels in the bank.

It seems to me that all these documents are relevant to the issues which I have to consider. The manner in which the bank became the holder of these promissory notes will have to be considered by the court. The knowledge of the bank of the alleged defect in title of Alvestad to the notes is in issue and the contributory negligence of the bank is also a matter that is in issue. It seems to me that the documents to which I have referred are relevant in respect of a number of the issues on the pleadings that have to be tried in this action.

Accordingly, I propose to order that the plaintiff bank discovers on oath: (1) the records of all meetings of its Board of Directors or committees established by the Board at which the transactions relating to the promissory notes the subject matter of the action were discussed; (2) submissions or written applications to the Board or any committees established by the Board relating to the transactions in suit; (3) memoranda or reports written by the staff of the plaintiff bank leading to negotiations and to the execution of the promissory notes and their alleged endorsement by the bank or after that had been concluded and before proceedings were contemplated; (4) any notes made by members of the staff of the Bank or diary entries made by members of the staff of the bank; (5) written instructions relating to the procedures to be adopted when members of the staff of the bank entered into engagements; (6) all records in the possession of the plaintiff bank in or about March 1986 relating to instructions which the bank in the United Kingdom or in the Republic of Ireland maintained relating to the procedures to be adopted when members of their staff entered into engagements on the bank’s behalf.

I turn now to the plaintiff’s motion. This is an application for the production for inspection of certain documents in respect of which it is claimed that privilege was wrongly sought. The notice of motion of 29 March 1988 was grounded on an affidavit of Miss Helen Collins which refers specifically, firstly, to a report to which reference was made in a letter of 6 April 1987 from Mr Keaveney’s solicitor to the Northern Bank Ltd. This report was not disclosed in the affidavit of discovery and it does appear that it was a document which came into existence either after the institution of these proceedings or after they were contemplated, and it was prepared by two members of the staff of the defendant bank after an investigation into Mr Keaveney’s role in the endorsement of the promissory note. The second claim that is made on this motion is to set aside the claim for privilege relating to correspondence between Mr Butler, the solicitor for Mr Keaveney, and the defendant bank which took place after 3 June 1986, the defendant bank having discovered correspondence previous to that date. My conclusions on this application are as follows.

Firstly, as to the claim for production for inspection of the report, Mr Brennan’s affidavit of 6 May 1988 states:

The report was commissioned following the discovery of the existence of three promissory notes allegedly bearing the signature of Eugene Keaveney, the manager of the Carrick-on- Shannon branch. At the time the said report was commissioned, the promissory notes and alleged endorsement thereof by Eugene Kennedy were the basis for the present claim by the plaintiffs against Northern Bank. The purpose of the said investigation was to create a report for the bank concerning the alleged promissory notes and their alleged endorsement by Eugene Keaveney so that the bank might fully defend the plaintiff’s claim. In the circumstances I say and believe that the said report was brought into existence for the purpose of fully informing Northern Bank of the circumstances in which the promissory notes were created and allegedly endorsed by Eugene Keaveney so that these proceedings may be defended.

The plaintiff bank suggests that notwithstanding this evidence the court should require discovery of the report and order its inspection. In support of this submission the plaintiff bank relies on the recent decision of the House of Lords in Waugh v British Railways Board [1980] AC 521. This case was concerned with an internal inquiry report of an investigation which was held following an accident. It is clear from the report and the opinions that the report in suit was prepared for a dual purpose: (1) for the purpose of the railway operations and safety procedures themselves; and (2) for the purpose of obtaining legal advice (see the opinion of Lord Wilberforce at p.531). The decision was to the effect that, to allow the claim of privilege which had been raised to succeed, it would have to be established that the purpose of submitting the report to the legal advisers of the railway company must have been the dominant purpose. As it was not established that this had been the dominant purpose for obtaining the report, privilege was not allowed.

I find myself in agreement with the submissions made by Mr Cooke SC on this aspect of the case. I accept the point made by Mr Kelly SC that there is a difference of emphasis in the correspondence which led to this motion and the actual evidence now before the court. However, I must act on the evidence in Mr Brennan’s affidavit, and from this it is clear that there were not two purposes involved in obtaining the report. The purpose of obtaining the report was as stated in paragraph 5 of the affidavit to which I have referred and I think it is clearly covered by the plea of legal professional privilege and it should prevail.

The second part of this application relates to the correspondence to which I have referred. Mr Brennan’s evidence on this part of the case is as follows:

As regards correspondence or records of telephone or other conversations with Mr M.F. Butler, solicitor for Eugene Keaveney, after 3 June 1986, again this documentation related solely to the bank’s attempts to prepare themselves to defend the present claim and for the purposes of fully advising their lawyers as to the circumstances surrounding the matters which have given rise to the plaintiff’s claim, so that the bank may in turn be advised as to their position. I am advised and believe that such correspondence is privileged.

Again, in the light of this statement I think that the claim for legal professional privilege has been made out. This conclusion is supported by what Mr Cooke SC has told me in submissions, which is not on affidavit but which could be put on affidavit, namely, that the correspondence includes draft statements of evidence for Mr Keaveney’s consideration.

In these circumstances I must refuse the order sought on the plaintiff bank’s motion.

Smurfit Paribas Bank Ltd v AAB Export Finance Ltd

 

[1990] ILRM 588 Costello J.
The issue on this motion is whether the defendants’ claim to legal professional privilege in respect of communications passing between them and their solicitors is carried in law. It arises in the following circumstances.

The defendants agreed to lend a substantial sum of money to a company called Peter Simms Group Ltd and the company agreed to secure the loan by charging its assets in the defendants’ favour. At the same time the plaintiffs agreed to lend the company a substantial sum of money and the company likewise had agreed to secure the loan by charging its assets in the plaintiffs’ favour. The plaintiffs’ claim in these proceedings is that they entered into an agreement with the defendants in the month of December 1984 by which the defendants agreed that in consideration of the plaintiffs not taking any security from the company before 31 January 1985 the plaintiffs would be entitled to be paid out of the assets of the company the sum of £300,000 together with six months’ interest and banking charges in priority to any sums payable out of the assets of the company on foot of the defendants’ security. The defendants have denied the agreement and pleaded that if there was any such agreement it was not entered into for the consideration pleaded or any good consideration and that it was subject to an implied term that the plaintiffs would submit a draft deed of postponement within a reasonable time for the consideration of the defendants.

An order for discovery was made on 30 June 1987. The defendants’ discovery was made in an affidavit sworn on 11 March 1988. The plaintiffs applied by the motion I am now considering for an order requiring the defendants to discover correspondence and other instructions passing between the defendants and their solicitors in relation to the defendants’ floating charge which is in issue in these proceedings. Such documents in fact exist and are referred to in paragraph 5 of an affidavit of 17 January 1989 sworn in this motion, but the defendants say they are privileged. With the consent of the parties I have examined them to see whether this claim is justified.

The documents are (a) a letter of 20 November 1984 from the defendants’ solicitor to the defendants, (b) a telex of 22 November 1984 from the defendants to their solicitors, (c) a letter of 23 November 1984 from the defendants’ solicitors to the defendants, (d), (e) and (f) three telexes of 18 December 1984 passing between the defendants and their solicitors, (h) a telex of 15 January 1985 from the defendants’ solicitors to the defendants, (g) a copy of a telex of 3 January 1985 which was sent to the Bank of Ireland (a copy of which was sent to the defendants’ solicitors) and is clearly not subject to legal professional privilege.

All the documents to which I have referred are clearly relevant to the issues in the case. The parties are agreed that the general principle relating to legal professional privilege is that letters and other communications passing between a party and his solicitor are privileged provided they are and are sworn to be confidential and written to or by the solicitor in his professional capacity and for the purpose of legal advice or assistance for his client. But the plaintiffs say that not all communications passing between a solicitor and his client are privileged when litigation is neither in existence or contemplated and I was referred to Smith-Bird v Blower [1939] 2 All ER 406 in which a letter written to his solicitor by a defendant not for the purpose of obtaining legal advice but in an answer to an inquiry as to whether he had agreed to sell the property in question was not privileged.

The documents to which I have referred (other than (g)) do not request and do not contain any legal advice about the proposed transaction. They contain references to the instructions which the defendants’ solicitors received from the defendants and further instructions and clarification of instructions given by the defendants to their solicitors. These instructions were given to enable the defendants’ solicitors draft the documentation necessary to complete the transaction which their client was entering into or to advise later on draft documents which other parties to the transaction might prepare for their consideration. I have come to the conclusion that they are not privileged from disclosure and inspection. (a) They do not request, and do not contain, any legal advice. (b) They contain no information or remarks that can be regarded as any way being confidential — they are statements of fact as to the transaction which the defendants indicate they wish to have completed by the drafting of the necessary legal documents.

The plaintiffs are therefore entitled to the order they seek. I should add that the telex of 15 January 1985 makes reference to a letter of the ‘2 inst.’ ( i.e. 2 January 1985) from the defendants to their solicitors. This is not referred to in the documents mentioned in paragraph 5 of the affidavit of 17 January 1989. Prima facie it would appear to be a document within the order to be made, but I will, if required, hear counsel on the matter.

SUPREME COURT
FINLAY CJ

(Walsh J concurring) delivered his judgment on 15 February 1990 saying: This is an appeal brought by the defendant against an order made in the High Court on 13 March 1989 by Costello J directing the further discovery of all correspondence or other instructions passing between the defendant and the solicitor then acting for the defendant in relation to the defendant’s floating charge which is in issue in these proceedings. The defendant had, upon the making of an original discovery in the case, claimed privilege for this correspondence and these other instructions.

The learned trial judge reserved judgment on the motion brought by the plaintiff for further discovery and then inspected the documents in respect of which the disputed claim for privilege had been made. Having done so, he came to the conclusion:

(a) That they did not request and did not contain any legal advice about the proposed transaction.

(b) That they contained references to the instructions which the defendant’s solicitors received from the defendant and further instructions and clarifications of instructions given by the defendant to the solicitors.

(c) That these instructions were given to enable the defendant’s solicitors to draft the documentation necessary to complete the transaction which their client was entering into or to advise later on draft documents which other parties to the transaction might prepare for their consideration.

Having reached these conclusions as to the nature of the documents concerned with which, having inspected the documents on the hearing of this appeal, I agree the learned trial judge then came to the conclusion that they were not privileged from disclosure and inspection on the following grounds.

(1) That they do not request and do not contain any legal advice.

(2) That they contain no information nor remarks that can be regarded as in any way being confidential.

(3) That they are statements of fact as to the transaction which the defendants indicate they wish to have completed by the drafting of the necessary legal documents. In reaching that conclusion he placed reliance upon the decision of Smith-Bird v Blower [1939] 2 All ER 406, in which a letter written to the solicitors by a defendant, not for the purpose of obtaining legal advice, but in answer to an inquiry as to whether he had agreed to sell the property in question, was not privileged.

The issues arising on this appeal
The issues which arise on this appeal raise important questions as to the principles underlying the claim of privilege properly applicable to communications between a client and his lawyers.

For the appellant it is contended that privilege attaches to any communication made for the purpose of obtaining either legal advice or legal assistance, irrespective of whether or not litigation is in existence or contemplated.

It is urged that no distinction can be supported by principle between a communication made for the purpose of obtaining legal advice and a communication made for the purpose of obtaining legal assistance.

It is further submitted on behalf of the appellants that no difference exists between the nature and scope of privilege applicable where litgation exists or is contemplated and where it does not.

For the respondent it is submitted that the principles laid down by the authorities support a restriction of privilege to communications made for the purpose of obtaining legal advice and do not support a privilege applicable to communications made for the purpose of obtaining legal assistance only. As an alternative submission it was urged on behalf of the respondents that even if this distinction was not of general application it certainly applied to communications made otherwise than for the purpose of or in contemplation of litigation and that the communications consisting of the documents and instructions in dispute in this case came within that category.

The decision
For the purpose of determining which of these conflicting submissions is correct in law it is, in my view, necessary to try and ascertain what the underlying principles of the doctrine of privilege of communications between a client and his lawyers are.

The existence of some such privilege would appear to have been clearly identified at common law from the early nineteenth century.

However, the question as to whether or not a party to litigation will be privileged to refuse to produce particular evidence is a matter within the sole competence of the courts: ‘Power to compel the attendance of witnesses and the production of evidence is an inherent part of the judicial power of government of the State and is the ultimate safeguard of justice in the State’ cf. Murphy v The Corporation of Dublin [1972] IR 215 at 233.

In the same case at p. 234 the court also held that it is for the courts to decide which is the superior interest in the circumstances of the particular case and to determine the matter of privilege from disclosure accordingly.

For a considerable period conflicting decisions appear to have been reached at common law as to whether a privilege for communications between a client and his lawyer applied only where litigation was in existence or in contemplation or whether it also applied in relation to communications seeking legal advice where no litigation existed or was in contemplation. Before that conflict of decision appears to have been firmly resolved Jessel MR in Anderson v The Bank of British Columbia (1876) 2 Ch D 644 stated what he believed to be the underlying principle in the following words:

The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent and that the communications he so makes to him should be kept secret unless with his consent (for it is his privilege and not the privilege of the confidential agent) that he should be enabled properly to conduct his litigation. That is the meaning of the rule.

I would adopt this statement as far as it goes as identifying the requirement of the superior interest of the common good in the proper conduct of litigation which justified the immunity of communications from discovery in so far as they were made for the purpose of litigation as being the desirability in that good of the correct and efficient trial of actions by the courts. In the case of Greenough v Gaskill (1833) 1 MY & K 98 which is usually accepted as the first identification of this particular type of privilege and which Jessel MR in the passage which I have just quoted is purporting to summarise Lord Brougham LC said, at p. 102 of the report:

… the protection would be insufficient if it only included communications more or less connected with judicial proceedings; for a person oftentimes requires the aid of professional advice upon the subject of his rights and his liabilities, with no reference to any particular litigation and without any other reference to litigation generally than all human affairs have, in so far as every transaction may, by possibilty, become the subject of judicial inquiry.

It is clear that this view of the extent of privilege as being outside actual or contemplated litigation eventually became accepted as a common and unanimous view. In the course of his judgment in the Court of Appeal in Minter v Priest [1929] 1 KB 655 Lawrence LJ stated as follows:

It has long since been established that it is not necessary for the purpose of obtaining protection from disclosure that the communications should be made either during or relating to an actual or expected litigation and that it is sufficient that they pass as professional communications in a professional capacity.

The same view was expressed in that court by Greer LJ where he stated:

After some difference of opinion it has been established that the privilege is not confined to the conduct of litigation or to advice obtained for the purposes of existing or contemplated litigation. It applies to communications between client and solicitor in respect of all matters that come within the ordinary scope of professional employment.

Although this decision of the Court of Appeal was reversed by the House of Lords, that reversal would appear to have been based not on any difference as to the scope of the privilege applicable to communications between a client and solicitor but rather as to the question as to whether the occasion of the particular communication arising in Minter v Priest was a communication between a client and a solicitor acting as such. Lord Buckmaster LJ with whom Tankerton LJ agreed, in the course of his judgment in that case, reported at [1930] AC 558, spoke of the existence of the privilege in wide terms as being necessary for the protection of society. Lord Atkin in his speech in the same case would appear to have related a necessary confidential element in the communication between a solicitor and client which attracts privilege to the fact that it was a communication passing for the purpose of getting legal advice. His speech does not, however, seem to direct itself to the question as to whether there is a distinction to be made between legal advice and legal assistance. Some of the many decisions which have arisen with regard to questions of a claim of privilege for professional communications between solicitors and clients in the years between 1820 and the present, speak of the necessity for it to be the obtaining of legal advice and assistance and some speak of the necessity of obtaining legal advice. Some would appear to support a contention that it is sufficient if legal assistance other than advice only were sought.

The existence of a privilege or exemption from disclosure for communications made between a person and his lawyer clearly constitutes a potential restriction and diminution of the full disclosure both prior to and during the course of legal proceedings which in the interests of the common good is desirable for the purpose of ascertaining the truth and rendering justice. Such privilege should, therefore, in my view, only be granted by the courts in instances which have been identified as securing an objective which in the public interest in the proper conduct of the administration of justice can be said to outweigh the disadvantage arising from the restriction of disclosure of all the facts.

It is necessary to bear these general considerations in mind in attempting to ascertain the underlying principle which appears to have led to the expansion of the privilege for communications with a lawyer from cases of actual or contemplated litigation to cases of communications seeking legal advice and/or legal assistance other than advice.

The decided cases do not appear to me to provide any satisfactory explanation of this expansion.

For the expansion to be justified, having regard to the considerations which I have just set out in this judgment, it would appear necessary that it should be closely and proximately linked to the conduct of litigation and the function of administering justice in the courts.

Where a person seeks or obtains legal advice there are good reasons to believe that he necessarily enters the area of potential litigation. The necessity to obtain legal advice would in broad terms appear to envisage the possibility of a legal challenge or query as to the correctness or effectiveness of some step which a person is contemplating. Whether such query or challenge develops or not, it is clear that a person is then entering the area of possible litigation.

Having regard to those considerations I accept that where it is established that a communication was made between a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice, whether at the initiation of the client or the lawyer, that communication made on such an occasion should in general be privileged or exempt from disclosure, except with the consent of the client.

Similar considerations do not, however, it seems to me, apply to communications made to a lawyer for the purpose of obtaining his legal assistance other than advice. There are many tasks carried out by a lawyer for his client, and properly within the legal sphere, other than the giving of advice, which could not be said to contain any real relationship with the area of potential litigation. For such communications there does not appear to me to be any sufficient public interest or feature of the common good to be secured or protected which could justify an exemption from disclosure.

Accepting as I do, therefore, the inferences drawn by the learned trial judge from his perusal of the documents which he was entitled to and indeed bound to carry out, I also find myself in agreement with the principles of law applied by him to the inferences thus raised and accordingly would affirm his decision and dismiss this appeal.

I have summarised in this judgment the arguments as they were presented to this Court on behalf of the appellant and the respondent. No general challenge to the overall concept of privilege for communications in certain circumstances between persons and their lawyers was raised and no issue arose or was considered concerning the exceptions to such privilege such as where the purpose of seeking legal advice might be the commission of criminal or tortious acts. This judgment is, therefore, not intended to deal with any aspect of these problems.

McCARTHY J:

This appeal raises a procedural issue of importance touching upon the relationship between client and lawyer, the privilege that attaches to communications passing between them.

It is not questioned that a communication seeking or giving legal advice is, subject to one exception, privileged. The exception arises where the communication is part of a criminal or fraudulent act.

What then of communications that do not expressly seek or offer legal advice? In the High Court, Costello J examined the documents lettered (a) to (h). This he did with the consent of the parties; such consent was not necessary (Murphy v Corporation of Dublin [1972] IR 215, 235). Document (g) is a copy of a telex sent to the Bank of Ireland by the defendants; it happens that a copy was sent to the defendants’ solicitors; it is clearly not privileged. The other documents

do not request and do not contain any legal advice about the proposed transaction. They contain references to the instructions which the defendants’ solicitors received from the defendants and further instructions and clarification of instructions given by the defendants to their solicitors. These instructions were given to enable the defendants’ solicitors draft the documentation necessary to complete the transaction which their client was entering into or to advise later on draft documents which other parties to the transaction might prepare for their consideration (judgment of Costello J, 16 March 1989).

Costello J had earlier referred to the agreement between the parties that the general principle is that letters and other communications passing between a party and his solicitor are privileged provided they are and are sworn to be confidential and written to or by the solicitor in his professional capacity and for the purpose of legal advice or assistance for his client. The exception taken was on the basis that litigation was neither in existence nor contemplated. The larger question turns on the privilege claimed where the document neither seeks nor tenders advice but asks or offers assistance such as here in the drafting of legal documents. The notice of appeal identified the grounds of appeal as a challenge to the accuracy of the judge’s findings in respect of the contents of the communications, in particular his failing to hold that the documents contained requests for legal advice. No challenge was made to what, subject to the legal proceedings qualifications, may be described as the blanket privilege in contrast to the litigation privilege. In this Court, the defendants contend for a sole purpose test where there is not a litigation privilege — the sole purpose being the obtaining or giving of legal advice.

I postulate two contrasting situations:

(a) Correspondence passes between client and solicitor expressly seeking legal advice upon a transaction. In the course of that correspondence there are letters which are purely commercial.

(b) Correspondence dealing with matters purely commercial passes between solicitor and client — such as mentioned in the judgment of the Chief Justice. In the course of such correspondence a problem requiring legal advice is raised, not expressly by the client.

Is there to be a blanket rule in (a) and (b) or only in (a)? If I write to my solicitor asking him to draft a document which would be well within the competence of my financial adviser the solicitor has an obligation, both contractual and tortious, to advise on legal pitfalls (see Finlay v Murtagh [1979] IR 249). I leave aside considerations of the obligation of a financial adviser.

Let us postulate a further situation that might be inferred from the pleadings in the instant case. Paragraph 1 of the defence challenges the existence of the agreement, whilst pleading an implied term of any such agreement. Correspondence between the defendants and their solicitors in relation to the making of any such agreement is highly relevant to the issues in the action. Like correspondence passing between the defendants and other financial institutions would be, beyond argument, relevant and not privileged. Yet, it is said, there may be economy with or, indeed, concealment of the truth not because these communications sought or provided legal advice but because they might have given rise to legal advice. So be it, but they did not and until they did give rise to legal advice, I find no requirement of public policy, which is the foundation of the privilege, that warrants a blanket application of it.

S. 173 of the Companies Act 1963 provides:

Nothing in the foregoing provisions of this part of this Act shall require disclosure to the minister or to an inspector appointed by the minister — (a) by a solicitor of any privileged communication made to him in that capacity.

This section appears to recognize two possible situations — those of communications on the one hand privileged and on the other hand not privileged but both made to a solicitor in his capacity as such. It follows that there may be a communication made to a solicitor in such capacity which is not privileged. A section of a statute does not, save where expressly or by necessary implication it arises, affect the common law but it is indicative of the modern legislative approach. I join with the Chief Justice in stating that the question as to whether or not a party to litigation will be privileged to refuse to produce particular evidence is a matter within the sole competence of the courts. It follows that the courts have whatever power is necessary to examine any relevant documents, irrespective of the wishes of the parties, and to determine whether any communication, written or otherwise, between a party to litigation and any other person or body is privileged from disclosure.

In the instant case, the fundamental issue arises from the contrasting demands — candour by the client to his solicitor and the public interest in the true resolution of litigation. In my view communication of fact leading to the drafting of legal documents and requests for the preparation of such, albeit made to a solicitor, unless and until the same results in the provision of legal advice, is not privileged from disclosure.

I would, accordingly, dismiss this appeal.

Breathnach v Ireland (No. 3)

 

[1992] ILRM 755 Keane J.
The plaintiff by notice of motion dated 4 June 1991 asked the court to inspect certain documents in order to decide whether claims of privilege made in respect of them by the notice party were valid.

In the proceedings, the plaintiff claims damages for assault and battery, false imprisonment, intimidation, malicious prosecution and failure to vindicate his constitutional rights. The first named defendant is sued as being vicariously liable for the wrongful acts alleged against the remaining defendants, other than the second named defendant. Pleas of res judicata were raised in the defence by the defendants in respect of some of the averments in the statement of claim and by the plaintiff in relation to some of the pleas in the defence. The issues raised by these pleas were determined as preliminary issues by Lardner J and Blayney J. In the result, the plaintiff is estopped from litigating the issue raised by the plea of assault and battery and the defendants for their part are estopped from maintaining their denial that the plaintiff was wrongfully arrested and wrongfully detained for 48 hours as alleged in the statement of claim.

These proceedings are a sequel to criminal proceedings instituted by the notice party (hereafter ‘the DPP’) against the plaintiff and two others in which they were charged with stopping a mail train with intent to rob and stealing mail bags on 31 March 1976 at Sallins, Co. Kildare. The plaintiff was convicted by the Special Criminal Court on 13 December 1978 and sentenced to twelve years’ penal servitude, but on 22 May 1980 the Court of Criminal Appeal allowed the plaintiff’s appeal against the conviction and sentence. (Frewen: Judgments of the Court of Criminal Appeal , 1978–1983, p. 43). It appears from the judgment of the Court of Criminal Appeal that the only evidence against the plaintiff was confessions alleged to have been made by him while in garda custody. The Special Criminal Court rejected allegations of assault made at the trial against the third and fourth defendants and the Court of Criminal Appeal declined to interfere with the findings of the court of trial to that effect. The court did, however, conclude that the court of trial was not entitled to be satisfied beyond reasonable doubt that the statements made by the plaintiff were voluntarily made or that the manner in which they were made satisfied the basic requirements of fairness. It is on this basis that the determinations to which I have already referred have been made that the plaintiff is precluded from re-litigating the issue of assault and battery, but is not precluded from litigating issues relating to alleged false imprisonment, malicious prosecution and failure to vindicate his constitutional rights.

The plaintiff brought a motion for discovery against the DPP, requiring him to discover:

All records relating to communications between the third, fourth, fifth, sixth, seventh, eighth, ninth and tenth named defendants and any other members of An Garda Síochána concerning the arrest, detention and interrogation of the plaintiff at the Bridewell Garda Station in the months of March and April of 1976, which are, or have been, in the possession or power of the Director of Public Prosecutions.

In an affidavit as to documents sworn on 18 April 1991, Mr Michael Liddy, senior legal assistant to the DPP, deposed that he had in his possession or power a number of documents relating to the matters in question in the proceedings which were specified in the schedule. He claimed privilege, however, in respect of all the documents on a number of grounds and it is this claimed privilege which has led to the present motion.

In relation to the documents specified in the second part of the schedule, Mr Liddy stated that:

The objection is on the grounds that the disclosure of the said documents would be contrary to the public interest for the following reasons:

(1) the said documents were brought into existence for the purpose of communicating, in a confidential manner, with the office of the Director of Public Prosecutions for the purpose of informing the director and his staff of matters relevant to the exercise of his functions in the initiation of prosecutions against suspected offenders;

(2) that the said communications were made by members of An Garda Síochána in circumstances where they believed, and where it was reasonable for them to believe, that the communications were, and would remain, confidential between the office of the Director of Public Prosecutions and the gardaí in question;

(3) that the public interest requires the upholding of the confidentiality of such communications on the ground that it is in the public interest to maintain the confidentiality of such communications for the purpose of ensuring complete disclosure of any fact considered to be of relevance or of assistance to the Director of Public Prosecutions in the discharge of his office;

(4) that the said documents, of their nature, may contain information on the background of the accused or suspect, references to any previous convictions which he may have had and references to any prior activities by the accused or suspect in respect of which a suspicion exists by the garda authorities;

(5) that the said documents, of their nature, may make reference to the opinion of the garda authorities on the involvement of the accused or suspect in the said offence;

(6) that the said documents, of their nature, may make reference to the possible involvement of other parties who were not charged;

(7) that the said documents, of their nature, may make reference to the opinion of the gardaí on the involvement of suspected persons, including the accused, which if same were disclosed otherwise than to the director, could constitute the disclosure of suspicion of involvement in a criminal offence otherwise than by means of the prosecution of the suspected offender and his subsequent conviction, which is the means constitutionally prescribed;

(8) that the said documents, of their nature may contain opinions as to whether the accused, and certain other persons, were members of particular organisations;

(9) in addition to the foregoing the said documents comprise confidential communications between the Director of Public Prosecutions and his assistants, the confidentiality of which it is in the public interest to maintain having regard to the need for frank disclosure between the director and his advisers and the fact that the said communications make reference to matters directly relevant in the garda investigation file the grounds of privilege in respect of which are identical to those already advanced;

(10) in addition to the foregoing the said documents concern litigation, consisting of a criminal prosecution, then actively under consideration and were made between the director, his staff, his agent, the Chief State Solicitor’s office and third parties, consisting of members of An Garda Síochána as aforesaid set out, and persons assisting them as aforesaid set out and other third parties and were made for the purpose of obtaining information for the purpose of obtaining advice upon the contemplated litigation and proceeding to a decision thereon;

(11) in addition to the foregoing the said documents consist of directions of the Director of Public Prosecutions given to the Chief State Solicitor’s office and to members of An Garda Síochána in circumstances of confidentiality in which, of their nature, they may seek further information or give directions as to the course of an investigation, or give a view as to the weight to be attached to a particular witness or items of evidence or acquire a view from the party addressed thereon, wherein it is in the public interest to maintain the said confidentiality for the purpose of allowing frank disclosure of information and exchange of views between those parties and for purposes directly relating to the confidential nature of the garda investigation file. The reasons for maintaining the confidentiality of such communications have already been stated.

Mr Liddy also objected to producing the documents specified in the third part of the schedule. This objection was:

On the grounds of legal professional privilege in that the said documents consist of communications between the Director of Public Prosecutions and his legal assistants, employed in that capacity, and so engaged in that capacity when writing said documents, and were made for the purpose of giving or receiving legal advice with reference to litigation, consisting of a criminal prosecution, which was then actively under contemplation.

Mr Gaffney SC submitted on behalf of the plaintiff that the claim of privilege raised by the Director of Public Prosecutions in this case was misconceived, having regard to the statements of the law by the Supreme Court in Murphy v Dublin Corporation [1972] IR 215, Geraghty v Minister for Local Government [1975] IR 300 and Ambiorix Ltd v Minister for the Environment [1992] ILRM 209 and my decision in DPP (Hanley) v Holly [1984] ILRM 149. Mr O’Reilly SC on behalf of the Director of Public Prosecutions acknowledged, of course, that the court was bound by whatever was decided in the three Supreme Court decisions in question and did not press me to depart from my own earlier decision. He did, however, submit that the claim of privilege as formulated by Mr Liddy in this case was not a claim that the documents belonged to a class of documents exempted from production because of the operation of the doctrine of executive privilege. Such a doctrine was, as he conceded, inapplicable today both in civil and criminal cases, having regard to the decisions already mentioned. He argued, however, that different considerations would arise in the case of documents which came into being for the purpose of criminal proceedings from those applicable in purely civil proceedings, such as had come before the Supreme Court, and that, while no immunity could attach to a particular category of documents, the specific grounds relied on by Mr Liddy in relation to the documents at issue in the present case were sufficient to justify their non-production. In the event of the court deciding to inspect the documents, he submitted that a balance would have to be maintained between the public interest in the administration of justice which required the production of all relevant evidence in any proceedings and the public interest in the investigation and prosecution of crime which might make it wrong in principle to require the disclosure of particular comments.

Mr O’Reilly SC also submitted that the documents had come into being in contemplation of litigation, ie the prosecution against the plaintiff and others, and were privileged on that ground. Mr Gaffney SC in reply submitted that the privilege in question could have no application in the current proceedings which were between different parties and that the only privilege which remained applicable after the termination of the criminal proceedings was that attaching to legal advice. He relied in this context of the decision in Kerry County Council v Liverpool Salvage Association [1905] 2 IR 38 at 46.

Having considered these arguments and the authorities referred to by counsel, I have come to the following conclusions as to the legal principles which I should apply in dealing with the present application.

A party is entitled to the production and inspection of documents in the possession, custody or power of a person who is not a party to the proceedings where the documents are relevant to an issue arising or likely to arise out of the proceedings. This power was conferred for the first time by O. 31, r. 29 of the Rules of the Superior Courts 1986 and it is clear that in deciding whether to make an order the same principles apply as in applications for discovery against parties to the proceedings. The principle was thus stated by Brett LJ in Compagnie Financiere du Pacifique v Peruvian Guano Co. (1882) 11 QBD 55 at p. 63 in a passage which has frequently been cited with approval:

It seems to me that every document relates to the matters in question in the action, which would not only be evidence upon any issue but also which, it is reasonable to suppose, contains information which may — not which must — either directly or indirectly enable the party requiring the affidavit either to advance his own case or damage the case of his adversary. I have put in the words ‘directly’ or ‘indirectly’, because as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead them to a train of enquiry, which may have either of those two consequences….

It had at one time been the law that there were classes of documents which by their nature were wholly protected by the doctrine of executive privilege and thereby protected from scrutiny by a court even for the purpose of determining whether a claim for privilege arose at all. That view of the law has been unequivocally rejected by the Supreme Court in the triad of cases already referred to as being inconsistent with the exclusive administration of justice by the judicial organ of government under the Constitution. Each of those cases was a civil case as is the present. In the present case, however, the documents sought to be discovered relate exclusively to criminal proceedings. In Murphy v Dublin Corporation, Walsh J emphasised that the court was not concerned with the considerations that might arise in a criminal case, saying at p. 233:

The court has not to review the considerations which might arise if in the course of a criminal prosecution an effort was made to obtain the disclosure of communications passing between members of the police force or from informants to the police; and, on the other side of the coin, it is not necessary to examine the considerations which might arise in a criminal prosecution where the refusal to disclose certain evidence relevant to the trial could result in the condemnation of an innocent accused.

In Attorney General v Simpson [1959] IR 105, a divisional court of the High Court had held that communications between one member of the gardaí and another in the course of their duties were inadmissible in evidence because as a class their admission would be against the public interest. In DPP (Hanley) v Holly, I declined to follow the decision in Simpson on the ground that it was inconsistent with the general constitutional principles laid down in Murphy v Dublin Corporation. Those general principles have now been unanimously re-affirmed by the Supreme Court in Ambiorix Ltd v Minister for the Environment. I have concluded that I should adhere to the view I took in DPP (Hanley) v Holly and that, accordingly, I should reject any claim to privilege in relation to the documents now in issue to the extent that it is based on the documents belonging to a particular case.

In the case of the documents set out in the second part of the schedule, the claim that their disclosure would be contrary to the public interest is based on considerably more elaborate and detailed grounds than in the earlier decisions. The fact remains that virtually all of the grounds stated would apply equally to any other criminal prosecution. Ground (6), that the documents may refer to the possible involvement of other persons, while it would not apply to every case would certainly apply to a very wide range of cases. Ground (8), that the documents may contain opinions as to whether the plaintiff and certain other persons were members of particular organisations, again would not apply to every case but would refer to a wide category of cases, including cases where the accused were suspected of being members of subversive or paramilitary organisations. It seems to me to follow that, if the court in the present case were to allow the claim for privilege made in respect of the documents in Part 2 on the grounds set out by Mr Liddy without considering whether any countervailing considerations arose and without any inspection of the documents, it would follow inevitably that a similar course would have to be adopted in every other case. It would follow that the DPP, assuming that this policy was maintained, would be in a position to prevent the courts from inspecting any documents which came into being for the purpose of criminal proceedings by making a claim in similar terms. That would be wholly at odds with the constitutional position of the courts as laid down in the authorities to which I have referred.

That is not to say, of course, that the court, in deciding whether it should proceed to an inspection of the documents, should disregard the matters referred to by Mr Liddy. On the contrary, the court, as I understand the law, is required to balance the public interest in the proper administration of justice against the public interest reflected in the grounds put forward for non-disclosure in the present case. The public interest in the prevention and prosecution of crime must be put in the scales on the one side. It is only where the first public interest outweighs the second public interest that an inspection should be undertaken or disclosure should be ordered. In considering the first public interest, it is necessary to determine to what extent, if any, the relevant documents may advance the plaintiff’s case or damage the defendant’s case or fairly lead to an enquiry which may have either of those consequences. In the case of the second public interest, the various factors set out by Mr Liddy must be given due weight.

Again, as has been pointed out in the earlier decisions, there may be documents the very nature of which is such that inspection is not necessary to determine on which side the scales come down. Thus, information supplied in confidence to the gardaí should not in general be disclosed, or at least not in cases like the present where the innocence of an accused person is not in issue, and authorities to that effect (notably Marks v Beyfus (1890) 25 QBD 494) remain unaffected by the more recent decisions, as was made clear by Costello J in Director of Consumer Affairs v Sugar Distributors Ltd [1991] ILRM 395. Again, there may be material the disclosure of which would be of assistance to criminals by revealing methods of detection or combatting crime, a consideration of particular importance today when criminal activity tends to be highly organised and professional. There may be cases involving the security of the State, where even disclosure of the existence of the document should not be allowed. None of these factors — and there may, of course, well be others which have not occurred to me — which would remove the necessity of even inspecting the documents is present in this case.

There is another factor which I must bear in mind. It has been stated in the English cases that, in an application of this nature, the burden of satisfying the court that the documents should be inspected rests on the party seeking disclosure. Thus, in Evans v Chief Constable of Surrey Constabulary [1988] QB 588, where discovery of reports to the English DPP was being sought, Wood J at p. 593 said:

If a public interest immunity claim is raised, and it is usually only raised on sound or solid ground, it is necessary for those who seek to overcome it to demonstrate the existence of a counteracting interest calling for disclosure of the particular documents involved. It is then, and only then, that the court may proceed to the balancing process: Lord Wilberforce in Burmah Oil Co. Ltd v Governor and Company of the Bank of England [1980] AC 1090, 1113H.

That approach, however, does not appear open to an Irish court: in Murphy v Dublin Corporation, Walsh J at p. 235 said:

In my view, once the court is satisfied that the document is relevant, the burden of satisfying the court that a particular document ought not to be produced lies upon the party, or the person, who makes such a claim.

Walsh J was admittedly there dealing with the submission, which he rejected, that documents could be shielded from such inspection merely because they belonged to a particular class. However, whatever be the position in relation to documents of a specific nature to which I have already referred, such as those involving the disclosure of gardaí sources or the security of the State, it would seem that, where the claim is couched in more general terms of public interest as here, the burden of satisfying the court that it should not proceed to inspection should lie upon the person seeking to withhold the document. That, at all events, seems to me more consistent with the approach adopted by Walsh J, although, of course, clearly at variance with the approach in England.

There then arises the separate question as to whether any or all of the documents are protected from discovery because of legal professional privilege. That privilege enables a client to maintain the confidentiality of two types of communication: (i) communications between him and his lawyer made for the purpose of obtaining and giving legal advice; and (ii) communications between him or his lawyer and third parties (such as potential witnesses and experts) the dominant purpose of which was preparation for contemplated or pending litigation.

With regard to communications in the first category, it has recently been held by the Supreme Court in Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] ILRM 588, 590 that the privilege does not extend to communications made to a lawyer for the purpose of obtaining legal assistance other than advice. In the course of his judgment, Finlay CJ laid down a general principle which is of some relevance in the present case. He said at p. 594:

The existence of a privilege or exemption from disclosure for communications made between a person and his lawyer clearly constitutes a potential restriction and diminution of the full disclosure both prior to and during the course of legal proceedings which in the interests of the common good is desirable for the purpose of ascertaining the truth and rendering justice. Such privilege should therefore, in my view, only be granted by the courts in instances which have been identified as securing an objective which in the public interest in the proper conduct of the administration of justice can be said to outweigh the disadvantage arising from the restriction of disclosure of all the facts.

As has also been frequently pointed out, the privilege is that of the client and may only be waived by him. The position of the DPP is, of course, somewhat different; he does not stand in the relationship of ‘client’ to any other lawyer. He is in a sense both lawyer and client, since he formulates the legal opinion on which the institution or non-institution of a prosecution is based and he then becomes one of the parties to the subsequent litigation. However, be that as it may, the public policy which protects from discovery communications in the first category undoubtedly applies equally to communications between the DPP and professional officers in his department, solicitors and counsel as to prosecutions by him which are in being or contemplated. Mr Gaffney SC conceded that this was so and that the claim for privilege was properly raised in respect of the documents set out in the third part of the schedule and to some at least of the documents in the second schedule.

It was obvious, however, from the listing of the documents in the schedule and is confirmed by an inspection that the great bulk of them consist of the garda files assembled for the purpose of the investigation of the crime which gave rise to the original criminal proceedings and the report accompanying it by the investigating gardaí which was forwarded to the DPP so that a decision could be taken by him as to whether a prosecution should be initiated against the plaintiff and other persons.

I have already referred to Mr Gaffney’s submission that the material, other than communications between the DPP, members of his staff, solicitors and counsel, is not privileged because the proceedings in question have terminated. He submitted that it was only communications in the first category, ie legal advice simpliciter, which retained their privileged nature after the conclusion of the relevant proceedings. This may or may not be a correct proposition of law: it does not seem to me to derive support from the Irish decision cited by Mr Gaffney, since in that case it was held that the documents in question would not have been privileged even in the original litigation. But it seems to me that in any event the documents in question in this case could not be equated to the documents which come within the second heading of legal professional privilege, ie communications between a client or his lawyer and third parties the dominant purpose of which is preparation for contemplated or pending litigation.

It is obvious that in every case where the commission of a crime, whether trivial or serious, is suspected, documentary material will be assembled by the gardaí irrespective of whether a prosecution is ever initiated. The fact that the documents in question may, as in the present case, be submitted by the investigating gardaí to the DPP in order to obtain his decision as to whether a prosecution should be instituted could not possibly give that material the same status as, to take an obvious example, a medical report obtained by a plaintiff in a personal injuries action solely for the purpose of his claim. If privilege exists in relation to such documents, it can only be because of the other factors referred to by Mr Liddy, of which undoubtedly the most important is the desirability of freedom of communication between the gardaí and the DPP. The extent to which that freedom might be inhibited by the knowledge that the documents furnished to the DPP may subsequently be disclosed in court proceedings is clearly a matter which has to be taken into consideration in determining whether the public interest in the particular case requires its production.

In civil proceedings, the desirability of preserving confidentiality in the case of communications between members of the executive has been significantly eroded as a factor proper to be taken into account by the courts: see in particular the speech of Lord Keith in Burmah Oil Co. Ltd v Governor and Company of the Bank of England [1980] AC 1090 and the observations of McCarthy J in Ambiorix Ltd v Minister for the Environment. However, different considerations would appear to apply to communications between the gardaí and the DPP, where the public interest in the prevention and prosecution of crime must be given due weight. It would be clearly unacceptable if in every case where a person was acquitted of a criminal charge, he could by instituting proceedings for wrongful arrest or malicious prosecution embark on a fishing expedition through all the files of the gardaí relating to the case. The circumstances of the particular case must determine, in the light of the constitutional principles to which I have referred, whether an inspection should be undertaken by the court and whether, as a result of that inspection, production of any of the documents should be ordered.

The plaintiff’s claim includes one for damages for malicious prosecution. If he is to succeed in his claim, he will have to establish as a matter of probability that one or more of the defendants played a part in the institution of the criminal proceedings and, in so doing, acted maliciously and without reasonable and probable cause. It has already been held by the Court of Criminal Appeal that the primary facts found by the Special Criminal Court could only have led to the inference that the interrogation of the plaintiff which culminated in the making of incriminating statements by him did not comply with fair procedures and to the further inference that the statements could not be regarded as voluntary. The factors referred to by the court in reaching that conclusion were, principally, the place and time at which the enquiry was conducted and the unexplained failure to comply with the plaintiff’s request that a solicitor be present during the interrogation. I appreciate that, unlike some of the other evidential issues, no question of res judicata arises in relation to those findings. However, in exercising my discretion as to whether particular documents should be produced, I do not think I can disregard the evidential context, as indicated by those findings, in which the issues arising in the present proceedings will ultimately fall to be determined. The material furnished by such of the gardaí as were concerned in the interrogation to the DPP might well furnish evidence which would be of significance in establishing a want of reasonable or probable cause for the prosecution. This, of course, is in no sense to pre-judge that issue, which will have to be resolved at the trial of the action. It seems to me that the public interest in the administration of justice outweighs the desirability in general of preserving the confidentiality of such documents in the circumstances of the present proceedings and I accordingly have inspected them for the purpose of deciding whether any of them should be produced. I list the documents in the order in which they are dealt with in part 2 of the schedule to Mr Liddy’s affidavit.

1. This medical report could only relate to the claim for assault which it has already been decided the plaintiff is estopped from pursuing and need not be produced.

2. This document could in no sense advance the plaintiff’s case or damage the defendants’ case and need not be produced.

3. The same observations apply.

4. The same observations apply.

5. The garda file referred to is an extremely voluminous one containing nearly 200 statements. The great bulk of it could not conceivably assist the plaintiff’s case or damage the defendants. Some of the statements may, however, be of importance in establishing whether there was a want of reasonable or probable cause for the prosecution of the plaintiff, although it may well be that some of them are already in the possession or power of the plaintiff or his legal advisers if they were included in the book of evidence which was presumably served before his trial in the Special Criminal Court. On balance, I have come to the conclusion that the objection to production should not succeed in respect of the following:

P. 1 of the written introduction and submission to the Director of Public Prosecutions dated 24 June 1976 and the part of it headed ‘Osgur Breathnach’; and the following statements in the accompanying garda file:

44, 49, 52, 53(c), 55(c), 58(a), 60, 64, 70, 72, 78, 79, 81, 82 and 86(a).

There is also a statement (the last in the file and not numbered) which appears to be by the fifth named defendant and of which the first page is missing which should also be produced.

6. This minute clearly consists of legal advice from one of his professional assistants to the DPP which is privileged and need not be produced.

7. This minute is also clearly privileged and need not be produced.

8. This minute is also privileged and need not be produced.

9. None of these documents relate in any way to the arrest, detention and interrogation of the plaintiff and should not be produced.

10. The same applies to these minutes.

11. These documents relate to matters which are not relevant to any of the issues arising in these proceedings and need not be produced.

12. The direction of the DPP in relation to the charges against the accused is clearly privileged and should not be produced.

I have already decided that the documents in the third part are clearly privileged and should not be produced.

I should mention one other matter. In Holloway v Belenos Publications Ltd [1987] ILRM 790, Costello J pointed out that r. 29 does not provide for the service of a motion such as this on all the parties in the action. He observed that, notwithstanding this omission, the court should know the views of all the parties to the action before the order is made. I was informed at the hearing of this application that the defendants would not be participating and I inferred, I hope correctly, that they did not consider that any useful purpose would be achieved by their also being parties to the motion.

Murphy v Kirwan

 

[1994] ILRM 293 Finlay CJ
This is an appeal brought by the plaintiff against an order in relation to discovery, made in the High Court by Costello J on 9 April 1992, in the following terms:

It is ordered that the plaintiff do produce for inspection within two weeks from the date hereof at the office of the plaintiff’s solicitors the documents referred to in the supplemental affidavit of discovery sworn by the plaintiff on 1 July 1991.

The supplemental affidavit of discovery sworn by the plaintiff on 1 July 1991 referred to at part II of the schedule attached thereto to a total of 31 documents consisting of letters and attendances in respect of which the plaintiff had objected to the production on the basis that they were correspondence, notes and memoranda prepared for the purpose of giving advice of a legal nature, and the effect of the order made by Costello J against which the plaintiff has appealed was in fact an order disallowing that claim for legal privilege.

The making of this order has arisen in an action the proceedings of which have the following relevant history.

By plenary summons dated 14 March 1989 the plaintiff claimed against the defendant an order for specific performance of an agreement for the sale of the entire issued shareholding in Esquire Estates Ltd, the said agreement being alleged to have been made on or about 17 February 1989. A statement of claim was filed by the plaintiff on 24 April 1989 and alleged the making of an oral agreement between the plaintiff and the defendant, entered into by their agents. By notice of motion dated 8 June 1989 the defendant applied to the court to dismiss the plaintiff’s action as disclosing no cause of action and/or, in the alternative, as being unjustifiable, vexatious, frivolous and an abuse of the process of the court. Affidavits in support of that motion were filed and conflicting affidavits were filed on behalf of the plaintiff, and the motion was dismissed by order of 25 July 1989, made by Barrington J. On 9 August 1989 the defendant entered a defence and counterclaim in the proceedings, the defence in effect consisting of a denial that there was any concluded agreement, as was alleged on the part of the plaintiff, and the counterclaim, having alleged certain facts, pleaded at paragraph 18, as follows:

By the institution of the within proceedings the plaintiff has deliberately endeavoured to forestall the defendant’s sale of the said lands to the said third party, and the within proceedings are frivolous, vexatious and brought without reasonable cause and are an abuse of the process of this Honourable Court.

The defendant claimed damages on foot of the counterclaim by reason of the issue of the proceedings. Discovery was then made on behalf of both the defendant and the plaintiff, and on 20 March 1990 a reply and a defence to the counterclaim was filed on behalf of the plaintiff.

The action then came on before Blayney J in the High Court, and was at hearing on oral evidence on 20 and 21 November 1990.

At the conclusion of the plaintiff’s evidence the learned trial judge acceded to an application on behalf of the defendant to non-suit the plaintiff and accordingly dismissed the action by order of 23 November 1990. In the course of the same order he directed that the counterclaim should stand adjourned sine die, with liberty to either party to re-enter. By notice of motion dated 11 March 1991 the defendant sought further and better discovery in relation to his counterclaim and, in particular, sought the following orders:

(a) An order directing the plaintiff to individually list the documents (and set out the general classification of privilege claimed in respect of such document) referred to in the first schedule of part II of the affidavit of discovery of the plaintiff, sworn 16 February 1990.

(b) An order directing the plaintiff to make further and better discovery of all documents relating to legal advice sought or obtained by or given to the plaintiff, both prior to the institution of these proceedings or pending prosecution of the said proceedings up to and including the trial of the plaintiff’s claim herein on 20 November 1990, but excluding legal advice sought or obtained by or given to the plaintiff, relating to the counterclaim.

Both these orders were made by the Master on 7 May 1991. The plaintiff on 1 July 1991 filed a further affidavit of discovery in which he listed and particularised the documents to which I have referred in this judgment, and objected to producing them upon the basis of legal privilege.

The defendant on 27 November 1991 by motion sought the production and inspection of the documents in issue and that matter was put into the list before Costello J, and he having heard the application reserved judgment, and delivered his reserved judgment on 9 April 1992, making the order to which I have already referred. It is against that order that the plaintiff has appealed.

Decision in the High Court
The learned trial judge in the course of his judgment, having reviewed a number of the authorities concerning the issues of law involved, stated as follows:

It is recognised that the rule of professional privilege which prohibits disclosure of communications passing between a client and his legal advisers arises from a requirement of the proper administration of justice, namely that clients wishing to prosecute a claim or defend themselves against a claim should be able to communicate with complete freedom with their legal advisers and in the knowledge that those communications will remain secret. This requirement of the proper administration of justice conflicts with another requirement, namely the need for full disclosure of all relevant documents so that the truth can be ascertained and justice done. By the rule of professional privilege priority is given to the need to preserve professional confidentiality (see Smurfit Paribas , p. 594). The exceptions to the rule to which I have referred reverses this priority. Why is this? Why, in cases of fraud and, speaking broadly, of commercial dishonesty, should the need to obtain all the facts take priority over the need to preserve the confidentiality of professional communications? It seems to me that the basis for the exception must be the conclusion that in exceptional cases which may involve a degree of moral turpitude which is much greater than that which arises in other causes of action it is in the public interest that no restriction be placed on the courts’ capacity to ascertain the facts to ensure that a wrongdoer does not escape the consequences of his actions.

In the light of these considerations I turn to examine the claim advanced by the plaintiff in this case.

This is a claim for damages because it is claimed the plaintiff prosecuted the case against the defendant without reasonable cause and maliciously for a wrongful purpose. It is accepted that such a claim, if established, entitles an injured party who has suffered loss to damages (see Dorene Ltd v. Suedes (Ireland) Ltd [1981] IR 312). (The defendant in these proceedings accepts that a drafting error occurred in the counterclaim by the omission of the word ‘maliciously’, but this error can be easily rectified). Obviously, communications between a client and his legal advisers would be highly relevant to such a claim. If the client stated the facts of the case correctly to his legal advisers and was advised not to proceed (as happened in Dorene Ltd) this would support an allegation of abuse of process. If the client stated the facts correctly and was advised to proceed this would tend to negative it. And if the client misstated the facts to his legal advisers this would strengthen a claim that the proceedings had been instituted for an improper purpose. However, the fact that these communications are relevant does not in itself bring them within the exception to the general rule which would protect their confidentiality. But if the moral turpitude of what the plaintiff is alleged to have done falls for consideration then it seems to me that the wrongdoing alleged is such as to justify the court in refusing the claim of privilege. For what is alleged is that the plaintiff has abused the courts’ procedures and has deliberately maintained a baseless claim not for the purpose of redressing a wrong done but to obtain a commercial advantage by forcing the defendant to concede an unjustified claim so as to avoid the consequences of having to defend a High Court action. There is a lack of honesty in such wrongdoing which is certainly commensurate to that of an employee who breaches his employer’s confidence or that of a director who issues a debenture, not in the ordinary course of business, but to defeat the lawful claims of another creditor. It amounts, in my view, to a claim of dishonest conduct which precludes the protection otherwise afforded by the rule relating to professional privilege.

The defendant is, therefore, entitled to the relief claimed in the notice of motion.

Issues on the appeal
The relevant issues which, in my view, arise on this appeal, having regard to the submissions made on behalf of the appellant are as follows:

(1) Was the learned trial judge correct in law in applying the exception to the rule of professional privilege which prohibits disclosure of communications between a client and his legal adviser and which is well established in relation to claims for fraud and certain other dishonest conduct to a claim for what, in effect, is malicious prosecution of an action or an abuse of the process of the court?

(2) The second issue which then arose was even if, as a matter of principle this exception applied, was the learned trial judge correct in inferring from the material before him that the cause of action pleaded by the defendant in his counterclaim was sufficiently plausible or arguable to entitle him to the order for discovery?

Certain other submissions were made on behalf of the appellant in relation to what was described as the excessive width of the order made by the learned trial judge in the High Court on the basis, as I understood them, that some of the documents might not be relevant.

No issue of relevance was raised, either in the affidavit of discovery or in the hearing before the High Court, and if a document is not relevant to the proceedings, then it should not be included in any schedule of the affidavit of discovery and it is unnecessary to claim privilege for it. It seems to me that the mere fact that the plaintiff has included these documents the discovery of which has been ordered by the learned trial judge, in his affidavit of discovery, though claiming privilege for them, concludes the issue of relevance in a manner which does not leave it open for this Court, upon the hearing of the appeal, to deal with it.

With regard to the issue as to whether this exemption from the professional privilege applies in this case, I am satisfied that the learned trial judge was correct in the view he reached of the legal position. As is clear from the authorities, the first source of the exemption from privilege of communications in furtherance of fraud is to be found in the case of R. v. Cox (1884) 14 QBD 153. In the judgment of Stephen J in that case, at p. 167 of the report, the learned judge having referred to the definition of the rule of professional privilege of legal advisers, laid down by Lord Brougham in the case of Greenough v. Gaskill (1833) 1 My & K 98, states as follows:

The reason on which the rule is said to rest cannot include the case of communications criminal in themselves or intended to further any criminal purpose for the protection of such communications, cannot possibly be otherwise than injurious to the interests of justice and to those of the administration of justice.

Whilst the decision in R. v. Cox undoubtedly dealt with the furtherance of a criminal purpose, the same principle has, as is carefully outlined in the judgment of Costello J in the court below, been extended beyond that narrow confine. In the case of Williams v. Quebrada Railway, Land and Copper Co. Ltd [1895] 2 Ch 751 Kekewich J extended the principle of exemption to a case where a claim was made that a charge entered into by a company was entered into when the company was insolvent, that it was not given in the ordinary course of business but to defeat and to delay the holders of floating debentures. In so applying it he stated as follows, at p. 755:

On the other hand, where there is anything of an underhand nature or approaching to fraud, especially in commercial matters where there should be the veriest good faith, the whole transaction should be ripped up and disclosed in all its nakedness to the light of the court.

In the course of a decision in Crescent Farm (Sidcup) Sports Ltd v. Stirling Offices Ltd [1972] Ch 553, Goff J, as he then was, refused to apply the exemption from professional privilege to a claim for interference with contract and conspiracy, but in so doing accepted that it was not confined to fraud, in the following passage:

I agree that fraud in this connection is not limited to the tort of deceit, and includes all forms of fraud and dishonesty, such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances.

The case of Gamlen Chemical Co. (UK) Ltd v. Rochem Ltd [1983] RPC 1, applied the exemption to conspiracy by former employees breaching their duty of fidelity and confidence to a company.

I am satisfied that these extensions of the application of the exemption flow logically and consistently from the principle laid down in Cox’s case for the real reason for the introduction of the exemption in the first place, and that the essence of the matter is that professional privilege cannot and must not be applied so as to be injurious to the interests of justice and to those in the administration of justice where persons have been guilty of conduct of moral turpitude or of dishonest conduct, even though it may not be fraud.

Nothing could be more injurious to the administration of justice nor to the interests of justice than that a person should falsely and maliciously bring an action, and should abuse for an ulterior or improper purpose the processes of the court.

I am therefore satisfied that the learned trial judge was correct in extending the principle in the way in which he does, and that it would accordingly apply to the cause of action pleaded by the defendant in this counterclaim.

It therefore becomes necessary to decide as to whether the defendant has given sufficient evidence of a plausible or viable case to support his claim to warrant the making of the order for discovery at this stage.

It appears to me that in a claim made that a person has, by the institution of proceedings, abused the processes of the courts or brought an action for a malicious or improper motive rather than to vindicate his or her rights, the first requirement, though not necessarily a proof in itself, would be to establish either that the claim as brought has failed in its entirety or that it was bound to do so. The defendant in this case has, of course, established the complete failure of the claim, and against that order dismissing the claim there has been no appeal. The second requirement, again, not necessarily constituting a proof of malicious prosecution or an abuse of the processes of the court, but possibly a necessary precondition, would be to establish that the failure of the claim was neither derived from the resolution by the court of trial of a conflict of evidence with regard to primary facts, nor arose from a special legal defence raised by the defendant. The situation in this case where no question, for example, of the Statute of Frauds has arisen and where the plaintiff’s case was dismissed at the conclusion of the plaintiff’s evidence and without any evidence being adduced on behalf of the defendant appears to fulfil this condition also.

Quite clearly, in my view, in order for a party to an action to be entitled to discovery, notwithstanding a claim for professional privilege of legal advisers’ communications, it cannot be necessary, where his claim is one for malicious prosecution or abuse of the processes of the court, that he should have to prove as a matter of probability or in accordance with the onus of proof necessary for the total hearing of his action, the allegation he makes, for otherwise an order for discovery necessary for the fair trial of the action would become an impossibility. What is required, in my view, is that the allegations he makes should be supported to an extent that they are, in the view of the court, viable and plausible. In this case, the major matter which is relied upon by the defendant to support his claim that this proceeding brought by the plaintiff, which has been dismissed, was an abuse of the processes of the court, is as follows.

In applying originally for the dismiss of the proceedings as an abuse, the defendant filed a lengthy affidavit supported by an affidavit of his wife who had taken part in the negotiations in respect of which the plaintiff claimed a concluded contract, and having set out in great detail the state of those negotiations at the time when they were broken off, at paragraph 10 of that affidavit, which was sworn on 9 June 1989, he stated as follows:

In the circumstances I say and believe that the plaintiff has no bona fide or proper cause of action herein, that these proceedings are being brought frivolously and vexatiously and with the object of frustrating the successful sale of the said lands by myself your deponent. I say that if I am prevented from completing my contract and obligations that I will be exposed to loss and damage and I say the plaintiff’s claim herein is utterly unsustainable.

This allegation of an unsustainable claim of vexatious proceedings was repeated on a significant number of occasions in the affidavits filed by the defendant after the dismiss of the plaintiff’s action and dealing with the applications for further and better discovery. While, on a number of occasions, affidavits have been filed by solicitors acting for the plaintiff, both in resisting the claim originally made for the dismiss by motion of the case for being vexatious and an abuse of the process of the court and subsequently in relation to the claims concerning the further and better discovery, at no time has the plaintiff ever on affidavit denied or disputed this very clear and serious allegation of a lack of bona fides on his part. The plaintiff has sworn affidavits but they have been confined to affidavits of discovery. In my view, that situation, whilst it in no way determines the issue between the parties, lends sufficient support to the contention being made by the defendant that he has got a sustainable cause of action, at least, for malicious prosecution to warrant the making of an order for discovery in the form made by Costello J in this case.

I would, therefore, dismiss this appeal.

O’FLAHERTY J:

I concur in all respects with the judgment of the Chief Justice on the legal principles applicable to this category of case. While I have a degree of scepticism about the necessity or likely efficacy of the discovery sought in the particular circumstances of this case I believe, on balance, that the order of the learned High Court judge should be affirmed and I would disallow the appeal.

EGAN J:

It is well established that communications made to and from a legal adviser for the purpose of obtaining legal advice and assistance are protected from disclosure in the course of legal proceedings, both during discovery and at the trial. The law on this subject is based on the practice gradually evolved in the chancery courts.

It came to be recognised that in three special cases the protection did not apply:

(1) when the communications are made for some fraudulent or illegal purpose; or

(2) when the client waives the privilege and permits disclosure; or

(3) when the communications are made for the purpose of being repeated to the other party, such as an instruction to settle a claim for a specified sum.

As litigation can only as a rule be properly conducted by professional lawyers it is desirable that a litigant should be able to have recourse to them in circumstances which enable him to place unrestricted confidence in the lawyer whom he consults and that the communications which he makes to that lawyer and receives from him should be kept secret.

As earlier stated, however, exceptions exist to the right of the protection and this is clearly justifiable where the communications are made for some fraudulent or illegal purpose. Somewhat strangely perhaps I can find no case where the protection was declared to have no application to a case of malicious prosecution although discovery was made on consent in Dorene Ltd v. Suedes (Ireland) Ltd [1981] IR 312.

I agree with the Chief Justice, however, that it is proper that professional privilege ought not be allowed in a case where a person has been guilty of maliciously bringing an action or, for an ulterior or improper purpose, abusing the process of the court. It would surely be injurious to the administration of justice if a claim for professional privilege were upheld in such a case.

I regard this as a somewhat similar exception as that which applies in cases of fraudulent or illegal claims. For this reason I am influenced by the standard of proof required in such claims. The rule does not apply merely because fraud is alleged in the action. There must be some prima facie evidence that the allegation has a foundation in fact — O’Rourke v. Darbishire [1920] AC 581. In that case their lordships were agreed that the person alleging fraud must show to the satisfaction of the court good grounds for saying that prima facie a state of things exists which, if not displaced at the trial, will support a charge of fraud.

I take the view that the defendant in this case who alleges that the action brought against him by the plaintiff was malicious must establish a prima facie case that the prosecution of the action was malicious. There must be something beyond the mere making of the charge, however often it is made. It is extremely unfortunate that we do not have a full note of the judgment or reasons given by Blayney J for the dismissal of the action brought by the plaintiff. The fact that it was dismissed at the end of the plaintiff’s case is very far from being prima facie proof of malice. Neither in my view (nor in the view of Barrington J) do the affidavits establish a prima facie case of malicious prosecution. They are not inconsistent, in my opinion, with a belief by the plaintiff that he had an enforceable agreement.

I would allow the appeal and set aside the order of the learned trial judge.

 

Walker v. Ireland

, High Court, October 7, 1996

Judgment of Mr. Justice Geoghegan delivered the 7th day of October 1996

1. In an affidavit of discovery filed on behalf of the Defendants objection has been made to the production of the several documents set forth in the second part of the schedule to the affidavit. This is a Motion seeking an Order directing that the Defendants make full and better discovery of those documents. In practice the Plaintiff is requesting the Court to overrule the objection to production by the Defendants. The action arises out of the now famous events surrounding the requested extradition to Northern Ireland of a Father Brendan Smyth then accused of committing sexual offences with young persons in Northern Ireland to which he has since pleaded guilty in the Courts of that jurisdiction and been sentenced to prison. The Plaintiff was one of the victims of these offences. She claims that there was negligent delay in the Irish Attorney General’s Office in the processing of the extradition request and that as a consequence she sustained personal injury (including nervous shock and mental distress). In this civil action she has sought to recover damages for the alleged injuries on the grounds of negligence, breach of statutory duty, breach of duty and breach of constitutional rights. The documents which the State is objecting to produce are listed as follows:-

“1. Original covering letter from Attorney General for the United Kingdom and Northern Ireland to Irish Attorney General dated
4th May, 1993 – bearing endorsement ‘RECD 14th/05/93’.
2. Original confirmatory note from Attorney General for the United Kingdom and Northern Ireland dated 4th May, 1993.
3. Original statement of facts (11 pages).
4. Original statement of law (3 pages).
5. Fax transmission sheet from U.K. Attorney General’s Office – Richard Alderman to Matthew Russell, 5th May, 1993.
6. Faxed covering letter from the Attorney General for the United Kingdom and Northern Ireland to Irish Attorney General dated
4th May, 1993 (see 1 above).
7. Faxed confirmatory note – (see 2 above).
8. Faxed statement of facts (11 pages) – bearing working notes of Matthew Russell – (see 3 above).
9. Faxed statement of law (3 pages) – bearing working notes of Matthew Russell – (see 4 above)”.

2. In an affidavit sworn in this motion, Mr. Padraig Brennan, Solicitor for the Plaintiff explains why he believes the above documents are relevant to the claim. It is apparently part of the Plaintiff’s case that the delay was unwarranted in that inter alia Father Brendan Smyth had confessed to at least some of the offences in respect of which the extradition was sought. That being an essential part of the Plaintiff’s case, Mr. Brennan believes that the statement of facts and statement of law of the Attorney General of Northern Ireland are clearly relevant to the Plaintiff’s claim and he goes on to say that the same holds true of the working notes of Matthew Russell, the then Senior Legal Assistant in the Attorney General’s Office. I do not think that it is in dispute that in the ordinary way these documents and the other documents listed in the schedule would be material to the matters in issue and would have to be produced but the real issue between the parties is whether on grounds of public interest the documents ought not in fact be produced.

3. In an affidavit filed on behalf of the Defendants in this motion, Mr. Liam O’Daly, Third Legal Assistant in the office of the Attorney General, refers to and reiterates the stated grounds of objection, namely, that such documents were supplied to the office of the Irish Attorney General by the Attorney General for the United Kingdom and Northern Ireland on a confidential basis for the limited purpose of allowing the Irish Attorney General to decide whether to back warrants in an extradition case. As such they are part of communications between the offices of the Attorneys General of the two States pursuant to extradition arrangements made between those two States. Mr. O’Daly elaborates the grounds of objection by making the following specific points:-

1. The Attorney General for this State is by virtue of Section 44A of the Extradition Act, 1965 [as inserted by Section 2 of the Extradition (Amendment) Act, 1987] conferred with a specific function concerning the endorsement of a warrant for the arrest of a person whose extradition is sought. It was for the exercise of this specific function that the documents in question were first faxed and then sent by the Attorney General for Northern Ireland to the Irish Attorney General. It is to be inferred that in all such extradition cases documents of this kind are furnished on a confidential basis.
2. In seeking the extradition of a person accused of an offence in the United Kingdom the Attorney General for the relevant portion of the United Kingdom is exercising and has always been understood by the Irish Attorney General’s office and, as Mr. O’Daly believes, the London office of the Attorney General of Northern Ireland as exercising the function of a sovereign state in seeking the co-operation of this State in securing the arrest and return of a person to the United Kingdom. That function is part of the sovereign power of the United Kingdom. It has always been understood that the documentation passing in connection with such extradition proceedings is strictly confidential and it has always been the policy of the office of the Irish Attorney General to maintain a policy of non-disclosure of any of those documents. The Irish office of the Attorney General would expect a similar obligation of confidentiality on the part of the office of the Attorney General of Northern Ireland.
3. It is the view of the Irish Attorney General (and in the belief of
Mr. O’Daly, the Attorney General for Northern Ireland) that public disclosure or inspection of such documents would be prejudicial to the proper and effective operation of the extradition arrangements between the two States. Such confidentiality is in the interest of the friendly relations between both States.
4. If the claim to privilege is not upheld the free flow of information and consequently the effective operation of the extradition procedure would be seriously inhibited.

4. Mr. O’Daly makes clear that privilege would not necessarily attach to the workings and markings of Mr. Russell and, as I understand it, there is no real objection to the production of these if it can in practice be done in some way that does not disclose the contents of the documents themselves.

5. Before considering the validity or otherwise of the objection, I think it relevant to refer to the pleadings. In the statement of claim it is alleged that the second-named Defendant, the Attorney General, owed the Plaintiff a duty of care and/or a constitutional obligation to consider the extradition requests and speedily to process same in order to ensure that Father Smyth was quickly brought to justice and it is further alleged that in breach of this alleged duty of care and alleged constitutional obligation and duty, the Attorney General wrongfully and without lawful excuse failed, neglected and refused to endorse the warrants for execution within the State. The statement of claim goes on to allege that a similar duty was imposed on the Attorney General by reason of the provisions of the Extradition Acts. Paragraph 1 of the defence delivered on behalf of the Defendants reads as follows:-

“The Plaintiff’s claim discloses no cause of action and ought to be dismissed. The defence is filed without prejudice to this plea”.

6. The case is a most unusual one and there must be an arguable case that the Defendants are entitled to succeed on the grounds set out in paragraph 1 of their defence. I am informed by Counsel that it is intended to apply for a separate and preliminary issue to be tried as to whether the statement of claim discloses a cause of action. The Plaintiff’s claim to production of the controversial documents is of course based on the assumption that she has a good cause of action. That being so, it would be my view that even if the Plaintiff is entitled to production of the controversial documents, assuming there is a proper cause of action, the Court ought not, as a matter of discretion, order such production unless and until the preliminary issue has been heard and determined in favour of the Plaintiff. What I will be saying in the rest of this judgment is therefore subject to that proviso.

7. The law relating to the normal non-production of alleged confidential documents is now well established by the well known decisions of the Supreme Court in Murphy -v- Corporation of Dublin 1972 I.R. 215 and Ambiorix Limited -v- Minister for the Environment 1992 1 I.R. 277. But neither of those cases treat of communications between sovereign states and I think I should first deal with the question whether different and special considerations apply in relation to such documents. There does not appear to be any Irish case law to assist me on this matter but the English case of Buttes Gas and Oil Company -v- Hammer 1981 1 Q.B. 233 is of considerable assistance. In that case the English Court of Appeal held that first of all the only public interest which was to be considered was the interest of the public within the U.K. Secondly, that the Court would recognise a public interest of the United Kingdom in refusing to order disclosure of documents addressed to or emanating directly or indirectly from the ruler of a foreign state concerned with international disputes over territorial boundaries and the sovereign rights of independent states, which had been passed to a party to private litigation under the seal of confidence; nor should an English Court be seen to be forcing the disclosure of such documents for the ostensible purpose of pronouncing, albeit indirectly, on a politically sensitive territorial dispute between foreign sovereign states. It is perfectly clear from the judgments in that case that the Court rejected a much wider proposition suggested in a letter by the Foreign Office, though not argued in the Court, that there be an absolute public interest privilege attaching to confidential communications between states. The proposition was formulated by the then head of the U.K. Foreign and Commonwealth Office as follows:-

“It appears to be open here to submit to the Court that as a matter of general principle confidential communications between states should, in the public interest, not be adduced in evidence without the consent of the states concerned, a principle to which the Foreign and Commonwealth Office would certainly presubscribe”.

8. Lord Denning rather scathingly said that he would not himself presubscribe that principle or post-subscribe to it. It is clear that the other two Judges on the Court did not accept such a wide principle either. In making its decision in the particular case therefore, the Court balanced the public interest in maintaining the confidentiality in the particular documents in question against the public interest that in the administration of justice the Courts should have the fullest possible access to all relevant material. Furthermore, the Judges reiterated the general principle that confidentiality per se is not a ground of objection. The question is, is there a public interest in maintaining that confidentiality and, if so, does that particular public interest outweigh the public interest in the Court having access to the full truth for the purposes of administrating justice.

9. With regard to the provisions of the Irish Constitution there is an even stronger case in this jurisdiction, in my view, for not countenancing any form of absolute privilege in relation to communications passing between sovereign states. The principles as enunciated in Murphy -v- Corporation of Dublin and Ambiorix should be applied in considering whether an objection to production of such documents should be sustained in the same manner as in the case of any other form of document.

In the Murphy case, Walsh J. pointed out that in a particular case the Court may be able to determine the balancing question without examining the particular document but that in other cases it may be necessary to produce the document to the Court for the purpose of inspecting it. He further observed that there could be no documents which might be withheld from production simply because they belonged to a particular class of documents. For the reasons which I have indicated, I have come to the conclusion that in determining whether any one or more of these controversial documents should be produced, I have to carry out a balancing act. I accept that as a general proposition documents in connection with an extradition request would be assumed by both States to be confidential and I further accept that there would be a public interest in the State as far as possible maintaining that confidentiality. But on the particular facts of this case I have to balance that interest against the public interest in all relevant evidence being before the Court for the purposes of the litigation. It would have been impossible for me to determine that issue without looking at the documents and I have now read them. Having done so, I have come to the conclusion that on balancing the two public interests, I should come down in favour of disclosure. In arriving at this view, I have attached importance (inter alia) to the following factors:-

1. The criminal proceeding to which the action relates has long been disposed of.
2. The onus of establishing that there is a greater public interest in non-disclosure is on the State but that onus does not appear to me to have been discharged. The mere assertion that confidentiality would normally be expected is not sufficient.
3. There is no evidence before this Court either direct or even of a hearsay nature that there is a concrete present objection by the office of the Attorney General of Northern Ireland to the production of these documents in this action.
4. While it would be understandable that both this State and the United Kingdom would want as a matter of principle to maintain a rule of confidentiality in relation to such documentation, it is difficult to see any particular reason why the U.K. government would be concerned about the production of the particular documents now sought to be produced in this case.

10. If therefore I am satisfied that there is a genuine issue of delay giving rise to a stateable and pleaded cause of action in this case, I will order production of the documents. But an order for such production is a discretionary order and I do not intend to exercise that discretion until I have studied the outcome of any preliminary issues relating to liability which may be tried. I will discuss with Counsel what further procedures should now be adopted.

 

Miley v. Flood

 

[2001] 1 I.L.R.M. 489

Judgment of Mr. Justice Kelly delivered the 24th day of January, 2001

THE APPLICANT
1. The applicant is a solicitor. He is a partner in the firm of Miley and Miley Solicitors of 35 Molesworth Street, Dublin 2. Since October 1994 he has acted as solicitor for a company called Jackson Way Properties Limited (the company). This involved furnishing legal advice to that company and also acting for it in litigation conducted both in this Court and the Supreme Court.

THE RESPONDENT
2. The respondent was established by an instrument executed by the Minister for the Environment and Local Government on the 4th of November, 1997, which was subsequently amended by a further instrument of the 15th of July, 1998. Amongst its terms of reference the respondent is required to :-

“ In the event that [it] in the course of its enquiries is made aware of any acts associated with the planning process…. which may in its opinion amount to corruption, or which involved attempts to influence by threats or deception or inducement or otherwise to compromise the disinterested performance of public duties, it shall report on such acts and should in particular make recommendations as to the effectiveness and improvements of existing legislation governing corruption in the light of its enquiries”.

3. The terms of reference inter alios stipulate that the respondent should enquire fully into the matters referred to in those terms in respect in which evidence exists and which warrant proceeding to a full public enquiry.

THE COMPANY
4. At the heart of this application is the company. It is an English company. In 1994 it acquired lands at Carrickmines, County Dublin. It acquired those lands from a company called Paisley Park Investments Limited. That company was incorporated in the Isle of Man. Its registered shareholders were bodies corporate registered in the Isle of Man, Panama and the British Virgin Islands. In March, 1992, a liquidator was appointed to Paisley Park Investments Limited. Following that, the company was registered as owner of the lands in question.

5. The respondent has asserted in correspondence that it has reason to believe that a person or persons with a beneficial interest in Paisley Park Investments Limited may also have a beneficial interest in the company. It has likewise said in correspondence that it is aware that the company engaged consulting engineers and planning consultants to forward submissions to Dun Laoghaire Rathdown County Council setting out reasons why its land should be rezoned. It has also said that it has been informed that monies were paid to politicians for the purpose of securing the rezoning of the company’s lands at Carrickmines. These monies were, it is suggested, paid by on or behalf of the company and/or its predecessors to politicians in an effort to secure the rezoning of these lands. Part of the lands have indeed been rezoned.

6. In the course of a hearing which took place on Tuesday the 6th of June, 2000, counsel of behalf of the respondent expanded somewhat on the above information all of which was contained in correspondence emanating from the respondent. He said

“The background to the matter is that in connection with the preparation of the 1993 County Dublin Development Plan, there were attempts to rezone certain agricultural zoned lands in Carrickmines, as development lands. The registered owner of the lands at that time was a company called Paisley Park Investments Limited.
The Tribunal has been told substantial monies were paid to members of Dublin County Council in connection with their voting on the zoning motions, and on subsequent zoning proposals in 1998, when the lands were owned by Jackson Way Properties Limited.
In order to enquire, or to enable us to enquire into these very serious allegations, the Tribunal requires to know the identities of the persons who were conducting the business of and/or were the beneficial owners of Jackson Way Properties Limited.
Although the company is registered abroad, the Tribunal has reason to believe that the beneficial owners of the company are Irish.
The Tribunal’s enquiries are directed, at present, to ascertaining the identity or identities of the beneficial owner or owners of the company, and also any other person or persons who may have been involved in the payments of monies to members of Dublin County Council in connection with the lands in question.
It appears that the beneficial owners of this company have gone to elaborate lengths to disguise their identities. And indeed the predecessors in title also went to elaborate lengths to conceal their identities. The present registered owner, Jackson Way Properties Limited, became registered as owner of the lands in question on the 5th of April 1994 after a members voluntary winding up of Paisley Park Investments Limited.
This latter company which is registered in the Isle of Man, had directors, both of whom where Isle of Man residents. The original shareholders of Paisley Park Investments Limited were companies registered in Panama, in the Isle of Man and the British Virgin Islands.
The liquidation of Paisley Park Investments Limited was concluded in December 1994, and it appears in the course of this liquidation the property at Carrickmines was transferred to Jackson Way Properties Limited.
Jackson Way Properties Limited is a company registered in the United Kingdom and the directors and the shareholders of that company, are recorded in the companies registration documentation as non Irish nationals, resident in Birmingham.
Although the land in Carrickmines passed from Paisley Park Investments Limited to Jackson Way in 1994, the Tribunal has reason to believe that the beneficial ownership of both companies is the same or largely the same and that the transfer may have been an elaborate charade to convey the impression of change of ownership, possibly connected with obtaining support for the subsequent zoning motion after the transfer to Jackson Way Properties Limited.
In order to enable it to enquire into the matter, the Tribunal needs to know the identity of the persons who are the beneficial owners of Jackson Way Properties Limited. For this reason we wrote to the company’s Solicitor, Miley and Miley, in correspondence which I opened to Tribunal last week and in the course of which correspondence a request was made to Miley and Miley to inform the Tribunal of the identity of the person, or persons, for whom they received instructions on behalf of Jackson Way Properties Limited.
As you will recall, Mr. Stephen Miley of that firm attended before the Tribunal on foot of the summons, I think on Monday of last week, Tuesday of last week, and he declined to provide the Tribunal with this information.
He was summonsed to appear, to produce documents and to answer questions put to him. He attended on foot of the summons and produced documents, but claimed legal professional privilege, both in respect of the questions which were asked and in respect of the documents which were produced. In those circumstances he directed that Mr. Miley should submit legal written submissions as to the basis of his claim to legal professional privilege”.

THE NOTICE PARTY
7. The Law Society of Ireland was joined as notice party to these proceedings because the issue of legal professional privilege may have implications for the profession as a whole. I am grateful to counsel who appeared on the Society’s behalf for the assistance given.

EVENTS BEFORE THE RESPONDENT
8. As is clear from the passage which I have reproduced from the hearing which took place before the respondent on the 6th of June, 2000, the applicant was summonsed to appear before the respondent. The summons is dated the 23rd of May, 2000, and required the applicant to appear six days later to give evidence in relation to and to bring with him all documents and records in his possession relating to the company. The validity of that summons is not challenged in these proceedings.

9. On foot of that summons the applicant was asked to disclose to the respondent the names of persons from whom he received instructions on behalf of the company. His response was to assert his belief that that was a matter which was protected by solicitor/client privilege and that consequently he was unable to assist the Tribunal by divulging that information. Subsequently there were considerable exchanges between the applicant and counsel on behalf of the respondent in the course of which he was asked to state the nature and the basis of the privilege claimed by him. In the course of that he expressed his belief that the information sought was confidential and that his client had given him specific instructions not to breach privilege. The documents which had been produced by the respondent were at the conclusion of that days hearing left with the Tribunal pending the presentation of legal submissions on the applicant’s behalf. These submissions were presented on the 6th of June, 2000. These written submissions expanded upon the assertions made by the applicant to the effect that communications passing between him and his clients were confidential and were privileged.

10. On the 7th of June, 2000, the respondent gave his ruling on the matter. He held that legal professional privilege did not cover the identity of the persons providing instructions to the applicant. As a result of that ruling these Judicial Review proceedings where commenced.

11. In the course of the hearing and the submissions before the respondent a further issue was raised by the applicant. He contended that the procedures followed by the respondent were not fair and amounted to a denial of his rights in natural and constitutional justice. He contends in this court that he ought to have been apprised of all of the information in the possession of the respondent so that he might know the factual basis upon which the witness summons was first issued. This was necessary it was said by Mr Law Nesbitt S.C. to “vindicate his rights” so that he might “form a view as to whether there are grounds upon which the demand might be quashed”.

THE PRESENT PROCEEDINGS
12. It is not necessary to reproduce the somewhat tortuous history of these proceedings in their early stages. The statement grounding the application was amended on two occasions.

13. In its reamended form the reliefs now sought against the respondent are:

An Order of Certiorari quashing the decision of the Tribunal dated the 7th of June, 2000, [which directed the Applicant to make Discovery]; and
A Declaration that the Determination of the Tribunal to the effect that the identity of the parties instructing the Applicant is not capable of attracting privilege and/or Solicitor/Client confidentiality is void, ultra vires and in breach of the provisions of the Constitution of Ireland, 1937 and of the provisions of the European Convention on Human Rights and is bad in law”.

14. The first of these reliefs arises from an unfortunate confusion which appears to have developed in the hearing before the respondent where Junior Counsel for the applicant suggested that an affidavit of discovery should be sworn by the applicant. It is now accepted that the real issue that the applicant wishes to have determined in these proceedings is whether or not the respondent was correct in rejecting the claim of privilege as to the identity of the persons who gave him instructions on behalf of the company. Consequently the first of these reliefs it is now conceded is not necessary. Indeed it could never should have been granted since no order for discovery was in fact made. I can therefore focus on the declaratory relief which is sought.

15. This declaratory relief is sought in effect on two grounds . They are now set out in the reamended statement grounding the Judicial Review application. They read as follows:-

At the time of issuing the said Witness Summons the Respondent had not furnished to the Applicant any or any adequate explanation or reason for its request that he or his client waive solicitor/client privilege in respect of the information sought nor had the Respondent identified to the Applicant any documents or class of documents that it wished to examine or any basis upon which it could lawfully seek the production of any documents or request the Applicant to make an informed decision as to how or on what basis to advise his client to consider the request of the Respondent to waive solicitor/client privilege in respect of the said or any documents.
The Respondent was wrong in law in holding that as a matter of necessity the identity of the person(s) from whom the Applicant received instructions concerning Jackson Way Properties Limited could not be the subject of solicitor/client privilege.
Prior to the Order of the 7th of June 2000 the Respondent acted ultra vires and in breach of constitutional justice and fairness of procedures and had not furnished to the Applicant any or any adequate factual basis to sustain the making of an Order unravelling the solicitor/client privilege/confidentiality, which factual basis was necessary to enable the Applicant to address the Respondent as to the appropriateness or otherwise of the making of the said Order.”

16. As can be gleaned from the foregoing and from the arguments made before me there are two distinct attacks mounted against the requirement that the applicant disclose the identity of the persons who gave him instructions on behalf of the company. The first is procedural. It is said that he should not have been so directed unless he was fully apprised of the information and/or evidence in the possession of the respondent which led to the issue of the witness summons and the request for the identity of the persons who gave instructions to the applicant. The second is to the effect that even if the procedures followed were correct, as a matter of law the information sought is the subject of legal professional privilege and the applicant cannot be forced to disclose the identity of the persons in question. I will consider each in turn.

 

THE PROCEDURAL QUESTION
17. The applicant contends that the respondent failed to fulfil an obligation owed to him in law to provide him with sufficient facts as would enable him to determine whether the decisions of the respondent to issue the summons and require the provision of the information sought ought to have been made or not. He contends through Mr. Law Nesbitt SC that because he is a solicitor he is in a unique position over and above any other witness. The applicant must, it is said, be equipped to defend his interests and should not be required to repose trust in the respondent in respect of the order made requiring disclosure of the information sought.

18. It is necessary to look at what actually occurred before the respondent in order to deal with this contention.

19. On the 9th of May, 2000, the applicant was written to by the solicitor to the respondent. The letter reads as follows:-

“The Tribunal understands that your firm acts for Jackson Way Properties Limited and that you personally appeared for and on behalf of that firm in relation to recent High Court and Supreme Court proceedings.
The Sole Member has directed me to write to you to ask you to furnish the names of all persons from whom you received instructions on behalf of the above firm.
The Sole Member has asked that you give this matter your immediate and personal attention”.

20. On the 22nd of May, 2000, the applicant wrote to the respondent in the following terms:-

“I refer to this matter and have now received preliminary instructions in the matter from my clients.
My clients, who are incorporated outside the jurisdiction, have asked me to enquire from you the basis upon which the Tribunal is entitled to the information requested. I would appreciate your letting me have the necessary information to respond to this.
I have felt it important to point out to my clients that the information you have requested is, in my view, a matter, the confidentiality of which is protected by the Solicitor/Client relationship. Having regard to this my clients have also asked me to enquire from you the reason why the Sole Member directed you to write to me in the fashion in which you have”.

21. On the 23rd of May, 2000, the respondent replied:-

“Thank you for your letter of the 22nd inst.
The Tribunal is seeking the information referred to in my earlier letter as part of its confidential investigations into matters pertaining to paragraph 5 of the Tribunals Terms of Reference.
The Tribunal has received information which suggests that monies were paid by or on behalf of Jackson Way Properties Limited and/or its predecessors in an effort to secure the rezoning of lands now owned by your client at Carrickmines.
The Sole Member is anxious to obtain your co-operation and that of all persons who have/had an interest, beneficial or otherwise, in Jackson Way Properties Limited and its predecessors.
The Tribunal is aware that Jackson Way Properties Limited is incorporated outside the jurisdiction. However, this does not mean that persons who are or were beneficially interested in the company were not resident within this jurisdiction.
It is the view of the sole member that any solicitor/client privilege which may exist does not preclude you from furnishing to the Tribunal the information sought. If, as you contend, the information sought is protected by the solicitor/client relationship, the Sole Member requests that you and all persons from whom or on whose behalf you received instructions in relation to Jackson Way Properties Limited and its affairs waive any such confidentiality by furnishing the information sought to the Tribunal.
The sole member requests that you furnish the information sought by return and in any event not later than 1 p.m. on the 26th of May 2000”.

22. On the same day the applicant was served with a witness summons.

23. Before the applicant appeared before the respondent he wrote a letter dated the 24th of May, 2000. In the course of it he expressed his anxiety to co-operate in any way possible with the respondent consistent with his duties as a solicitor. He pointed out that his client had not waived solicitor/client privilege nor had they accepted the Tribunal’s invitation to waive the confidentiality referred to in the letter of the 23rd of May, 2000.

24. In turn this letter was responded to on the 25th of May, 2000. In the course of that letter the respondent pointed out that the applicant’s clients had not accepted the Tribunal’s invitation to waive the confidentiality in question. It went on:-

“The Tribunal has learned that Paisley Park Investments Limited was your client’s predecessor in title. That Company was incorporated in the Isle of Man on the 5th of March, 1987 and the original holders of the share capital were as follows:-
Maskini Management Limited of 12 Mount Havalock, Douglas, Isle of Man;
Rentzenderinck Investments Inc. of via Espana, 122, Bank of Boston Building, Panama 5, Panama;
Zenon of Napco Building, Main Street, Roadtown, Tortolla, British Virgin Island.
Paisley Park Investments Limited appointed a Liquidator in March 1992 following which your client was registered as owner of the lands in question.
The Tribunal has reason to believe that a person or persons who had a beneficial interest in Paisley Park Investments Limited may also have a beneficial interest in Jackson Way Properties Limited.
The Tribunal is further aware that your client engaged consulting engineers and planning consultants to forward submissions to Dun Laoghaire/Rathdown Co. Council setting out reasons why your client’s land should be rezoned. In addition, an Architect has recently made submissions on behalf of your client to Dun Laoghaire/Rathdown Co. Council in relation to the Carrickmines Great Action Plan.
The Tribunal is today writing to the persons concerned seeking from them the information requested in the Tribunal’s letter to you of the 9th inst.
In all those circumstances it seems clear that, an individual(s) have given and continue to give instructions on behalf of your client and the Sole Member has difficulty in understanding why the individual(s) concerned where not allowed (sic) their names to be furnished to the Tribunal.”

25. This correspondence makes it clear that prior to giving evidence before the Tribunal the applicant had been apprised of the information in the hands of the respondent which triggered the issue of the witness summons. The summons could not have come as any surprise to him and prior to entering the witness box he knew precisely why the Tribunal wished to elicit information from him. But he says that as a matter of law he is entitled to more. He says he is entitled to know the facts known to the Tribunal so that he may determine whether the decision of the Tribunal should be impugned or not.

26. A number of substantial difficulties confront the applicant in respect of this argument.

27. First, he has not sought in these or any other proceedings to quash the witness summons which was issued. At the hearing before the respondent on the 6th of June, 2000, his counsel confirmed to the respondent that there was no doubt as to the entitlement to issue the subpoena. Secondly, and much more importantly, the applicant seeks to invoke a right to detailed information in circumstances where the respondent is engaged in a preliminary investigation at the first stage of its work. This line of argument has been advanced before this Court and the Supreme Court on a number of occasions both in the context of public inquiries and investigative work being carried out by inspectors appointed under the Companies Acts. On each occasion when arguments seeking to invoke rights of the type asserted here have been made they have been rejected.

28. In my opinion the contention made by the applicant to the effect that the respondent is obliged to provide him with information of the type which he seeks is incorrect. The nature of the functions being discharged by the respondent obliges it to use the powers conferred upon it by statute to examine allegations. In the present case the nature of those allegations was fully explained to the applicant in correspondence prior to him giving evidence. The respondent was obliged to do no more. If he were obliged to do so his investigative function would be compromised, perhaps fatally. No great imagination is required to envisage endless challenges to every witness summons with the respondent being required at the investigative stage of his work to lay bare for minute examination every piece of information in his possession concerning what are at that stage of the work are mere allegations. To require the provision of the facts underlying the Tribunal’s investigation would undermine the right and indeed the obligation of the Tribunal to investigate allegations coming to his attention. It would generate the likelihood of an inter partes contest as to the viability of those allegations in circumstances where the very purpose of the Order made by the respondent is to enable an investigation of those allegations to take place.

29. I am of the view that the judgments of Kearns J. in Lawlor -v- Mr. Justice Flood (unreported, High Court, Kearns J, 2nd July, 1999) , Shanley J. in In the matter of National Irish Bank (under investigation) and in the matter of the Companies Act, 1990 ( High Court, Shanley J, 13th, July, 1998) and my own judgment in Re National Irish Bank Ltd . and in Re National Irish Bank Financial Services Ltd. and in Re Companies Act, 1990 (Unreported, High Court, Kelly J. 19th March, 1999) are apposite to this argument. In Lawlor’s case the applicant argued that in the absence of detailed information as to the basis of the allegations raised against him, including the sources relied upon, he should not be required to make an affidavit. Kearns J. said at page 58:-

“However, it seems to me that the process of information gathering with which discovery is clearly concerned forms part of the preliminary investigation or the first stage of the Tribunal’s work. It would needlessly hamper and interfere with the Tribunal’s work if it had to meet all the demands of the Applicant at this point in time”.

30. Whilst he was there dealing with discovery it does not appear to me that there is any material difference in principle between that and the information which was sought viva voce from the applicant here.

31. Shanley J. said in N.I.B. (13th July 1998) at page 31:-

“I am satisfied that there is no entitlement to invoke the panoply of rights identified by the Supreme Court at the information gathering stage of the Inspector’s work. The procedures identified by the Inspectors following the outcome of the first stage accord in my view with the requirements of fairness and justice and guarantee, where appropriate, the exercise of the rights identified in the Haughey case”.

32. Whilst he was there dealing with investigations pursuant to the provisions of the Companies Acts there are many similarities between them and the investigative phase of the inquiry being carried out by the respondent in the present case. In my own judgment in N.I.B. at pages 33-36 I said:-

“The Applicants say that having regard to the position in re Haughey 1971 I.R. 217 they should now be entitled to the documents which they seek. This is so notwithstanding the fact that the Inspectors are at this stage only engaged in the first stage of their investigation, namely information gathering. I have formed the view that the Applicants have misconceived the functions of the Inspectors appointed under the provisions of the Companies Act 1990. An inspection of this type is primarily investigative. It only becomes adversarial in limited circumstances. In Chestvale Properties Limited -v- Glacken (1993) 3 I.R. 35, Murphy J. cited with approval the observations of Sachs L.J. in Re Purgamon Press Limited [1971] Ch.388. That judge said that Inspectors appointed under the Companies Acts start
‘very often with a blank sheet of knowledge [and] have to call for information in whatever way it can best be obtained. That may be by interview, it may be from statements obtained in writing, it may be from accounts and other documents, or it may be by their exercising their powers under Section 167, subsection 3 to put questions to individuals either on oath or not on oath.
One way or another it may be a considerable time before the inspectors have before them sufficient information to see any pattern in the affairs of a company. Even when this pattern commences to take shape, they may need further material before the possibility emerges of any criticism attaching to individuals. Moreover, that possibility may derive from documentary evidence which is in substance uncontested, or it may derive from a matter on which there may be a conflict of evidence between some witness and the person to whom blame may be attributed. In the latter case there may come the stage when the Inspectors have to decide whether to simply record that conflict or whether to seek to resolve it. The more complex the affairs of the company and the greater the number of subsidiary companies the longer it may take before those respective stages are reached.’

33. Murphy J. went on to say:-

‘The present proceedings were instituted when the inquiry had reached only a very preliminary and exploratory stage…. Even if the presumption were otherwise and that one should anticipate a stage being reached in which the Respondent would find it necessary to make a choice between conflicting claims, it is clear that that stage has not yet been reached. Accordingly, the present application is premature insofar as it is based upon the contention that the inspector is engaged in a task which at present involves him in a quasi judicial function’.

In the present case it is to be noted that the Inspectors are only at a preliminary stage of their investigation and have not been called upon to exercise any quasi-judicial functions since that will not arise until stage two is reached. At stage two of their investigation they have, in my view, made it clear that all of the rights to which a party might be entitled under the decision in Re Haughey will be respected.
The English inquiry which gave rise to the decision in Re Pergamon Press Ltd. spawned further litigation which was also dealt with in the Court of Appeal. It was in Maxwell -v- Department of Trade and Industry and Others [1974] 2ALL E.R. 122. There Lord Denning M.R., called attention to what an investigation under the Companies Act is not. He said, at page 127:-
‘Remember what it is not. It is not a trial of anyone, or anything like it. There is no accused person. There is no prosecutor. There is no charge. It is not like a disciplinary proceeding before a professional body. Nor is it like an application to expel a man from a trade union or a club, or anything of that kind. It is not even like a committee which considers whether there is a prima facia case against a person. It is simply an investigation without anyone being accused.’
Insofar as this jurisdiction is concerned that, in my view, is a correct summary of the position which obtains at least insofar as the investigatory stage of the Inspector’s task is concerned. Once one moves into the second stage then, whilst the investigation is not transformed into an adversarial hearing, nonetheless fair procedures have to be observed insofar as any adverse conclusions may be drawn in relation to individuals. The procedure which the Inspectors have outlined as one which they will follow if such a stage is reached is in complete compliance with their obligations to observe fair procedures under the relevant jurisprudence. It follows therefore, that I take precisely the same view as did Shanley J. that there is no entitlement to invoke the rights established in Re Haughey at the information gathering stage of the Inspector’s work”.

34. That passage from my own judgment and the earlier passage from the judgment of Shanley J. were considered by Kearns J. in Lawlor’s case at page 62 were he said:-

“These two judgements seem to be definitive on the question of when Re Haughey rights arise, at least in the absence of special circumstances”.

35. I have come to the conclusion that in this case there is no entitlement at law for the applicant to be furnished with any more information than he has already been given by the Tribunal and that fair procedures have been followed both in relation to the issue of the witness summons and the posing of the questions to him concerning the identity of the persons who have given him instructions.

36. As to the contention that because he is a solicitor he is entitled to greater rights than any other individual I find no basis to exist to support that proposition. His rights are no greater or less than any other witness. If in the course of his testimony an issue arises which touches upon his professional responsibilities or, as in the present case, his entitlement to claim privilege, it can be dealt with by the respondent or by means of Judicial Review in this court. But the mere fact that he is a solicitor does not give him any rights over and above that of any other citizen to be apprised of information of the type sought at the investigative stage of the Tribunal’s work.

37. I now turn to the second question which calls for my adjudication. It is whether the respondent was wrong in law in concluding that the applicant was not entitled to claim legal professional privilege as to the identity of the persons who gave him instructions on behalf of the company and that he was therefore obliged to disclose that information.

LEGAL PROFESSIONAL PRIVILEGE
38. Legal Professional Privilege is more than a mere rule of evidence. It is a fundamental condition on which the administration of justice as a whole rests. That it the conclusion which I reached in Duncan -v- Governor of Portlaoise Prison [1997] 2 ILRM 296. In that case I quoted with approval a passage from the speech of Lord Taylor of Gosforth in the case of R -v- Derby Magistrates Court Ex parte B [1996] 1 AC 487 where, having set forth the history of legal professional privilege in English law he concluded at page 507 as follows:-

“The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal Professional Privilege is thus much more that an ordinary rule of evidence, limited in its application to the facts of a particular case. It is the fundamental condition on which the administration of justice as a whole rests”.

39. My decision in Duncan’s case was upheld by the Supreme Court. (unreported 5th March, 1997, ex tempore).

40. Similar conclusions as to the fundamental nature of legal professional privilege have been reached by courts of other jurisdictions. For example in Descoteaux -v- Mierzwinksi and the Attorney General of Quebec et al [1982] 141 DLR (3d) 590, the Supreme Court of Canada took the view that the right to legal confidentiality had developed from a rule of evidence into a substantive right. Lamar J., in delivering of the judgment of the court, said:-

“Although the right to confidentiality first took the form of a rule of evidence, it is now recognised as having a much broader scope, as can been seen from the manner in which this Court dealt with the issues raised in Solosky, supra”.

41. Earlier in his judgment he said:-

“ there is no denying that a person has a right to communicate with a legal adviser in all confidence, a right that is “founded upon the unique relationship of solicitor and client” (Solosky, supra). It is a personal and extra patrimonial right which follows a citizen throughout his dealings with others. Like other personal, extra patrimonial rights, it gives rise to preventive or curative remedies provided for by law, depending on the nature of the aggression threatening it or of which it was the object. Thus a lawyer who communicates a confidential communication to others without his clients authorisation could be sued by his client for damages; or a third party who had accidentally seen the contents of a lawyers file could be prohibited by injunction from disclosing them.”

42. At page 603 he said :-

“The following statement by Wigmore… of the rule of evidence is a good summary, in my view, of the substantive conditions precedent to the existence of the right of the lawyers client, to confidentiality: ‘Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived’.
Seeking advice from a legal advisor includes consulting those who assist him professionally (for example, his secretary or articling student) and who have as such had access to the communications made by the client for the purpose of obtaining legal advice.
There are exceptions. It is not sufficient to speak to a lawyer or one of his associates for everything to become confidential from that point on. The communication must be made to the lawyer or his assistants in their professional capacity; the relationship must be a professional one at the exact moment of the communication. Communications made in order to facilitate the commission of a crime or fraud will not be confidential either, regardless of whether or not the lawyer is acting in good faith”.

In ESSO Australia Resources Ltd. -v- Sir Daryl Dawson [1999] FCA 363 the Federal Court of Australia had this to say on the topic:-
“Legal professional privilege has long been the subject of controversy. It operates to exclude evidence not because of its unreliability but to advance other objectives. Jeremy Bentham regarded the exclusion of probative evidence as “one of the most pernicious and most irrational notions that ever found its way into the human mind”: Rationale of Judicial Evidence (J S Mill ed) (1827) at 193-194. But the judgment of the common law has been that while the central objective of the legal system is to search for truth, it is more important that some communications be kept secret. In the case of legal professional privilege, secrecy is defended on the basis is that it would promote the administration of justice. “The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence”: Swidler -v- United States (1998) 141 L ed 2d 379 at 389 per O’Connor J (in dissent)” .

43. Notwithstanding that controversial history however the Federal Australian Court nonetheless said :-

“Historically, legal professional privilege was justified as a vindication of the oath and honour of the lawyer. But it came to be recognised that the privilege has a more solid foundation. In the absence of the privilege a client would not freely consult with his lawyer. He would not make a full and frank disclosure of the material facts upon which the lawyers advice is sought. Thus is said that one effect of the denial of the privilege could, some say that it would, greatly inhibit the professional advice and assistance given by a lawyer. This inhibition would significantly undermine the proper functioning of the adversarial system of justice. These considerations, among others, have lead courts to accept that the privilege is not merely a rule of evidence but a basic principle of the common law: a principle that transcends the normally predominant principle that all rational means for ascertaining the truth should be employed in the curial process”.

44. Legal professional privilege is also protect by the European Convention on Human Rights. In Niemitez -v- Germany (1992) 16 EHRR 97 the European Court of Human Rights took the view that a warrant which permitted the search of a lawyers office was “not necessary in a democratic society”. The power, which took no account of any special protection which might be desirable in relation to the lawyer’s premises was disproportionate to its purposes. The Court took the view that where a lawyer is involved “ …an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 of the Convention”.

45. This short survey of the international scene demonstrates that in all of the leading common law countries, legal professional privilege exists and is regarded as being very much more than a rule of evidence. Rather, just as in this jurisdiction, it constitutes an essential condition upon which the administration of justice rests. In the context of European human rights it is protected by Article 6 of the Convention.

 

THE IDENTITY CASES
46. The question of whether or not the identity of a client attracts the protection of legal professional privilege is one which has exercised the minds of courts in various jurisdictions over many years. I have been taken on something of a grand tour of what appears to be all of the relevant authorities in every common law jurisdiction. Whilst that was an interesting experience and I am grateful for it, like many things experienced while abroad, they are never quite the same when they are sought to be re-experienced on native soil. The panorama which was opened up to me on this tour demonstrates that whilst the concept of legal professional privilege exists in all of these countries neither it nor the general law of privilege is identical with that which obtains in this jurisdiction. Consequently many of these authorities whilst interesting and instructive are of limited value when they fall to be considered here.

47. The starting point of my consideration has to be a decision which is binding upon me and which represents the law of this jurisdiction. That case is Smurfit Paribas Bank Limited -v- AAB Export Finance Limited [1990] 1 IR 469. This case sets out the principles underlying the law of privilege properly applicable to communications between a client and his lawyers. It is against the background of these principles that the question of the entitlement not to disclose the identity of a client or persons giving instructions on behalf of that client falls to be viewed.

48. In the course of his judgment Finlay C J said at page 477:-

“ The existence of a privilege or exemption from disclosure for communications made between a person and his lawyer clearly constitutes a potential restriction and diminution of the full disclosure both prior to and during the course of legal proceedings which in the interests of the common good is desirable for the purpose of ascertaining the truth and rendering justice. Such privilege should, therefore, in my view, only be granted by the courts in instances which have been identified as securing an objective which in the public interest in the proper conduct of the administration of justice can be said to outweigh the disadvantage arising from the restriction of disclosure of all the facts.
It is necessary to bear these general considerations in mind in attempting to ascertain the underlying principle which appears to have led to the expansion of the privilege for communications with a lawyer from cases of actual or contemplated litigation to cases of communication seeking legal advice and/or legal assistance other than advice.
The decided cases did not appear to me provide any satisfactory explanation of this expansion”.

The Smurfit case established the following propositions:-
Legal professional privilege can only be invoked in respect of legal advice and not in respect of legal assistance;
Where the claim of privilege is challenged, the onus is placed upon the person invoking that privilege to justify it;
The correct formulation of that privilege which arises in Irish law, other than in contemplation of furtherance of legal proceedings is as follows “…where it is established that a communication was made between a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice, whether at the initiation of the client or the lawyer, that communication made on such an occasion should in general be privileged or exempt from disclosure, except with the consent of the client” (Per Finlay CJ at 478).
What is privileged is the communication. That communication only attracts privilege if it seeks or contains legal advice. The communication of any other information is not privileged in Irish law.

THE APPLICANTS SUBMISSION
49. The conclusion stated in the written submission furnished to the court on behalf of the applicant reads as follows:-

“It is submitted that the position in relation to legal professional privilege is very clear. The privilege attaches to all communications made between a client and a solicitor acting in his capacity as legal advisor, whether or not connected to actual or contemplated litigation. A solicitor, asked to disclose information concerning his client, other than the identification of such client, is prima facie bound to withhold such information. The onus is therefore on the party seeking disclosure of confidential information to prove that an exception to the rule applies. Such exceptions are very strictly defined, applying only where there is some definite charge or fraud or illegality. Mere surmise or conjecture is insufficient. There must exist an allegation of fact sufficient to displace the privilege”.

THE LAW SOCIETY’S CONTENTION
50. In its written submissions on the topic of the identity of a client the Law Society submits as follows:-

“It is submitted that in appropriate cases the identity of a client may be protected by what is know as ‘advice privilege’. According to a leading English text on privilege the elements of advice privilege are:-
A communication whether written or oral;
Made confidentially;
Between a client and his lawyer, acting in a professional capacity;
Made for the dominant purpose of enabling the client to seek or the lawyer to give legal assistance. (Passmore ‘Privilege’ (1998) 37)
It is clear that advice privilege can be claimed where the lawyer’s advice goes beyond the consideration of purely legal matters to include advice on the commercial aspects of the transaction in which he is engaged on behalf of his client. Thus, in Balabel -v- Air India [1988] 1Ch 317, Taylor L J stated
“…legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context….the range of assistance given by solicitors to their clients and of activities carried out on their behalf has greatly broadened in recent times and is still developing” .
Similarly in Nederlandse Reassurantie Group Holding NV -v- Bacon and Woodrow (a firm) and others [1995[ 1 ALLER 976 Colman J noted that a solicitors professional duty or function is frequently not exclusively related to the giving of advice on matters of law. He stated “It not infrequently relates to the commercial wisdom of entering into a given transaction in relation to which legal advice is also sought”.
It is sometimes suggested that the identity of a client can never be the subject of legal professional privilege. In fact this is not so and is an inaccurate description of the law. The true position is that a Court has a discretion as to whether or not to order the disclosure of the clients name. In exercising this discretion the Court should consider such factors as:-
whether circumstances of confidentiality surround the name of the client;
whether the client has communicated his identity confidentially for the purpose of being advised by the solicitor, and has not made it know to the world at large;
whether the client has given express instructions that he retained the solicitor on condition that his identity should be kept confidential and should not be disclosed;
whether the disclosure of the clients name will have the practical effect of disclosing confidential communications between lawyer and client;
whether the clients identity is extraneous to any confidential communications;
whether the client has waived the privilege that cloaks his identity.
It is submitted that this examination will demonstrate that the existence of supposed rule that a client’s identity cannot be protected is not well founded”.

THE RESPONDENTS DETERMINATION
51. I did not purpose to rehearse here in detail the lengthy reasoned determination given by the respondent on this issue. It is sufficient if I recite that the respondent indicated that the importance of solicitor/client privilege in the administration of justice could not be over emphasised. He correctly regarded it as fundamental to the interests of justice. He then considered the claim of privilege asserted by the applicant by reference to Bursill v Tanner [1885] 16 QB 1 which he believed decided that the name of a client was not a matter that comes within the remit of legal professional privilege. He also considered Pascall -v- Galinski [1970] QB 38 where a solicitor had been given strict instructions from his client not to disclose his name. He cited from the House of Lords decision to the effect that

“this firm of solicitors…. were not entitled to say, we were acting on behalf of a lessee, and to refuse to give his name. It was their duty, not only to the court but also to the lessor and all concerned, to give the name of the lessee. If Mr. Gale (the solicitor) was subpoenaed as a witness and asked to give the name of his client, then, if the name was relevant to the proceedings, he could be compelled to give it. He could not assert the client’s privilege to protect him from that disclosure. Bursill -v- Tanner is clear on the point” .

52. He also considered Parkhurst -v- Loughton (1818) Ch. 2 Swanston, 194 and variety of other cases before concluding that

“it is necessarily the case that the entitlement to solicitor client privilege cannot be claimed in respect of the names of those from whom Mr. Miley received instructions concerning Jackson Way Properties Limited”.

THE APPLICANTS EVIDENCE BEFORE THE RESPONDENT
53. At this juncture it is appropriate to summarise the evidence given by the applicant to the respondent in support of the refusal to provide the information sought.

54. The applicant asserted that the identity of the persons who gave him instructions was confidential and that he had been given specific directions not to breach privilege.

55. There may well have been a confusion in his mind as to these two concepts.

56. Even the most confidential information given to a solicitor will not attract legal professional privilege unless it comes within the Smurfit Paribas rubric. In this regard a solicitor is in no different position to other persons who may be the recipients of confidential information. For example, no privilege attaches to confidential information given to a medical practitioner; neither is the source of information given in confidence to a journalist privileged. Confidentially of information does not of itself create a privilege from disclosure. But such information given to a lawyer will be privileged from disclosure if the conditions specified in Smurfit Paribas are met.

57. There is no Irish authority which deals specifically with the question of ‘client identity privilege’. I will therefore examine a number of foreign authorities referred to in order to see if they provide any assistance. I also do so in deference to the lengthy arguments made by reference to them. As I have already indicated however they are of limited help given the binding authority of the Smurfit Paribas decision.

ENGLAND
58. In the course of the written submissions from the Law Society from which I have already quoted they cite from Passmores Law of Privilege [1998] at page 37. It is from that work that the elements of advice privilege are reproduced under four separate subheadings in their written submission. In fact the quotation is slightly inaccurate in that paragraph four ought to have read “made for the dominant purpose of enabling the client to seek or the lawyer to give legal advice or assistance” . The word ‘ advice’ was unintentionally omitted from the quotation. It is immediately apparent from this quotation that it does not represent the law of this jurisdiction. Privilege in this country cannot be claimed in respect of information passing for the purposes of securing legal assistance. Consequently the notion of legal professional privilege is more confined in this jurisdiction. It follows that the decisions of the English Courts in Balabel and Nederlandse are not decided on principles which are ad idem with the law in this jurisdiction. Indeed it is interesting to note that Balabel’s case was one of those cited to the Supreme Court in the Smurfit Paribas case and it would appear that the Supreme Court did not adopt the principles stated therein.

59. The law in relation to legal professional privilege is more narrowly confined in this jurisdiction than in England since it does not extend to information passing for the purposes of securing assistance.

60. Having said that it is then interesting to note that none of the English decisions cited either by the applicant or by the Law Society took the view that the identity of a solicitors client was a matter in respect of which privilege could be claimed.

61. Whilst the English cases are all different on their facts the rationale for the decisions appears to derive from a number distinct though related reasons.

In ex-parte Campbell : Re Cathcart [1870] LR5 Ch 703 at 705 James L J said:-
“What a solicitor is privileged from disclosing is that communicated to him sub sigillo confessionis- that is to say, some fact which the client communicates to the solicitor for the purpose of obtaining the solicitor’s professional advice and assistance; the principle being, that such communications ought to be privileged, because otherwise a man would be deterred from fully disclosing his case, so as to obtain proper professional aid in a matter in which he is likely to be thrown into litigation. But a solicitor’s knowledge of his client’s residence, even though he knows it simply in consequence of the professional business in which he has been acting for him, is not on that ground alone a matter of confession, so as to be in the nature of a privileged or confidential communication……. The clients place of residence in such a case is a mere collateral fact, which the solicitor knows without anything like professional confidence; and therefore the mere statement, “The place of residence of my client came to my knowledge in my professional capacity, and only in consequence of my employment as his solicitor” ,is not, to my mind, nearly enough to warrant the solicitor in refusing to answer the question as to where his client is residing. If, indeed, the gentleman’s residence had been concealed; if he was in hiding for some reason or other, and the solicitor had said, “I only know my client’s residence because he had communicated it to me confidentially, as his solicitor, for the purpose of being advised by me, and he has not communicated it to the rest of the world,” then the client’s residence would have been a matter of professional confidence; but the mere statement by the solicitor, that he knows the residence only in consequence of his professional employment, is not sufficient.

If a client’s residence is a mere collateral fact then it seems to me that a clients identity cannot be anything other than a collateral fact. Secondly, in Bursill -v-Tanner [1885] 16 QBD 1 at 5 Cotton L J said.
“It is not everything that solicitors learn in the course of their dealings with clients that is privileged from disclosure. This matter was much discussed in the case of Lyell -v- Kennedy 23 Ch.D. 387. The privilege extends only to confidential communications. It is not necessary for me to go through all the cases that have been decided on the question of what constitutes a confidential communication. In my opinion, the names of the trustees did not constitute such a communication. The mere fact who the trustees are cannot be said to be a matter communicated to the solicitor confidentially for the purpose of obtaining his professional advice, or at any rate, it is highly improbable that it should be so. There is also another ground for compelling the disclosure of their names. The solicitor claims this privilege as that of his client. He must then state the names of persons for whom he claims the privilege”.

62. This decision makes it clear that the name of the client will never be communicated for the purpose of obtaining the solicitors advice save in the truly exceptional circumstance in which the client is seeking to determine whether he will seek advice from the solicitor. Furthermore in order to maintain the privilege the solicitor has to state whose privilege it is and this involves naming the client. In the present case the request is to identify the persons who provided instructions but that does not appear to me to alter the question of principle.

63. In the most recent authority cited from England by the Law Society namely the decision of Harman J in International Credit and Investment Company (Overseas) Ltd. -v- Adham The Times 10th February 1997, it is suggested that the judge recognised that any derogation from legal professional privilege even as regards the identity of the client should only occur in the most exceptional of circumstances. Even in the rather unsatisfactory way in which the case is reported it seems to me that the observations in question were directed more to the procedural method of requiring a solicitor to provide information on foot of a motion rather than to deal with the question of principle.

64. It is clear that all of the English authorities, decided in circumstances where legal professional privilege has wider parameters than in this jurisdiction, are unanimously against the proposition of the applicant. Indeed there appears to be only one single academic authority in his favour namely an article by Mr. Morrick entitled ‘Professional Privilege: the Client’s Identity’ (1980) 124 Sol. J. 303. A reading of that article shows that both the English Law Society, the editors of Phipps upon Evidence and the editors of Corderry on Solicitors all operated on the basis that no such privilege exists. Insofar as the author suggested an exception arising where “the clients identity would…. be incriminating information” it was one based upon American authority, was contrary to the existing English authorities and furthermore has no basis remotely close to this case.

65. I have therefore come to the conclusion that none of the English authorities cited support the proposition put to the court by the applicant on the facts of this case.

SCOTLAND
66. Much attention was given to the Scottish case of Conoco (U.K.) Limited -v- The Commercial Law Practice [1997] SLT 372. From my reading of the decision of Lord MacFadyen, it appears that the observations made by him in the course of his judgment were made obiter because a direction was given that the information should, possible privilege notwithstanding, be disclosed. Whilst that judge rejected any rule which holds that the identity of the client will not normally be privileged it is important to bear a number of things in mind. First, the case was again decided in a legal milieu where the law on privilege is quite different to that which obtains in this jurisdiction. Scots law in relation to the scope and content of the rules relating to legal professional privilege appear as far as I can ascertain to be very different indeed to the law in this jurisdiction. For example counsel at page 376 of the report is quoted as having urged the following proposition which appears to have been accepted by the court

“Except within the scope of a recognised exemption, the principle applies to all facts communicated between solicitor and client, including (since there is no Scottish authority to the contrary) the identity of the client. The identity of the client, it is submitted, is no different from any other matter communicated by the client to the solicitor within the relationship of solicitor and client”.

67. That is not the law in Ireland. Indeed the difference between Scots law and Irish law appears to be more fundamental. In Walker and Walker, Law of Evidence in Scotland there appears to exist a concept of privilege under that law which in fact is known simply as confidentiality .

68. In any event in the Conoco case the view was taken that the identity of the client was “a component of the total information” which was communicated by the client to the solicitor (see page 378). This therefore enjoyed the benefit of the privilege. It follows therefore that the issue appears to have arisen in a context where a solicitor had written to the plaintiff advising it that a third party had information concerning a fraud which had been committed on the plaintiff in circumstances in which the third party had directed that his identity was not to be revealed. It is difficult to see how, under Irish law, privilege could be claimed in such circumstances at all.

69. I am therefore of the view that the law in Scotland is so radically different on this topic to either the law of England or the law of this jurisdiction that it is not safe to regard the Scots case as authority for any proposition supportive of the applicant in these proceedings.

AUSTRALIA
70. All of the Australian cases cited particularly by the Law Society have to be looked at in the context of a legal regime different to ours on the topic of legal professional privilege. In R-v- Bell; Ex-parte Lees [1980] 146 CLR 141 Gibbs J explained the general principle applicable in that jurisdiction as follows:-

“It is a well settled principle, based on public policy, that communications made confidentially between a client and his legal advisor for the purpose of obtaining or giving legal advise or assistance are privileged from disclosure”.

71. Even in this different (and broader from the point of view of privilege) legal atmosphere three of the four cases cited affirmed the principle that the identity of the client could not be the subject of a claim of privilege. The most significant of these cases is undoubtedly the decision of the High Court of Australia in R -v- Bell . That case was concerned with the address of a client. In the course of his judgment in that case Stephen J said at page 155

“Where, as here, it is a clients address for which privilege is claimed special considerations may sometimes arise. In a number of cases it has been said that the identity of a client is not something to which the privilege applies, and this because the litigant is entitled to know who in truth is his opponent, “who is the real defendant”” Levy -v- Pope 173 E.R. 1206 per Parke J and see Gillard -v- Bates, 151 E.R. 529 (1885) 16 Q.B.D. 1 Bursill -v- Tanner, and Cook -v- Leonard [1954] V.L.R. 591. There may be cases in which knowledge of an opponent’s address is an element essential to any real knowledge of his identity. In such cases it would seem right that privilege should not attach. On the other hand, if the likelihood of disclosure of a person’s address would operate as a real deterrent from his seeking professional advice, this would suggest that the privilege should apply, as James L J observed in Ex-parte Campbell . Each of these considerations reflect different aspects of public policy. There are, no doubt, other such aspects which may emerge in particular cases”.

72. In this passage, the judge does not appear to me to cast any doubt upon the proposition that privilege in respect of the identity of a client does not normally apply.

In Southern Cross Commodities Pty Ltd. (in liquidation) -v- Crinis (1984) VR 697, there is a lengthy analysis of the case law carried out. Whilst Mr. Morrick’s article is referred to by Young C.J., that judge says:
“…the author contends that there are occasions when a solicitor may refuse to disclose a client’s identity although he concedes that there is a dearth of authority on the point”.

73. Having set forth the authors conclusion the judge says

“It is unnecessary for me to examine the authors contentions or to pronounce upon the conclusion so expressed, for the requisites are not, in any event, satisfied in the present case”.

74. The most recent Australian authority drawn to my attention is that of Federal Commissioner of Taxation -v- Coombs (1999) 164 ALR 131 [1999] FCA 842. The Court said (at paragraph 31) as follows

“The following propositions, amongst others, can be distilled from the cases we have examined:
Privilege attaches to communications, and not to facts which a lawyer observes while acting in the course of a retainer
Privilege does not attach to everything a client says to the lawyer, but only to communications made by the client for the purpose of obtaining the lawyers professional assistance. It does not attach to “mere collateral facts”. The address and identity of a client will usually be “collateral facts”.
Privilege attaches to communications only if they are confidential. In almost all cases the clients name and address will not have been communicated confidentially.
Instructions to a lawyer to do a particular thing, for example to prepare a legal document such as a will, are generally not privileged, because instructions to do something do not necessarily amount to a request for advice.
As a general rule, the identity of a client will not be privileged as the privilege belongs to the client, and the retainer between the lawyer and the client must be demonstrated in order to establish the privilege. This requires disclosure of the clients identity.
Disclosure of the client’s identity is necessary before the privilege could arise even if the client’s name was given in confidence, and it was a condition of the lawyer’s retainer that the clients identity be kept confidential. The client cannot by contract extend the area of privilege.
Some of the cases support an exception to this general rule when so much of the actual communication has already been disclosed that the identification of the client amounts to disclosure of a confidential communication. This will be the case when the clients identity is so intertwined with the confidential communication that to disclose the identity would be to disclose the communication”

75. These cases suggest to me that in Australia the circumstances in which the courts of that jurisdiction will uphold privilege as to the identity of a client are very limited and will arise where to disclose it would operate as a deterrent to seeking professional advice or amount to a disclosure of the advice itself. These circumstances must be very limited and indeed have nothing in common with the present case.

NEW ZEALAND
76. The Law Society in its submission accepts that the decision which it drew to my attention from this jurisdiction namely Police -v- Mills (1993) 2 NZLR 592 was heavily influenced by Mr. Morricks article to which I have already made reference. As I have already pointed out that article (unsupported by any particular authority) suggests that a common law right to privilege might arise where the client was not a party in litigation and where the client was either acting in the public interest or his identity would be incriminating information. Neither of those circumstances have any application here, but it is interesting to note that Blanchard J., whilst prepared to accept the statement of the law as contained in Mr. Morricks article ultimately found in favour of the existence of a discretion to uphold confidentiality in public interest cases or cases of possible incrimination (vide page 600). That determination does not appear to me to be consistent with a claim of strict privilege which is what is contended for in the present case.

CANADA
77. The first of the Canadian cases cited namely Re United States of America -v- Mammoth Oil Company (1925) 2DLR 966 contains the following statement from the judgment of Hodgins J A. He said at p. 970

“As to the name of the client, I am quite unable to see that a solicitor and his client can make that confidential which is not so in fact. The appellant admits that his client was known to him before he was consulted by him. That client’s name, therefore, was a fact of which he acquired knowledge before professional relations began and not as a part thereof. The solicitor and client cannot make a convention by which what is already known to the solicitor will form part of the confidential matters between them, if in fact that is not so. To permit this would extend the privilege far beyond what has hitherto been recognised in our Courts. Bursill -v- Tanner (1885) 16QBD 1”

78. The judgment of Ferguson J A in that case does not appear to me to be of any great assistance since the example cited namely a circumstance in which counsel might be permitted not to identify his client where he had attended an inquest on his behalf arising from an accident in which the client was involved is not apt to the question at issue here.

In Re Ontario Securities Commission (1983) 146DLR (3d) 73 the Ontario High Court stated
“The general rule is that whenever a solicitor asserts that a communication is protected by the solicitor and client privilege, he cannot refuse to identify the client on whose behalf the privilege is asserted, because the identity of his client is not the subject of professional confidence… A solicitor cannot withhold as privileged the name of a client on whose behalf he receives, pays, or holds money if the identity of the person paying, receiving, or holding such money becomes relevant in legal proceedings. The same rule applies… whenever a solicitor does any act on behalf of a client and it becomes relevant in legal proceedings to determine on whose behalf the act was done. The doing of an act does not fall within the ambit of the privilege because it is not a communication at all.
I am not prepared to go so far as to say that circumstances can never arise in which a solicitor being examined in legal proceedings would be justified in refusing to disclose the name of a client, or former client. It suffices to say that none of the questions before the commission that were the subject of argument before us arose out of circumstances which would justify the withholding by the solicitor or former solicitor of the names of his clients.”

THE UNITED STATES OF AMERICA
In Ralls -v- United States of America (1995) 52f 3d 223 the United States Court of Appeals for the 9th Circuit explained what it described as a narrow exception to the general rule of disclosure as arising in circumstances where “an attorney may invoke the privilege to protect the identity of a client or information regarding a clients fee arrangements if disclosure would convey information which ordinarily would be conceded to be part of the usual privileged communication between attorney and client”. It made it clear that the party asserting the attorney/client privilege has the burden of establishing the relationship and the privileged nature of the communication. The Court of Appeals for the United States placed this exception in the context of a further principle namely “because it is a derogation of the search for the truth, the privilege is narrowly construed”.
79. It would seem therefore that even in the United States of America where the legal position is substantially different to that which obtains in this jurisdiction, a person in the position of the Applicant would have to assume the burden of establishing the identity of his client was a matter the disclosure of which would convey information which would ordinarily be part of the privilege. This must be an extraordinarily unusual circumstance and certainly far removed from the facts of this case.

CONCLUSION
80. Having considered all of these authorities, I have come to the conclusion that the applicant is not entitled as a matter of Irish law to maintain a claim of privilege over the identity of persons who provided him with his instructions on behalf of the company. Any such claim of privilege would be inconsistent with the views of the Supreme Court in the Smurfit Paribas case which are binding upon me.

81. Even in England where a wider form of legal privilege exists the position would, on the basis of the English authorities, be no different.

82. In the foreign jurisdictions where the law of privilege is not the same as in this jurisdiction, there is nonetheless a strong body of legal authority reaffirming the general principle that a solicitor is not entitled to maintain a claim to privilege in respect of the identity of his client.

83. A dilution of this general principle arises where (a) the naming of the client would incriminate or (b) where the identity of the client is so bound up with the nature of the advice sought, that to reveal the clients identity would be in fact to reveal that advice. There is no evidence whatsoever to suggest that the naming of these persons by the applicant would incriminate them, nor is there any evidence that the identity of these persons is so bound up with the nature of the advice sought that to reveal the identity would be in fact to reveal the advice. Consequently even if this exception to the general principle were to apply it would have no bearing upon the instant case.

84. In these circumstances the applicant is not entitled to the declaration which he seeks and it is refused. The respondent was in my view entitled to require of him the disclosure of the identity of the persons who furnished him with instructions on behalf of the company and he must now furnish that information to the respondent.

85. This application is dismissed.

Prendergast v McLoughlin

[2008] I.E.H.C. 296

JUDGMENT of Mr. Justice Charleton delivered on the 30th day of July, 2008

1. The plaintiff is a Dubliner of twenty years of age and wants to become a doctor. In the competitive system of entry into the five medical schools in Ireland, his performance, over two occasions, on points in the Leaving Certificate examination has left him short of what was required. Were he not a European citizen, meaning for the purposes of this case, a citizen of a Member State of the European Union or of the wider countries forming part of the European Economic Area, however, his examination performance would have been adequate to secure him a place. This is because the Government has reserved a fixed quota of places in medical school for European citizens. This is what the plaintiff was obliged to compete for. In addition, a service industry has been created in education whereby non-Europeans can compete for separate places in the medical schools, to which European citizens are denied entry. He claims this is unlawful.

The Plaintiff’s Account

2. The plaintiff was born in Ireland, though his parents also worked abroad, and has lived in Ireland, in China and in Malaysia. He was partially brought up in these places. He attended Gonzaga College in Dublin from 2000 to 2006. After the Junior Certificate, there is a transition year before the Leaving Certificate studies begin. During that year, students relax and also do some work experience. The plaintiff shadowed a gastroenterologist in St. Vincent’s Hospital for a week. He was so stimulated by the experience that he decided that his vocation was in medicine. The maximum number of points that can be achieved in the Leaving Certificate, on the basis of A1s in six subjects, is 600 points. Everyone who wants to go to university, or any other participating third level college in Ireland, makes an application for a place in the course of their choice through the Central Applications Office. This was founded in 1976 to process Leaving Certificate students from Ireland and all European citizen applicants. Forty-four institutions at third level are involved; see Central Applications Office, Board of Directors Report 2008 (Galway, Autumn 2008). A form is signed whereby an applicant agrees to be bound by the conditions attached to the system. The plaintiff signed this form. However, the plaintiff, like everybody else, had no choice but to sign. The conditions specify that he is only entitled to what he is offered.

3. In 2006, the plaintiff achieved 490 points in his Leaving Certificate. This was not nearly enough to get into medicine as a European citizen. He then repeated his Leaving Certificate, through the Institute of Education in Leeson Street in Dublin, and in 2007 achieved a score of 550 points. To enter medicine, he needed certain minimum requirements which are set by the five medical schools; Trinity College Dublin, National University of Ireland, Galway, University College Cork, University College Dublin and the Royal College of Surgeons in Ireland. On both Leaving Certificate performances, he comfortably met those requirements. The competitive nature of applying for a course in medicine with a fixed intake meant that in 2007, he was again disappointed. He tried to get into two universities in the United Kingdom. There, four universities will accept Irish students. He did two interviews but was not accepted. He could have applied, but I understand he did not apply, to one of a number of universities in central Europe that offer medical degrees through English. A condition of studying there is that over two or three years, one will learn the language and become so proficient in Slovak or Magyar, or in the appropriate tongue, as to be able to pursue clinical training on patients in the latter years of the course. I was told in opening that there may be scores of Irish students pursuing this route into medicine; however no evidence as to numbers was offered.

4. In his application to the Central Applications Office, the plaintiff’s choices were, in order, medicine in any of the colleges, dentistry in Trinity College Dublin and then pharmacy. He achieved a place in pharmacy in Galway. At the time he gave evidence in this case, in July, 2008, he had completed his first year and had achieved a second class honours first division result. To become a pharmacist, he must study for three more years and then do a one-year practical registration course.

5. While studying in the Institute of Education, the plaintiff got to know a number of non-European citizens. For the purposes of this judgment, and for entry into medical school, I will refer to them as foreign students. They had the same ambition as him to study medicine. One of them achieved 500 points. He secured a place in the Royal College of Surgeons in Ireland because he was from outside Europe. The plaintiff felt bitterly aggrieved by this realisation. Some foreign students apply for admission to medical school through the Central Applications Office, though many do not, relying instead on the international baccalaureate or on national results as interpreted by the medical schools. About 18% of our Irish and European students, who applied for medicine as a first preference, got in. I do not know the percentage success rate of foreign students.

6. For competition in the places reserved for foreign students, as opposed to European citizens, in the five medical schools a lower threshold for entry is required. This still comfortably meets the minimum standard of results for eligibility to study medicine set by the medical schools and this threshold applies to every applicant. To be certain of a place in medicine in the five Irish medical schools, as I understand it, a European citizen student needs to achieve at least 570 points. In reality, all or almost all, these applicants are Irish. The figures in relation to foreign students are less clear. The plaintiff said that a non-European citizen needs only 450 points for the Royal College of Surgeons in Ireland. However, his acquaintance had achieved 500 points to gain entry. Professor Brendan Loftus of the National University of Ireland told the court that to study medicine in Galway the entry requirements for non-European citizens was currently at 500 points. In any event, it is considerably less.

7. The plaintiff’s family is well off. University fees were abolished in Ireland in 1995, though students still pay a registration fee. At no stage prior to 1995, were the fees paid by students in State-funded colleges, in respect of any course, anything close to the economic cost of their education; in medicine the fees covered a fraction of the cost. If a foreign student wishes to come and study here, however, he or she must pay fees at a level which exceeds the economic cost. The number of foreign students in the Royal College of Surgeons in Ireland now greatly exceeds 50%. In the other four medical schools, the foreign intake is somewhere around a third, but the contribution that they make to the budget of the medical schools is around 50% or more. The plaintiff thought: why shouldn’t I apply as if I were a foreign student and agree to pay what they would pay? He wrote the following letter in August 2007:-
“We act for Frank Prendergast… a student who obtained 550 points in his Leaving Certificate this year. Our client applied for a place in your undergraduate medicine degree course[. H]owever, he has not been offered a place.
It has come to our attention that several non-EU students have been offered places in this course notwithstanding that they obtained fewer points than our client (either in the Leaving Certificate or other equivalent examination). We understand that these non-EU students are obliged to pay significant fees to attend this course and we confirm that our client is also prepared to pay these fees. Please confirm that you are prepared to offer our client a place on this course on the same basis as these non-EU students. If you are not prepared to offer him a place, please indicate why you are not prepared to do so.
This matter is obviously extremely urgent from our client’s point of view and therefore we should as[k] you to reply to this letter by Wednesday 29th August, 2007. If we do not hear from you we may issue legal proceedings without further notice to you and this letter will be used to fix you with the costs of same.”

8. The reply by Trinity College Dublin fairly sets out the scheme within which the five medical schools operate. It reads:-
“I refer to your letter…There are two separate competitions – EU and non-EU – for entry to medicine in Trinity College. To be eligible for consideration for a place in medicine applicants must be EU nationals for the EU competition and non-EU nationals for the non-EU competition.
Your client’s results in the Leaving Certificate unfortunately are not competitive for an EU place in medicine, and as he is an EU, and not a non-EU national, he is not eligible for consideration for a non-EU place in medicine.”

9. The replies which the plaintiff received from the other medical schools are similar. The Royal College of Surgeons in Ireland replied by indicating that they were restricted by the Higher Education Authority to offer only 39 medical places to European school leavers and that candidates for these places were ranked according to academic merit and offers issued in accordance with this ranking until all the places were filled.

10. In 2007, that same year, University College Dublin had a limit of 122 European citizen entrants into medicine, as set by the Higher Education Authority, and the National University of Ireland, Galway had 81 such places.

11. The plaintiff then issued these proceedings. He claims that setting a quota on places available to European Union students is unlawful; that any such direction was beyond the powers conferred on the defendants by the Higher Education Authority Act 1971; that the quota system is unconstitutional; and that the quota system is contrary to the relevant treaties of the European Union.

12. The relevant years where the situation of which the plaintiff complains are 2006 and 2007. I need, however, before returning to this to briefly refer to the facts, as I find them, as to the history of a quota system for medical schools in Ireland.

Historical Background

13. Some of the figures in the correspondence admitted before the court are inconsistent. The general trend, however, is clear. Starting in 1974, there were 556 students admitted to undergraduate programmes in the five Irish medical schools. Some small percentage of these may have first obtained a degree in another, likely related, discipline. As far as I can tell, about 10%, to no more than 20%, of these studying medicine in Ireland came from outside Ireland, North and South. Through the 1970s, similar numbers obtained with 513 entering medical school in 1977. In 1978, the Department of Education and the Department of Health came under pressure from the medical unions to reduce the number of Irish medicine graduates. Their view was that many doctors were being trained for the purpose of export and that at the current level of graduation there would soon be two doctors for every job available in Ireland. A sub-committee of the Higher Education Authority was established. It decided that there should be no more than 300 Irish entrants into the medical schools. They also recommended that not more than 28 non-Irish students should be admitted. I am satisfied that this decision was taken because the State did not want to fund the high expense of medical education beyond what was necessary to have a sufficient supply of Irish doctors for Irish needs. On a secondary basis, it was considered undesirable and wasteful to have major unemployment in the medical profession. There is no evidence from which I could infer that this decision was made in order to create a closed-shop of doctors in Ireland.

14. Prior to the year 2000, the Royal College of Surgeons in Ireland got an insignificant total grant per annum from the State of £18, 000.00. From 2000 onwards, the Royal College of Surgeons began to get a serious subvention from the State. In 1995, fees for a first undergraduate degree course were abolished by the Government. The Royal College of Surgeons in Ireland was outside this scheme. From 2000, however, it became obvious that they wanted to become part of this scheme and they started to receive a substantial subvention from the State. Eventually, in 2002 they came within the free fees scheme at their own request. This meant that prior to the year 2000 they were free of any constraint imposed by the Higher Education Authority, because they were free of any financial pressure that any government body might care to bear down on them. Before 2002, Irish students paid the Royal College of Surgeons in Ireland fees for their course, but foreign students paid very much more.

15. In essence, I am satisfied that, discounting the admission of foreign students and graduates, that the number of places available to Leaving Certificate students in Ireland dropped from around 500 in 1975, to a cap of 300 in 1980. The Royal College of Surgeons in Ireland, however, always took somewhat more than what was supposed to be their allocation, which was 25 out of 300, due to their freedom from State funding, and by the time the plaintiff came to apply for a place, they were taking about 40 people from Europe into their undergraduate course, some 42% of whom the statistics indicate for 2003, had previously obtained another degree. As far as I can tell, the number of foreign students graduating from Irish medical colleges during the late 1970s was in or around 20%.

16. It would seem that, historically, the Royal College of Surgeons in Ireland trained a large number of the foreign students as all the other colleges had a quota of only 28, for those from abroad, or about 10% of the numbers.

17. In the mid 1980s, the Government again came under pressure from medical unions to reduce the number of Irish medical graduates. There is nothing in the evidence to suggest that they ever sought a reduction in the number of foreign graduates. It was probably assumed by the pressure groups that these doctors would return to their countries of origin while Irish graduates would prefer to work here. The suggested reduction was from 300 places to 200 places for the Irish. This was rejected by the Minister for Education. During an address in June 1983, the then Minister stated:-
“It has been put to me that the first consequence of a reduction in student numbers would be an increase in unit costs in that income from fees would be reduced while staffing levels could not be lowered because of the contractual rights of staff members and the numbers of specialisms to be catered for. Even if staff members could be reduced it is most unlikely that this could be achieved without involving the institutions and, consequently, the State in considerable redundancy payments. An alternative approach, of course, would be to increase the fees for the medical faculty to cover the loss of revenue. Consideration might also be given to the question of offering spare places to students at the full economic fee. Such a fee would be very high, of course, and would be outside the range of all but a very small minority of Irish students. There is a great demand by foreign students for places in the Irish medical schools and it is possible that available places would be taken up by them even at the full-cost economic fee. Suggestions along these lines need very careful consideration, however, given the clear implications in them that availability of medical education would be weighted heavily in favour of those who are rich enough to avail of it.”

18. The pressure from the medical unions was resisted because, on analysis within the relevant departments of Government, their argument was inconsistent with the facts. It was noted in November, 1984 that 13.3% of all the posts available for non-consultant hospital doctors were held by non-nationals. This suggested a need for doctors which was not being fulfilled by the output of Irish graduates. The mass emigration and unemployment that the interest group had based its argument on was, therefore, undermined.

19. Ireland’s position economically in the mid 1980s was very difficult. The training of medical graduates was, and still is, extremely expensive, compared to other disciplines. Given that the Higher Education Authority was strapped for funds, it was decided that if more foreign students could be attracted that they would finance the economic viability of the medical schools. This was the policy decided upon. At the time, the alternative Government plan was to shut the medical schools in Galway and in Trinity College Dublin. On the 30th July, 1987, the Government made the following decision:-
“Intake of foreign students in university medical schools, at an annual fee of not less than £9,500.00, to be increased to the maximum extent possible (while maintaining planned intake of Irish students) with effect from the academic year 1987/1988.”

20. Prior to making that decision it was noted that, possibly as a result of the reduction in numbers of Irish entrants, there was spare capacity that could be taken up by foreign entrants. The possibility of funding the medical schools through some students paying a full economic fee was attractive. At the time, all students paid some university fees. The Government rejected the notion that the medical schools could be funded through allowing some students who had well-off parents to pay the full economic fee. A note from the Minister for Health in August, 1987 stated that the emphasis should be on increasing the number of suitably qualified foreign applicants. It emphasised the difficulty in attracting them. It also rejected dividing Irish students into those who paid full fees, and those who paid a much lower subsidised fee. The departmental memo, in part, reads:-
“…It could be claimed that if spare capacity exists in our medical schools preference should be given to Irish students whose parents are prepared to pay an economic fee. This would be undesirable since we would have two categories of medical student in the State subsidised schools, i.e. those who got in on their merits and those who got in on their money.”

21. In consequence, the quota for Irish students remained the same, while the number of foreign students greatly increased. As a result of a creeping realisation of European Treaty rights of establishment and freedom of movement, references in official documents to Irish students became, over time, references to European students.

22. Through the 1990s, the number of foreign students steadily crept up. The number of Irish students also went up, but only very slightly, due mainly to the Royal College of Surgeons in Ireland taking almost double the number of Irish students set in its quota. As far as I can tell, by the year 2000, there were in or around 340 places, instead of the contemplated 305 places, available for European entrants. During that year, as well, the number of European and non-European entrants to medical school were equal for the first time, at about 50% each.

23. By the time the plaintiff first applied to enter medical school in 2006, the proportion of European to foreign entrants into medical school was about 40% to 60%. At that time, the percentage of non-consultant hospital doctors working in Ireland who were not European had increased from the 13% figure in 1984 to around 60% when this action commenced. The relevant authorities decided that a change was needed. In 2000 there was a body called the Medical Manpower Forum which was tasked with reporting to the Government on what precisely the appropriate intake of medical students should be. There were reviews on medical schools conducted in 2003 and ultimately these studies led to a report entitled Medical Education Ireland: a New Direction. This is commonly referred to as the Fottrell Report as it was chaired by Professor Patrick Fottrell, formerly President of the National University of Ireland in Galway; see Fottrell et al, Medical Education in Ireland: A New Direction (Report of the Working Group on Undergraduate Education and Training, Dublin, 2006).

24. This report of February, 2006 was adopted through the Ministers for Education and Health, and by suggestion from them, by the Higher Education Authority. It became the new policy for educating doctors in Ireland.

25. To some extent, the report clashed with another policy of the Government. In November, 2004 a report from an interdepartmental working group was issued on the internationalisation of Irish education services. This confirms what had been a Government policy for almost twenty years; that of selling Irish education, whether in medical or other spheres, to those from outside Europe who could afford to pay the full cost of courses at an economic rate. As has been obvious, from this brief survey, medicine has been among the educational courses most successfully sold as an Irish export. Ireland is perhaps a prime example of this trend in the education economy. Hungary, on the evidence presented to me, may be too. We are not, however, alone in this policy. Throughout Europe, the figures indicate, those from abroad seeking to purchase education favour medicine, science and engineering courses over the humanities. In Britain, the quota set for foreign students in medical schools is, in contrast, 10%.

The Fottrell Report

26. It is not for the court to make any comment on the effect of the policy whereby entrants from Europe to Irish medical schools were cut in the mid 1970s from a high of around of 500 or more down to 305. In order to specialise, the vast majority of Irish doctors need to gain experience abroad, typically in the United States or Britain. Therefore, there will always be a requirement for some percentage of non-European doctors in our hospitals. Having some foreign doctors is also, without any doubt, a healthy policy for Ireland. Had the policy of cuts in entry to medical school not been implemented, it is difficult to see there being anything close to the current majority of foreign non-consultant hospital doctors in the system. In the mid 1970s, it was not foreseen that European Union limits on working hours, cutting back on the 24 hour on-call system for junior doctors in our hospitals, an increasing demand for leisure by family practitioners and the family responsibilities of many doctors, would mean that more practitioners were needed per head of the population than was the case 30 years ago. In that time, the Irish population has also grown by 25% or more.

27. The Fottrell Committee did not make any recommendation that entry for non-European students should be capable of being purchased at the same cost by European students; in practice, meaning well-off Irish students. Instead, the long standing policy, of over 20 years duration, that money as a differential should not purchase entry to medical school was articulated in the foreword to the report, at p.vii, by the Minister for Education and Science:
“Ireland’s health system is critically dependent on an adequate supply of quality medical graduates. It is essential in that regard that the quality of our undergraduate medical education and training keeps pace with international best practice and that, at a wider level, our system of higher education continues to respond to key national social and economic needs. It is clear that controls on the number of places in our medical schools for Irish and EU students have required review for some time. It is also an important principle of entry to higher education that selection is based on fair, objective and transparent competitive measures.”

28. The basic thrust of the Fottrell recommendations, which are being implemented by the respondents, is that a large percentage of the foreign students in Irish medical schools should be replaced over a period of four to five years with European students. The net result will be that the proportion of the intake of foreign students studying medicine in Ireland will decrease from around 60%, on the 2005 figures, to 25% in about 2011 or later. The figures presented to the court for the academic intake 2010/2011 indicate that the Royal College of Surgeons in Ireland will continue to have a majority of foreign students, taking up 69% of the entire allocation, with the total proportion over all the medical schools decreasing by that year to 29%. The Committee warned, at p.94, against too sudden a change in the policy of selling spare capacity in medical schools, beyond the European quota, in the following terms:
“It is unwise to assume that non-EU student intake is a tap to be turned on or off at will. The large intake of non-EU students in Irish medical schools reflects over 20 years of effort in building an international presence and brand name. It is likely that even a short-term reduction in intake will lead to a long-term reduction in income.
Again, it should be noted that the scale of the income loss reflects quite starkly the degree to which medical education in Ireland has become dependent on income from non-national students.
It should be noted that the prime reason for restricting the intake of non-EU students is the general lack of clinical training capacity and the need to allocate clinical placements to EU students in the first instance, particularly in the context of an increase in EU student numbers. However, the current cohort of non-EU students contains a number who carry out their clinical training in their country of origin and do not therefore impact on clinical training capacity in Ireland. This scenario offers a potential strategy for the retention of non-EU students in the future.”

29. The Fottrell Committee recommended that the intake of European students into Irish medical schools should be increased from the 2005 intake of 305 per annum to approximately 725 students over a period of five years. It recommended that in addition to undergraduate entry, that many of the entrants, about one-third, should be graduates. When a doctor finishes medical school it is necessary, as part of medical education, for the State to provide him or her with a year of training as an intern within a hospital. It is expected that many of the foreign graduate doctors will return to their countries of origin for intern training. Some, however, may stay here. As I understand it, at the current time there are about 500 intern posts in Irish hospitals. Of these, the European take is currently 340, and the rest are taken up by competition among our foreign graduates. The number of intern posts needs to be increased for the Fottrell plan to work. The first level for doctors working within a hospital, after the intern year, is the senior house officer position. I understand there are approximately 1,500 such posts and it is, therefore, I was told in evidence, now relatively easy for a European doctor to obtain employment at the end of the intern year. The intern posts, however, need to be greatly increased. This represents a cost to the Exchequer of somewhere around €65,000 per post, since the doctors are paid as interns, as opposed to being merely students, and also have to be supported in terms of administration and nursing. The real cost may be higher than that. To make these changes takes time as well as money.

30. The Fottrell recommendations to increase the intake of European students into the five Irish medicals school by around 130% was conditional upon several factors: the increased intake being phased over four years, during which the necessary preparatory arrangements were to be introduced; that by the end of that period there should be a 60:40 ratio between intake to the undergraduate and graduate programmes; that the proportion of non-EU students entering clinical training should be no greater than 25% of total student intake by the end of the phased increase for European students and should be maintained in the future; that the undergraduate programme should be of five years duration, dropping the pre-med year, and the graduate programme of four year duration where students had appropriate prior education; that the quota between European and foreign entry should be allocated across all the medical schools; that additional structured clinical training would be developed; that additional intern positions be provided; and that an interdepartmental steering group should be established to review progress and to amend the strategy as might be appropriate.

31. Moving from the 1978 quota of 305 places for European students entering Irish medical schools, the implementation by the respondents of the Fottrell Report, gave an additional 70 places in 2006, 40 in 2007, and 35 in 2008 at undergraduate level. In addition, graduate entry is being phased in at 60 places in 2007, 120 places in 2008, 180 places in 2009 and 240 places in 2010. Meanwhile, the percentage share of foreign to European entrants is expected to drop year by year to an entry of 29 % in 2010.

32. The foreign students provide a great deal of revenue to Irish medical schools. The ‘Fottrell plan’, as implemented by the respondents, is to buy back many of the places for foreign students, by increasing the subvention from the Higher Education Authority to the medical schools for European students, and substitute them with European students. By paying the relevant medical colleges extra money, it is expected that they will eventually not miss the foreign students in terms of revenue. Something will be lost, clearly, in terms of the important inter-cultural dialogue that is now a most valuable feature of medical training in Ireland; though that will be maintained through a healthy intake of foreign students at around one in four.

33. The central issue in this case is why the applicant should not be able to buy one of those places for foreign students. From the point of view of this Court, however, this is not a matter for debate or policy. It is squarely a matter as to whether the current system which bars him from taking a foreign place in medical school, and paying the full economic cost, is unlawful.

Current Situation

34. From the time the plaintiff graduates from pharmacy in 2011, he is entitled to apply, as a European citizen, for a place as a graduate in one of the four medical schools adopting graduate entry as a separate stream. Trinity College Dublin has decided not to operate this system. He will be competing for one of 240 graduate places. As I understand it, he will do an aptitude test. This, together with his degree results, will determine whether he gains a place. He is also entitled, on the basis of the Fottrell Report, to apply for medicine now, using his Leaving Certificate examination results and, in addition, doing an aptitude test. On the aptitude test, one may score up to 300 points. On the Leaving Certificate, as I have earlier indicated, one may score up to 600 points. There is, therefore, a maximum of 900 points available for the competitive undergraduate places, numbering 485 by 2010. Depending upon how he scores in the assessment, the plaintiff’s high Leaving Certificate results could secure him a place through this competitive system. One of the difficulties the plaintiff will have, should he choose to attempt to enter as an undergraduate into medical school this year, is that he did not take English as a subject in his 2007 Leaving Certificate. However, he is required to be assessed on the 490 points achieved in 2006, when he did take English, without amalgamation with the 2007 results, and then to compete on the basis of the special assessment in hoping to achieve the additional 300 marks.

35. The plaintiff has pointed to certain anomalies in the system. The one of which he most complains, and to which the bulk of the argument in this case was directed, was the setting of a quota for European students and the unavailability to him of any other place reserved for foreign students to European citizens who would also pay. As a graduate student in medicine, supposing the plaintiff was to secure a place in 2011, the plaintiff would have to pay fees. No undergraduate, at the moment, pays fees. Every European citizen, however, doing a second degree, after completing a first undergraduate degree, is also required to pay fees. The fees for graduate entry in to medicine are high. The evidence establishes that the true economic annual cost for medical studies is around €25,000. Of this, the European citizen graduate entering medicine will pay €12,000 while the State will pay €13,000. There will be a number of places in graduate entry available to foreign students as well. There, the plan is that they will annually pay about €42,000. Anyone doing a second degree in Ireland is, like graduate entrants in to medicine, required to pay a course fee. I have also been given figures for annual fees prior to 2006 in other courses where European graduates pursue them. Insofar as the evidence has been somewhat vague on this issue, it seems that the European citizen entering into a second undergraduate course, having first completed another degree, will pay fees of around €5,000 for Arts, €6,000 for engineering or any other technical subject and €7,000 for medicine. This latter figure has now become, as of 2006, the ‘Fottrell figure’ of €12,000. Clearly, therefore, the cost of entry in to medicine as a graduate, when you are a European citizen, has been greatly increased under the Fottrell plan. However, all European entrants are treated on the same basis in that those who are graduates are required to pay. It so happens that under the Fottrell implementation, that the cost of entry into medicine, as a graduate, has risen from about €7,000 to €12,000. None of these fees represent, on an annual basis, anything close to the cost to the colleges, and therefore to the State, of the courses, be they humanities, technical or, as I have indicated, medicine.

36. An additional anomaly is that citizens from the European Economic Area, for instance, Switzerland and Norway, who seek entry into an Irish medical school, must be resident within the European Union for three years prior to application to achieve an exemption from fees as an undergraduate, or the lower fee levels for entry into medicine for graduates. Irish people are treated in the same way. I do not know if there is an exception for diplomats, who may be housed in what is legally treated as Irish territory abroad by diplomatic treaty, but Irish people who have been living outside of the European Union for three years prior to seeking entry to a third level college as an undergraduate, or under the Fottrell scheme as a graduate, are required to pay as if they were a foreign student. The foregoing are the facts that I have found for the purpose of the decision in this case.

Statutory Authority

37. It is argued that there is no statutory basis upon which the respondents have required a limit to the number of Irish students, and more recently, European students, studying in Irish medical schools and it is argued that there is no statutory basis on which European students may not pay the fees set for foreign entrants and so gain entry as a student paying at that enhanced level. Insofar as I can tell, the decision that there should be a cap on the number of European citizens studying in Irish medical colleges was taken by a sub-committee of the Higher Education Authority in 1978. I am content to infer that this decision would not have been made without the communication of concern by the Minister for Education and the Minister for Health, and possibly other Ministers as well. The decision of July, 1987 to increase the intake of foreign students into university medical schools to the fullest extent that that was possible, beyond that cap, and at a full economic fee, was a Government decision.

38. An tÚdarás um Ard-Oideachas, the first respondent herein, was established by the Higher Education Authority Act 1971, in order to further the development of higher education in the State; to assist in co-ordinating State investment in higher education; to make proposals for State investment in higher education; to promote the public appreciation of the value of higher education and research; to promote “the attainment of equality of opportunity in higher education”; and to promote the democratisation of the structure of higher education. These general functions were given to An tÚdarás under s.3 in addition to its specific functions under s.4 of the Act, such as that of promoting the Irish language and our national culture. Under section 6 of the Act, An tÚdarás was to maintain a continuous review of the demand and need for higher education. Based on that, it was to recommend to the Minister for Education what provision should be made for places. Although the Act does not specifically say it, it is clearly to be implied that the demand for higher education is to be interpreted as the number of students who wish to pursue particular courses, while the need for higher education refers to the prudent disbursement of State resources in higher education for the proper management of the national culture and the national economy. The function of An tÚdarás, therefore, under s.6, read in conjunction with s. 3, is to assess what forms of higher education the State needs and how those places may be best allocated if there is excess demand, or how students may best be attracted to such courses if the demand is not sufficient.

39. Sections 7, 8 and 9, give An tÚdarás the authority to require any university, college or institution of higher education, to indicate its financial position so that proper planning of financial expenditure over suitable periods of time, may be made. These sections read:
“7. -An tÚdarás may, annually or at such other intervals as it may determine, require any institution of higher education to submit a statement of its financial position to An tÚdarás and it shall be the duty of every institution of higher education to comply with any requirements which are imposed on it under this section.

8. – (1) Any request by an institution of higher education for State subvention shall be submitted by the institution to An tÚdarás in such manner as An tÚdarás may require.
(2) Requests submitted under this section shall be examined by An tÚdarás annually or at such other intervals as it may determine.

9. – An tÚdarás may relate annual or other financial requirements of institutions of higher education to financial planning over such periods, as it considers suitable.”

40. Sections 6 and 10 of the Act, read together, reflect concerns of the time. Thereby, An tÚdarás has the function of advising the Minister of Education of how the total number of students should be divided between the various institutions of higher education. The Act makes it clear that, “a reasonable balance” should be struck “in the distribution of the total, number of students as between institutions”. Through the Act, therefore, it is set out that universities or colleges should not be allowed to die by reason of a lack of student numbers, but that, instead, a healthy supply of students should be maintained to third level institutions by balancing the distribution of student numbers between them. Historically, Trinity College Dublin once had a shortage of students. This does not mean, however, that an institute of higher education is entitled to change its policy so as to concentrate on all of its resources of subjects of limited cultural or economic value and yet require a proper distribution to it of students. This, it seems to me, is made clear by s. 11, which requires all institutions of higher education to supply to An tÚdarás, “all such information relative to the institution as An tÚdarás may require for the purpose of performing its functions”. Under section 13 of the Act, An tÚdarás can institute and conduct studies on the problems of higher education and research. Its discretion, in that regard, is wide. After studying the financial situation of any third level college, and after obtaining relevant information from it for the purpose of its functions, any problem in relation to higher education may be studied by An tÚdarás and a report may be published. Under s. 16 of the Act, An tÚdarás can appoint a person to advise it on matters relating to its functions, or appoint a committee in that regard.

41. There are two sources of funding to the Higher Education Authority, as An tÚdarás is often called. Specifically, An tÚdarás is entitled under s. 17 to accept “gifts of money, land or other property upon such trusts and conditions, if any, as may be specified by the donor”. If a conditional gift is unacceptable, in the sense that it clashes with the functions of An tÚdarás, it may not accept it. The other, and principal, source of funding is the Government. Section 12 provides:
“12. – (1) There shall be paid to An tÚdarás, out of moneys provided by the Oireachtas, such amounts for institutions of higher education as may be approved of by the Minister [for Education] with the consent of the Minister for Finance.
(2) Any payment to an institution which An tÚdarás makes out of the amounts that it receives under the foregoing subsection shall be made in such manner and subject to such conditions as An tÚdarás thinks fit.”

42. It should not be lost sight of, when considering what conditions might be attached to the grant of money by the Higher Education Authority to a medical school, that the Act has a specific purpose of co-ordinating State investment in higher education and of promoting the value of equality of opportunity in accessing it. There is a legal basis both for dispersing the taxpayers’ money to the medical schools and for attaching conditions to that money. The proviso is that derived from the general principles of administrative law that the conditions attached by An tÚdarás should not be arbitrary or capricious, but should be related to its functions within the Act, as read as a whole, and in the light of its general functions as declared by section 3. It is clear, therefore, that the conditions that are attached to a grant on money, may be based on those which reasonably appear to be necessary after An tÚdarás has studied an issue in higher education, or which reasonably appear to be necessary in consequence of the funding available to it. It is even more apparent what An tÚdarás cannot do. It cannot decide to capriciously favour one college or university over another, whereby it is starved of students or funds; it cannot attach conditions to a grant which bear no reasonable relationship to the demand and need for higher education in Ireland; and it cannot act so as to deliberately enforce or promote inequality of opportunity in higher education. It would seem possible, therefore, under s.3(d) for some reasonable provision to be made in appropriate third level courses, where sufficient ability has been shown by prospective students, to allow for the education of those who are disadvantaged or those who are from developing countries.

43. It is plain, however, on the wording of the Act, that the Minister for Education and the Minister for Finance, can decide if the allocation of monies for third level education should be increased or decreased. If the Minister for Education has a view in relation to third level education, that may be studied by An tÚdarás as to its validity in fact and in terms of the specific and general functions that it has under the Higher Education Authority Act 1971. The attachment of conditions, however, is a matter for An tÚdarás. The Act makes this clear by stating that payments may be made to institutions of higher education “subject to such conditions as An tÚdarás thinks fit”. On the facts in this case, I am satisfied that in 1978, the Higher Education Authority saw fit to reduce the number of places for entry into Irish medical schools, by around 40%. I am satisfied that payment to the five medical schools was made at an appropriate level so as to ensure the proper education and training of those students as doctors, in radically reduced numbers but that no further funding was available. An tÚdarás has the power, under the Higher Education Authority Act, to decide that, for instance, the pursuit by large numbers of students of the ancient forms of Latin, Greek and Hebrew, are not conducive to promoting and developing the national culture or the national economy. An tÚdarás would be entitled to consider, as a balancing factor, that a university, as such, is a place allowing students access to a universe of learning, and that the pursuit of apparently arcane disciplines assists in the promotion of scholarship, in foreign relations, and in the cherishing of education as a value in itself and as a valuable training of the mind for apparently unrelated subjects. An tÚdarás can decide, however, that more emphasis might need to be placed on scientific, technical or humanities subjects, and attach conditions to its funding, after appropriate study, and on a reasonable basis, for the purpose of furthering its objectives under the Act.

44. I find as a fact, on the evidence before me, that medical education is extremely demanding of its students and is extremely expensive for the State in the provision of the cost of annual places. In consequence, An tÚdarás was entitled to provide money to the five medical colleges, on condition that the number of Irish, and later European, entrants to medical education should not exceed a particular number. As it turns out, the decision to radically reduce the number of entrants into medical education in 1978 was probably a mistake. As it has now emerged, the numbers were too low. There may have been a point from 1978 through to the Fottrell Report, and the changes which first began to be implemented in 2006 in consequence on it, where that number was correct. Over the course of for some of those thirty years, however, until the matter was looked at again by Government, it is clear that Ireland produced too few doctors for its needs. It might have been the case that had the plaintiff challenged that cap on European citizen entrants into medical training in Ireland in the year 2000, that he might have been in a position to prove that the condition attached by An tÚdarás to the funding, namely, the limiting of places to 305, was such as to fly in the face of fundamental reason and common sense; that is was unreasonable and, therefore, unlawful. I do not know this, and I am not so deciding, because the evidence was not before me. On the basis of the evidence that is before me from Dr. Rósín Healey, a recently retired accident and emergency consultant in Our Lady’s Hospital in Crumlin, and from Professor Brendan Loftus, the Dean of Medicine in the National University of Ireland, Galway, I would infer that the implementation of the Fottrell recommendations will, over time, be in a position to meet the foreseeable future needs of the Irish people for doctors. In fact, there will probably be a surplus if many people choose to study medicine in central Europe, but I do not know that because the figures were not put before the court. In that regard, An tÚdarás was entitled to take into account that there was always going to be a limiting feature on the education of doctors in Ireland. This is the availability of places for clinical training. Hundreds of trainee doctors cannot stand around a woman who is giving birth, or a child who is sick, or a cancer patient who is dying. Those numbers are necessarily to be limited in the teaching hospitals who give the medical schools the opportunity to train medical students in their last years. The plaintiff, however, in addition complains that making any of those places available to foreign students who can pay, without making such places available to him on the same basis, is outside the authority of the Government.

Powers of the executive

45. It is argued that the decision of the Government in 1988, to attract foreign students to Irish medical schools at a premium rate of payment, and the influence that was probably brought to bear on the Higher Education Authority in 1977 to limit the number of places for Irish, and later European, students in Irish medical schools and the decisions that the quota for European students at low, or no, fees should not be filled by foreign students and that European students should not be capable of taking the place of a foreign student while paying a premium rate were made without executive authority. To that list of impugned decisions I must add the series of decisions made by the Minister for Education and Science and the Minster for Health and Children, through the Higher Education Authority, whereby the recommendations of Professor Fottrell greatly increased the places available for European students at no fee, and decreased the places for foreign students. These arrangements must also fall if this argument succeeds. Why is the Fottrell recommendation, as adopted by the organs of government lawful, if all of its prior decisions are unlawful? In effect, the applicant asks that the entire system should be overturned. This would leave the medical schools free to make their own decisions as to entry, as to who should pay, as to who should not pay and as to what numbers of European students and foreign students should be admitted to their courses, subject only to the natural limitation that is placed on numbers by clinical training. In other words, the decision would shift from the Executive and the Higher Education Authority to the medical schools in consultation with the teaching hospitals to which they are allied.

46. I have already held that the Higher Education Authority has clear statutory powers to make policy decisions in relation to institutions of higher education and to provide grants of money to those institutions based on conditions that are within its competence under the Higher Education Authority Act 1971. The reality is, however, that notwithstanding that An tÚdarás can receive gifts, its funding derives from the taxation revenue of the Irish people as dispersed through the Government. Does the Executive, therefore, have the power to give money for higher education based on a settled policy?

47. The relevant Articles of the Constitution include the Preamble which, in part, provides:-
“In the Name of the Most Holy Trinity …We, the people of Éire … seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained … Do hereby adopt, enact, and give to ourselves this Constitution.”
Article 6 provides:-
“1 All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
2 These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”

48. Under Article 15.2, the exclusive power for making laws is vested in the Oireachtas. Article 28A acknowledges that limited powers may be devolved to organs of local government. On the expenditure of public monies, Article 17.2 provides:-
“Dáil Éireann shall not pass any vote or resolution, and no law shall be enacted, for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dáil Éireann by a message from the Government signed by the Taoiseach.”
Article 28 provides:-
“1 The Government shall consist of not less than seven and not more than fifteen members who shall be appointed by the President in accordance with the provisions of this Constitution.
2 The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.
…
4.1º The Government shall be responsible to Dáil Éireann.
4.2º The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.
…

4.4º The Government shall prepare Estimates of Receipts and Estimates of the Expenditure of the State for each financial year, and shall present them to Dáil Éireann for consideration.”
Article 50 provides:-
“1 Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.
2 Laws enacted before, but expressed to come into force after, the coming into operation of this Constitution, shall, unless otherwise enacted by the Oireachtas, come into force in accordance with the terms thereof.”

49. Article 61 is part of the transitional provisions of the Constitution. It is no longer printed with the full text because it is of mostly historical interest. However, the devolution and assumption of power as a matter of history is important here. Article 61 provides:-
“1 On the coming into operation of this Constitution, the Defence Forces and the Police Forces of Saorstát Éireann in existence immediately before the coming into operation of this Constitution shall become and be respectively the Defence Forces and the Police Forces of the State.”

50. The powers of Government are not to be confused in their equivalence with the powers of local government. Every local authority is a creature of statute, the exercise of its powers is enabled under the Constitution but those powers do not arise out of the exercise of local government authority and history. Rather, the powers of local government to raise funds, to spend them, or to set up schemes to disburse them appropriately arise from specific statutory provisions. This is because local government did not exist as a lawful exercise of authority without the devolution of power to it by central government. So, it is always a central question as to what power was devolved. The doctrine of legal formalism is particularly apposite in the context of local government powers as those powers must firstly be granted by statute and, secondly, exercised in accordance with it. Only limited ancillary powers will be implied onto the statutory powers that exist and no ordinary or usual power, such as the power to buy and sell land or to engage employees, will be assumed unless by necessary implication. It is clear, even there, that the modern legislative policy is to reiterate basic powers in respect of every new function granted by legislation to local government in fear of an argument being made as to excess of a vires; Butler, Keane on Local Government, 2nd Ed., (Dublin, 2003), Chapter 1.

51. The powers of our national Government are obscured by the mists of time. By reason of invasion and conquest, whatever powers were exercised, and in whatever manner they were exercised, by those who governed Ireland under a quasi-feudal system were displaced by the rule of the Crown of England. By reason of the unwritten nature of those powers, it may be difficult to define precisely what they ever were. The concept of the devolution to Ireland of the powers exercisable under the Royal Prerogative, in addition to statute and common law, may be an unattractive way of describing some of the powers devolved in 1922 to Saorstát Éireannn, and thence in 1937 to Ireland, but there is a specific Article of the Constitution providing for this. This Article has to have a meaning in law, as does every word in it. It is also noticeable that it does not refer to the taking from the Crown of England of any powers that are apparently royal in origin. Article 49 provides:-
“1 All powers, functions, rights and prerogatives whatsoever exercisable in or in respect of Saorstát Éireann immediately before the 11th day of December, 1936, whether in virtue of the Constitution then in force or otherwise, by the authority in which the executive power of Saorstát Éireann was then vested are hereby declared to belong to the people.
2 It is hereby enacted that, save to the extent to which provision is made by this Constitution or may hereafter be made by law for the exercise of any such power, function, right or prerogative by any of the organs established by this Constitution, the said powers, functions, rights and prerogatives shall not be exercised or be capable of being exercised in or in respect of the State save only by or on the authority of the Government.”

52. It is clear that not every prerogative power that was vested in the King of England as the personification of the State has survived the enactment of the Constitution; Howard v. Commissioners of Public Works [1994] 1 I.R. 101. It should be noted, however, that the specific Articles of the Constitution quoted refer in addition to prerogatives to powers, functions and rights that may be exercised “in or in respect of the State”. That authority is vested in the Government of Ireland. It may be, and it does not fall for decision in this case, that it is only the royal aspect of the prerogative, such as immunity from suit of the State and the right to recover treasure trove, that has lapsed. Specifically, in Webb v. Ireland [1988] IR 353, Finlay C.J. at p. 382 refers to these as being “traced to the royal dignity of the King … to his position as sovereign or ruler”. It would also not be correct to infer that those who drafted the Constitutions of 1922 and 1937 somehow did not know what they were doing and mistakenly created a Government without any traditional powers in executive matters.

53. In Hogan & Whyte, J.M. Kelly: The Irish Constitution, 4th Ed., (Dublin 2003), at para. 8.2.10, the learned editors offer the following comment on the Webb v. Ireland decision:-
“Some questions would seem to arise on this view, if it is to be understood as meaning that no dimension whatever of the ancient prerogative survives for the public benefit. For instance, by what authority could the Government – in the absence of specific legislative authority – establish an extra-statutory scheme such as the Criminal Injuries Compensation Tribunal? What about the State’s power to create corporations by letters patent? Did the prerogative power to grant such letters patent; the power to grant patents of precedent for counsel or, indeed, the right to grant passports vanish with the enactment of the Constitution of 1922? One might argue, perhaps, that the Government could discharge such powers by virtue of the executive powers granted to it by Article 28. The fact remains, however, that were it not for the very existence of the prerogative in the first place – and its supposed survival after 1922 – no one would have ever sought to argue that the Government could have discharged such functions in the absence of appropriate enabling legislation.”

54. Apart from the measures referred to, the State has also exercised the power of entering into treaty obligations which are not inconsistent with the existing powers of the Constitution, some of them authorised by Article 29.4.2º and some limited thereby; has set up a civil legal aid scheme based on specific administrative measures as to competence and qualification, prior to legislation; has decided on the disbursement of funds in aid of developing countries; and, in large measure prior to specific enabling legislation, has directed the civil service, the army and the police force of the State. Now, in 2008, there may be acts providing for those bodies to obey lawful orders, but these are relatively recent. The army personnel were hardly entitled to refuse to serve in, or to logistically support, peacekeeping missions in Congo, for instance or in other places where the army has greatly advanced Ireland’s stature as a country committed to the pacific settlement of disputes. To organise the civil service and the army and the Gardaí, the Government through its ministers needs to hire people and to dispense with their services. All of this affects people’s rights and liabilities, sometimes in far-reaching ways. I will shortly return to this. A further specific power that was exercised by the Government was that related to Irish children of foreign parents. Article 2 of the Constitution provides for the entitlement and birthright of every person born on this island to “be part of the Irish Nation”. As a matter of fundamental law, Irish people are entitled to stay in Ireland that is the most basic right of citizenship. By virtue of the 27th Amendment to the Constitution and, in consequence, the Irish Nationality and Citizenship Act 2004, a person born here who does not have one parent who is an Irish citizen is not entitled by reason of birth alone to become an Irish citizen. Bode v. Minister for Justice, Equality and Law Reform [2007] IESC 62, concerned a scheme set up by the Minister for Justice to allow the foreign parents of Irish children to remain in the State for the purpose of rearing those children and, thereafter, indefinitely. The precise terms of the scheme involves deciding those who qualified, and those who did not qualify. This is important, in the context of the argument presented before this Court that the powers under the Constitution not provided for by legislation can only exist, or can only operate, where no one’s rights or liabilities are affected. By including one group of people within the scheme, in the carefully thought-through manner that is apparent from its text, the Government was excluding other groups. That thereby affected their rights and their liabilities. They argued that they had an entitlement to be considered individually for inclusion and not excluded by reason of the executive power of the Government. At para. 22 of the judgment, Denham J. said the following:-
“In this case one of the fundamental powers of a State arises for consideration. In every State, of whatever model, the State has the power to control the entry, the residency, and the exit, of foreign nationals. This power is an aspect of the executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power is exercised by the Minister on behalf of the State.
…
While steps taken by a State are often restrictive of the movement of foreign nationals, the State may also exercise its powers so as to take actions in a particular situation where it has been determined that the common good is served by giving benefits of residency to a category of foreign nationals – as a gift, in effect. The inherent power of the State includes the power to establish an ex gratia scheme of this nature. Such an arrangement is distinct from circumstances where legal rights of individuals may fall to be considered and determined.
Exercising such power, in light of unique circumstances in Ireland in 2005, in addition to the specific statutory procedures, [whereby non-citizens may seek a declaration of refugee status, and thereby become entitled to the rights provided to refugees], a special administrative scheme, the IBC 05 Scheme, was introduced by the Minister. The Minister obtained Government approval. It was a generous scheme, for those who came within its criteria. It was an example of the State exercising its discretion to allow specific foreign nationals to reside in Ireland. Yet, the foreign nationals still retained all rights under the formal procedures [relating to refugees].”

55. In Hogan & Whyte, J.M. Kelly: The Irish Constitution, 4th Ed., (Dublin 2003), at para. 5.1.18, the editors offer the following view:-
“It is also the case that it is not always necessary for the Government to have to rely on statutory authority in order to exercise executive power. The Government frequently exercises the executive power of the State in relation to foreign affairs, and specifically the conclusion of international agreements, without having to have recourse to legislation and in the domestic arena, successive Governments have used extra-statutory schemes to provide benefits to citizens. Governments may also enter into contracts and acquire and dispose of property without statutory authority and on a number of occasions, companies have been established by the executive in the absence of statutory authorisation. On the other hand, legislation is required before the executive may impose any obligation or burden on citizens.”

56. I have doubts as to the validity and applicability of the last sentence quoted in all circumstances. Central to the exercise of government power is the establishment of policies for the proper governance of Ireland. Taxation of the people, which can only be carried out by legislation in specific terms, provides the funds that are necessary to implement policy. No doubt, in deciding upon a policy the Government will have regard to the directive principles of social policy as set out under Article 45 of the Constitution, which are “not … cognisable by any Court under any of the provisions of” the Constitution. The fundamental function of Government is to keep order, to decide the direction in which the country is to go and to disburse the funds collected through taxation from the people in aid of their objective. In a democracy, the people are entitled, in the event of disagreement with the Government on issues, large and small, to vote accordingly. I do not believe that this Court is entitled to set policy, or to exchange one policy for another, or by applying the doctrine of legal formalism derived from local government law, to thereby declare that the Fottrell recommendations should be set at nought, as implemented through Government policy, or that the previous policy was illegal because the Court may be persuaded to disagree with it. I cannot find anything to suggest that the Government does not have the power to decide what funds should go to higher education or to suggest to the Higher Education Authority the policies that it sees as best be pursued, once An tÚdarás retains discretion in accordance with its legal role. This Court has no role in policy. The role of the courts, in this regard, was set out by Murray J. in T.D. v. Minister for Education [2001] 4 IR 259, at pp. 331 and 332, as follows:-
“Thus it is not in issue that the superior courts, in determining cases brought before them, may make orders affecting, restricting or setting aside actions of the Executive which are not in accordance with law or the Constitution or make declaratory orders as to its obligations. The learned High Court Judge correctly cited the law in this regard as stated by Finlay C.J. in Crotty v. An Taoiseach [1987] IR 713 at p. 773:-
‘With regard to the executive, the position would appear to be as follows:- This Court has on appeal from the High Court a right and duty to interfere with the activities of the executive in order to protect or secure the constitutional rights of individual litigants where such rights have been or are being invaded by those activities or where activities of the executive threaten an invasion of such rights.’
Equally the superior courts may set aside an Act of the Oireachtas on the grounds that it is repugnant to the Constitution.
In Landers v. Attorney General (1973) 109 I.L.T.R. 1, Finlay, J. (as he then was), in referring to the constitutional discretion left to the State to balance the priority to be accorded to one right as against another in the interests of the common good stated at p. 6:-
‘The Court must as I construe its obligations under the Constitution be as scrupulous in avoiding such a choosing as it must be energetic in preserving a clear and threatened constitutional right. In the same way I do not consider that it is any part of the function of the Court to adjudicate as to what is the best method by which the State can carry out one of its constitutional duties ’ (emphasis added).
The courts have jurisdiction to intervene to prevent an invasion of rights or determine constitutional obligations. The views expressed by Finlay, J. and reflected in other judicial pronouncements which I cite, mean, as I understand them, that it is the executive not the courts who decide and implement the policies calculated to carry out its constitutional obligations. Moreover, Finlay J. clearly saw no difficulty in the amplitude of the powers of the court to protect rights while at the same time refraining from trespassing on the exercise of their functions by the organs of State.
Such jurisdiction can only be exercised in deciding on justiciable matters in issue between parties litigating those issues before the court (other than an Article 26 reference). The courts have no general supervisory or investigatory functions.”

57. Hardiman J. in the same case at pp. 360 and 361 stated:-
“The exercise of the executive power is vested in the Government which is responsible to Dáil Éireann. On the ordinary principles of construction I
believe that this responsibility is an exclusive one; the Government is not in this respect responsible to any other person or body. As appears from the citation earlier in this judgment from Buckley and Others (Sinn Féin) v. Attorney General and Another [1950] I.R. 67, these articles, combined with Article 6, not merely set forth the distribution of powers, but they ‘require that these powers should not be exercised otherwise’. I agree with the observations of Murray J. in this case to the effect that the order under appeal would tend to ‘undermine the answerability of the executive to Dáil Éireann and thus impinge on core constitutional functions of both those organs of State’. In my view those observations are clearly borne out by the passage which follows them in the judgment of Murray J.
In my judgment in Sinnott v. Minister for Education [2001] 2 IR 545, I gave a number of reasons why the courts could not assume the policy making role in relation to the multitude of social and economic issues which form the staple of public debate. I said at p. 710:-
‘Firstly, to do so would offend the constitutional separation of powers. Secondly, it would lead the courts into the taking of decisions in areas in which they have no special qualifications or experience. Thirdly, it would permit the courts to take such decisions even though they are not, and cannot be, democratically responsible for them as the legislature and the executive are. Fourthly, the evidence based adversarial procedures of the court, which are excellently adapted for the administrative of commutative justice, are too technical, too expensive, too focused on the individual issue to be an appropriate method for deciding on issues of policy.’
This list is by no means exhaustive. One might add that if the courts (or either of the other organs of government) expand their powers beyond their constitutional remit, this expansion will necessarily be at the expense of the other organs of government. It will also be progressive. If citizens are taught to look to the courts for remedies for matters within the legislative or executive remit, they will progressively seek further remedies there, and progressively cease to look to the political arms of government. Such a development would certainly downgrade the political arms of government and, just as significantly, it would tend to involve the courts, progressively, in political matters. This cannot be permitted to occur.”

58. All of the cases cited in argument before this Court as limiting the power of the Government to set policy and to disburse funds in accordance with that policy are, on analysis, ones that are specifically concerned with statutory interpretation and vires. I want to look at two of these. In O’Neill v. Minister for Agriculture [1998] 1 I.R. 539, the imposition of conditions for artificial insemination whereby those entitled to pursue that activity was restricted was held to be beyond the powers in the relevant statute. In Humphrey v. Minister for the Environment [2001] 1 ILRM 241, the respondent was entitled to make regulations for the control and operation of taxis. His powers, however, were specifically limited under s. 82(2) of the Road Traffic Act 1961, to licensing such vehicles, to setting fees for licences, and authorising the fixing of maximum fares. The Minister was not entitled, however, to set a licence fee related to the capital value of the subject of a licence so as to be in the nature of a tax. There is no doubt that the Government is not entitled to rely on aspects of the prerogative inherited from our rule by another power, that relate to the dignity of the monarch and which are inconsistent with the Christian and democratic nature of the State under the Constitution. That does not mean that the Government has no residue of inherited powers that are not provided for by statute. Actions of Government which have, for instance, the result of imposing a tax; or of increasing police powers, or similar powers by departmental officials, whereby people may be arrested or dwellings searched or compelled to undergo interrogation; or which go outside the specific terms of the statutory scheme passed by the Oireachtas to regulate a particular area of administration are, in the history and tradition of the Irish people, outside the realm of any constitutional construction of powers that are capable of being exercised by the Government. The full extent and the limit of those powers are not to be decided by me in this case. I am satisfied, however, on the authorities cited, that the government is entitled: to set a policy for the training of a specific number of medical graduates to meet the needs of the State; to decide what funds are appropriate to be disbursed in that regard; to decide that particular forms of education should be free, or should be contributed to by fees; and to decide that foreign students can take up spare places at an economic cost to the benefit of the economy.

59. Another fundamental part of the plaintiff’s argument, however, is that this treatment of him, whereby he is not entitled to buy a place as a foreign student is unequal, and therefore unconstitutional.

The equality issue

60. The Equal Status Act 2000 (“the Act of 2000”), provides further evidence of the reality of the Government policy that is challenged in this litigation. Under section 3 of that Act of 2000, as amended by s. 48 of the Equality Act 2004, discrimination in relation to the sale of goods and supply of services on the unacceptable bases set out in the legislation, is outlawed. A person who claims discrimination must, under s. 21, seek redress by referring the case to the Director of the Equality Tribunal that is set up by the Act. Redress may be ordered under s. 27 of the Equal Status Act 2000, as amended by s. 61 of the Equality Act 2004, through compensation or a mandatory order. Thereafter the matter may be appealed to the Circuit Court under s. 28 of the Equal Status Act, 2000, or, further, on a point of law to the High Court. An injunction may also be granted by the Circuit Court or the High Court, on the application of the Director of the Equality Tribunal where discrimination is likely to reoccur. Redress under the Act is to the statutory bodies set up. Legal norms were not created in this legislation that are justiciable in the ordinary courts as breaches of statutory duty; Doherty v. South Dublin County Council (No. 2) [2007] 2 IR 696. Section 7 of the Act of 2000 forbids any educational establishment, whether supported by public funds or not, from discriminating on the terms of admission to a course. Section 3(d)(i) of that Act, however, provides that it is not discrimination to provide different treatment in relation to “fees for admission or attendance by persons who are nationals of a member state of the European Union and persons who are not” or “the allocation of places at the establishment to those nationals and other nationals”.

61. Despite the specific exclusion by legislation of the complaint of the plaintiff in this case, and despite no claim having been brought arguing that the foregoing sub-section is unconstitutional, it is argued that the alleged unequal treatment of the plaintiff is contrary to the Constitution.

62. Article 40 provides:-
“1 All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

63. Article 41 of the Constitution recognises the family as a moral institution and as the fundamental building block of society. Article 42 provides:-
“1 The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
2 Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.”

64. It is argued that I should read the guarantee of equality set out in Article 40.1 of the Constitution together with Article 42.1, taken in isolation from its context. It is clear that the context of Article 42 is to allow provision to be made by law for the setting up of schools, but in such a way as not to infringe religious freedom, or to destroy private education or to allow home schooling. Just because the parents of the plaintiff may have the means whereby, were they eligible, they might purchase a place for him as a foreign student in an Irish medical school, does not mean they have a constitutional entitlement to upset the Government’s policy in relation to the equality of educational opportunity that, I am satisfied, fairly operates in this field. There is also another impact which upsetting the Government policy may have. One can anticipate around seven hundred European graduates, almost all of them Irish, from Irish medical schools annually from about 2015. There will, in addition, be just under two hundred foreign medical graduates. If, every year, there are about two hundred young Irish men and women whose parents are prepared to pay for their medical education at full economic cost, by whatever means, in addition to whatever number are being trained in the neighbouring kingdom and those paying for medical education in central Europe, this will result in a strong oversupply of Irish and European medical graduates, most of whom will wish eventually to take up positions in Ireland. Inevitably, the response by the Higher Education Authority and the Government will have to be to re-think the quota of seven hundred and twenty five places for European citizen students. It can be predicted, as at least a probability, that the quota for those exempt from fees as European students will be brought under pressure to be revised downwards to the extent of the displacement by Irish students of the foreign students. Competition for the decreased free undergraduate, or low fee graduate, places will be even more severe. This may or may not happen. I am not entitled to form my judgement around my personal predictions as to the future. This is why the setting of policies in this entire area is utterly unsuited to any adjudication which a Court might make.

65. To understand this, the stark, and superficially attractive, argument of the plaintiff based upon his own situation, it must be set in context. The plaintiff spent a year sitting in the same classroom, at least some of the time, with a foreign student who did less well than he did in the Leaving Certificate but yet obtained a place in the Royal College of Surgeons in Ireland. That foreign student did not take up a place reserved for European citizen students. He took up a place in medical school for a course that was sold on the basis of the benefit it would bring, by way of fees, to the medical school, and in terms of what the student would spend in the economy here simply by living in Ireland, and the international ties that might be made between his country of origin and the State, to the economic benefit of the community generally. That foreign student may have wealthy parents or he may, like many Malaysian and other students in our medical schools, be there on a scholarship. He or she may be contracted to their national government to either repay the fees or to work at an appropriate rate as a hospital doctor in their home country for a full decade. Sitting with Mr. Prendergast and this foreign student were undoubtedly other Irish young men and women who are anxious to consider a career in medicine.

66. Were I to strike down the existing Fottrell scheme as an unconstitutional inequality, I must consider the effect that it would have. I am not entitled to act in an unthinking way. Furthermore, I am only entitled to act within the limit of my authority, which is to correct legal wrongs and not to set Government policy. As between Mr. Prendergast and another Irish student the following could emerge were I, as urged, to strike down the respondents’ organisation of medical education in Ireland. He might be able to pay the full economic cost to the medical school of his education but another Irish student might not. Why should he gain access to a medical career based on his money and lesser points performance in the Leaving Certificate when that other student, on perhaps better points, does not?

67. It is the policy of the Government that that should not happen. Furthermore, that policy is based on sound reasoning. There is no evidence before me to suggest that it is arbitrary or capricious. The foreign student does not have the right to stay in Ireland upon the completion of her or his training. He or she does not have the right to vote and nor are social welfare, health protection rights and housing rights conferred by statute applicable to him or her. These rights would be equally applicable, however, as between Mr. Prendergast, as, for this is what he wants to be, a paying student in an Irish medical school, and another student who is excluded, perhaps having done better than Mr. Prendergast, but who does not have the money to pay the full economic fees. Is the Court, on that basis, to strike down a carefully thought through Government policy based merely on looking at one side of the situation? To do so would be to replace one alleged inequality with a different but very real and unjust inequality. Is the other Irish student, who can not pay the full economic fees of medical school to be required to mortgage his or her future to a huge bank loan; to persuade his or her parents to mortgage the family farm; or to merely accept the situation and look on with envy on a basis whereby Mr. Prendergast can obtain what he wants in circumstances where the only difference is that of money? The plaintiff seeks a declaration overturning the current system and the grant by the Court of a declaration is a discretionary remedy. The creation by declaration of such an inequitable system may have no effect in the plaintiff’s favour. Of all the many hundreds of European students competing for a place in medical school, there may be hundreds who may pay, thus leaving Mr. Prendergast with an insufficiency of points on an open competition system. There may be hundreds more foreign students whose points performance in the Leaving Certificate, or in equivalent examinations, exceeds his. The declaration sought in this case, turning a carefully thought-through scheme based on the recommendations of Professor Fottrell into a market free-for-all based on money would be to cause this Court to upset the principle of equality of access to education among those entitled to rights as European citizens and to replace it with a legal nullity where untrammelled market forces can operate. Such a situation would not be in accordance with the high constitutional principles of prudence or charity and it would do nothing towards furthering the constitutional aim of true social order.

68. It was conceded on behalf of the plaintiff that the Government have the authority to determine that a certain amount of money should go into education; that a percentage of it should be to third level education; that priorities can be set in relation to particular courses and that a quota can be set for State-subsidised places. This concession was correct in law. It is argued, however, that the Government can never exclude an Irish person from any State -subsidised place, apart from perhaps a small percentage reserved to foreign students for the multicultural enhancement of our universities or in aid of educating those from developing countries. I cannot agree. Once there is authority to set a quota on the number of places that the State will pay for in medical education, there is also authority to set the conditions under which those who have rights in national and European law, by virtue of their citizenship, may enter. The fundamental condition here is that they should not pay, or if as graduate entrants into medical school they pay university fees after obtaining a first fee-free degree, that they should pay at a greatly reduced rate. As to fees for graduate entry, Government policy is that graduates entering a university undergraduate course must pay. But, for every educational pursuit there is a cost in time and in the loss of revenue from the gainful employment that might otherwise have been pursued. I cannot see this as being unlawful as the kind of inequality outlawed by Article 40, referring as it does to equality in the Irish text: “Áirítear gurb ionann ina bpearsain daonna na saoránaigh uile i láthair an dlí.”

69. In Quinn’s Supermarket v. Attorney General [1972] I.R. 1, Walsh J. referred to Article 40.1 in the following terms (at pp. 13 and 14):-
“…this provision is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community. This list does not pretend to be complete; but it is merely intended to illustrate the view that this guarantee refers to human persons for what they are in themselves rather than to any lawful activities, trades or pursuits which they may engage in or follow.”

70. A similar passage is to be found from the judgment of Kenny J. at page 31 of the report. In State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567, at p. 639, Walsh J. proffered the following explanation:-
“In the opinion of the Court section 1 of Article 40 is not to be read as a guarantee or undertaking that all citizens shall be treated by the law as equal for all purposes, but rather as an acknowledgement of the human equality of all citizens and that such equality will be recognised in the laws of the State. The section itself in its provision, ‘this shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function,’ is a recognition that inequality may or must result from some special abilities or from some deficiency or from some special need and it is clear that the Article does not either envisage or guarantee equal measure in all things to all citizens. To do so regardless of the factors mentioned would be inequality.”

71. An example of a difference in social function providing for a lawful distinction in treatment emerges from Dillane v. Ireland [1980] I.L.R.M. 167. Under the Rules of the District Court, a judge could never award costs against a member of An Garda Síochána acting as a prosecutor, even where the prosecution was unsuccessful. Such costs could, however, have been awarded against a common informer. At page 169, Henchy J. approved the apparent inequality of treatment as between a Garda acting in the course of his duties as prosecutor, and therefore immune from an award of costs against him, and a common informer:-
“It is the latter requirement for immunity from costs or witnesses’ expenses that, in my opinion, provides a valid constitutional justification, on the ground of social function, for the discrimination complained of between one kind of common informer and another. When the State, whether directly by statute or mediately through the exercise of a delegated power of subordinate legislation, makes a discrimination in favour of, or against, a person or a category of persons, on the express or implied ground of a difference in social function, the courts will not condemn such discrimination as being in breach of Article 40.1 if it is not arbitrary, or capricious, or otherwise not reasonably capable, when objectively viewed in the light of the social function involved, of supporting the selection or classification complained of. It seems to me to have been well within the law-making discretion allowed by Article 40.1 for the District Court Rules Committee to draw a distinction between, on the one hand, a common informer who is a Garda acting in discharge of his duties as a police officer, and on the other, a common informer who is either a mere member of the public or a Garda not acting in discharge of his duties as a police officer. Whether the court supports or approves of that distinction is irrelevant: what matters is whether it could reasonably have been arrived at as a matter of policy by those to whom the elected representatives of the people delegated the power of laying down the principles upon which costs are to be awarded…. For a variety of reasons – among them the desirability that members of the Garda Síochána should be encouraged to discharge their police duties assiduously by being given immunity from liability for costs or witnesses’ expenses in the District Court – this discrimination could reasonably be thought a justifiable concomitant of the social functions of the members of the Garda Síochána when carrying out their duties as police officers.”

72. In the Article 26 reference of Planning and Development Bill, 1999 [2000] 2 IR 321, whereby certain developers of large parcels of land would have to make provision to the State for social and affordable housing, the Supreme Court declared at page 357:-
“The fact that a particular planning scheme may result in the conferring of benefits on some categories of persons seen by the Oireachtas as being in particular need of assistance and that this is done at the expense of landowners who are benefiting financially from related planning decisions can be said to be a form of unequal treatment. However, Article 40 does not preclude the Oireachtas from enacting legislation based on any form of discrimination: as has often been pointed out, far from promoting equality, such an approach would simply result in greater inequality in our society. As Barrington J. pointed out in Brennan v. The Attorney General [1994] I.L.R.M. 355, in a passage subsequently approved by this court in The Employment Equality Bill, 1996 [1997] 2 IR 321, where classifications are made by the Oireachtas for a legitimate legislative purpose, are relevant to that purpose and treat each class fairly, they are not constitutionally invalid.”

73. It is also clear that arrangements in relation to social welfare and disbursements for education are matters of Government policy. The single judgment of the Supreme Court in MacMathúna v. Attorney General [1995] 1 I.R. 484, at p. 499, makes this clear:-
“It is clear that the provisions of the social welfare allowance for children of married parents living together is not by any means the only form of financial support provided by the State for the upbringing of children by married parents. Such matters as the contributions of the State to free primary and secondary education, provision of free or assisted medical services and other matters would all go into the question as to whether the support was a proper discharge of the constitutional duty. Added to that would be the vital question as to whether it was a proper discharge of the constitutional duty of the State under Article 41 bearing in mind the other constitutional duties of the State and the other demands properly to be made upon the resources of the State.
As is already indicated in this judgment these are peculiarly matters within the field of national policy, to be decided by a combination of the executive and the legislature, that cannot be adjudicated upon by the courts.”

74. When issues as to a conflict between constitutional rights fall to be decided by legislation, then once the Oireachtas strikes a reasonable balance in the resolution of that question, the courts must not interfere, even though they might have balanced the result differently; see the Article 26 reference relating to the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, [1995] 1 IR 1. Where, as between potential issues concerning equality of treatment the Government makes a resolution, as between valid legal choices, then I would hold that the courts should not interfere once that resolution is a reasonable one based upon a policy which is neither arbitrary nor capricious. I also note that s. 2 of the Higher Education Authority Act 1971, makes it one of the specific aims of An tÚdarás to promote equality of access to higher education. By upsetting the Government’s plans in the Fottrell scheme, this Court would be undermining the aim, based on the principle of equality, that access to State subsidised education at primary degree level by European citizens should be unrelated to any ability by the student, or his or her parents, to gain such a place by paying economic fees, at the expense of another student who does not have that ability. This has nothing to do with the nature of the human personality and it is not unconstitutional.

Competition

75. Mr. Colm McCarthy, an economist in University College Dublin, gave evidence on the competition issue. Mr. McCarthy was part of the Oireachtas Committee which reported in July, 2004 which made recommendations for more places for European citizens in Irish medical schools; for the provision of a mandatory aptitude test as a condition of entry; and which addressed the foreign student intake issue; see Joint Committee on Health and Children, Second Report – Restrictive Practices in Medical Training in Ireland (Stationery Office, Dublin, 2004). The result of this Report was the Fottrell Committee whose final recommendations were adopted by the government. My impression of Mr. McCarthy was that while he is clearly a brilliant economist, and a very clear witness, he was having extreme difficulty if saying anything in favour of the plaintiff on the competition issue. He pointed out that the Royal College of Surgeons in Ireland was not dependent on the Exchequer, at least up to 2002, and more formally with the adoption by that medical school of the free fees scheme for a first degree in third level education in 2002. There is nothing that was before me in this case to stop that college from going back to their pre-2002 position, when they entered the State fees scheme, and so leaving themselves free to ignore Government policy. They could then take in more Irish students, not under the free fees scheme, or at a full economic fee, and less, or more, foreign students. Irish and European students would, however, under the Treaty have to be treated equally. How they would access the clinical training places in the teaching hospitals for such a ‘go-it-alone’ policy, I cannot imagine.

76. It is true, as Mr. McCarthy pointed out, that having a large number of medical graduates may result in unemployment, or underemployment, and a consequent pressure, through competition to reduce fees. This is the classical economic model of supply and demand but it tells the Court little about the breaches of competition law asserted. It is also possible, I would hold, that the medical unions would either encourage emigration or would take measures against doctors selling their services for uneconomic fees. Furthermore, I would hold, the provision of medical education is so expensive that there is nothing wrong in competition terms with the Government setting a reasonable quota in terms of what it will spend on the provision of free or highly subsidised places. Nothing in the Government’s policy is anti-competitive. Furthermore, nothing in the Government’s policy, as of the present time, prevents any independent college, in practice the Royal College of Surgeons in Ireland, from opting out of the Central Applications Office system, from opting out of Government subsidies and from pursuing an economic policy based on the open market. The current situation is not an abuse by the Government, through undertakings, of a dominant position under Article 82 of the Treaty. The current policy has, on the evidence before me, no effect at all on trade between Member States of the European Union.

Conclusion

77. I must therefore reject the plaintiff’s claim.

 

Hansfield Developments Ltd v Irish Asphalt Ltd

[2009] IEHC 90;

JUDGMENT of Mr. Justice Brian McGovern delivered on the 17th day of February, 2009
1. This an application on behalf of the first named defendant for an order pursuant to Order 31, rule 18 of the Rules of the Superior Courts, requiring the plaintiffs to make available for inspection certain documents over which they have claimed privilege. In the alternative, the first named defendant asks the court to inspect the documents in question for the purpose of deciding as to the validity of the claim to privilege as provided for by Order 31, rule 20(2) of the Rules of the Superior Courts.

2. These proceedings arise out of the building of three housing estates in North Dublin commencing in 2002. The houses on the estates were built by the plaintiffs and between the three locations, 681 houses were built. The defendants are sued as the providers of infill or quarry material which was compacted below the concrete floor slabs of the houses in question. It is alleged that the quarry material was defective in that it contained a high level of pyrite which caused the expansion of the infill, causing cracking to the floor slabs and other problems with the houses.

3. The plaintiffs are registered with HomeBond. The documents of which inspection is sought comprise correspondence and written communications which have passed between the plaintiffs and the National House Building Guarantee Company Ltd. (“HomeBond”). HomeBond was set up by the Government to provide structural defect cover for new homes built in Ireland since 1978. Builders are entitled to register as members and purchasers who buy a home where it has been registered under the scheme, obtain certain rights under the terms and conditions of the HomeBond agreement. Under the terms of the agreement, the members warrant to the purchasers and HomeBond that they will attend to any major defects in a dwelling built by them, either by remedying the major defects or, with the agreement of HomeBond, paying the cost of the remedial works to the purchaser. If the member fails to remedy defects, HomeBond can do so and pursue the member/builder.

4. I have set out, in broad terms, the structure of the HomeBond scheme as it is of some relevance to the matter I have to determine. In this motion, the only privilege being claimed by the plaintiffs is litigation privilege. The issue of legal advice privilege does not arise. Since the motion was issued, the plaintiffs have agreed to waive privilege in respect of 84 of 316 documents created by HomeBond and 32 of 209 documents received by HomeBond.

5. Mr. McDonald S.C. for the respondents to the motion accepts that the onus is on the party claiming privilege to prove that privilege exists. He also accepts that as this is a case in which litigation privilege is claimed, the court must be satisfied that the dominant purpose of the document which has been generated is litigation and not some other purpose. There is, in fact, a significant measure of agreement between counsel on both sides in the motion. The defendants maintain that the claim for privilege is ill founded. HomeBond are not a party to this action and the first named defendant asks how litigation privilege can be claimed over documents authorised by HomeBond and, furthermore, how privilege can attach to documents sent by any of the plaintiffs to a third party, namely, HomeBond. The plaintiffs argue that the applicants in the motion ignore the common interest that exists between those parties. They say that the court should consider not only these proceedings, but also any other actual or apprehended proceedings from homeowners at the time when the documents were generated.

6. The respondents/plaintiffs say that there is evidence before the court that the communications between them and HomeBond were confidential in nature and that this has been deposed to on affidavit. The applicants say that HomeBond never maintained that the documents were privileged. Furthermore, they say that the plaintiffs and HomeBond do not have a common interest in that HomeBond is not in the position of an insurer. They refer to the tripartite nature of the HomeBond scheme.

7. Mr. O’Callaghan S.C. for the applicants states that HomeBond and the plaintiffs may obtain a benefit if his clients lose these proceedings because then neither HomeBond nor the builders may be under any liability. But this does not give rise to a “common interest” as understood in the authorities which have been opened to the court.
The law
8. To establish litigation privilege, there must be a confidential communication between a client and lawyer, or lawyer or agent or between one of these and a third party, made for the dominant purpose of use in litigation. In Waugh v. British Railways Board [1980] AC 521, the House of Lords adopted the “dominant purpose” test set out by Barwick C.J. in his minority judgment in the High Court of Australia in Grant v. Downes [1976] 135 CLR 674, 677:

“A document which was produced or brought into existence either with the dominant purpose of its author, or the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.”

In Waugh v. British Railways Board at p. 543, Edmund Davies L.J. stated at p. 543, that when assessing privilege, a court,

“. . . should start from the basis that the public interest is, on balance, best served by rigidly confining within narrow limits the cases where material relevant to litigation may be lawfully withheld. Justice is better served by candour than suppression.”

In the same case, Lord Wilberforce stated at p. 532:

“On principle, I would think that the purpose of preparing for litigation ought to be either the sole purpose or at least the dominant purpose of it: to carry the protection further into cases where that purpose was secondary or equal with another purpose would seem to be excessive and unnecessary in the interests of encouraging truthful revelation.”

9. In Silver Hill Duckling Ltd. v. Steele [1987] I.R. 298, O’Hanlon J. adopted the view expressed by the House of Lords in Waugh v. British Railways Board that the dominant purpose for the document coming into existence in the first place should have been the purpose of preparing for litigation then apprehended or threatened. At p. 292, he said:

“Having considered the relevant authorities, I am of opinion that once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case, whether by means of communications passing between him and his legal advisers, or by means of communications passing between him and third parties, and to do so under the cloak of privilege.”

10. The respondents to this motion argue that there is a real relationship between HomeBond and its members which is of great significance to the members/builders because they are in a position to provide a warranty – a HomeBond warranty – and will step into the builder’s shoes in the event that the builder is not in a position to remedy a structural defect in a house. Counsel for the respondents argue that there is, therefore, a common interest privilege which arises out of the creation of these documents. The court was referred to Buttes Gas and Oil v. Hammer (No. 3) [1981] QB 223, where Brightman L.J. said at p. 267:

“. . . if two parties with a common interest and a common solicitor exchange information for the dominant purpose of informing each other of the facts, or the issues, or advice received, or of obtaining legal advice in respect of contemplated or pending litigation, the documents or copies containing that information are privileged from production in the hands of each.”

The court was referred to extracts from ‘Disclosure’ by Matthews and Malek (2007 Edition) where the author addresses the issue of litigation privilege and “communications between persons with a ‘common interest’”. At paragraph 11.60, the author states:

“Where joint privilege exists, it is normally unnecessary to rely on common interest privilege. But common interest privilege is different, both formally and in substance. And the rules on waiver are different. It does not matter whether both parties are in the same litigation, or only one is, or whether they are both plaintiff or both defendants, as long as they have a genuine common interest. Nor is it necessary for them to be represented by the same solicitor as long as their interests are close enough to be able to do so. And although they must have a common interest, i.e. an area of interest which is common to both, they need not have exactly the same interests. The insurers of a party in litigation will usually have a ‘common interest’ with that party sufficient to attract the privilege, as will reinsurers of insurers, at least so long as the contract of reinsurance is not avoided.”

11. In Moorview Developments Ltd. & Ors. v. First Active plc. & Ors. [2008] 1 IEHC 274, Clarke J. at paragraph 6.13 of his judgment dealt with the issue of common interest privilege. He said:

“It is clear to me that common interest privilege arises in relation to documentation or materials which would be the subject of either legal professional privilege or litigation privilege in the hands of one person or body, but where the relevant materials are given to a third party who may be said to have a common interest in either the legal advice or the litigation concerned. See, for example, Svenska Handelsbanken v. Sun Alliance and London Insurance plc. [1995] 2 L.R. 284. Two questions therefore arise. The first is as to whether the documents would, in the hands of a single party, have the benefit of privilege in the first place. If not, then no question of common interest privilege could arise. If, however, the materials pass that first test but have been released by one party to a second party, then it follows that it is also necessary to ask whether the release was on foot of a common interest in either the relevant litigation or advice. If so, then the documents will remain privileged, notwithstanding their release, by virtue of the doctrine of common interest. If not, then the release may be taken to be a waver of any privilege which would otherwise have attached to the documents concerned. I should note that documents passing to other companies within a group or connected companies where those companies have an interest in the advice or litigation concerned are also covered, as would documents informing such connected entities of such advice or the progress of such litigation.”

12. While it may be “putting the cart before the horse” in determining whether or not the plaintiffs and HomeBond have a common interest, it seems to me that they do not.
13. I now consider whether the documents themselves are privileged. Having read the documents, it seems to me that they are substantially concerned with how the pyrite issue should be addressed and investigated. Undoubtedly, they deal with issues such as how to address defects in houses arising out of this problem, but the communications are not specific to any litigation although they could be said to be of relevance to apprehended claims.

14. In the Silver Hill Duckling Ltd. case, Waugh v. the British Railways Board was approved in this jurisdiction and this seems to represent the law here. The test I have to apply is whether the communications at issue in this motion were prepared for the sole purpose, or with the dominant purpose, of preparing for litigation. In the Waugh case, Lord Wilberforce expressed the view that it would be an excessive and unnecessary development to carry privilege protection further into cases where that purpose was secondary or equal with another purpose. I agree with that view. Having read the documents in this application, I am not satisfied that they were created with the dominant purpose of preparing for litigation, but that this purpose (if it existed) was secondary or equal to another purpose, for example, the working out between HomeBond and the plaintiffs as to how they should address and investigate the issue of pyrite involvement in the housing defects generally.

15. For that reason, I hold – with the exception of one document to which I will refer – that the plaintiffs are not entitled to claim privilege over the communications that are at issue in this motion.

16. The one document in respect of which I am prepared to allow a claim of privilege is document P21360/1. This was a letter of 27th August, 2007, and is stated to be “strictly without prejudice”. The letter does not concern the pyrite issue but does refer to a settlement of a dispute, the terms of which are confidential between the parties.

Prendergast v McLoughlin

[2008] I.E.H.C

JUDGMENT of Mr. Justice Charleton delivered on the 30th day of July, 2008

1. The plaintiff is a Dubliner of twenty years of age and wants to become a doctor. In the competitive system of entry into the five medical schools in Ireland, his performance, over two occasions, on points in the Leaving Certificate examination has left him short of what was required. Were he not a European citizen, meaning for the purposes of this case, a citizen of a Member State of the European Union or of the wider countries forming part of the European Economic Area, however, his examination performance would have been adequate to secure him a place. This is because the Government has reserved a fixed quota of places in medical school for European citizens. This is what the plaintiff was obliged to compete for. In addition, a service industry has been created in education whereby non-Europeans can compete for separate places in the medical schools, to which European citizens are denied entry. He claims this is unlawful.

The Plaintiff’s Account

2. The plaintiff was born in Ireland, though his parents also worked abroad, and has lived in Ireland, in China and in Malaysia. He was partially brought up in these places. He attended Gonzaga College in Dublin from 2000 to 2006. After the Junior Certificate, there is a transition year before the Leaving Certificate studies begin. During that year, students relax and also do some work experience. The plaintiff shadowed a gastroenterologist in St. Vincent’s Hospital for a week. He was so stimulated by the experience that he decided that his vocation was in medicine. The maximum number of points that can be achieved in the Leaving Certificate, on the basis of A1s in six subjects, is 600 points. Everyone who wants to go to university, or any other participating third level college in Ireland, makes an application for a place in the course of their choice through the Central Applications Office. This was founded in 1976 to process Leaving Certificate students from Ireland and all European citizen applicants. Forty-four institutions at third level are involved; see Central Applications Office, Board of Directors Report 2008 (Galway, Autumn 2008). A form is signed whereby an applicant agrees to be bound by the conditions attached to the system. The plaintiff signed this form. However, the plaintiff, like everybody else, had no choice but to sign. The conditions specify that he is only entitled to what he is offered.

3. In 2006, the plaintiff achieved 490 points in his Leaving Certificate. This was not nearly enough to get into medicine as a European citizen. He then repeated his Leaving Certificate, through the Institute of Education in Leeson Street in Dublin, and in 2007 achieved a score of 550 points. To enter medicine, he needed certain minimum requirements which are set by the five medical schools; Trinity College Dublin, National University of Ireland, Galway, University College Cork, University College Dublin and the Royal College of Surgeons in Ireland. On both Leaving Certificate performances, he comfortably met those requirements. The competitive nature of applying for a course in medicine with a fixed intake meant that in 2007, he was again disappointed. He tried to get into two universities in the United Kingdom. There, four universities will accept Irish students. He did two interviews but was not accepted. He could have applied, but I understand he did not apply, to one of a number of universities in central Europe that offer medical degrees through English. A condition of studying there is that over two or three years, one will learn the language and become so proficient in Slovak or Magyar, or in the appropriate tongue, as to be able to pursue clinical training on patients in the latter years of the course. I was told in opening that there may be scores of Irish students pursuing this route into medicine; however no evidence as to numbers was offered.

4. In his application to the Central Applications Office, the plaintiff’s choices were, in order, medicine in any of the colleges, dentistry in Trinity College Dublin and then pharmacy. He achieved a place in pharmacy in Galway. At the time he gave evidence in this case, in July, 2008, he had completed his first year and had achieved a second class honours first division result. To become a pharmacist, he must study for three more years and then do a one-year practical registration course.

5. While studying in the Institute of Education, the plaintiff got to know a number of non-European citizens. For the purposes of this judgment, and for entry into medical school, I will refer to them as foreign students. They had the same ambition as him to study medicine. One of them achieved 500 points. He secured a place in the Royal College of Surgeons in Ireland because he was from outside Europe. The plaintiff felt bitterly aggrieved by this realisation. Some foreign students apply for admission to medical school through the Central Applications Office, though many do not, relying instead on the international baccalaureate or on national results as interpreted by the medical schools. About 18% of our Irish and European students, who applied for medicine as a first preference, got in. I do not know the percentage success rate of foreign students.

6. For competition in the places reserved for foreign students, as opposed to European citizens, in the five medical schools a lower threshold for entry is required. This still comfortably meets the minimum standard of results for eligibility to study medicine set by the medical schools and this threshold applies to every applicant. To be certain of a place in medicine in the five Irish medical schools, as I understand it, a European citizen student needs to achieve at least 570 points. In reality, all or almost all, these applicants are Irish. The figures in relation to foreign students are less clear. The plaintiff said that a non-European citizen needs only 450 points for the Royal College of Surgeons in Ireland. However, his acquaintance had achieved 500 points to gain entry. Professor Brendan Loftus of the National University of Ireland told the court that to study medicine in Galway the entry requirements for non-European citizens was currently at 500 points. In any event, it is considerably less.

7. The plaintiff’s family is well off. University fees were abolished in Ireland in 1995, though students still pay a registration fee. At no stage prior to 1995, were the fees paid by students in State-funded colleges, in respect of any course, anything close to the economic cost of their education; in medicine the fees covered a fraction of the cost. If a foreign student wishes to come and study here, however, he or she must pay fees at a level which exceeds the economic cost. The number of foreign students in the Royal College of Surgeons in Ireland now greatly exceeds 50%. In the other four medical schools, the foreign intake is somewhere around a third, but the contribution that they make to the budget of the medical schools is around 50% or more. The plaintiff thought: why shouldn’t I apply as if I were a foreign student and agree to pay what they would pay? He wrote the following letter in August 2007:-
“We act for Frank Prendergast… a student who obtained 550 points in his Leaving Certificate this year. Our client applied for a place in your undergraduate medicine degree course[. H]owever, he has not been offered a place.
It has come to our attention that several non-EU students have been offered places in this course notwithstanding that they obtained fewer points than our client (either in the Leaving Certificate or other equivalent examination). We understand that these non-EU students are obliged to pay significant fees to attend this course and we confirm that our client is also prepared to pay these fees. Please confirm that you are prepared to offer our client a place on this course on the same basis as these non-EU students. If you are not prepared to offer him a place, please indicate why you are not prepared to do so.
This matter is obviously extremely urgent from our client’s point of view and therefore we should as[k] you to reply to this letter by Wednesday 29th August, 2007. If we do not hear from you we may issue legal proceedings without further notice to you and this letter will be used to fix you with the costs of same.”

8. The reply by Trinity College Dublin fairly sets out the scheme within which the five medical schools operate. It reads:-
“I refer to your letter…There are two separate competitions – EU and non-EU – for entry to medicine in Trinity College. To be eligible for consideration for a place in medicine applicants must be EU nationals for the EU competition and non-EU nationals for the non-EU competition.
Your client’s results in the Leaving Certificate unfortunately are not competitive for an EU place in medicine, and as he is an EU, and not a non-EU national, he is not eligible for consideration for a non-EU place in medicine.”

9. The replies which the plaintiff received from the other medical schools are similar. The Royal College of Surgeons in Ireland replied by indicating that they were restricted by the Higher Education Authority to offer only 39 medical places to European school leavers and that candidates for these places were ranked according to academic merit and offers issued in accordance with this ranking until all the places were filled.

10. In 2007, that same year, University College Dublin had a limit of 122 European citizen entrants into medicine, as set by the Higher Education Authority, and the National University of Ireland, Galway had 81 such places.

11. The plaintiff then issued these proceedings. He claims that setting a quota on places available to European Union students is unlawful; that any such direction was beyond the powers conferred on the defendants by the Higher Education Authority Act 1971; that the quota system is unconstitutional; and that the quota system is contrary to the relevant treaties of the European Union.

12. The relevant years where the situation of which the plaintiff complains are 2006 and 2007. I need, however, before returning to this to briefly refer to the facts, as I find them, as to the history of a quota system for medical schools in Ireland.

Historical Background

13. Some of the figures in the correspondence admitted before the court are inconsistent. The general trend, however, is clear. Starting in 1974, there were 556 students admitted to undergraduate programmes in the five Irish medical schools. Some small percentage of these may have first obtained a degree in another, likely related, discipline. As far as I can tell, about 10%, to no more than 20%, of these studying medicine in Ireland came from outside Ireland, North and South. Through the 1970s, similar numbers obtained with 513 entering medical school in 1977. In 1978, the Department of Education and the Department of Health came under pressure from the medical unions to reduce the number of Irish medicine graduates. Their view was that many doctors were being trained for the purpose of export and that at the current level of graduation there would soon be two doctors for every job available in Ireland. A sub-committee of the Higher Education Authority was established. It decided that there should be no more than 300 Irish entrants into the medical schools. They also recommended that not more than 28 non-Irish students should be admitted. I am satisfied that this decision was taken because the State did not want to fund the high expense of medical education beyond what was necessary to have a sufficient supply of Irish doctors for Irish needs. On a secondary basis, it was considered undesirable and wasteful to have major unemployment in the medical profession. There is no evidence from which I could infer that this decision was made in order to create a closed-shop of doctors in Ireland.

14. Prior to the year 2000, the Royal College of Surgeons in Ireland got an insignificant total grant per annum from the State of £18, 000.00. From 2000 onwards, the Royal College of Surgeons began to get a serious subvention from the State. In 1995, fees for a first undergraduate degree course were abolished by the Government. The Royal College of Surgeons in Ireland was outside this scheme. From 2000, however, it became obvious that they wanted to become part of this scheme and they started to receive a substantial subvention from the State. Eventually, in 2002 they came within the free fees scheme at their own request. This meant that prior to the year 2000 they were free of any constraint imposed by the Higher Education Authority, because they were free of any financial pressure that any government body might care to bear down on them. Before 2002, Irish students paid the Royal College of Surgeons in Ireland fees for their course, but foreign students paid very much more.

15. In essence, I am satisfied that, discounting the admission of foreign students and graduates, that the number of places available to Leaving Certificate students in Ireland dropped from around 500 in 1975, to a cap of 300 in 1980. The Royal College of Surgeons in Ireland, however, always took somewhat more than what was supposed to be their allocation, which was 25 out of 300, due to their freedom from State funding, and by the time the plaintiff came to apply for a place, they were taking about 40 people from Europe into their undergraduate course, some 42% of whom the statistics indicate for 2003, had previously obtained another degree. As far as I can tell, the number of foreign students graduating from Irish medical colleges during the late 1970s was in or around 20%.

16. It would seem that, historically, the Royal College of Surgeons in Ireland trained a large number of the foreign students as all the other colleges had a quota of only 28, for those from abroad, or about 10% of the numbers.

17. In the mid 1980s, the Government again came under pressure from medical unions to reduce the number of Irish medical graduates. There is nothing in the evidence to suggest that they ever sought a reduction in the number of foreign graduates. It was probably assumed by the pressure groups that these doctors would return to their countries of origin while Irish graduates would prefer to work here. The suggested reduction was from 300 places to 200 places for the Irish. This was rejected by the Minister for Education. During an address in June 1983, the then Minister stated:-
“It has been put to me that the first consequence of a reduction in student numbers would be an increase in unit costs in that income from fees would be reduced while staffing levels could not be lowered because of the contractual rights of staff members and the numbers of specialisms to be catered for. Even if staff members could be reduced it is most unlikely that this could be achieved without involving the institutions and, consequently, the State in considerable redundancy payments. An alternative approach, of course, would be to increase the fees for the medical faculty to cover the loss of revenue. Consideration might also be given to the question of offering spare places to students at the full economic fee. Such a fee would be very high, of course, and would be outside the range of all but a very small minority of Irish students. There is a great demand by foreign students for places in the Irish medical schools and it is possible that available places would be taken up by them even at the full-cost economic fee. Suggestions along these lines need very careful consideration, however, given the clear implications in them that availability of medical education would be weighted heavily in favour of those who are rich enough to avail of it.”

18. The pressure from the medical unions was resisted because, on analysis within the relevant departments of Government, their argument was inconsistent with the facts. It was noted in November, 1984 that 13.3% of all the posts available for non-consultant hospital doctors were held by non-nationals. This suggested a need for doctors which was not being fulfilled by the output of Irish graduates. The mass emigration and unemployment that the interest group had based its argument on was, therefore, undermined.

19. Ireland’s position economically in the mid 1980s was very difficult. The training of medical graduates was, and still is, extremely expensive, compared to other disciplines. Given that the Higher Education Authority was strapped for funds, it was decided that if more foreign students could be attracted that they would finance the economic viability of the medical schools. This was the policy decided upon. At the time, the alternative Government plan was to shut the medical schools in Galway and in Trinity College Dublin. On the 30th July, 1987, the Government made the following decision:-
“Intake of foreign students in university medical schools, at an annual fee of not less than £9,500.00, to be increased to the maximum extent possible (while maintaining planned intake of Irish students) with effect from the academic year 1987/1988.”

20. Prior to making that decision it was noted that, possibly as a result of the reduction in numbers of Irish entrants, there was spare capacity that could be taken up by foreign entrants. The possibility of funding the medical schools through some students paying a full economic fee was attractive. At the time, all students paid some university fees. The Government rejected the notion that the medical schools could be funded through allowing some students who had well-off parents to pay the full economic fee. A note from the Minister for Health in August, 1987 stated that the emphasis should be on increasing the number of suitably qualified foreign applicants. It emphasised the difficulty in attracting them. It also rejected dividing Irish students into those who paid full fees, and those who paid a much lower subsidised fee. The departmental memo, in part, reads:-
“…It could be claimed that if spare capacity exists in our medical schools preference should be given to Irish students whose parents are prepared to pay an economic fee. This would be undesirable since we would have two categories of medical student in the State subsidised schools, i.e. those who got in on their merits and those who got in on their money.”

21. In consequence, the quota for Irish students remained the same, while the number of foreign students greatly increased. As a result of a creeping realisation of European Treaty rights of establishment and freedom of movement, references in official documents to Irish students became, over time, references to European students.

22. Through the 1990s, the number of foreign students steadily crept up. The number of Irish students also went up, but only very slightly, due mainly to the Royal College of Surgeons in Ireland taking almost double the number of Irish students set in its quota. As far as I can tell, by the year 2000, there were in or around 340 places, instead of the contemplated 305 places, available for European entrants. During that year, as well, the number of European and non-European entrants to medical school were equal for the first time, at about 50% each.

23. By the time the plaintiff first applied to enter medical school in 2006, the proportion of European to foreign entrants into medical school was about 40% to 60%. At that time, the percentage of non-consultant hospital doctors working in Ireland who were not European had increased from the 13% figure in 1984 to around 60% when this action commenced. The relevant authorities decided that a change was needed. In 2000 there was a body called the Medical Manpower Forum which was tasked with reporting to the Government on what precisely the appropriate intake of medical students should be. There were reviews on medical schools conducted in 2003 and ultimately these studies led to a report entitled Medical Education Ireland: a New Direction. This is commonly referred to as the Fottrell Report as it was chaired by Professor Patrick Fottrell, formerly President of the National University of Ireland in Galway; see Fottrell et al, Medical Education in Ireland: A New Direction (Report of the Working Group on Undergraduate Education and Training, Dublin, 2006).

24. This report of February, 2006 was adopted through the Ministers for Education and Health, and by suggestion from them, by the Higher Education Authority. It became the new policy for educating doctors in Ireland.

25. To some extent, the report clashed with another policy of the Government. In November, 2004 a report from an interdepartmental working group was issued on the internationalisation of Irish education services. This confirms what had been a Government policy for almost twenty years; that of selling Irish education, whether in medical or other spheres, to those from outside Europe who could afford to pay the full cost of courses at an economic rate. As has been obvious, from this brief survey, medicine has been among the educational courses most successfully sold as an Irish export. Ireland is perhaps a prime example of this trend in the education economy. Hungary, on the evidence presented to me, may be too. We are not, however, alone in this policy. Throughout Europe, the figures indicate, those from abroad seeking to purchase education favour medicine, science and engineering courses over the humanities. In Britain, the quota set for foreign students in medical schools is, in contrast, 10%.

The Fottrell Report

26. It is not for the court to make any comment on the effect of the policy whereby entrants from Europe to Irish medical schools were cut in the mid 1970s from a high of around of 500 or more down to 305. In order to specialise, the vast majority of Irish doctors need to gain experience abroad, typically in the United States or Britain. Therefore, there will always be a requirement for some percentage of non-European doctors in our hospitals. Having some foreign doctors is also, without any doubt, a healthy policy for Ireland. Had the policy of cuts in entry to medical school not been implemented, it is difficult to see there being anything close to the current majority of foreign non-consultant hospital doctors in the system. In the mid 1970s, it was not foreseen that European Union limits on working hours, cutting back on the 24 hour on-call system for junior doctors in our hospitals, an increasing demand for leisure by family practitioners and the family responsibilities of many doctors, would mean that more practitioners were needed per head of the population than was the case 30 years ago. In that time, the Irish population has also grown by 25% or more.

27. The Fottrell Committee did not make any recommendation that entry for non-European students should be capable of being purchased at the same cost by European students; in practice, meaning well-off Irish students. Instead, the long standing policy, of over 20 years duration, that money as a differential should not purchase entry to medical school was articulated in the foreword to the report, at p.vii, by the Minister for Education and Science:
“Ireland’s health system is critically dependent on an adequate supply of quality medical graduates. It is essential in that regard that the quality of our undergraduate medical education and training keeps pace with international best practice and that, at a wider level, our system of higher education continues to respond to key national social and economic needs. It is clear that controls on the number of places in our medical schools for Irish and EU students have required review for some time. It is also an important principle of entry to higher education that selection is based on fair, objective and transparent competitive measures.”

28. The basic thrust of the Fottrell recommendations, which are being implemented by the respondents, is that a large percentage of the foreign students in Irish medical schools should be replaced over a period of four to five years with European students. The net result will be that the proportion of the intake of foreign students studying medicine in Ireland will decrease from around 60%, on the 2005 figures, to 25% in about 2011 or later. The figures presented to the court for the academic intake 2010/2011 indicate that the Royal College of Surgeons in Ireland will continue to have a majority of foreign students, taking up 69% of the entire allocation, with the total proportion over all the medical schools decreasing by that year to 29%. The Committee warned, at p.94, against too sudden a change in the policy of selling spare capacity in medical schools, beyond the European quota, in the following terms:
“It is unwise to assume that non-EU student intake is a tap to be turned on or off at will. The large intake of non-EU students in Irish medical schools reflects over 20 years of effort in building an international presence and brand name. It is likely that even a short-term reduction in intake will lead to a long-term reduction in income.
Again, it should be noted that the scale of the income loss reflects quite starkly the degree to which medical education in Ireland has become dependent on income from non-national students.
It should be noted that the prime reason for restricting the intake of non-EU students is the general lack of clinical training capacity and the need to allocate clinical placements to EU students in the first instance, particularly in the context of an increase in EU student numbers. However, the current cohort of non-EU students contains a number who carry out their clinical training in their country of origin and do not therefore impact on clinical training capacity in Ireland. This scenario offers a potential strategy for the retention of non-EU students in the future.”

29. The Fottrell Committee recommended that the intake of European students into Irish medical schools should be increased from the 2005 intake of 305 per annum to approximately 725 students over a period of five years. It recommended that in addition to undergraduate entry, that many of the entrants, about one-third, should be graduates. When a doctor finishes medical school it is necessary, as part of medical education, for the State to provide him or her with a year of training as an intern within a hospital. It is expected that many of the foreign graduate doctors will return to their countries of origin for intern training. Some, however, may stay here. As I understand it, at the current time there are about 500 intern posts in Irish hospitals. Of these, the European take is currently 340, and the rest are taken up by competition among our foreign graduates. The number of intern posts needs to be increased for the Fottrell plan to work. The first level for doctors working within a hospital, after the intern year, is the senior house officer position. I understand there are approximately 1,500 such posts and it is, therefore, I was told in evidence, now relatively easy for a European doctor to obtain employment at the end of the intern year. The intern posts, however, need to be greatly increased. This represents a cost to the Exchequer of somewhere around €65,000 per post, since the doctors are paid as interns, as opposed to being merely students, and also have to be supported in terms of administration and nursing. The real cost may be higher than that. To make these changes takes time as well as money.

30. The Fottrell recommendations to increase the intake of European students into the five Irish medicals school by around 130% was conditional upon several factors: the increased intake being phased over four years, during which the necessary preparatory arrangements were to be introduced; that by the end of that period there should be a 60:40 ratio between intake to the undergraduate and graduate programmes; that the proportion of non-EU students entering clinical training should be no greater than 25% of total student intake by the end of the phased increase for European students and should be maintained in the future; that the undergraduate programme should be of five years duration, dropping the pre-med year, and the graduate programme of four year duration where students had appropriate prior education; that the quota between European and foreign entry should be allocated across all the medical schools; that additional structured clinical training would be developed; that additional intern positions be provided; and that an interdepartmental steering group should be established to review progress and to amend the strategy as might be appropriate.

31. Moving from the 1978 quota of 305 places for European students entering Irish medical schools, the implementation by the respondents of the Fottrell Report, gave an additional 70 places in 2006, 40 in 2007, and 35 in 2008 at undergraduate level. In addition, graduate entry is being phased in at 60 places in 2007, 120 places in 2008, 180 places in 2009 and 240 places in 2010. Meanwhile, the percentage share of foreign to European entrants is expected to drop year by year to an entry of 29 % in 2010.

32. The foreign students provide a great deal of revenue to Irish medical schools. The ‘Fottrell plan’, as implemented by the respondents, is to buy back many of the places for foreign students, by increasing the subvention from the Higher Education Authority to the medical schools for European students, and substitute them with European students. By paying the relevant medical colleges extra money, it is expected that they will eventually not miss the foreign students in terms of revenue. Something will be lost, clearly, in terms of the important inter-cultural dialogue that is now a most valuable feature of medical training in Ireland; though that will be maintained through a healthy intake of foreign students at around one in four.

33. The central issue in this case is why the applicant should not be able to buy one of those places for foreign students. From the point of view of this Court, however, this is not a matter for debate or policy. It is squarely a matter as to whether the current system which bars him from taking a foreign place in medical school, and paying the full economic cost, is unlawful.

Current Situation

34. From the time the plaintiff graduates from pharmacy in 2011, he is entitled to apply, as a European citizen, for a place as a graduate in one of the four medical schools adopting graduate entry as a separate stream. Trinity College Dublin has decided not to operate this system. He will be competing for one of 240 graduate places. As I understand it, he will do an aptitude test. This, together with his degree results, will determine whether he gains a place. He is also entitled, on the basis of the Fottrell Report, to apply for medicine now, using his Leaving Certificate examination results and, in addition, doing an aptitude test. On the aptitude test, one may score up to 300 points. On the Leaving Certificate, as I have earlier indicated, one may score up to 600 points. There is, therefore, a maximum of 900 points available for the competitive undergraduate places, numbering 485 by 2010. Depending upon how he scores in the assessment, the plaintiff’s high Leaving Certificate results could secure him a place through this competitive system. One of the difficulties the plaintiff will have, should he choose to attempt to enter as an undergraduate into medical school this year, is that he did not take English as a subject in his 2007 Leaving Certificate. However, he is required to be assessed on the 490 points achieved in 2006, when he did take English, without amalgamation with the 2007 results, and then to compete on the basis of the special assessment in hoping to achieve the additional 300 marks.

35. The plaintiff has pointed to certain anomalies in the system. The one of which he most complains, and to which the bulk of the argument in this case was directed, was the setting of a quota for European students and the unavailability to him of any other place reserved for foreign students to European citizens who would also pay. As a graduate student in medicine, supposing the plaintiff was to secure a place in 2011, the plaintiff would have to pay fees. No undergraduate, at the moment, pays fees. Every European citizen, however, doing a second degree, after completing a first undergraduate degree, is also required to pay fees. The fees for graduate entry in to medicine are high. The evidence establishes that the true economic annual cost for medical studies is around €25,000. Of this, the European citizen graduate entering medicine will pay €12,000 while the State will pay €13,000. There will be a number of places in graduate entry available to foreign students as well. There, the plan is that they will annually pay about €42,000. Anyone doing a second degree in Ireland is, like graduate entrants in to medicine, required to pay a course fee. I have also been given figures for annual fees prior to 2006 in other courses where European graduates pursue them. Insofar as the evidence has been somewhat vague on this issue, it seems that the European citizen entering into a second undergraduate course, having first completed another degree, will pay fees of around €5,000 for Arts, €6,000 for engineering or any other technical subject and €7,000 for medicine. This latter figure has now become, as of 2006, the ‘Fottrell figure’ of €12,000. Clearly, therefore, the cost of entry in to medicine as a graduate, when you are a European citizen, has been greatly increased under the Fottrell plan. However, all European entrants are treated on the same basis in that those who are graduates are required to pay. It so happens that under the Fottrell implementation, that the cost of entry into medicine, as a graduate, has risen from about €7,000 to €12,000. None of these fees represent, on an annual basis, anything close to the cost to the colleges, and therefore to the State, of the courses, be they humanities, technical or, as I have indicated, medicine.

36. An additional anomaly is that citizens from the European Economic Area, for instance, Switzerland and Norway, who seek entry into an Irish medical school, must be resident within the European Union for three years prior to application to achieve an exemption from fees as an undergraduate, or the lower fee levels for entry into medicine for graduates. Irish people are treated in the same way. I do not know if there is an exception for diplomats, who may be housed in what is legally treated as Irish territory abroad by diplomatic treaty, but Irish people who have been living outside of the European Union for three years prior to seeking entry to a third level college as an undergraduate, or under the Fottrell scheme as a graduate, are required to pay as if they were a foreign student. The foregoing are the facts that I have found for the purpose of the decision in this case.

Statutory Authority

37. It is argued that there is no statutory basis upon which the respondents have required a limit to the number of Irish students, and more recently, European students, studying in Irish medical schools and it is argued that there is no statutory basis on which European students may not pay the fees set for foreign entrants and so gain entry as a student paying at that enhanced level. Insofar as I can tell, the decision that there should be a cap on the number of European citizens studying in Irish medical colleges was taken by a sub-committee of the Higher Education Authority in 1978. I am content to infer that this decision would not have been made without the communication of concern by the Minister for Education and the Minister for Health, and possibly other Ministers as well. The decision of July, 1987 to increase the intake of foreign students into university medical schools to the fullest extent that that was possible, beyond that cap, and at a full economic fee, was a Government decision.

38. An tÚdarás um Ard-Oideachas, the first respondent herein, was established by the Higher Education Authority Act 1971, in order to further the development of higher education in the State; to assist in co-ordinating State investment in higher education; to make proposals for State investment in higher education; to promote the public appreciation of the value of higher education and research; to promote “the attainment of equality of opportunity in higher education”; and to promote the democratisation of the structure of higher education. These general functions were given to An tÚdarás under s.3 in addition to its specific functions under s.4 of the Act, such as that of promoting the Irish language and our national culture. Under section 6 of the Act, An tÚdarás was to maintain a continuous review of the demand and need for higher education. Based on that, it was to recommend to the Minister for Education what provision should be made for places. Although the Act does not specifically say it, it is clearly to be implied that the demand for higher education is to be interpreted as the number of students who wish to pursue particular courses, while the need for higher education refers to the prudent disbursement of State resources in higher education for the proper management of the national culture and the national economy. The function of An tÚdarás, therefore, under s.6, read in conjunction with s. 3, is to assess what forms of higher education the State needs and how those places may be best allocated if there is excess demand, or how students may best be attracted to such courses if the demand is not sufficient.

39. Sections 7, 8 and 9, give An tÚdarás the authority to require any university, college or institution of higher education, to indicate its financial position so that proper planning of financial expenditure over suitable periods of time, may be made. These sections read:
“7. -An tÚdarás may, annually or at such other intervals as it may determine, require any institution of higher education to submit a statement of its financial position to An tÚdarás and it shall be the duty of every institution of higher education to comply with any requirements which are imposed on it under this section.

8. – (1) Any request by an institution of higher education for State subvention shall be submitted by the institution to An tÚdarás in such manner as An tÚdarás may require.
(2) Requests submitted under this section shall be examined by An tÚdarás annually or at such other intervals as it may determine.

9. – An tÚdarás may relate annual or other financial requirements of institutions of higher education to financial planning over such periods, as it considers suitable.”

40. Sections 6 and 10 of the Act, read together, reflect concerns of the time. Thereby, An tÚdarás has the function of advising the Minister of Education of how the total number of students should be divided between the various institutions of higher education. The Act makes it clear that, “a reasonable balance” should be struck “in the distribution of the total, number of students as between institutions”. Through the Act, therefore, it is set out that universities or colleges should not be allowed to die by reason of a lack of student numbers, but that, instead, a healthy supply of students should be maintained to third level institutions by balancing the distribution of student numbers between them. Historically, Trinity College Dublin once had a shortage of students. This does not mean, however, that an institute of higher education is entitled to change its policy so as to concentrate on all of its resources of subjects of limited cultural or economic value and yet require a proper distribution to it of students. This, it seems to me, is made clear by s. 11, which requires all institutions of higher education to supply to An tÚdarás, “all such information relative to the institution as An tÚdarás may require for the purpose of performing its functions”. Under section 13 of the Act, An tÚdarás can institute and conduct studies on the problems of higher education and research. Its discretion, in that regard, is wide. After studying the financial situation of any third level college, and after obtaining relevant information from it for the purpose of its functions, any problem in relation to higher education may be studied by An tÚdarás and a report may be published. Under s. 16 of the Act, An tÚdarás can appoint a person to advise it on matters relating to its functions, or appoint a committee in that regard.

41. There are two sources of funding to the Higher Education Authority, as An tÚdarás is often called. Specifically, An tÚdarás is entitled under s. 17 to accept “gifts of money, land or other property upon such trusts and conditions, if any, as may be specified by the donor”. If a conditional gift is unacceptable, in the sense that it clashes with the functions of An tÚdarás, it may not accept it. The other, and principal, source of funding is the Government. Section 12 provides:
“12. – (1) There shall be paid to An tÚdarás, out of moneys provided by the Oireachtas, such amounts for institutions of higher education as may be approved of by the Minister [for Education] with the consent of the Minister for Finance.
(2) Any payment to an institution which An tÚdarás makes out of the amounts that it receives under the foregoing subsection shall be made in such manner and subject to such conditions as An tÚdarás thinks fit.”

42. It should not be lost sight of, when considering what conditions might be attached to the grant of money by the Higher Education Authority to a medical school, that the Act has a specific purpose of co-ordinating State investment in higher education and of promoting the value of equality of opportunity in accessing it. There is a legal basis both for dispersing the taxpayers’ money to the medical schools and for attaching conditions to that money. The proviso is that derived from the general principles of administrative law that the conditions attached by An tÚdarás should not be arbitrary or capricious, but should be related to its functions within the Act, as read as a whole, and in the light of its general functions as declared by section 3. It is clear, therefore, that the conditions that are attached to a grant on money, may be based on those which reasonably appear to be necessary after An tÚdarás has studied an issue in higher education, or which reasonably appear to be necessary in consequence of the funding available to it. It is even more apparent what An tÚdarás cannot do. It cannot decide to capriciously favour one college or university over another, whereby it is starved of students or funds; it cannot attach conditions to a grant which bear no reasonable relationship to the demand and need for higher education in Ireland; and it cannot act so as to deliberately enforce or promote inequality of opportunity in higher education. It would seem possible, therefore, under s.3(d) for some reasonable provision to be made in appropriate third level courses, where sufficient ability has been shown by prospective students, to allow for the education of those who are disadvantaged or those who are from developing countries.

43. It is plain, however, on the wording of the Act, that the Minister for Education and the Minister for Finance, can decide if the allocation of monies for third level education should be increased or decreased. If the Minister for Education has a view in relation to third level education, that may be studied by An tÚdarás as to its validity in fact and in terms of the specific and general functions that it has under the Higher Education Authority Act 1971. The attachment of conditions, however, is a matter for An tÚdarás. The Act makes this clear by stating that payments may be made to institutions of higher education “subject to such conditions as An tÚdarás thinks fit”. On the facts in this case, I am satisfied that in 1978, the Higher Education Authority saw fit to reduce the number of places for entry into Irish medical schools, by around 40%. I am satisfied that payment to the five medical schools was made at an appropriate level so as to ensure the proper education and training of those students as doctors, in radically reduced numbers but that no further funding was available. An tÚdarás has the power, under the Higher Education Authority Act, to decide that, for instance, the pursuit by large numbers of students of the ancient forms of Latin, Greek and Hebrew, are not conducive to promoting and developing the national culture or the national economy. An tÚdarás would be entitled to consider, as a balancing factor, that a university, as such, is a place allowing students access to a universe of learning, and that the pursuit of apparently arcane disciplines assists in the promotion of scholarship, in foreign relations, and in the cherishing of education as a value in itself and as a valuable training of the mind for apparently unrelated subjects. An tÚdarás can decide, however, that more emphasis might need to be placed on scientific, technical or humanities subjects, and attach conditions to its funding, after appropriate study, and on a reasonable basis, for the purpose of furthering its objectives under the Act.

44. I find as a fact, on the evidence before me, that medical education is extremely demanding of its students and is extremely expensive for the State in the provision of the cost of annual places. In consequence, An tÚdarás was entitled to provide money to the five medical colleges, on condition that the number of Irish, and later European, entrants to medical education should not exceed a particular number. As it turns out, the decision to radically reduce the number of entrants into medical education in 1978 was probably a mistake. As it has now emerged, the numbers were too low. There may have been a point from 1978 through to the Fottrell Report, and the changes which first began to be implemented in 2006 in consequence on it, where that number was correct. Over the course of for some of those thirty years, however, until the matter was looked at again by Government, it is clear that Ireland produced too few doctors for its needs. It might have been the case that had the plaintiff challenged that cap on European citizen entrants into medical training in Ireland in the year 2000, that he might have been in a position to prove that the condition attached by An tÚdarás to the funding, namely, the limiting of places to 305, was such as to fly in the face of fundamental reason and common sense; that is was unreasonable and, therefore, unlawful. I do not know this, and I am not so deciding, because the evidence was not before me. On the basis of the evidence that is before me from Dr. Rósín Healey, a recently retired accident and emergency consultant in Our Lady’s Hospital in Crumlin, and from Professor Brendan Loftus, the Dean of Medicine in the National University of Ireland, Galway, I would infer that the implementation of the Fottrell recommendations will, over time, be in a position to meet the foreseeable future needs of the Irish people for doctors. In fact, there will probably be a surplus if many people choose to study medicine in central Europe, but I do not know that because the figures were not put before the court. In that regard, An tÚdarás was entitled to take into account that there was always going to be a limiting feature on the education of doctors in Ireland. This is the availability of places for clinical training. Hundreds of trainee doctors cannot stand around a woman who is giving birth, or a child who is sick, or a cancer patient who is dying. Those numbers are necessarily to be limited in the teaching hospitals who give the medical schools the opportunity to train medical students in their last years. The plaintiff, however, in addition complains that making any of those places available to foreign students who can pay, without making such places available to him on the same basis, is outside the authority of the Government.

Powers of the executive

45. It is argued that the decision of the Government in 1988, to attract foreign students to Irish medical schools at a premium rate of payment, and the influence that was probably brought to bear on the Higher Education Authority in 1977 to limit the number of places for Irish, and later European, students in Irish medical schools and the decisions that the quota for European students at low, or no, fees should not be filled by foreign students and that European students should not be capable of taking the place of a foreign student while paying a premium rate were made without executive authority. To that list of impugned decisions I must add the series of decisions made by the Minister for Education and Science and the Minster for Health and Children, through the Higher Education Authority, whereby the recommendations of Professor Fottrell greatly increased the places available for European students at no fee, and decreased the places for foreign students. These arrangements must also fall if this argument succeeds. Why is the Fottrell recommendation, as adopted by the organs of government lawful, if all of its prior decisions are unlawful? In effect, the applicant asks that the entire system should be overturned. This would leave the medical schools free to make their own decisions as to entry, as to who should pay, as to who should not pay and as to what numbers of European students and foreign students should be admitted to their courses, subject only to the natural limitation that is placed on numbers by clinical training. In other words, the decision would shift from the Executive and the Higher Education Authority to the medical schools in consultation with the teaching hospitals to which they are allied.

46. I have already held that the Higher Education Authority has clear statutory powers to make policy decisions in relation to institutions of higher education and to provide grants of money to those institutions based on conditions that are within its competence under the Higher Education Authority Act 1971. The reality is, however, that notwithstanding that An tÚdarás can receive gifts, its funding derives from the taxation revenue of the Irish people as dispersed through the Government. Does the Executive, therefore, have the power to give money for higher education based on a settled policy?

47. The relevant Articles of the Constitution include the Preamble which, in part, provides:-
“In the Name of the Most Holy Trinity …We, the people of Éire … seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained … Do hereby adopt, enact, and give to ourselves this Constitution.”
Article 6 provides:-
“1 All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
2 These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”

48. Under Article 15.2, the exclusive power for making laws is vested in the Oireachtas. Article 28A acknowledges that limited powers may be devolved to organs of local government. On the expenditure of public monies, Article 17.2 provides:-
“Dáil Éireann shall not pass any vote or resolution, and no law shall be enacted, for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dáil Éireann by a message from the Government signed by the Taoiseach.”
Article 28 provides:-
“1 The Government shall consist of not less than seven and not more than fifteen members who shall be appointed by the President in accordance with the provisions of this Constitution.
2 The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.
…
4.1º The Government shall be responsible to Dáil Éireann.
4.2º The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.
…

4.4º The Government shall prepare Estimates of Receipts and Estimates of the Expenditure of the State for each financial year, and shall present them to Dáil Éireann for consideration.”
Article 50 provides:-
“1 Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.
2 Laws enacted before, but expressed to come into force after, the coming into operation of this Constitution, shall, unless otherwise enacted by the Oireachtas, come into force in accordance with the terms thereof.”

49. Article 61 is part of the transitional provisions of the Constitution. It is no longer printed with the full text because it is of mostly historical interest. However, the devolution and assumption of power as a matter of history is important here. Article 61 provides:-
“1 On the coming into operation of this Constitution, the Defence Forces and the Police Forces of Saorstát Éireann in existence immediately before the coming into operation of this Constitution shall become and be respectively the Defence Forces and the Police Forces of the State.”

50. The powers of Government are not to be confused in their equivalence with the powers of local government. Every local authority is a creature of statute, the exercise of its powers is enabled under the Constitution but those powers do not arise out of the exercise of local government authority and history. Rather, the powers of local government to raise funds, to spend them, or to set up schemes to disburse them appropriately arise from specific statutory provisions. This is because local government did not exist as a lawful exercise of authority without the devolution of power to it by central government. So, it is always a central question as to what power was devolved. The doctrine of legal formalism is particularly apposite in the context of local government powers as those powers must firstly be granted by statute and, secondly, exercised in accordance with it. Only limited ancillary powers will be implied onto the statutory powers that exist and no ordinary or usual power, such as the power to buy and sell land or to engage employees, will be assumed unless by necessary implication. It is clear, even there, that the modern legislative policy is to reiterate basic powers in respect of every new function granted by legislation to local government in fear of an argument being made as to excess of a vires; Butler, Keane on Local Government, 2nd Ed., (Dublin, 2003), Chapter 1.

51. The powers of our national Government are obscured by the mists of time. By reason of invasion and conquest, whatever powers were exercised, and in whatever manner they were exercised, by those who governed Ireland under a quasi-feudal system were displaced by the rule of the Crown of England. By reason of the unwritten nature of those powers, it may be difficult to define precisely what they ever were. The concept of the devolution to Ireland of the powers exercisable under the Royal Prerogative, in addition to statute and common law, may be an unattractive way of describing some of the powers devolved in 1922 to Saorstát Éireannn, and thence in 1937 to Ireland, but there is a specific Article of the Constitution providing for this. This Article has to have a meaning in law, as does every word in it. It is also noticeable that it does not refer to the taking from the Crown of England of any powers that are apparently royal in origin. Article 49 provides:-
“1 All powers, functions, rights and prerogatives whatsoever exercisable in or in respect of Saorstát Éireann immediately before the 11th day of December, 1936, whether in virtue of the Constitution then in force or otherwise, by the authority in which the executive power of Saorstát Éireann was then vested are hereby declared to belong to the people.
2 It is hereby enacted that, save to the extent to which provision is made by this Constitution or may hereafter be made by law for the exercise of any such power, function, right or prerogative by any of the organs established by this Constitution, the said powers, functions, rights and prerogatives shall not be exercised or be capable of being exercised in or in respect of the State save only by or on the authority of the Government.”

52. It is clear that not every prerogative power that was vested in the King of England as the personification of the State has survived the enactment of the Constitution; Howard v. Commissioners of Public Works [1994] 1 I.R. 101. It should be noted, however, that the specific Articles of the Constitution quoted refer in addition to prerogatives to powers, functions and rights that may be exercised “in or in respect of the State”. That authority is vested in the Government of Ireland. It may be, and it does not fall for decision in this case, that it is only the royal aspect of the prerogative, such as immunity from suit of the State and the right to recover treasure trove, that has lapsed. Specifically, in Webb v. Ireland [1988] IR 353, Finlay C.J. at p. 382 refers to these as being “traced to the royal dignity of the King … to his position as sovereign or ruler”. It would also not be correct to infer that those who drafted the Constitutions of 1922 and 1937 somehow did not know what they were doing and mistakenly created a Government without any traditional powers in executive matters.

53. In Hogan & Whyte, J.M. Kelly: The Irish Constitution, 4th Ed., (Dublin 2003), at para. 8.2.10, the learned editors offer the following comment on the Webb v. Ireland decision:-
“Some questions would seem to arise on this view, if it is to be understood as meaning that no dimension whatever of the ancient prerogative survives for the public benefit. For instance, by what authority could the Government – in the absence of specific legislative authority – establish an extra-statutory scheme such as the Criminal Injuries Compensation Tribunal? What about the State’s power to create corporations by letters patent? Did the prerogative power to grant such letters patent; the power to grant patents of precedent for counsel or, indeed, the right to grant passports vanish with the enactment of the Constitution of 1922? One might argue, perhaps, that the Government could discharge such powers by virtue of the executive powers granted to it by Article 28. The fact remains, however, that were it not for the very existence of the prerogative in the first place – and its supposed survival after 1922 – no one would have ever sought to argue that the Government could have discharged such functions in the absence of appropriate enabling legislation.”

54. Apart from the measures referred to, the State has also exercised the power of entering into treaty obligations which are not inconsistent with the existing powers of the Constitution, some of them authorised by Article 29.4.2º and some limited thereby; has set up a civil legal aid scheme based on specific administrative measures as to competence and qualification, prior to legislation; has decided on the disbursement of funds in aid of developing countries; and, in large measure prior to specific enabling legislation, has directed the civil service, the army and the police force of the State. Now, in 2008, there may be acts providing for those bodies to obey lawful orders, but these are relatively recent. The army personnel were hardly entitled to refuse to serve in, or to logistically support, peacekeeping missions in Congo, for instance or in other places where the army has greatly advanced Ireland’s stature as a country committed to the pacific settlement of disputes. To organise the civil service and the army and the Gardaí, the Government through its ministers needs to hire people and to dispense with their services. All of this affects people’s rights and liabilities, sometimes in far-reaching ways. I will shortly return to this. A further specific power that was exercised by the Government was that related to Irish children of foreign parents. Article 2 of the Constitution provides for the entitlement and birthright of every person born on this island to “be part of the Irish Nation”. As a matter of fundamental law, Irish people are entitled to stay in Ireland that is the most basic right of citizenship. By virtue of the 27th Amendment to the Constitution and, in consequence, the Irish Nationality and Citizenship Act 2004, a person born here who does not have one parent who is an Irish citizen is not entitled by reason of birth alone to become an Irish citizen. Bode v. Minister for Justice, Equality and Law Reform [2007] IESC 62, concerned a scheme set up by the Minister for Justice to allow the foreign parents of Irish children to remain in the State for the purpose of rearing those children and, thereafter, indefinitely. The precise terms of the scheme involves deciding those who qualified, and those who did not qualify. This is important, in the context of the argument presented before this Court that the powers under the Constitution not provided for by legislation can only exist, or can only operate, where no one’s rights or liabilities are affected. By including one group of people within the scheme, in the carefully thought-through manner that is apparent from its text, the Government was excluding other groups. That thereby affected their rights and their liabilities. They argued that they had an entitlement to be considered individually for inclusion and not excluded by reason of the executive power of the Government. At para. 22 of the judgment, Denham J. said the following:-
“In this case one of the fundamental powers of a State arises for consideration. In every State, of whatever model, the State has the power to control the entry, the residency, and the exit, of foreign nationals. This power is an aspect of the executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power is exercised by the Minister on behalf of the State.
…
While steps taken by a State are often restrictive of the movement of foreign nationals, the State may also exercise its powers so as to take actions in a particular situation where it has been determined that the common good is served by giving benefits of residency to a category of foreign nationals – as a gift, in effect. The inherent power of the State includes the power to establish an ex gratia scheme of this nature. Such an arrangement is distinct from circumstances where legal rights of individuals may fall to be considered and determined.
Exercising such power, in light of unique circumstances in Ireland in 2005, in addition to the specific statutory procedures, [whereby non-citizens may seek a declaration of refugee status, and thereby become entitled to the rights provided to refugees], a special administrative scheme, the IBC 05 Scheme, was introduced by the Minister. The Minister obtained Government approval. It was a generous scheme, for those who came within its criteria. It was an example of the State exercising its discretion to allow specific foreign nationals to reside in Ireland. Yet, the foreign nationals still retained all rights under the formal procedures [relating to refugees].”

55. In Hogan & Whyte, J.M. Kelly: The Irish Constitution, 4th Ed., (Dublin 2003), at para. 5.1.18, the editors offer the following view:-
“It is also the case that it is not always necessary for the Government to have to rely on statutory authority in order to exercise executive power. The Government frequently exercises the executive power of the State in relation to foreign affairs, and specifically the conclusion of international agreements, without having to have recourse to legislation and in the domestic arena, successive Governments have used extra-statutory schemes to provide benefits to citizens. Governments may also enter into contracts and acquire and dispose of property without statutory authority and on a number of occasions, companies have been established by the executive in the absence of statutory authorisation. On the other hand, legislation is required before the executive may impose any obligation or burden on citizens.”

56. I have doubts as to the validity and applicability of the last sentence quoted in all circumstances. Central to the exercise of government power is the establishment of policies for the proper governance of Ireland. Taxation of the people, which can only be carried out by legislation in specific terms, provides the funds that are necessary to implement policy. No doubt, in deciding upon a policy the Government will have regard to the directive principles of social policy as set out under Article 45 of the Constitution, which are “not … cognisable by any Court under any of the provisions of” the Constitution. The fundamental function of Government is to keep order, to decide the direction in which the country is to go and to disburse the funds collected through taxation from the people in aid of their objective. In a democracy, the people are entitled, in the event of disagreement with the Government on issues, large and small, to vote accordingly. I do not believe that this Court is entitled to set policy, or to exchange one policy for another, or by applying the doctrine of legal formalism derived from local government law, to thereby declare that the Fottrell recommendations should be set at nought, as implemented through Government policy, or that the previous policy was illegal because the Court may be persuaded to disagree with it. I cannot find anything to suggest that the Government does not have the power to decide what funds should go to higher education or to suggest to the Higher Education Authority the policies that it sees as best be pursued, once An tÚdarás retains discretion in accordance with its legal role. This Court has no role in policy. The role of the courts, in this regard, was set out by Murray J. in T.D. v. Minister for Education [2001] 4 IR 259, at pp. 331 and 332, as follows:-
“Thus it is not in issue that the superior courts, in determining cases brought before them, may make orders affecting, restricting or setting aside actions of the Executive which are not in accordance with law or the Constitution or make declaratory orders as to its obligations. The learned High Court Judge correctly cited the law in this regard as stated by Finlay C.J. in Crotty v. An Taoiseach [1987] IR 713 at p. 773:-
‘With regard to the executive, the position would appear to be as follows:- This Court has on appeal from the High Court a right and duty to interfere with the activities of the executive in order to protect or secure the constitutional rights of individual litigants where such rights have been or are being invaded by those activities or where activities of the executive threaten an invasion of such rights.’
Equally the superior courts may set aside an Act of the Oireachtas on the grounds that it is repugnant to the Constitution.
In Landers v. Attorney General (1973) 109 I.L.T.R. 1, Finlay, J. (as he then was), in referring to the constitutional discretion left to the State to balance the priority to be accorded to one right as against another in the interests of the common good stated at p. 6:-
‘The Court must as I construe its obligations under the Constitution be as scrupulous in avoiding such a choosing as it must be energetic in preserving a clear and threatened constitutional right. In the same way I do not consider that it is any part of the function of the Court to adjudicate as to what is the best method by which the State can carry out one of its constitutional duties ’ (emphasis added).
The courts have jurisdiction to intervene to prevent an invasion of rights or determine constitutional obligations. The views expressed by Finlay, J. and reflected in other judicial pronouncements which I cite, mean, as I understand them, that it is the executive not the courts who decide and implement the policies calculated to carry out its constitutional obligations. Moreover, Finlay J. clearly saw no difficulty in the amplitude of the powers of the court to protect rights while at the same time refraining from trespassing on the exercise of their functions by the organs of State.
Such jurisdiction can only be exercised in deciding on justiciable matters in issue between parties litigating those issues before the court (other than an Article 26 reference). The courts have no general supervisory or investigatory functions.”

57. Hardiman J. in the same case at pp. 360 and 361 stated:-
“The exercise of the executive power is vested in the Government which is responsible to Dáil Éireann. On the ordinary principles of construction I
believe that this responsibility is an exclusive one; the Government is not in this respect responsible to any other person or body. As appears from the citation earlier in this judgment from Buckley and Others (Sinn Féin) v. Attorney General and Another [1950] I.R. 67, these articles, combined with Article 6, not merely set forth the distribution of powers, but they ‘require that these powers should not be exercised otherwise’. I agree with the observations of Murray J. in this case to the effect that the order under appeal would tend to ‘undermine the answerability of the executive to Dáil Éireann and thus impinge on core constitutional functions of both those organs of State’. In my view those observations are clearly borne out by the passage which follows them in the judgment of Murray J.
In my judgment in Sinnott v. Minister for Education [2001] 2 IR 545, I gave a number of reasons why the courts could not assume the policy making role in relation to the multitude of social and economic issues which form the staple of public debate. I said at p. 710:-
‘Firstly, to do so would offend the constitutional separation of powers. Secondly, it would lead the courts into the taking of decisions in areas in which they have no special qualifications or experience. Thirdly, it would permit the courts to take such decisions even though they are not, and cannot be, democratically responsible for them as the legislature and the executive are. Fourthly, the evidence based adversarial procedures of the court, which are excellently adapted for the administrative of commutative justice, are too technical, too expensive, too focused on the individual issue to be an appropriate method for deciding on issues of policy.’
This list is by no means exhaustive. One might add that if the courts (or either of the other organs of government) expand their powers beyond their constitutional remit, this expansion will necessarily be at the expense of the other organs of government. It will also be progressive. If citizens are taught to look to the courts for remedies for matters within the legislative or executive remit, they will progressively seek further remedies there, and progressively cease to look to the political arms of government. Such a development would certainly downgrade the political arms of government and, just as significantly, it would tend to involve the courts, progressively, in political matters. This cannot be permitted to occur.”

58. All of the cases cited in argument before this Court as limiting the power of the Government to set policy and to disburse funds in accordance with that policy are, on analysis, ones that are specifically concerned with statutory interpretation and vires. I want to look at two of these. In O’Neill v. Minister for Agriculture [1998] 1 I.R. 539, the imposition of conditions for artificial insemination whereby those entitled to pursue that activity was restricted was held to be beyond the powers in the relevant statute. In Humphrey v. Minister for the Environment [2001] 1 ILRM 241, the respondent was entitled to make regulations for the control and operation of taxis. His powers, however, were specifically limited under s. 82(2) of the Road Traffic Act 1961, to licensing such vehicles, to setting fees for licences, and authorising the fixing of maximum fares. The Minister was not entitled, however, to set a licence fee related to the capital value of the subject of a licence so as to be in the nature of a tax. There is no doubt that the Government is not entitled to rely on aspects of the prerogative inherited from our rule by another power, that relate to the dignity of the monarch and which are inconsistent with the Christian and democratic nature of the State under the Constitution. That does not mean that the Government has no residue of inherited powers that are not provided for by statute. Actions of Government which have, for instance, the result of imposing a tax; or of increasing police powers, or similar powers by departmental officials, whereby people may be arrested or dwellings searched or compelled to undergo interrogation; or which go outside the specific terms of the statutory scheme passed by the Oireachtas to regulate a particular area of administration are, in the history and tradition of the Irish people, outside the realm of any constitutional construction of powers that are capable of being exercised by the Government. The full extent and the limit of those powers are not to be decided by me in this case. I am satisfied, however, on the authorities cited, that the government is entitled: to set a policy for the training of a specific number of medical graduates to meet the needs of the State; to decide what funds are appropriate to be disbursed in that regard; to decide that particular forms of education should be free, or should be contributed to by fees; and to decide that foreign students can take up spare places at an economic cost to the benefit of the economy.

59. Another fundamental part of the plaintiff’s argument, however, is that this treatment of him, whereby he is not entitled to buy a place as a foreign student is unequal, and therefore unconstitutional.

The equality issue

60. The Equal Status Act 2000 (“the Act of 2000”), provides further evidence of the reality of the Government policy that is challenged in this litigation. Under section 3 of that Act of 2000, as amended by s. 48 of the Equality Act 2004, discrimination in relation to the sale of goods and supply of services on the unacceptable bases set out in the legislation, is outlawed. A person who claims discrimination must, under s. 21, seek redress by referring the case to the Director of the Equality Tribunal that is set up by the Act. Redress may be ordered under s. 27 of the Equal Status Act 2000, as amended by s. 61 of the Equality Act 2004, through compensation or a mandatory order. Thereafter the matter may be appealed to the Circuit Court under s. 28 of the Equal Status Act, 2000, or, further, on a point of law to the High Court. An injunction may also be granted by the Circuit Court or the High Court, on the application of the Director of the Equality Tribunal where discrimination is likely to reoccur. Redress under the Act is to the statutory bodies set up. Legal norms were not created in this legislation that are justiciable in the ordinary courts as breaches of statutory duty; Doherty v. South Dublin County Council (No. 2) [2007] 2 IR 696. Section 7 of the Act of 2000 forbids any educational establishment, whether supported by public funds or not, from discriminating on the terms of admission to a course. Section 3(d)(i) of that Act, however, provides that it is not discrimination to provide different treatment in relation to “fees for admission or attendance by persons who are nationals of a member state of the European Union and persons who are not” or “the allocation of places at the establishment to those nationals and other nationals”.

61. Despite the specific exclusion by legislation of the complaint of the plaintiff in this case, and despite no claim having been brought arguing that the foregoing sub-section is unconstitutional, it is argued that the alleged unequal treatment of the plaintiff is contrary to the Constitution.

62. Article 40 provides:-
“1 All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

63. Article 41 of the Constitution recognises the family as a moral institution and as the fundamental building block of society. Article 42 provides:-
“1 The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
2 Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.”

64. It is argued that I should read the guarantee of equality set out in Article 40.1 of the Constitution together with Article 42.1, taken in isolation from its context. It is clear that the context of Article 42 is to allow provision to be made by law for the setting up of schools, but in such a way as not to infringe religious freedom, or to destroy private education or to allow home schooling. Just because the parents of the plaintiff may have the means whereby, were they eligible, they might purchase a place for him as a foreign student in an Irish medical school, does not mean they have a constitutional entitlement to upset the Government’s policy in relation to the equality of educational opportunity that, I am satisfied, fairly operates in this field. There is also another impact which upsetting the Government policy may have. One can anticipate around seven hundred European graduates, almost all of them Irish, from Irish medical schools annually from about 2015. There will, in addition, be just under two hundred foreign medical graduates. If, every year, there are about two hundred young Irish men and women whose parents are prepared to pay for their medical education at full economic cost, by whatever means, in addition to whatever number are being trained in the neighbouring kingdom and those paying for medical education in central Europe, this will result in a strong oversupply of Irish and European medical graduates, most of whom will wish eventually to take up positions in Ireland. Inevitably, the response by the Higher Education Authority and the Government will have to be to re-think the quota of seven hundred and twenty five places for European citizen students. It can be predicted, as at least a probability, that the quota for those exempt from fees as European students will be brought under pressure to be revised downwards to the extent of the displacement by Irish students of the foreign students. Competition for the decreased free undergraduate, or low fee graduate, places will be even more severe. This may or may not happen. I am not entitled to form my judgement around my personal predictions as to the future. This is why the setting of policies in this entire area is utterly unsuited to any adjudication which a Court might make.

65. To understand this, the stark, and superficially attractive, argument of the plaintiff based upon his own situation, it must be set in context. The plaintiff spent a year sitting in the same classroom, at least some of the time, with a foreign student who did less well than he did in the Leaving Certificate but yet obtained a place in the Royal College of Surgeons in Ireland. That foreign student did not take up a place reserved for European citizen students. He took up a place in medical school for a course that was sold on the basis of the benefit it would bring, by way of fees, to the medical school, and in terms of what the student would spend in the economy here simply by living in Ireland, and the international ties that might be made between his country of origin and the State, to the economic benefit of the community generally. That foreign student may have wealthy parents or he may, like many Malaysian and other students in our medical schools, be there on a scholarship. He or she may be contracted to their national government to either repay the fees or to work at an appropriate rate as a hospital doctor in their home country for a full decade. Sitting with Mr. Prendergast and this foreign student were undoubtedly other Irish young men and women who are anxious to consider a career in medicine.

66. Were I to strike down the existing Fottrell scheme as an unconstitutional inequality, I must consider the effect that it would have. I am not entitled to act in an unthinking way. Furthermore, I am only entitled to act within the limit of my authority, which is to correct legal wrongs and not to set Government policy. As between Mr. Prendergast and another Irish student the following could emerge were I, as urged, to strike down the respondents’ organisation of medical education in Ireland. He might be able to pay the full economic cost to the medical school of his education but another Irish student might not. Why should he gain access to a medical career based on his money and lesser points performance in the Leaving Certificate when that other student, on perhaps better points, does not?

67. It is the policy of the Government that that should not happen. Furthermore, that policy is based on sound reasoning. There is no evidence before me to suggest that it is arbitrary or capricious. The foreign student does not have the right to stay in Ireland upon the completion of her or his training. He or she does not have the right to vote and nor are social welfare, health protection rights and housing rights conferred by statute applicable to him or her. These rights would be equally applicable, however, as between Mr. Prendergast, as, for this is what he wants to be, a paying student in an Irish medical school, and another student who is excluded, perhaps having done better than Mr. Prendergast, but who does not have the money to pay the full economic fees. Is the Court, on that basis, to strike down a carefully thought through Government policy based merely on looking at one side of the situation? To do so would be to replace one alleged inequality with a different but very real and unjust inequality. Is the other Irish student, who can not pay the full economic fees of medical school to be required to mortgage his or her future to a huge bank loan; to persuade his or her parents to mortgage the family farm; or to merely accept the situation and look on with envy on a basis whereby Mr. Prendergast can obtain what he wants in circumstances where the only difference is that of money? The plaintiff seeks a declaration overturning the current system and the grant by the Court of a declaration is a discretionary remedy. The creation by declaration of such an inequitable system may have no effect in the plaintiff’s favour. Of all the many hundreds of European students competing for a place in medical school, there may be hundreds who may pay, thus leaving Mr. Prendergast with an insufficiency of points on an open competition system. There may be hundreds more foreign students whose points performance in the Leaving Certificate, or in equivalent examinations, exceeds his. The declaration sought in this case, turning a carefully thought-through scheme based on the recommendations of Professor Fottrell into a market free-for-all based on money would be to cause this Court to upset the principle of equality of access to education among those entitled to rights as European citizens and to replace it with a legal nullity where untrammelled market forces can operate. Such a situation would not be in accordance with the high constitutional principles of prudence or charity and it would do nothing towards furthering the constitutional aim of true social order.

68. It was conceded on behalf of the plaintiff that the Government have the authority to determine that a certain amount of money should go into education; that a percentage of it should be to third level education; that priorities can be set in relation to particular courses and that a quota can be set for State-subsidised places. This concession was correct in law. It is argued, however, that the Government can never exclude an Irish person from any State -subsidised place, apart from perhaps a small percentage reserved to foreign students for the multicultural enhancement of our universities or in aid of educating those from developing countries. I cannot agree. Once there is authority to set a quota on the number of places that the State will pay for in medical education, there is also authority to set the conditions under which those who have rights in national and European law, by virtue of their citizenship, may enter. The fundamental condition here is that they should not pay, or if as graduate entrants into medical school they pay university fees after obtaining a first fee-free degree, that they should pay at a greatly reduced rate. As to fees for graduate entry, Government policy is that graduates entering a university undergraduate course must pay. But, for every educational pursuit there is a cost in time and in the loss of revenue from the gainful employment that might otherwise have been pursued. I cannot see this as being unlawful as the kind of inequality outlawed by Article 40, referring as it does to equality in the Irish text: “Áirítear gurb ionann ina bpearsain daonna na saoránaigh uile i láthair an dlí.”

69. In Quinn’s Supermarket v. Attorney General [1972] I.R. 1, Walsh J. referred to Article 40.1 in the following terms (at pp. 13 and 14):-
“…this provision is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community. This list does not pretend to be complete; but it is merely intended to illustrate the view that this guarantee refers to human persons for what they are in themselves rather than to any lawful activities, trades or pursuits which they may engage in or follow.”

70. A similar passage is to be found from the judgment of Kenny J. at page 31 of the report. In State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567, at p. 639, Walsh J. proffered the following explanation:-
“In the opinion of the Court section 1 of Article 40 is not to be read as a guarantee or undertaking that all citizens shall be treated by the law as equal for all purposes, but rather as an acknowledgement of the human equality of all citizens and that such equality will be recognised in the laws of the State. The section itself in its provision, ‘this shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function,’ is a recognition that inequality may or must result from some special abilities or from some deficiency or from some special need and it is clear that the Article does not either envisage or guarantee equal measure in all things to all citizens. To do so regardless of the factors mentioned would be inequality.”

71. An example of a difference in social function providing for a lawful distinction in treatment emerges from Dillane v. Ireland [1980] I.L.R.M. 167. Under the Rules of the District Court, a judge could never award costs against a member of An Garda Síochána acting as a prosecutor, even where the prosecution was unsuccessful. Such costs could, however, have been awarded against a common informer. At page 169, Henchy J. approved the apparent inequality of treatment as between a Garda acting in the course of his duties as prosecutor, and therefore immune from an award of costs against him, and a common informer:-
“It is the latter requirement for immunity from costs or witnesses’ expenses that, in my opinion, provides a valid constitutional justification, on the ground of social function, for the discrimination complained of between one kind of common informer and another. When the State, whether directly by statute or mediately through the exercise of a delegated power of subordinate legislation, makes a discrimination in favour of, or against, a person or a category of persons, on the express or implied ground of a difference in social function, the courts will not condemn such discrimination as being in breach of Article 40.1 if it is not arbitrary, or capricious, or otherwise not reasonably capable, when objectively viewed in the light of the social function involved, of supporting the selection or classification complained of. It seems to me to have been well within the law-making discretion allowed by Article 40.1 for the District Court Rules Committee to draw a distinction between, on the one hand, a common informer who is a Garda acting in discharge of his duties as a police officer, and on the other, a common informer who is either a mere member of the public or a Garda not acting in discharge of his duties as a police officer. Whether the court supports or approves of that distinction is irrelevant: what matters is whether it could reasonably have been arrived at as a matter of policy by those to whom the elected representatives of the people delegated the power of laying down the principles upon which costs are to be awarded…. For a variety of reasons – among them the desirability that members of the Garda Síochána should be encouraged to discharge their police duties assiduously by being given immunity from liability for costs or witnesses’ expenses in the District Court – this discrimination could reasonably be thought a justifiable concomitant of the social functions of the members of the Garda Síochána when carrying out their duties as police officers.”

72. In the Article 26 reference of Planning and Development Bill, 1999 [2000] 2 IR 321, whereby certain developers of large parcels of land would have to make provision to the State for social and affordable housing, the Supreme Court declared at page 357:-
“The fact that a particular planning scheme may result in the conferring of benefits on some categories of persons seen by the Oireachtas as being in particular need of assistance and that this is done at the expense of landowners who are benefiting financially from related planning decisions can be said to be a form of unequal treatment. However, Article 40 does not preclude the Oireachtas from enacting legislation based on any form of discrimination: as has often been pointed out, far from promoting equality, such an approach would simply result in greater inequality in our society. As Barrington J. pointed out in Brennan v. The Attorney General [1994] I.L.R.M. 355, in a passage subsequently approved by this court in The Employment Equality Bill, 1996 [1997] 2 IR 321, where classifications are made by the Oireachtas for a legitimate legislative purpose, are relevant to that purpose and treat each class fairly, they are not constitutionally invalid.”

73. It is also clear that arrangements in relation to social welfare and disbursements for education are matters of Government policy. The single judgment of the Supreme Court in MacMathúna v. Attorney General [1995] 1 I.R. 484, at p. 499, makes this clear:-
“It is clear that the provisions of the social welfare allowance for children of married parents living together is not by any means the only form of financial support provided by the State for the upbringing of children by married parents. Such matters as the contributions of the State to free primary and secondary education, provision of free or assisted medical services and other matters would all go into the question as to whether the support was a proper discharge of the constitutional duty. Added to that would be the vital question as to whether it was a proper discharge of the constitutional duty of the State under Article 41 bearing in mind the other constitutional duties of the State and the other demands properly to be made upon the resources of the State.
As is already indicated in this judgment these are peculiarly matters within the field of national policy, to be decided by a combination of the executive and the legislature, that cannot be adjudicated upon by the courts.”

74. When issues as to a conflict between constitutional rights fall to be decided by legislation, then once the Oireachtas strikes a reasonable balance in the resolution of that question, the courts must not interfere, even though they might have balanced the result differently; see the Article 26 reference relating to the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, [1995] 1 IR 1. Where, as between potential issues concerning equality of treatment the Government makes a resolution, as between valid legal choices, then I would hold that the courts should not interfere once that resolution is a reasonable one based upon a policy which is neither arbitrary nor capricious. I also note that s. 2 of the Higher Education Authority Act 1971, makes it one of the specific aims of An tÚdarás to promote equality of access to higher education. By upsetting the Government’s plans in the Fottrell scheme, this Court would be undermining the aim, based on the principle of equality, that access to State subsidised education at primary degree level by European citizens should be unrelated to any ability by the student, or his or her parents, to gain such a place by paying economic fees, at the expense of another student who does not have that ability. This has nothing to do with the nature of the human personality and it is not unconstitutional.

Competition

75. Mr. Colm McCarthy, an economist in University College Dublin, gave evidence on the competition issue. Mr. McCarthy was part of the Oireachtas Committee which reported in July, 2004 which made recommendations for more places for European citizens in Irish medical schools; for the provision of a mandatory aptitude test as a condition of entry; and which addressed the foreign student intake issue; see Joint Committee on Health and Children, Second Report – Restrictive Practices in Medical Training in Ireland (Stationery Office, Dublin, 2004). The result of this Report was the Fottrell Committee whose final recommendations were adopted by the government. My impression of Mr. McCarthy was that while he is clearly a brilliant economist, and a very clear witness, he was having extreme difficulty if saying anything in favour of the plaintiff on the competition issue. He pointed out that the Royal College of Surgeons in Ireland was not dependent on the Exchequer, at least up to 2002, and more formally with the adoption by that medical school of the free fees scheme for a first degree in third level education in 2002. There is nothing that was before me in this case to stop that college from going back to their pre-2002 position, when they entered the State fees scheme, and so leaving themselves free to ignore Government policy. They could then take in more Irish students, not under the free fees scheme, or at a full economic fee, and less, or more, foreign students. Irish and European students would, however, under the Treaty have to be treated equally. How they would access the clinical training places in the teaching hospitals for such a ‘go-it-alone’ policy, I cannot imagine.

76. It is true, as Mr. McCarthy pointed out, that having a large number of medical graduates may result in unemployment, or underemployment, and a consequent pressure, through competition to reduce fees. This is the classical economic model of supply and demand but it tells the Court little about the breaches of competition law asserted. It is also possible, I would hold, that the medical unions would either encourage emigration or would take measures against doctors selling their services for uneconomic fees. Furthermore, I would hold, the provision of medical education is so expensive that there is nothing wrong in competition terms with the Government setting a reasonable quota in terms of what it will spend on the provision of free or highly subsidised places. Nothing in the Government’s policy is anti-competitive. Furthermore, nothing in the Government’s policy, as of the present time, prevents any independent college, in practice the Royal College of Surgeons in Ireland, from opting out of the Central Applications Office system, from opting out of Government subsidies and from pursuing an economic policy based on the open market. The current situation is not an abuse by the Government, through undertakings, of a dominant position under Article 82 of the Treaty. The current policy has, on the evidence before me, no effect at all on trade between Member States of the European Union.

Conclusion

77. I must therefore reject the plaintiff’s claim.

Purcell v Central Bank of Ireland

[2016] IECA 50

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 26th day of February 2016
1. This is an appeal taken by the plaintiff against the decision of the High Court (Hedigan J.) delivered ex tempore on 13th January 2016. In that decision Hedigan J. refused to order discovery of certain without prejudice correspondence passing between the Central Bank on the one hand and the Irish National Building Society (“INBS”) on the other leading to the settlement of an administrative inquiry which had been commenced by the Central Bank. Before exploring the somewhat unusual issues of privilege which arise on this appeal, it is first necessary to sketch out the background to this appeal.
2. In companion judicial review proceedings (2015, No. 510JR), the plaintiff in these plenary proceedings, Mr. John Purcell, challenges the validity of a proposed inquiry which the first defendant, the Central Bank, proposes to hold under Part IIIC of the Central Bank Act 1942 (as amended) (“the 1942 Act”). Mr. Purcell is a former executive director and secretary of the INBS. He retired from that position on 31st March 2010 pursuant to a requirement from the Minister for Finance that the directors of banks and building societies covered by the State guarantee in September 2008 retire their positions.

3. INBS is one of two major financial institutions offering banking services in the State which collapsed in the wake of the financial crash of September 2008. It is unnecessary to dwell on the aftermath of these tumultuous events, save that it is sufficient to record that the State (i.e., the taxpayers) was required to make payments in excess of €5bn. to INBS to make good losses which would otherwise have fallen on the depositors and the creditors of the Society. By 2011 the deposit-book of INBS had been sold and in July 2011 its remaining assets were transferred to the newly formed Irish Bank Resolution Corporation (“IBRC”) following orders made to this effect by the High Court under the terms of the Credit Institutions (Stabilisation) Act 2010. By 2012 the INBS was little more than a shelf company with new management, no assets and – the plaintiff contends – no institutional memory of the events which pre-dated September 2008.

4. In that year the INBS and IBRC brought proceedings entitled Irish Bank Resolution Corporation and Irish Nationwide Building Society v. Purcell and others (2012, No. 3279P) against Mr. Purcell and other former officers of the society by which it was sought to make these officers personally liable for the losses which INBC had suffered. Those proceedings were compromised in June 2015 with no admission of liability by the defendants.

5. On 9th July 2015 the Central Bank served on INBS, Mr. Purcell and other persons associated with the management of the Society a Notice of Inquiry pursuant to Part IIIC of the 1942 Act. In essence, the Notice of Inquiry alleged that Mr. Purcell was a “person concerned” who participated in certain “prescribed contraventions” during the period between 1st August 2004 and 30th September 2008.

6. About a week later the Central Bank announced that it had reached a settlement of the case against the INBS. In that statement the Central Bank stated:

“INBS has admitted multiple failings at several levels of its commercial lending process, from operational lending, to credit review, its Credit, Provisions and Audit Committees all the way to its Board of Directors. INBS’s admitted failings amount to a consistent and, at times, wholesale disregard for its own policies and procedures.”
7. The Bank further announced that while it was imposing a €5m. fine, given that the INBS had no assets, it did not propose to collect that fine.
8. The plaintiff then commenced these plenary proceedings in which he challenged the validity of the settlement. Apart from challenging the constitutionality of the administrative sanctions procedure, Mr. Purcell also contended that his constitutional right to a good name as guaranteed by Article 40.3.2 of the Constitution was infringed by the publication of the settlement in the manner in which it was. The particulars pleaded by the plaintiff include the following:

“The settlement was completely artificial in nature in that INBS has no assets and cannot have properly considered and determined the alleged prescribed contraventions, which the Central Bank purports to assert that INBS have admitted to. The announcement of the settlement was prejudicial to the plaintiff in implying that he participated in the admitted contravention of INBS.”
9. Mr. Purcell has also commenced separate judicial review proceedings (2015, No. 510JR) in which he seeks to quash the decision of the Central Bank to hold the inquiry. A central contention of the judicial review proceedings is that he is not a “person concerned” within the meaning of the administrative sanctions procedure, since he no longer holds any post within INBS. He further maintains that the Bank have infringed the principles of fair procedures by pre-judging the outcome of the inquiry having regard to the comments made in the course of the publicity statement (“multiple failings…. all the way to its Board of Directors…”). While the plaintiff does not as such use the term “bad faith” in his pleadings, what in essence is alleged is that the settlement in these circumstances was a pure contrivance and did not represent a genuine or bona fide exercise of statutory powers by the Central Bank.
10. The plaintiff accordingly contends discovery of the without prejudice correspondence leading to the settlement is both relevant and necessary in order to assist his case that the settlement in question was not a genuine one.
The decision of the High Court
11. As I have already noted, Hedigan J. refused to order the discovery sought. In the course of his ruling he stated:

“The damage to the interest of justice caused by non disclosure would need to be very clear and overwhelming in order to set aside the privilege claimed where parties genuinely come and try to settle a case, open their secrets to the other side. Here the most that has been offered to offset the very strong interest in the privilege is the possibility that the pre settlement without prejudice correspondence between the Central Bank and INBS/IBRC may contain something that proves bad faith on the part of the Central Bank in making the settlement. Yet no allegation of bad faith or misfeasance is made against any particular person by the plaintiff in his pleadings. To establish a claim of bad faith the plaintiff relies on open documentation to allege that the settlement was made with an empty shell of a company that had no institutional memory or knowledge of anything that was been investigated. It is not possible to apprehend anything other than an insubstantial hope that without prejudice correspondence might reveal something to add support for the claim of bad faith to that which already exists in open correspondence.
I do not think that such a speculative claim can offset the reality of the strong interest in the privilege.”

12. Hedigan J. also found that there had been no waiver of privilege on the part of the Central Bank.
Whether privilege attaches to settlement documentation
13. There is no question at all but that litigation privilege attaches to settlement documents of this kind involving as it does correspondence between the Central Bank (and its lawyers) and INBS (and its lawyers) leading up to the settlement not otherwise covered by legal professional privilege. (The plaintiff does not seek to go behind the documentation in respect of which legal professional privilege has been properly claimed). The reasons why such litigation privilege should attach to such documentation are obvious and scarcely require re-stating. By definition, a settlement involves compromise or, at least, the exploration of the strengths and weaknesses of both sides case. If litigants could not explore these matters on a without prejudice basis the potential for settlement and compromise would be greatly undermined. As Keane C.J. observed in Ryan v. Connolly [2001] IESC 9, [2001] 1 IR 627, 631:

“If parties were in the position that anything they said or wrote in the course of negotiations, even when expressly stated to be ‘without prejudice’ could subsequently be used against them, they would undoubtedly be seriously inhibited in pursuing such negotiations.”
14. Litigation privilege is available to all litigants, regardless of their status as either natural or legal persons. It is also immaterial that the litigant invoking the privilege in the present case, namely, Central Bank, is an autonomous body established by statute.
15. In the context of public bodies such as the Central Bank, litigation privilege differs from public interest privilege in that, as I have just stated, the former privilege may be invoked by all litigants irrespective of their status. It is true that the scope of litigation privilege is subject to certain exceptions (some of which I will presently consider) but it differs from public interest privilege in that, where it is properly claimed, it is inviolate. By contrast it is clear from a long line of case-law starting from Murphy v. Dublin Corporation [1972] I.R. 217 that public interest privilege essentially involves the balancing of competing considerations, principally access to justice on the one hand and the public interest in ensuring that certain documentation or communications (e.g., the protection of the identity of Garda sources) remain confidential on the other.

16. The resolution of litigious disputes is, of course, most desirable. Litigation consumes significant time, effort and money on the part of the litigants and the ever-increasing amounts of complex litigation places burdens on the administration of justice. The same is also true of contentious disciplinary hearings before administrative bodies such as that which is embraced in the administrative sanctions procedure. It is for these reasons that litigation privilege not only exists, but that quite compelling – even exceptional – reasons are required to displace it. As Clarke J. said in Moorview Developments Ltd. v. First Active plc [2008] IEHC 274, [2009] 2 IR 788, 820:

“The overriding principle is that a very heavy weight indeed needs to be attached to without prejudice privilege. The only circumstances where, therefore, evidence of without prejudice negotiations can be admitted is where, in the words of McGrath, Evidence “It can be clearly shown that greater damage to the interests of justice would be affected by non-admission than by disclosure”. The exceptions to the general rule can be seen as deriving from that principle. For example the whole purpose behind the privilege is to encourage negotiation and settlement of litigation. That purpose would hardly be achieved if parties were precluded from leading evidence as to, at least, aspects of the negotiations, in circumstances where it was contended that the negotiations had achieved the desired end of settling the litigation.”
17. A good example of the modern approach to this issue is supplied by the Supreme Court’s decision in Ryan v. Connolly. In that case one issue was whether the plaintiff was induced not to issue negligence proceedings claiming damages for personal injuries by reason of express requests to that effect contained in without prejudice correspondence which had been sent by the defendant’s solicitors. Keane C.J. said ([2001] 1 IR 627, 632) that the Court could look at the correspondence for this purpose:
“The rule, however, although firmly based on considerations of public policy, should not be applied in so inflexible a manner as to produce injustice. Thus, where a party invites the court to look at “without prejudice” correspondence, not for the purpose of holding his opponent to admissions made in the course of negotiations, but simply in order to demonstrate why a particular course had been taken, the public policy considerations may not be relevant. It would be unthinkable that the attachment of the “without prejudice” label to a letter which expressly and unequivocally stated that no point under the Statute of Limitations would be taken if the initiation of proceedings was deferred pending negotiations, would oblige a court to decide, if the issue arose, that no action of the defendant had induced the plaintiff to refrain from issuing proceedings.
It follows that, in a case such as the present, the court is entitled to look at the ‘without prejudice’ correspondence for the purpose of determining whether the circumstances were such that the defendants should not be allowed to maintain their plea under the Statute of Limitations.”

18. The Supreme Court ultimately held that the without prejudice correspondence did not in itself amount to a unilateral representation that no proceedings should be issued.
19. The decision in Ryan nevertheless illustrates the point perfectly. If a defendant did make such an unequivocal representation in without prejudice correspondence and the plaintiff acted on foot of same, it would be highly damaging to the administration of justice if the plaintiff were not permitted to go behind the without prejudice correspondence in order to demonstrate his or her opponent’s duplicity in the conduct of the litigation.

20. I stress these latter words because the decision of the English Court of Appeal in Savings and Investment Bank Ltd. v. Fincken [2003] EWCA Civ 1630, [2004] 1 All ER 1125 illustrates that it is really only this category of conduct which will allow a court to look behind without prejudice correspondence of this kind. In that case the defendant admitted in without prejudice correspondence that he owned shares in a certain company, a fact that he had hitherto failed to disclose to the plaintiff bank. After settlement talks failed, the bank sought to amend its pleadings in order to add further particulars of material non-disclosure on the part of the defendant.

21. The English Court of Appeal held that the bank could not rely on such disclosures made on a without prejudice basis for this purpose. It was not sufficient to show that a party had made disclosures on a without prejudice basis: it was instead necessary to show that the privilege itself had been abused. As Rix L.J. observed ([2004] 1 All ER 1125, 1140):

“ In my judgment that philosophy is antagonistic to treating an admission in without prejudice negotiations as tantamount to an impropriety unless the privilege is itself abused. …..It is not the mere inconsistency between an admission and a pleaded case or a stated position, with the mere possibility that such a case or position, if persisted in, may lead to perjury, that loses the admitting party the protection of the privilege…… It is the fact that the privilege is itself abused that does so. It is not an abuse of the privilege to tell the truth, even where the truth is contrary to one’s case. That, after all, is what the without prejudice rule is all about, to encourage parties to speak frankly to one another in aid of reaching a settlement: and the public interest in that rule is very great and not to be sacrificed save in truly exceptional and needy circumstances….
Further considerations point in my judgment in the same direction. A litigant understands in general that he may make admissions for the purpose of settling litigation under the protection of privilege if the negotiations fail. He may go into such a meeting without legal advisors, indeed very often such meetings have better prospects of success if the principals to the dispute meet alone. If the case against him is one of fraud or dishonesty, or if he has made an incautious affidavit in the past whatever be the nature of the case against him, he moves into a situation of peril at the point at which he is most candid. There may be no one present to warn him that the privilege with which the meeting began is in the process of being lost, or of the danger of self-incrimination. In such circumstances cases of fraud or dishonesty become almost impossible to settle. So here, whatever be the motives which led Mr. Fincken to admit his ownership of the shares, which are unknown, it is in theory possible that, in seeking a final compromise, Mr.Fincken, or someone in an analogous position to his, would be conscious that he might never be able to achieve finality without exposing his own past faults. Alternatively, the less scrupulous who make no admissions are better served by the very rules which are designed to encourage frank exchanges than are the more candid. Moreover, the well-advised litigant will be told that if he makes his admission in a hypothetical form, contingent upon settlement, then, as Ms. Gloster [counsel for the Bank] herself accepted, the privilege cannot be lost. This is a recipe for legalism and has the danger of turning the without prejudice meeting into a potential trap and one which may moreover be exploited by litigants who do not enter into such discussions altogether in good faith…..”

22. In my view, therefore, it would be necessary for the plaintiff to demonstrate that the Central Bank had actually abused the privilege so far as the conduct of the litigation was concerned before this Court could – or should – sanction the lifting of this litigation privilege. For my part, I cannot see that the Central Bank has so abused the privilege.
23. In arriving at this conclusion, I do not overlook the fact that Mr. Purcell contends with some force that the settlement with INBS is a pure contrivance and is wholly artificial. Yet it must be stressed that that settlement is a complete irrelevance so far as either the prosecution or defence of the Notice of Inquiry which he is facing under the administrative sanctions procedure is concerned. It is clear from the correspondence between the present management of INBS and the Central Bank which has been opened that the present directors and officers of the Society have no direct knowledge of the conduct of the legacy directors such as Mr. Purcell. Insofar, therefore, as the present management of INBS have accepted that there were, historically, “multiple failings” on the part of the Society and – perhaps – by implication, its legacy directors, this could have no probative value whatever so far as the Central Bank’s case under the administrative sanctions procedure against Mr. Purcell is concerned.

24. I would also observe that the plaintiff is still entirely free to maintain these proceedings against the Central Bank. So far as the merits of that case is concerned, I express no view at all: it is sufficient to say that the plaintiff has available to him the basic legal materials to support his case, including the nature of the settlement itself and the admissions made by the present INBS management to which I have already alluded regarding their lack of any first hand or direct knowledge of pre-2010 events.
Waiver
25. It remains only to consider the second contention advanced by the plaintiff, namely, that the Central Bank waived its privilege by making a public statement regarding the INBS settlement which, he contends, impliedly suggested that he (and others) were also guilty of “multiple failings” such as would in time justify an adverse finding under the Administrative Sanctions Procedure against him (and others).

26. There is no doubt but that a litigant may waive this litigation privilege, either expressly or by implication. An example here is supplied by a recent decision of the English High Court in Property Alliance Group Ltd. v. Royal Bank of Scotland [2015] W.L.R.(D) 251, [2015] EWHC 1557. In that case the plaintiff (“PAG”) claimed damages for misrepresentation contending that the defendant bank had manipulated the sterling (GBP) LIBOR rate. The Bank had, however, negotiated a settlement with the UK regulatory authorities in which it accepted that it manipulated the LIBOR rate for the Swiss franc (CHF) and the Japanese yen (JPY). As to this issue Birss J. stated:

“PAG’s particulars of claim ….alleges that the implied representations about LIBOR were false on the basis that RBS had in fact manipulated LIBOR. In support PAG rely on the findings of misconduct in the Final Notice, amongst other things. In its defence RBS responds to this [by admitting] manipulation of CHF and JPY LIBOR, [but it] expressly denies manipulating GBP LIBOR and makes a general denial of the allegations… However RBS also pleads positively as follows: “For the avoidance of doubt, there have been no regulatory findings of misconduct on the part of RBS in connection with GBP LIBOR.”
RBS characterised this as a ‘mere mention’ of the finding and as nothing more than the defence ‘noting the (incontrovertible) fact that no regulator has made findings against it in respect of GBP’. That is unreal. The bank’s formal defence in these proceedings advances a positive point that the regulators have not found misconduct relating to GBP LIBOR. In taking this course RBS has itself put in issue the basis on which the regulatory findings were made.”

27. The decision in Property Alliance Group is thus an example of where the conduct of the defendant in the course of the litigation amounted to a waiver of the privilege. This type of waiver of litigation privilege is similar to those cases where a litigant will be held to have waived legal professional privilege by invoking such documents for his or her own purposes in the course of the litigation: see, e.g., Hannigan v. Director of Public Prosecutions [2001] IESC 10, [2001] 1 IR 378.
28. Accordingly, the essence of Property Alliance Group is that Birss J. found that the Bank could not make a formal assertion in its pleadings about the nature of the settlement with the regulator – with the obvious implication that while there was a finding regarding the manipulation of the CHF and JPY LIBOR, that it was not guilty of manipulating the GBP LIBOR – without also as a matter of fairness permitting PAG to go behind the litigation privilege in respect of the regulatory settlement order to explore the GBP LIBOR issue.

29. I cannot think that the present case comes within the scope of the decision in Property Alliance Group. One may acknowledge that the Central Bank’s publicity statement might have been more happily expressed so far as parties other than INBS were concerned. Yet the critical point is that the Central Bank have never – as yet, at least – formally put the terms of the INBS settlement at issue or sought to rely on those terms adversely as against the plaintiff. If, for instance, the Central Bank were to invoke the terms of the settlement by way of affirmative defence in these proceedings or in some other affirmative fashion in the course of the administrative sanctions procedure, then, in principle, the plaintiff might legitimately contend that the litigation privilege has been waived in the light of cases such as Property Alliance Group.

30. As nothing of the kind has, as yet, occurred, I do not consider that the plaintiff can contend that the litigation privilege has been waived.

31. For completeness I should record that the counsel for the Central Bank, Mr. McDermott S.C., indicated that the members of the Court were free to inspect these documents should we think it appropriate to do so. In essence, however, the issue for resolution by for this Court was simply whether the litigation privilege had properly been claimed by the Central Bank and, if so, whether that privilege had been waived. Given that this Court ultimately concluded that it should uphold the Bank’s claim of litigation privilege, no purpose would have been served by inspecting these documents. In these circumstances, we did not think it necessary to avail of this offer.
Conclusions
32. In summary, therefore, I would uphold the Central Bank’s claim to litigation privilege and reject the submission that such had been waived. It follows, therefore, that I would uphold the decision of Hedigan J. in the High Court and dismiss this appeal.

.

P.J. Carrigan Ltd. v. Norwich Union Fire Society Ltd.

O’Hanlon J. [1987] IR 619
H.C.

O’Hanlon J.
13th November 1987

In this case the plaintiffs claim against their insurers in respect of the destruction by fire of a dwellinghouse at Rathcore, Enfield, Co. Meath. The defendants have repudiated liability on a number of grounds, and an order for discovery of documents and cross-order have been made in the course of the proceedings. The plaintiffs are dissatisfied with the discovery made by the defendants and now apply for an order for further and better discovery, with particular reference to a report from Scully, Tyrell & Co., loss adjusters, which was sought and obtained by the defendants prior to the institution of these proceedings. The defendants have disclosed the existence of this report but claim privilege in respect thereof.
The issue which I have to try is not unlike that which arose in the case of Silver Hill Duckling v. Minister for Agriculture [1987] I.R. 289 and accordingly I do not consider it necessary in the present case to review again the authorities which were referred to in that decision. I adhere to the view expressed by me in the judgment in that case that privilege from disclosure may be claimed by a party to litigation in respect of a document which has come into existence prior to the commencement of proceedings, where it can be shown that the dominant purpose for the document coming into existence in the first place was the purpose of preparing for litigation then apprehended or threatened. (cf ” A. Crompton Ltd. v. Customs and Excise [1974] A.C. 405; Waugh v. British Railways Board [1980] A.C. 521).
The fire which occurred in the plaintiffs’ premises broke out on the 22nd May, 1981. Notification was given to the insurers on or about the 5th June, 1981, that a claim was being made under the policy. The insurers immediately sought a report from the loss adjusters, Messrs. Scully, Tyrell and Co., and received a report dated the 8th June, 1981, headed “Privileged Private and Confidential for the attention of Legal Advisers only”. Subsequent follow-up reports were also furnished, headed “Privileged for the attention of Legal Advisers”.
In the course of an affidavit dated 6th June, 1987, sworn by Ronald McKenna, a senior official of the first defendant, on behalf of that defendant, he deposes that the probability of litigation was already contemplated by the defendants at the time they received the report from Messrs. Scully, Tyrell and Co., having regard to a number of suspicious circumstances which are enumerated in his affidavit. Accordingly, he says that Scully, Tyrell and Co., were instructed to provide a report to be provided to Good and Murray Smith and Co., solicitors for the insurers and that as early as the 11th June, 1981, the said solicitors had given preliminary advices “consistent with defending any apprehended proceedings.” The date of the first letter from the plaintiffs’ solicitors was given as the 21st October, 1981, but the plenary summons did not issue until the 4th February, 1983.
I am satisfied on the evidence which has been adduced on behalf of the defendants in this case that the possibility of repudiating liability under the policy was a very real factor in their thinking from the time the claim to be indemnified was made by the plaintiffs, and that when commissioning a report from Scully, Tyrell and Co., they were concerned to obtain not merely an evaluation of the claim in terms of financial loss, but also whatever expert advice could be given as to the circumstances in which the fire broke out. They already viewed the claim with some suspicion and wished to know whether any evidence available at the scene of the fire suggested that their suspicions were well-founded. In other words, they were, even at that early stage, contemplating the possibility of a showdown with the plaintiffs, in which they, the defendants, might well decide to repudiate liability under the policy, and the plaintiffs in turn would then have to decide whether they were prepared to embark on litigation to enforce their claims under the policy.
While no litigation was threatened at the time the report was commissioned I am satisfied that it was apprehended, in the thinking of the defendants, and that this apprehension constituted a dominant purpose in looking for the report. In these circumstances I am of opinion that the document is privileged and I propose to refuse the application for further and better discovery.

 

Silver Hill Duckling Ltd, Ronald Stuart Steele and Elizabeth Patricia Steele v The Minister for Agriculture, Ireland and The Attorney General

1984 No. 4847P

High Court

31 October 1986

[1987] I.L.R.M. 516
(O’Hanlon J)

O’HANLON J

delivered his judgment on 31 October 1986 saying: An order for discovery of documents was made in these proceedings by the Master of the High Court on 11 October 1985, and an affidavit of discovery was sworn on behalf of the defendants on 3 March 1986, by Michael Cronin, a civil servant employed in the Department of Agriculture.

In paragraph 3 of that affidavit Mr Cronin claims privilege in respect of certain documents on the following basis:

I object to producing the documents set forth in the Second Part of the First Schedule hereto on the grounds that the said documents are privileged being documents made in contemplation of and for the purposes of advising the Minister and his officers in relation to the plaintiff’s claim herein and of being documents of a confidential nature relating to the European Community.

The plaintiffs are not satisfied that the defendants have made full and proper discovery of documents as required by law, in compliance with the order already made, and now apply for an order directing and compelling the defendants to make further and better discovery for the purpose of making good certain omissions.

The application is grounded upon an affidavit of the second named plaintiff, sworn on 7 July 1986, in which it is claimed in the first place that the claim of privilege referred to in paragraph 3 of the original affidavit of *518 discovery is not well-founded, and in the second place reference is made in paragraphs 4 to 14 (inclusive) of Mr Steele’s affidavit to other relevant documents which he believes came into existence and which are or have been within the defendants’ power or procurement and which have not been discovered.

Dealing first with the claim of privilege, I agree with the contention of the plaintiffs that privilege is claimed on too wide a basis in paragraph 3 of Mr Cronin’s affidavit. It appears to represent an effort to claim privilege on two separate grounds known to the law, neither of which is clearly identified by the deponent—one ground being what is commonly referred to as legal professional privilege, and the other being the ground that it would be contrary to the public interest to disclose the documents in respect of which privilege is claimed.

I have considered the defendant’s claim of privilege under both of the said headings and I have inspected the file of documents which has been made available to the court by the defendants which, apparently, contains all documents in respect of which privilege is claimed under these headings.

Dealing first with the claim to legal professional privilege, I am satisfied that a sustainable claim under this heading may be made in respect of a wider category of documents than the conventional communications passing between a client and his legal adviser in contemplation of litigation.

The legal principles applicable to such claim of privilege have been discussed at some length in fairly recent times in two leading cases in the House of Lords—Crompton v Customs and Excise Commissioners [1973] 2 All ER 1169, the Waugh v British Railways Board [1980] AC 521. The claim of privilege based on public interest was considered by the Supreme Court in Murphy v Corporation of Dublin [1972] IR 215, and again in Geraghty v The Minister for Local Government [1975] IR 300; it was also considered by the House of Lords in Crompton’s case.

The circumstances in the present case are not unlike those which applied in Crompton. In that case the Customs and Excise Commissioners were seeking to enforce a claim to purchase tax on amusement machines and the dispute between the parties concerned the valuation which should be placed on the machines for the purpose of the tax. The relevant statute provided that a dispute between the tax-payer and the Commissioners as to the wholesale value of the goods was to be referred to arbitration. The ultimate decision on the issue of discovery was to the effect that the Commissioners were not allowed to claim legal professional privilege in respect of materials accumulated by them for the purpose of measuring their claim against the tax-payer before litigation was apprehended or threatened, but that they were entitled to claim privilege based on grounds of public interest. In the present case the plaintiffs are litigating their claim to compensation under the provisions of the Diseases of Animals Act 1966, arising out of the slaughter of the plaintiff’s flocks of ducks in obedience to directives given by the Minister for Agriculture in exercise of his powers under that Act. The Minister contends inter alia that he should not be required to disclose to the plaintiffs expert opinions and other materials accumulated on his behalf for the purpose of resisting the assessment which the plaintiffs put forward as the basis of their claim.

Having considered the relevant authorities, I am of opinion that once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case, whether by means of communications passing between him and his legal advisers, or by means of communications passing between him and third parties, and to do so under the cloak of privilege. This seems to have been the view taken by the House of Lords in Crompton, while their Lordships also took the view that litigation in that case should not be regarded as apprehended or threatened until the Commissioners had made their assessment and put it formally to the tax-payer for the purpose of having it rejected by the tax-payer as a preliminary step on the road to arbitration. On that aspect of the case I would have been more inclined to favour the view taken in the Court of Appeal that once it was apparent to both sides that they were not going to reach agreement and that the ultimate recourse to arbitration was well-nigh inevitable, then a situation had arisen where litigation between the parties could fairly be regarded as apprehended or threatened.

In the present case the outbreak of poultry disease which gave rise to the slaughter of the plaintiffs’ flocks of ducks occurred towards the end of 1983 and the actual slaughter of poultry and destruction of eggs took place between 21 December 1983, and 13 February 1984. It was clearly a case where a claim for compensation would be presented under the provisions of the Disease of Animals Act 1966, (although the pleadings in the case also include a claim for damages under a number of different headings), and the Department of Agriculture had to consider from a very early stage what amounts might become payable on the conventional statutory basis. The subject is referred to in a minute from that Department to the Department of Finance, dated 21 February 1984, and a letter of reply dated 6 March 1984, neither of which said documents has hitherto been made available to the plaintiffs. At that stage the Department of Agriculture, with the sanction of the Department of Finance, had reached a conclusion as to the amount which should be offered in settlement of the plaintiffs’ claim under the Act. There followed a letter of 23 March 1984, from the plaintiffs’ solicitors to the Department of Agriculture, and a further letter of 2 April 1984, also from the plaintiffs solicitors, which have not been opened to me but the contents of which I can glean to some extent from the other documents in the Departmental file.

Without referring to the figures contained in the various documents, it seems clear that the plaintiffs, through their solicitors, were advancing a claim so far in excess of the amount the Department of Agriculture with the concurrence of the Department of Finance, was prepared to pay, that from that time forward it must have been apparent to both parties that the claim would ultimately have to be resolved by means of litigation. On receipt of the first letter from the plaintiffs’ solicitors the Minister for Agriculture referred the matter to the Chief State Solicitor for advice and when the Chief State Solicitor’s office replied on 18 April 1984, it was to confirm that, ‘There is such an enormous discrepancy between the amount being claimed and the amount at which you value the loss suffered by the claimants, that (it) seems impossible that this matter can be resolved by negotiation.’

In this situation I am satisfied that litigation between the parties may fairly be regarded as having been apprehended or threatened from 26 March 1984, by which date the letter from the plaintiffs’ solicitors would have been received by the Minister for Agriculture in ordinary course of post, and that the defendants are entitled to claim privilege from that time forward in respect of communications passing between the Minister for Agriculture and his legal advisers relating to the claim, and also in respect of documents prepared in connection with the claim and for the primary purpose of dealing with the claim which was being formulated on behalf of the plaintiffs.

In this connection, I would respectfully adopt (with slight modifications) a passage from the judgment of Denning, MR, in the Court of Appeal’s decision in Crompton, (reported [1971] 2 All ER 353 at p. 378):

On inspecting these documents in 2 (b) (ii) it appears that they are all internal memoranda within the department itself made in the course of their investigations. There are instructions issued by senior officers to the staff about the methods to be employed. There are many schedules prepared by the staff showing the prices charged for the machines. There are many minutes of meetings which were had by the staff of the commissioners with the staff of the company, or its accountant and solicitors. There are memoranda containing comments on the attitude and conduct of the company and its advisers. The primary purpose of those investigations was, no doubt, to see if the company’s claim for deductions was justified, or not, and to fix the wholesale value accordingly; but, at the same time, for the commissioners to be in a position to contest the company’s claim, if it came to a fight, in which case the documents would contain ammunition to put before the solicitor.

I ask myself: can the commissioners properly claim legal professional privilege for these internal documents? I think they can … They were obtained as material to place before the solicitor if it came to a fight, as the commissioners anticipated that it might.

I would qualify that statement of principle, by further adopting the view expressed by the House of Lords in Waugh, that the dominant purpose for the document coming into existence in the first place should have been the purpose of preparing for litigation then apprehended or threatened.

I am satisfied, from a perusal of the Departmental file in this case that no question of privilege based on public interest arises in this case. Some of the documents contain minutes of meetings of the Standing Veterinary Committee of the European Economic Community held in Brussels, at which the outbreaks of avian influenza in Ireland were discussed. It seems to me that the relevant extracts from those minutes are discoverable.

A supplemental affidavit of discovery should not be filed on behalf of the defendants, in which the claim of legal professional privilege should be confined to documents coming into existence on and from 26 March 1984, for the purpose of obtaining legal advice from their solicitors with reference to litigation contemplated between them and the plaintiffs, and for the purpose of preparing the case for the defence in such contemplated litigation.

With regard to documents coming into existence prior to that date, or with regard to documents coming into existence at any time where it cannot be maintained that the primary purpose for the document coming into existence was the preparation for litigation pending or threatened between the parties, such documents, if relevant, should be discovered without a claim of privilege.

Finally, the supplemental affidavit of discovery should also deal specifically with the matters referred to in paragraphs 5 to 14 (inclusive) or Mr Steele’s affidavit of 7 June 1986, and should contain discovery of the documents therein mentioned or account for the defendants’ failure or refusal or inability to make discovery of such documents.

Byrne v Shannon Foynes Port Company

[2007] I.E.H.C. 315

JUDGMENT of Mr. Justice Clarke delivered 7th September, 2007.

1. Introduction
1.1 These proceedings concern a most acrimonious dispute that has arisen in relation to the position of two senior officers of the first named defendant (“Shannon Foynes”). The first named plaintiff (“Mr. Byrne”) is the Chief Executive Officer and, as a result of holding that office, a board member of Shannon Foynes. The second named plaintiff (“Mr. Leahy”) was, when these proceedings were commenced, a member of the board of Shannon Foynes.
1.2 As a result of certain allegations made concerning the manner in which both plaintiffs carried out their respective duties, an inquiry was directed by the board of Shannon Foynes to be conducted by a committee (“the Guilfoyle committee”) under the chairmanship of an independent chairperson, a Mr. Michael Guilfoyle. The plaintiffs contend that certain aspects of the manner in which the Guilfoyle Committee was established and has carried out its duties are in breach of law and have sought to restrain any further conduct of the inquiry by that Committee. It should be emphasised that the plaintiffs do not dispute but that the Board is entitled to enquire into the matters concerned. Both plaintiffs maintain that they are entirely innocent of any wrongdoing. Their complaints, which are on the basis of a number of allegations which it is not necessary to detail at this stage, concern the circumstances and manner in which the relevant committee was established and has conducted its business.
1.3 The application with which I am currently concerned relates to discovery of documents. However before going on to outline the unusual issues which arise on this application it is necessary to say something about the procedural history of the case to date.
2. Procedural History
2.1 The plaintiffs, immediately on issuing proceedings, sought an interlocutory injunction seeking to restrain the continuance of the inquiry then being conducted by the Guilfoyle Committee. I was persuaded that the plaintiffs had made out a case for such an interlocutory injunction and made an order restraining the further conduct of the Guilfoyle Committee pending the trial of the action.
2.2 Having regard to the urgency of the issues which involve, as they do, the status of senior officers of Shannon Foynes, I determined that it would be appropriate to case manage the proceedings with a view to seeking to procure an early hearing of the substantive issues which had arisen. While the precise issues which arise in these proceedings are relatively wide ranging it is fair to say that at the heart of the case made by the plaintiffs is a contention that the allegations against them have been manufactured by persons within Shannon Foynes who do not agree with important policy positions which both of the plaintiffs have adopted. It is equally fair to say that that allegation is strenuously denied. The truth or otherwise of such a contention is a matter which could only ever have been determined at the full trial of the action.
2.3 It also has to be the subject of comment that the proceedings have been conducted with a significant degree of acrimony by the parties. It would be neither possible nor appropriate for me at this stage to attempt to place any blame for that state of affairs on one or other or both sides. However it is fair to say that a number of the procedural issues which have arisen between the solicitors instructed for the respective parties have been pursued in correspondence which has, by times, been expressed in strong terms even by the standards of contentious litigation. This situation has not, I suspect, been helped by the fact that one of the contentions made in these proceedings by the plaintiffs is that the solicitor dealing with the matter in the firm representing Shannon Foynes (and who had, in that capacity, an involvement in the events giving rise to these proceedings) has a personal bias against Mr. Byrne. The merits, or otherwise, of that contention are, again, a matter that will have to await a full hearing.
2.4 The matter has been further complicated by the fact that Mr. Byrne continues to be the subject of ongoing investigation on the part of Shannon Foynes. Despite attempts to arrange for an alternative inquiry into the matters which were the subject of the considerations of the Guilfoyle Committee it has not, as I understand it, proved possible, as of this stage, to make any appropriate arrangements in that regard. In addition, however, further matters have been raised as contentions against Mr. Byrne which have, in the course of this litigation, come to be described as the so called “management concerns”. These matters are the subject of ongoing consideration by Shannon Foynes and its agents. It is again contended on the part of Mr. Byrne that the so called management concerns are themselves contrived and lack bona fides. I mention these latter matters for the purpose of noting that, in addition to the ongoing conduct of the existing litigation between the parties, there is a parallel, and equally acrimonious, set of issues being dealt with within the company involving largely the same personnel including the legal advisors on both sides.
2.5 Matters have, therefore, been complicated by the fact that the dealings between the parties and their advisors since these proceedings commenced have related not just to the conduct of this litigation but to those additional matters as well. It has, on occasion, been difficult to deal with the case management which arises within the four walls of the existing proceedings without one or other party raising issues concerning that parallel process.
2.6 Finally it should be noted, because it is of some relevance to the issues which arise on this discovery motion, that the parties did, apparently, engage in significant discussions with a view to ascertaining whether the differences between the parties could be resolved. Those discussions would appear to have taken place at a time when the dates for the swearing of affidavits of discovery had been fixed. It does appear that, for entirely understandable reasons, the attention of the legal advisors on both sides (and indeed, doubtless, the parties themselves) was directed to those discussions while they were ongoing. It would not, however, appear that any agreement could be reached. It would also appear that the parties agreed on an extended period for the swearing of the relevant affidavits of discovery to reflect the time that had been devoted to those discussions.
Against that background it is now necessary to turn to the legal issues which arise concerning the discovery sworn on behalf of Shannon Foynes.

3. The Issues
3.1 The affidavit of discovery on behalf of Shannon Foynes was sworn by its company secretary Frank Lynch and is dated 9th May, 2007. It is clear on the evidence that, as is common practice, the affidavit was drafted by the solicitor having carriage of the proceedings on behalf of Shannon Foynes. It is also manifestly clear that quite a significant number of documents in respect of which privilege could properly have been claimed were included in the First Part of the First Schedule and, therefore, no privilege was claimed in respect of them. The documents include correspondence and emails between solicitors and client and solicitors and counsel which are manifestly connected with the giving of legal advice.
3.2 Shannon Foynes maintains that the failure to make a claim of privilege in respect of the relevant documentation was in error and now seeks to be permitted to claim privilege by, in practice, swearing a revised affidavit of discovery which would include the relevant documentation in the Second Part of the First Schedule and would maintain a claim of privilege in respect of that documentation. In its Notice of Motion dated the 28th May, 2007, Shannon Foynes seeks orders directed to permitting such a course of action and requiring the return of the documents in question. The first application which I have to consider is, therefore, an application on the part of Shannon Foynes to do just that.
3.3 The plaintiffs make a number of complaints concerning the adequacy of the discovery made on behalf of Shannon Foynes. However because of the protracted nature of the hearing which gives rise to this judgment, it has only proved possible to hear the parties on one aspect of the plaintiffs complaint which directly stems from the inclusion of the potentially privileged documents in the unprivileged portion of Shannon Foynes’ affidavit of discovery. The plaintiffs maintain that privilege has been waived in respect of the relevant documentation. On that basis they resist the application by Shannon Foynes to be allowed to now claim such privilege. However the plaintiffs go further. They state that the relevant documentation has now been “deployed” in the proceedings and that they are entitled, therefore, to discovery of other connected privileged documentation on the basis that it would be unjust to allow Shannon Foynes to claim privilege in respect of some but not all of the connected privileged documentation.
3.4 Thus, in substance, Shannon Foynes claims to be entitled to row back from what it states was an erroneous position of not claiming privilege in respect of the relevant documentation. The plaintiffs contend that privilege not having been claimed in respect of that documentation, privilege must be taken to now be waived and that the plaintiffs are, therefore, entitled further to all other connected privileged documentation. The primary issues which arise are legal questions concerning privilege and discovery and I, therefore, turn to the legal issues.
4. The Law – privilege not claimed
4.1 The first issue which needs to be considered is the status, in relation to privilege, of a document included in a schedule to an affidavit of discovery in respect of which no claim for privilege is, in fact, made. It is clear, from Re Briamore Manufacturing Limited (1986) 1 WLR 1429 and Guinness Peat Properties Limited v. Fitzroy Robinson Partnership (1987) 1 WLR 1027 at 1045, that the inclusion of a privileged document in the first part of the relevant schedule should not be treated as a waiver of privilege. It follows that if a document is mistakenly so included, the court should ordinarily permit the party whose document it is, to amend the schedule at any time before inspection has taken place.
4.2 However after inspection has taken place the general rule is that the privilege has gone. See for example Briamore Manufacturing, Guinness Peat and Pizzey v. Ford Motor Company (The Times, 8th March). The authors of Matthews and Malek on Disclosure suggest, correctly in my view, that that position is a fortiori if copies have been supplied.
However, again as noted in Matthews and Malek, that latter proposition is not absolute. The authors put it, again correctly in my view, in this way:-
“Thus where such circumstances occur in the context of an inspection of documents, such as procuring inspection of the relevant document by fraud or realising the mistake on inspection but saying nothing, the court will in effect allow the mistake to be corrected, and refuse to permit the opposing party to use the privileged document. The test is in two stages:
(1) Was it evident to the solicitor seeing privilege documents that a mistake had been made?
(2) If not, would it have been obvious to the hypothetical reasonable solicitor that disclosure had occurred as a result of a mistake? If the answer to either is yes then, before the CPR, the court would normally restrain the solicitor if he did not give the documents back and might restrain him from acting further if he had read the documents and it was impossible for the advantage to be removed in any other way.”
4.3 In Shell E &P Limited v. McGrath and Others [2006] IEHC 409 (Unreported, High Court, Smyth J., 5th December, 2006) Smyth J. reviewed many of the authorities which are cited by the authors of Matthews and Malek in the passages to which I have referred. In particular Smyth J. approved a passage from the judgment of Aldous J. in Pizzey to the effect that the court should ask itself, as Smyth J. put it, “whether in the light of the evidence and the surrounding circumstances it had been proved on the balance of probabilities that the disclosure of the document will be seen by the reasonable solicitor to have been disclosed by mistake”. Smyth J. also approved of the rejection by Aldous J. of the argument of the plaintiffs in that case to the effect that the test should be applied subjectively with a focus on what the recipient solicitor actually thought and quoted with approval a passage which said the following:-
“The court must adopt the mantle of the reasonable solicitor. The evidence of what a solicitor thought at the time can be relevant. However the decision is for the court. The court must decide whether it is satisfied, on the balance of probabilities, that the reasonable solicitor would have realised that privilege had not been waived”.
4.4 On the facts in Shell, Smyth J. was satisfied that, on the balance of probabilities, a reasonable solicitor would have realised that the document in question had come to him in error.
4.5 I will return, in due course, to the second legal issue which arises in the context of the disclosure of some but not all privileged documentation. However it is appropriate now to move to a consideration of the application of the principles which I have just identified to the facts of this case.
5. Application to this Case
5.1 It is clear that the test that should be applied is, for the reasons which I have sought to analyse, a two stage test. Firstly, the court must consider whether the solicitor seeing the document or documents concerned realised that a mistake had been made. Secondly, and perhaps most importantly on the basis of the authorities, the court must put itself in the position of a reasonable solicitor and consider whether, on the balance of probabilities, such solicitor would have taken the disclosure to have been as a result of a mistake.
5.2 Firstly it needs to be noted that the disclosure in this case occurred by reason of the provision of copies of the documents concerned by the solicitor on behalf of Shannon Foynes to the solicitor acting on behalf of the plaintiffs. As noted by Matthews and Malek the implied waiver applies a fortiori in such circumstances.
5.3 Secondly the solicitor who received the documents concerned on behalf of the plaintiffs has sworn an affidavit in which he deposes to the fact that, when he received the relevant documentation, he considered that there had been a deliberate waiver of privilege in respect of those documents. The stated basis for that view was also deposed to. The issues raised are matters which I will, necessarily, have to consider in determining what an objective viewpoint should be.
5.4 However, at this stage, I should confine myself to indicating that I accept the evidence of the plaintiffs’ solicitor and must, therefore, conclude that the first of the two questions identified in the passage from Matthews and Malek which I have adopted must be answered in the negative. That is to say it does not appear to me that it was, in fact, evident to the receiving parties’ solicitor that a mistake had been made.
5.5 The issue in this case, therefore, turns on whether, objectively speaking, it would have been obvious that the inclusion of the relevant documents in the file supplied had occurred as a result of a mistake.
5.6 In that context it is important to start with the evidence tendered on behalf of Shannon Foynes. The solicitor concerned gave affidavit evidence to the effect that the relevant documentation had been, by error, included in the wrong part of the first schedule. I have no reason to doubt the veracity of that evidence. However I do have to note that the explanation given as to how the error could have occurred is far from satisfactory.
5.7 It is stated that due to the time constraints involved in preparing the affidavit of discovery it did not prove possible, as had been intended, to consult with the experienced junior counsel who has been instructed on behalf of Shannon Foynes. I am happy to accept that that situation did, in fact, occur, and I am also happy to accept that it is highly likely that the events which did occur would not in fact have occurred had junior counsel been consulted. However that is not the end of the matter. The problem stems from the fact that the number of documents concerned is quite significant and relate to a range of different categories. In addition it is correct, as was pointed out by counsel for the plaintiffs, to note that connected documents seem to have been the subject of a claim of privilege in some cases but no claim of privilege in others.
5.8 While accepting that there was, in fact, an error, the test, for the reasons which I have set out, is not to that effect. Rather the test is as to whether, objectively speaking, a solicitor receiving the documents concerned would have obviously realised that they had been included by mistake. It is against that background, and to assist in answering that question, that the explanation for the mistake needs to be assessed. If there is an obvious explanation for the mistake (which should, itself, have been obvious to a receiving solicitor) then the objective test would be met and the documents would have to be returned. If, even with the benefit of affidavit evidence, there is no satisfactory explanation for the mistake, then it follows that the thinking of the hypothetical objective solicitor would necessarily have been influenced by that absence.
5.9 I should start by emphasising that discovery has become a difficult and frequently voluminous process in much modern litigation. All practitioners whether solicitors, at the bar, or on the bench, will have frequent experience of minor discovery errors. This is hardly surprising given the large volume of documentation which frequently has to be disclosed and given the often difficult judgment calls that have to be made in relation to relevance and issues such as privilege. It seems to me that any reasonable solicitor would know that mistakes can and do happen and that such mistakes can be expected even where the discovery has been prepared by competent and diligent advisors. Indeed modern developments have led to situations where such mistakes are even more likely to occur. A frequent difficulty arises in respect of emails. As all will be aware email strings frequently involve a whole series of “documents” which increase incrementally as each subsequent reply is added to a previous sequence. Sometimes some of the relevant e-mails in the string have attachments. In those circumstances it is easy to see how a proper claim of privilege in respect of one aspect of a long string may be missed or, indeed, privilege in respect of an attachment which finds it way into a whole series of email strings may also be missed. Any reasonable solicitor would, in my view, know that such errors can be expected.
5.10 However the difficulty in this case concerns the sheer volume of the matters in respect of which privilege could have been, but was not, claimed. This is not a case where a single document (or a small number) “slipped through the cracks” and where a receiving solicitor ought reasonably have concluded that an error had occurred.
5.11 The hypothetical receiving solicitor, would, in my view, have found it difficult to accept that such a large number of disparate documents had been the subject of an inadvertent failure to claim privilege. That hypothetical solicitor would know that the affidavit of discovery had been prepared by an experienced advisor and would, therefore, in my view, have been justifiably sceptical as to whether such a significant number of errors could have occurred in those circumstances.
5.12 It is also, of course, necessary to consider what view the hypothetical receiving solicitor would have taken as to whether there would have been any reason for a failure to claim privilege in respect of the documents concerned. It is fair to say that almost all of the documents are clearly privileged. They are not, therefore, documents in respect of which one might conclude that it was necessary to exercise a difficult judgment call as to whether they were privileged or not (or indeed whether they were relevant or not). This point does, of course, cut both ways. If the disputed documents were ones in respect of which a fine judgment had to be made as to whether they should be included in the affidavit of discovery and/or whether privilege should be claimed in respect of them, then it would be easy to understand the explanation given concerning the difficulties that were encountered in ensuring that counsel’s advice was taken prior to the swearing of the affidavit and the handing over of the documents. The very fact that most of the documents are clearly privileged would, in my view, have influenced a hypothetical objective solicitor to be sceptical as to whether an error on that scale could have been made.
5.13 However, the other aspect of this point concerns the view which the notional solicitor would take as to whether there might have been a reason for the absence of the claim of privilege being made in relation to documents in respect of which privilege could clearly have been claimed.
5.14 It should be noted that there are types of litigation where it is far from unusual to find privilege being waived. In particular cases where the bona fides of a party or the reasonableness of its actions are concerned such cases frequently involve the reliance by such a party on the fact that it acted on legal advice as part of its case. In such litigation it is not unusual to find a clear waiver of privilege in respect of documents relevant to legal advice so that the party can maintain in the proceedings that it acted bona fide and/or reasonably because it took and followed appropriate advice.
5.15 A review of the disputed documents in this case does not lead to a clear conclusion one way or other under this heading. Some of the documents are anodyne in the extreme and it is difficult to see precisely why discovery might be considered to have been waived in respect of them. However there is no doubt but that these proceedings are of the category were the bona fides and reasonableness of Shannon Foynes is challenged. Against that background it seems to me that a hypothetical receiving solicitor would be likely to conclude that there was at least a basis upon which privileged documentation might nonetheless be disclosed.
5.16 Taking all of those factors into account I have come to the conclusion that, on the balance of probabilities, a hypothetical receiving solicitor would not have concluded that the absence of a claim to privilege was due to an error. In coming to that view I am particularly influenced by the volume of the documentation concerned and the fact that privilege seems to have been claimed in respect of some but not all of what appeared to be sequences of documentation. While accepting that this occurred as a result of an error (on the basis of the affidavit evidence tendered), I am not satisfied that an objective and hypothetical solicitor would have reached such a conclusion on receiving the documents, for I feel that such a solicitor would have found it hard to see how so many and fundamental errors could have occurred by inadvertence. Some, though not very great, additional weight can be derived in favour of that proposition from the fact that this is a category of case in which the bona fides or reasonableness of Shannon Foynes is clearly an issue.
5.17 For those reasons it seems to me that it would not be appropriate to allow Shannon Foynes’ application to now claim privilege in respect of the documents which have already been disclosed. In that context it is necessary to move to the second question as to whether, in the light of that ruling, the plaintiffs are entitled to additional documentation in respect of which privilege was claimed and which might be said to be connected to the documents now disclosed. It is appropriate to turn first to the legal principles involved.
6. The Law – Deployment of Document
6.1 In Hannigan v. D.P.P. [2001] IESC 10 Hardiman J. speaking for the Supreme Court stated the following:-
“Apart from these observations, the status of the document from the point of view of privilege or immunity from disclosure, changes once it has been referred to in pleadings or affidavit. Matthews and Malek’s Discovery (London 1992) at para. 9.15 stated:-
‘The general rule is that where privileged material is deployed in court in an interlocutory application, privilege in that and any associated material is waived …’
The basis of this rule is discussed in Nenea Karteria Maritime Company Limited v. Atlantic and Great Lakes Steamships Corporation (No. 2) [1981] Com. L.R. 139 as follows:-
‘… the opposite party … must have the opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question.’”
On the facts of the case in question Hardiman J. was satisfied that the document, the entirety of which was sought to be disclosed, had been deployed.
6.2 However, it is important to note that the test is to the effect that the document concerned was “deployed”. It is clear from Marubeni Corporation v. Alafouzof (Unreported, November 6, 1986, C.A., per Lloyd L.J.) that a mere reference to a privileged document in an affidavit does not of itself amount to a waiver of privilege and that this is so even if the document referred to is being relied on for some purpose, for reliance in itself is not the test. Properly speaking, the test is whether the contents of the document are being relied on rather than its effect.
6.3 As thus put, the test is as to whether the party concerned has placed reliance on the content of the document concerned. It does not seem to me that the mere disclosure of the existence of the document without claiming privilege in respect of it in an affidavit of discovery can be said to amount to the placing of reliance on the document in the proceedings so as to, properly speaking, suggest that the document has been deployed. Obviously, if the document is relied on as to its contents in an interlocutory application, or a fortiori, at trial, then it follows that it has been deployed.
6.4 I am, therefore, satisfied that, where reliance is placed upon the contents of the document in either an interlocutory application or at trial, the party concerned will be taken not only to have waived any privilege that might attach to that document, but also to any other documents which are connected to the document in question in such a manner as would make it unjust to allow the document concerned to be deployed in that fashion without also disclosing the content of the other documentation concerned. 6.5 I am not, however, satisfied that the fact that one privileged document is deployed necessarily leads to the conclusion that all other privileged documentation in the hands of the party concerned must be taken to have had privilege waived. It is illustrative to note that the only matter in issue in Hannigan was whether a document that had been relied on at an interlocutory application ought to be disclosed in full. Doubtless, in the context of the criminal proceedings which underlay the matter under consideration, there were many other privileged documents, such as advices by counsel on the proofs for the trial. It cannot be said that the mere fact that one privileged document was disclosed and relied on would make it unjust to permit the party concerned to maintain a claim of privilege in respect of wholly unconnected documents. The test, in my view, must be as to whether there is a sufficient nexus between the document deployed and the document or documents whose disclosure is sought, so as to render it unjust to permit the one to be deployed without disclosing the content of the others.
6.6 However, for the purposes of this case the key issue relates to documents where no particular reliance has been placed on same other than that their contents have been disclosed in the discovery process in circumstances where privilege has not been claimed.
7. Conclusions on Deployment
7.1 It cannot be said that any of the documents which are in contention in this case have been deployed in these proceedings. No reliance has been placed upon them at an interlocutory hearing to date. I am driven, therefore, to the conclusion that the documents cannot, as yet, have been said to have been deployed and that the consequences of their deployal (that is to say that other connected documents may be open to disclosure) has not arisen.
7.2 However, the facts of this case do, it seems to me, raise squarely the question of what is to be done in circumstances where some but not all of a connected set of privileged documents are disclosed in the course of the discovery and inspection process without claiming privilege but are not deployed. In my view, the logical and just approach to such a situation is to rule that it is legitimate, in such circumstances, for the receiving party to raise with the disclosing party the question of whether it is intended at trial to place any reliance on the documents concerned. It does not seem to me to be appropriate to wait until the trial to deal with this question. If that were to occur, and it were to transpire that the disclosing party were to place reliance on the documents concerned, then it would, in practice, be too late for the receiving party to obtain an effective order for the discovery of any connected documentation. To avoid a trial becoming immersed in unnecessary complicated procedural issues it seems to me that it is important, in such circumstances, that the intention of the party concerned relating to whether it is proposed to rely on the documents be clarified as soon as their existence be disclosed without a claim of privilege.
7.3 However, it seems to me to follow that, in the event that the party who has disclosed privileged documentation indicates that it does not intend to place reliance upon them at trial (and, if necessary, if the party is prepared to give an undertaking to that effect), then no injustice could conceivably be caused to the receiving party by refusing to order any further discovery.
7.4 On the facts of this case I am, for the reasons which I have analysed above, satisfied that it is now too late to reverse the inadvertent disclosure by Shannon Foynes of the documents in dispute. However, those documents have not been deployed. Having regard to the attitude adopted, in both of these applications, on behalf of Shannon Foynes, I would infer that Shannon Foynes would be more than willing to give an undertaking that Shannon Foynes does not intend to place reliance upon those documents, or their contents, at the trial in question. In those circumstances, not only have the documents not been deployed but it is also clear that they will not be, in the future, be deployed in these proceedings. In those circumstances it does not seem to me that the plaintiffs are entitled to any further discovery of documents connected with the disputed documents under the deployment principle.
8. Conclusion
8.1 I am, therefore, satisfied that I should refuse Shannon Foynes’ application to be entitled to now assert privilege in respect of the contested documents. It is too late so to do. However, on the basis that it becomes clear that those documents, or their contents, will not form the basis of any matter relied upon by Shannon Foynes at the trial, then it would not seem to me that any entitlement to further discovery lies in favour of the plaintiffs on foot of the disclosure of the documents in question.

 

Redfern Ltd v O’Mahony

[2009] IESC 18; unreported, Supreme Court

Judgment of Mr Justice Finnegan delivered on the 4th day of March 2009

 

This appeal concerns the decision of the High Court on two applications for inspection of documents pursuant to Order 31 Rule 19 of the Rules of the Superior Courts, one being an application by the appellants and the other an application by the respondent. The appellants’ motion sought inspection of an opinion of senior counsel in respect of which a claim of privilege is made. The respondent’s motion sought inspection of all documents discovered by the appellants in respect of which privilege is claimed which evidence the seeking and/or receipt of legal advices. Each of the motions involve consideration of aspects of waiver of legal professional privilege. The learned High Court judge ordered inspection on the respondent’s motion and refused to order inspection on the appellants’ motion. The appellants appeal each of these orders.

For the purposes of this judgment it is necessary to set out the complex factual matrix giving rise to the proceedings and for ease of reference I propose to apply the following definitions:-

Redfern Limited (hereinafter “Redfern”)

Lowe Taverns (Tallaght) Limited (hereinafter “Lowe”)
Alburn (hereinafter “Alburn”). Alburn is an unlimited company and is a wholly owned subsidiary of Redfern.

Larry O’Mahony and Thomas McFeely (hereinafter called “the partners”). The partners were at material times entitled to the entire issued share capital in Lowe.

Aifca Limited (hereinafter “Aifca”). Aifca is a wholly owned subsidiary of Lowe and (on what basis this court is not told) enjoys the sub-licence vested in Lowe.

Liam Carroll. Liam Carroll is beneficially entitled to the entire issued share capital in Tafica Limited.
Tafica Limited (hereinafter “Tafica”).

Agreement dated 4th August 2005 made between Redfern of the one part and the Partners of the other part (hereinafter “The Alburn Agreement”).
Agreement made between Aifca of the one part and Liam Carroll of the other part (hereinafter “The Aifca Agreement”).

Agreement dated 31st July 2003 made between Square Management Limited of the one part and Alburn of the other part (hereinafter “The Joint Venture Agreement”).

The Square, Tallaght, Co. Dublin is a major shopping and commercial development. The development was carried out on lands held under two leases, a lease dated 8th September 1988 and made between the Right Honourable The Lord Mayor Aldermen and Burgesses of Dublin of the first part, the County Council of the County of Dublin, of the second part and L & C Properties Limited of the third part, and a lease dated 1st August 1989 and made between Guardian Assurance Plc of the first part, the Right Honourable the Lord Mayor Aldermen and Burgesses of Dublin of the second part, the County Council of the County of the County of Dublin of the third part, and L & C Properties Limited of the fourth part. The leases, in addition to demising premises, granted a licence over premises which are now a surface car park part of the overall The Square development. The lessor’s interest under the lease is now vested in South Dublin County Council and the lessee’s interest is vested in Square Management Limited. Lowe is entitled to a sub-licence in the car park pursuant to a licence dated 25th October 2001 and which sub-licence is enjoyed by Aifca.

Square Management Limited and Alburn entered into the Joint Venture Agreement dated the 31st day of July 2003, the object of which was to develop the car park. For the development to take place it is necessary that all licences over the car park should be extinguished. Square Management Limited agreed to extinguish it’s licence, it being entitled to do so under the terms of the leases. However if the development is to proceed it is necessary that Lowe’s sub-licence should also be extinguished and to achieve this the Alburn Agreement was entered into on the 4th August 2005 between the partners of the one part and Alburn of the other part. By the Alburn Agreement the partners agreed to dispose of the entire issued share capital in Lowe to Alburn in exchange for the allotment of shares in Alburn to the partners. Completion of the Alburn Agreement is essential if the development of the car park is to proceed.

On the 13th July 2007 Redfern instituted these proceedings against the partners claiming inter alia a declaration that the Alburn Agreement is valid and subsisting and seeking specific performance of the same. The defence delivered by the partners did not deny the existence of the agreement but pleaded that Alburn had been guilty of unreasonable delay and laches and that as a result of Alburn’s conduct it is estopped from seeking to complete the Alburn Agreement. Delay by Redfern in completion of the Alburn Agreement caused Lowe’s financial position to deteriorate resulting in it’s lenders calling for repayment of borrowings failing which the lenders’ security would be enforced. In consequence it was necessary for the partners to seek alternative funding. Alternative funding was achieved by Aifca entering into the Aifca Agreement with Liam Carroll whereby Tafica would subscribe for 50.25% of an increased issued share capital in Aifca. In consequence the partners no longer control Aifca. Redfern promptly joined Liam Carroll, Tafica and Aifca as defendants and delivered amended pleadings. Against Liam Carroll and Tafica it is pleaded that they entered into the Aifca Agreement with the intention of interfering with the due performance of the Alburn Agreement and/or of inducing the partners to breach the Alburn Agreement. The defence of Liam Carroll and Tafica denies that they interfered with, induced or procured a breach of the Alburn Agreement. They plead that the Aifca Agreement was so designed specifically to ensure that there would be no breach of the Alburn Agreement. They plead in paragraph 13 of the defence as follows:

“Even if the Redfern Agreement subsisted at the time of the execution of the Aifca Agreement (which is denied), the third and/or fourth named defendants deny that they had any intention to induce a breach of and/or interference with the performance of the (Alburn) Agreement. In the premises, the third and/or fourth named defendants were expressly cautious to ensure that if the Redfern Agreement did subsist then the clauses of the Aifca Agreement should and did acknowledge and honour the obligations of the first and/or second named defendant under the Redfern Agreement should that Agreement be completed.”

In the context of the appeal against the order of the High Court granting inspection to Redfern the phrase “expressly cautious to ensure” is central.
APPEAL AGAINST THE ORDER OF THE HIGH COURT REFUSING THE APPELLANTS INSPECTION OF REDFERN’S PRIVILEGED DOCUMENT: APPEAL NO. 250/2008

The discovery of Redfern disclosed an opinion of senior counsel dated 8th February 2007 and privilege was claimed in relation to the same. The appellants by motion sought inspection of the opinion. Inspection was sought on the basis that the claim to privilege in respect of the opinion had been waived by Redfern furnishing a copy of the opinion to Thomas Dowd, Chairman of Square Management Limited board committee with responsibility for implementation of the Joint Venture Agreement and to Eoghan Clear, solicitor to South Dublin County Council. The sole issue on this appeal is whether that disclosure of the opinion amounts to a waiver of privilege.

For the appellants it is submitted that the membership of Square Management Limited consists of all lessees in The Square development. Potentially, therefore, the disclosure to Mr Dowd represented a very wide disclosure. Similarly the disclosure to Eoghan Clear represented a very wide disclosure as each member of South Dublin County Council could request sight of the same.

The appellants rely upon Fyffes Plc v DCC Plc and Others [2005] 1 IR 59 as authority. It was there held that legal professional privilege was absolute and the court had no discretion to displace it. Privilege might be lost where it was expressly or by implication waived. While it was there held that the disclosure relied upon as constituting a waiver by implication was insufficiently wide to constitute waiver and inspection was refused, it subsequently transpired that there had been much wider disclosure and the High Court, on that basis, held that there had been a waiver of privilege. Reliance is also placed on the following passages. In Documentary Evidence (9th edition) Hollander [2006] paragraph 19-30 it is stated:-

“If the document comes into the public domain, it will no longer be possible to assert that the document is confidential, and thus it will not be possible to claim privilege as one of the necessary pre-requisites of a claim to privilege will be lacking. If the document is disclosed for a limited purpose, or on terms that the recipient should treat it as confidential, the analysis set out above is likely to apply, and there is unlikely to be a difficulty in a subsequent claim for privilege. However, where the document is disclosed to one or more third parties with no express or implied requirement that the third party should treat the document as confidential, it is hard to see why there should be any legal bar on the third party disclosing the document or making it available when served with a witness summons.”

In Matthews and Malek on Disclosure (Sweet and Maxwell) 2007 it is stated:-

“The position is less clear where there is a deliberate supply of a privileged document to a third party. One aspect of the question is the intention with which it was supplied. Was it supplied in confidence, without prejudice to the privilege, e.g. to the directors of the client company, another professional adviser of the plaintiff, such as his accountant, a person otherwise with a ‘common interest’,…in such cases the privilege is generally not lost. Or was it supplied with the intention of abandoning the privilege e.g., to the court to be released to parties and non-parties in the exercise of the court’s discretion, to the media, in the hope of publication, or to the public generally? In these cases it is normally lost.”

For the respondent it is submitted that the disclosures to Mr Dowd and to Mr Clear must be looked at in context. The context of the disclosure to Mr Dowd is the Joint Venture Agreement. The context of the disclosure to Mr Clear is a document circulated by the County Manager of South Dublin County Council to each member of the County Council and entitled “Proposed Disposal of Lands at The Square, Town Centre, Tallaght incorporating the ‘public’ Millennium Square to Alburn.” The document concerned a proposal by the County Council to dispose of eleven acres at Tallaght, including the car park, to Alburn by way of building lease with a view to its development. It is clear that without the grant of such lease the proposed development of the car park could not proceed. The proposed development conforms with an objective of a draft Master Plan for the Tallaght area and the Tallaght Integrated Area Plan and the County Council wishes the development to proceed. In respect of each of the disclosures there is a community of interest with the recipient: Mr Dowd represents the interest of Square Management Limited in the Joint Venture Agreement and Mr Clear represents the interest of the County Council in relation to the proposed building lease. The Alburn Agreement is a crucial element in the scheme envisaged by the Joint Venture Agreement and the proposed building lease. The Joint Venture Agreement expressly provides for confidentiality. The disclosures did not evince an intention to publish to the public generally but were limited disclosures to third parties with a common interest and did not amount to an implied waiver.

It is well established that legal professional privilege may be waived expressly or by implication. In Kershaw .v Whelan [1996] 1 W.L.R. 358 at p. 370 Ebsworth L.J. said:-

“Waiver is not lightly to be inferred; although privilege is an aspect of the law of evidence and not of constitutional rights it is firmly established in our law for sound reasons of public policy.”

In Paragon Finance v. Freshfields [1999] 1 WLR 1183 Bingham C.J. dealt with the nature and basis of legal professional privilege at p.1188:-

“At its root lies the obligation of confidence which a legal adviser owes to his client in relation to any confidential professional communication passing between them. For readily intelligible reasons of public policy the law has, however, accorded to such communications a degree of protection denied to communications, however confidential, between clients and other professional advisers. Save where client and legal advisor have abused their confidential relationship to facilitate crime or fraud, the protection is absolute unless the client (whose privilege it is) waives it whether expressly or impliedly.”

Fyffes Plc v DCC Plc & Others [2005] 1 IR 59 dealt with implied waiver of privilege. At page 68 Fennelly J. said:-

“The appellant, nonetheless, argues for the broad proposition that any disclosure to a third party leads to loss of the privilege. No authority has been cited in support of such a far-reaching principle. It is not to be found in Matthews and Malek, Discovery (London 1992) dealing with the topic of waiver. Apart from the more specific cases of waiver, most of which have been discussed in these proceedings, the authors pose the question whether relevant information was supplied ‘with the intention of abandoning’ the privilege. They footnote instances of communication to the public generally or to the media. Indeed, these references are the only support for the general proposition that disclosure defeats the privilege.”

Fennelly J. accepted as a correct statement of the law dicta of Clarke J.A. in Goldberg v Mg [1994] 33 N.S.W.L.R. 639 that there is no universal rule that the disclosure of documents produced for the sole purpose of seeking legal advice or litigation to a stranger to that litigation constitutes a waiver of the privilege in the documents.

It is accordingly clear that privilege may be waived by disclosure. If the document comes into the public domain privilege will be lost. It will not, however, be lost where there is limited disclosure for a particular purpose or to parties with a common interest. The disclosure relied upon by the appellants here is limited and was to parties having a common interest with the respondent in the proposed development of the car park. Such disclosure does not evince an intention to waive privilege. I am satisfied there has been no waiver of privilege in respect of the opinion sought to be inspected. I would affirm the order of the learned High Court judge and refuse inspection of the opinion.
APPEAL AGAINST THE ORDER OF THE HIGH COURT GRANTING REDFERN INSPECTION OF DOCUMENTS EVIDENCING THE APPELLANTS’ LEGAL ADVICE: APPEAL NO 251/2008

 

 

The appellants’ discovery disclosed documents relating to its legal advice and claimed privilege in relation to the same. In paragraph 13 of their defence the appellants plead that they were “expressly cautious” to ensure that if the Auburn Agreement did subsist then the clauses of the Aifca Agreement should and did acknowledge and honour the obligations of the partners under the same should it be completed. This plea the respondent contends amounts to an implied waiver of privilege over the legal advice obtained by the appellant. The appellants by the plea put in issue their state of mind and the intention of the appellants in entering into the Aifca Agreement cannot be fairly determined without inspection of the advice. The appellants before this court conceded that at the hearing of the action it is the intention to rely upon the fact that legal advice was obtained in relation to the Aifca Agreement, which it is claimed is designed so as to not to interfere with contractual relations between the respondent and the partners, and in effect ask the court to infer from the terms of the Aifca Agreement and the fact that legal advice was obtained the absence of an intention to procure a breach of contract or interfere with the respondent’s contractual relations. The legal advice sought or given will not be introduced in evidence. The court may, of course, make the opposite and adverse inference from the failure of the appellants to waive legal professional privilege.

The importance of legal professional privilege in our system of litigation cannot be overemphasised. In Smurfit Paribas Bank Limited v A.A.B. Export Finance Limited [1990] 1 I.R. 469 Finlay C.J. quoted with approval from the judgment of Jessel M.R. in Anderson v Bank of British Columbia [1876] 2 Ch.D. 644 at 649:-

“The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman with whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against a claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule.”

While the courts afford a very high degree of protection to legal professional privilege the party entitled to the same may expressly or by implication waive it. For the proposition that where the communication in respect of which privilege is claimed is a material fact in itself privilege is impliedly waived the respondent relies on Matthews and Malek, Disclosure, 3rd edition at para. 11.64 where the authors’ state:-

“Where in litigation allegations are made by a party concerning his state of mind (e.g. in entering an agreement) to which legal advice contributed, that party cannot withhold the advice on grounds of privilege, but this is because of implied waiver.”

The respondent relies heavily on this passage and on a line of authority in the courts of Australia and most particularly on Hong Kong Bank of Australia Limited v Murphy [1993] V.R. 419, Telstra Corporation v B.T. Australasia Pty Limited [1998] 156 A.L.R. 634 and Liquorland (Australia) Pty Limited v Angie [2003] V.S.C. 0073. A review of the Australian cases discloses that in that jurisdiction privilege may be lost in the following circumstances:-

1. Where a party pleads the privileged document into relevance: Data Access Corporation v Powerflex Services Pty Limited [1994] A.I.P.C. 91.

2. Where the court might be misled if the document is not available: Hong Kong Bank of Australia Limited v Murphy [1993] 2 V.R. 419 and

3. Where in his pleadings a party relies upon his state of mind and it would be unfair to permit that party to maintain privilege in respect of communications passing between them and their legal advisers which might bear upon the existence of that state of mind: Wardrope v Dunne [1996] 1Qd. R. 224.

Some support for the submission that this is also the law in this jurisdiction might appear to be found in a passage from the judgment of Finlay C.J. in Smurfit Paribas Bank Limited v A.A.B. Export Finance Limited at p.477:-

“Such privilege should therefore in my view only be granted by the courts in instances which have been identified as securing an objective which in the public interest in the proper conduct of the administration of justice can be said to outweigh the disadvantage arising from the restriction of disclosure of all the facts.”

However, in Fyffes Plc v DCC Plc & Others at p.67 Fennelly J. in referring to that passage said:-

“The then Chief Justice did not, in my view, by those words, mean to suggest that in cases where reliance is placed on legal professional privilege in respect of documents the courts should balance the two considerations, as it were, on a case by case basis. He was referring to what the policy of the law should be. In my view, whether or not documents are privileged will be determined by the application of these principles to the facts of the case. Once it is found to exist, there is no judicial discretion to displace it. I would adopt the following dictum of Lord Bingham C.J. in Paragon Finance v Freshfields [1999] 1 WLR 1183 at p.1188:-
‘The nature and basis of legal professional privilege has been often and authoritatively expounded…at its root lies the obligation of confidence which a legal adviser owes to his client in relation to any confidential professional communication passing between them. For readily intelligible reasons of public policy the law has, however, accorded to such communications a degree of protection denied to communications, however confidential, between clients and other professional advisers. Save where client and legal adviser have abused their confidential relationship to facilitate crime or fraud, the protection is absolute unless the client (whose privilege it is) waives it, whether expressly or impliedly.’”

Paragon Finance Plc v Freshfields concerned a claim in negligence against the defendant, a firm of solicitors. The solicitors advised the plaintiff in relation to the creation of securitised mortgages, each transaction involving several thousand mortgages. In the early 1990s there were many defaults by mortgagors on the mortgages in question as a result of a fall in the property market, a situation with which we are all too familiar today. The plaintiff looked to insurers to indemnify it against the defaults and the insurers refused to indemnify on the basis that the agreed loan to value ratio had not been complied with. The claim against the insurers was settled but the plaintiff nonetheless suffered losses which it sought to recover from the solicitors as damages for negligence. A different firm, Slaughter and May, acted for the plaintiff in its claim against the insurers and Freshfields sought discovery of communications between the plaintiff and Slaughter and May. In the High Court Buckley J. in granting inspection relied upon Hayes & Another v Dowding & Others [1996] P.N.L.R. 578. He held that a plaintiff suing a solicitor for negligence may not claim legal professional privilege in relation to similar transactions involving a different solicitor. Having cited a passage from Hayes & Anor v Dowding & Ors he went on to say at page 591:-

“Neither that passage, in context, nor what I have said above, undermines nor is intended to undermine the most common and fundamental operation of legal professional privilege, namely, that one party to a dispute cannot obtain communications between the other party and his lawyer in respect of it. Of course the privilege goes further than that. But, to my mind, it is not significantly undermined by holding that the implied waiver that arises when a client sues his lawyer for professional negligence extends to any privilege communications touching the transaction which gave rise to the charge of negligence and which are relevant to the just determination of issues between them. To borrow a phrase from a different legal concept, privilege is essentially a shield not a sword. I do not believe that concept would be difficult to explain to a client or that it would work against the public interest in question.”

In the Court of Appeal, allowing the appeal, Lord Bingham held that by bringing the proceedings against Freshfields the plaintiff impliedly waived any claim to legal professional privilege in relation to confidential communications between the plaintiff and Freshfields up to the moment when Freshfields ceased to act. However, there was no waiver of legal professional privilege in relation to confidential communications between the plaintiff and Slaughter and May as that confidential relationship had not been brought into the public domain by the pleadings. The defendants relied on references to justice and fairness in the judgments in Hayes & Another v Dowding & Ors as providing the correct test. The Court of Appeal held that there is no question of balancing the requirements of fairness and justice against the legitimate interest of a party in maintaining the confidentiality of a confidential relationship. Save as between client and the solicitor he is suing, fairness is not the touchstone by which it is determined whether a client has or has not impliedly waived his privilege. The court expressly disapproved of Hayes & Anor v Dowding & Ors where the trial judge relied heavily on Australian authority and held that the Australian authorities there relied on did not represent the law in England.

In Nederlandse Reassurantie Groep Holding N.V. v Bacon and Woodrow & Ors [1995] 1 All E.R. 976, a negligence action, the plaintiff sued their advisers, other than legal advisers, and in particular their accountants. The accountants sought disclosure of confidential communications between the plaintiff and their legal advisers relating to the purchase of the share capital of three insurance companies. In the transaction the plaintiff had relied on actuarial, accounting, financial and legal advice. The plaintiff claimed legal professional privilege which claim was upheld. In the course of his judgment at 987E Colman J. pointed out that there could be no question of waiving legal professional privilege by the institution of proceedings in an action to which legal advisers were not a party: in Paragon Finance Plc v Freshfields Bingham J. considered this to be correct. Bingham J. also approved Colman J’s analysis of the basis upon which in a negligence action against a solicitor the plaintiff could not maintain a claim to legal professional privilege. He cited with approval the following passage at page 986C of the report:-
“The true analysis of what the courts are doing in such cases of so-called implied waiver of privilege is, in my judgment, to prevent the unfairness which would arise if the plaintiff were entitled to exclude from the court’s consideration evidence relevant to a defence by relying upon the privilege arising from the solicitor’s duty of confidence. The client is thus precluded from both asserting that the solicitor has acted in breach of duty and thereby caused to the client loss and, to make good that claim, opening up the confidential relationship between them and at the same time seeking to enforce against that same solicitor a duty of confidence arising from the professional relationship in circumstances where such enforcement would deprive the solicitor of the means of defending the claim. It is fundamental to this principle that the confidence which privilege would otherwise protect arises by reason of the same professional relationship between the parties to the litigation. The underlying unfairness which the principle aims to avoid arises because the claim is asserted and the professional relationship opened for investigation against the very party whose duty of confidence is the basis of the privilege. It is against the unfairness of both opening the relationship by asserting the claim and seeking to enforce the duty of confidence owed by the defendant that the principle is directed.”

The loss of privilege by the mere instigation of proceedings is limited to negligence actions instituted by a client against his solicitor: it is based on unfairness. The privilege attached to transactions with other solicitors, however closely related or relevant, is not affected.

There is one other area in which legal professional privilege can be lost on the basis of unfairness and that is in relation to partial disclosure of legal advice: see R v Secretary of State for Transport Ex parte Factortame & Others, The Times, 16 May 1997 and cases therein referred to. Where a party deploys in court material which would otherwise be privileged the other party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.

It remains the position in England and Wales that while unfairness is material in the circumstances which I have mentioned there is no general proposition that unfairness to an opponent will result in implied waiver of privilege. In Farm Assist Limited (In Liquidation) v Secretary of State for Environment, Food and Rural Affairs [2008] All E.R.(d) 124 (Dec) it was held that there is no general implied waiver of privileged material merely because a state of mind or certain actions are in issue. The test in English law is based neither on general principles of fairness nor on relevance. Implied waiver arising from particular proceedings or pleading allegations in those proceedings is limited to proceedings between client and solicitor. The fact that the plaintiff had obtained legal advice which had contributed to a state of mind does not form any basis for implied waiver in English Law. In the course of the judgment Matthews and Malek on Disclosure 3rd edition was referred to:-

“In Matthews and Malek at para. 11-64 the authors referred to a principle that ‘where information which is otherwise privileged itself constitutes a material fact in the proceedings, it is not privileged from disclosure.’”

It was held that an analysis of the cases establishes no such general principle. Matthews & Malek also state:-
“Where in litigation allegations are made by a party concerning a state of mind (e.g. in entering an agreement) to which legal advice contributed, that party cannot withhold the advice on grounds of privilege, but this is because of implied waiver rather than because no privilege attached in the first place.”

In support of this proposition the authors cite at footnote 402 three Australian authorities: Wardrobe v Dunne [1996] 1 Qd.R 224 and Ampolex Limited v Perpetual Trustee Co. (Canberra) Limited [1995] 37 N.S.W.L.R. 405 and one English authority Hayes & Anor v Dowding & Ors [1996] P.N.L.R. 578. The learned trial judge held that Hayes & Anor v Dowding & Ors had been overruled in Paragon Finance Plc v Freshfields and that the Australian authorities cited did not represent the law in England. Whilst there is implied waiver in proceedings between a client and solicitor because of unfairness, that did not mean that whenever there is unfairness there will always be an implied waiver of privilege. Privilege is waived on the basis of unfairness in the limited circumstances set out in Lillicrap v Nalder and Paragon Finance Plc v Freshfields and that is in proceedings between a client and his solicitor. In such proceedings, by instituting the same, the plaintiff releases the solicitor from his obligation of confidentiality and cannot rely on legal professional privilege in respect of his documents in the hands of the solicitor. The rationale for an implied waiver in such proceedings is that a party cannot, as a matter of fairness, subject the confidential relationship with its solicitor to public scrutiny and at the same time seek to preserve the confidentiality of the relationship. Outside that, English law recognises the right of a party to maintain legal professional privilege notwithstanding that the person’s state of mind and also that person’s actions may well have been influenced by legal advice and there is no general implied waiver of privileged material merely because a state of mind or certain actions are in issue.

Having carefully considered the Australian authorities to which the court has been referred I am satisfied that they do not represent the law in this jurisdiction. Rather the law is as set out in Paragon Finance Plc v Freshfields and Farm Assist Limited (In Liquidation) v Secretary of State for Environment, Food and Rural Affairs. No such general proposition as is sought to be established by the respondent exists in Irish law. As stated by Fennelly J. in Fyffes Plc v DCC Plc & Others there is no balancing exercise to be carried out, and in particular no balancing of legal professional privilege maintained by one party against unfairness to the other.

As to the three propositions derived from Australian authorities which I set out above and which are relied upon by the respondent the position is as follows. In relation to the first, a party by its pleadings or by deployment in court may waive legal professional privilege: this will arise where the contents and effect of the legal advice are disclosed. That is not the position here as the contents and effect of the legal advice are not pleaded and, as the appellant has informed the court, will not be relied upon. Only the fact that legal advice was obtained will be relied upon. The other two propositions derived from Australian authorities do not represent the law in this jurisdiction.

I would allow the appeal and refuse inspection of the appellants’ documents in respect of which legal professional privilege is claimed.

 

Conclusion

On the respondent’s application for inspection I would uphold the decision of the learned trial judge. On the appellants’ application for inspection I would set aside the decision of the learned trial judge and refuse to order inspection of the documents evidencing legal advice on the grounds that the appellant is entitled to maintain legal professional privilege in respect of the same.

Ryanair Ltd v Murrays Europcar Ltd [2009] IEHC 366

JUDGMENT of Mr. Justice Cooke delivered on 18th day of May, 2009
1. The recent history of this long-running action is that in May, 2006, the first-named defendant brought an application for discovery of documents and by consent an order to that effect was made on 18th July, 2006. The Plaintiff was to make discovery by 10th October, 2006 but failed to do so. An application to strike out the claim for failure to make discovery was brought on 2nd February, 2007 and the affidavit was eventually produced on 15th February, 2007.

2. Inspection of the discovered documents was then sought and refused and an order for inspection was then obtained from the Master of the High Court on 28th June, 2007. Inspection was not permitted by the plaintiff within the 30 days stipulated in the order with the result that an order was sought from and granted by the Master on 13th November, 2007, as amended by an order of 8th April, 2008 dismissing the plaintiff’s claim as against the first-named defendant for failure to comply with the order of 28th June, 2007. The plaintiff then applied to have that claim reinstated and the matter was determined before MacMenamin J. on 12th February, 2009.

3. Subject to the terms laid down in that order, including lodgement of a sum of €485,622, the permitting of inspection and the payment of 50% of the costs to date in the action, the reinstatement of the claim was permitted.

4. On that motion, a very great emphasis was placed obviously on the delay on the part of the plaintiff in prosecuting its claim and on its failures to comply with previous orders. For the purpose of answering the allegation that this delay and these failures indicated that the plaintiff had no serious intention of pursuing the alleged claim but was in reality seeking to obstruct the defendant’s claim, an affidavit was sworn by Mr. Cawley on behalf of the plaintiff and in para. 4 of that affidavit Mr. Cawley swore:

“In particular I deny absolutely the suggestion that Ryanair seeks to hinder the efforts of the first-named defendant in litigating the dispute or that this is intended. In fact the case is that Ryanair has obtained a report from Patrick Massey, consultant and former member of the Competition Authority, which is strongly supportive of the case that the first-named defendant failed in its obligation to provide a competitive pricing policy. Ryanair is in fact most anxious to litigate this matter, which could proceed to trial rapidly.”

5. The first-named defendant now applies for an order permitting inspection of that report on the basis that any privilege that might have been claimed in it has been waived by its being thus deployed in that affidavit in support of the claim to reinstate the action. The law on the issue is clear from the authorities opened to the court and especially the decision of the High Court in Byrne v. Shannon Foynes Port Company [2008] 1 IR 814, and the Supreme Court in Hannigan v. Director of Public Prosecutions [2001] 1 IR 378. The authorities cite the well-known statement:

“The general rule is that where privilege material is deployed in court in an interlocutory application, privilege in that and any associated material is waived…”

6. It is also clear, however, that a mere reference to a document is not sufficient to treat it as deployed in that sense. This is so even if some reliance is placed on it. Reliance is not the test as Clarke J. put the matter very aptly in the Byrne v. Shannon Foynes Port Company [2008] 1 IR 814, case:

“It is important to note that the test is to the effect that the document concerned was ‘deployed’. It is clear from Marubeni Corporation v. Alafouzof [1988] C.L.Y. 2841 that a mere reference to a privileged document in an affidavit does not in itself amount to a waiver of privilege and that this is so even if the document referred to is being relied on for some purpose, for reliance in itself is not the test. Properly speaking, the test is whether the contents of the document are being relied on rather than its effect.”

7. As thus put, the test is as to whether the party concerned has placed reliance on the content of the document concerned. It does not seem to me that the mere disclosure of the existence of the document without claiming any privilege in respect of it in an affidavit of discovery can be said to amount to the placing of reliance on the document in the proceedings so as to, properly speaking, suggest that the document has been deployed.
8. In the present case the court is satisfied that privilege has not been waived. In effect all that has been done is to refer to the existence of a strong supportive report from an expert in order to rebut the accusation that the plaintiffs’ claim is obstructive or vexatious. The content or basis of the report was not mentioned. No use is made of any particular advice or expertise contained in it. It is merely referred to in corroboration of the plaintiffs’ intention to prosecute the claim.

9. For these reasons the court considers that privilege has not been waived in this case and that the order for inspection of the report need not be granted.

McGrath v Athlone Institute of Technology [2011] IEHC 254

 

DPP v Kennedy

[2012] IESC 34
Judgment delivered on the 7th day of June, 2012 by Denham C.J.
1. This appeal is brought seeking an injunction prohibiting or restraining a criminal trial. The decision to prosecute has been made by the Director of Public Prosecutions, the respondent, referred to as “the DPP”, which is an independent statutory office. The Court will intervene in a decision to prosecute, and will prohibit a trial, only in exceptional circumstances. Thus, the issue on this appeal is whether there are exceptional circumstances such that the Court should intervene, in the decision of the DPP to prosecute, and prohibit a criminal trial proceeding.

2. James Kennedy, the applicant/appellant, referred to as “the appellant”, was sent forward for trial on sixteen charges in the Dublin Circuit Criminal Court. The charges allege instances of corruptly giving sums of money to named members of Dublin County Council, or to office holders or directors of Dún Laoghaire Rathdown County Council.
Issues
3. On this appeal counsel stressed several specific issues, as follows:-

(a) A disclosure matter;
(b) The right to an expeditious trial; and

(c) The European Convention on Human Rights.

Before considering each of these issues in detail, I will set out background facts to this appeal.
Charges
4. The appellant was brought before the Dublin District Criminal Court on the 22nd October, 2010, and charged with sixteen offences, as follows:-

“(i) Charge Sheet No. 10882572

For that you the said accused did, on the 11th day of June 1992 at the offices of Frank Dunlop and Associates Limited, 25 Upper Mount Street, Dublin 2 in the County of the City of Dublin, corruptly give a sum of money as a gift to Sean Gilbride, for the benefit of the said Sean Gilbride, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Sean Gilbride, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(ii) Charge Sheet No. 10882637

For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, at Conway’s Public House, Parnell Street, Dublin 1 in the County of the City of Dublin, corruptly give a sum of money as a gift to Jack Larkin, for the benefit of the said Jack Larkin, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Jack Larkin, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(iii) Charge Sheet No. 10882686

For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, within the State, corruptly give a sum of money as a gift to Cyril Gallagher, for the benefit of the said Cyril Gallagher, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Cyril Gallagher, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(iv) Charge Sheet No. 10882718

For that you the said accused did, on the 4th day of May 1992 at the reception area of Dublin County Council, in the County of the City of Dublin, corruptly give a sum of money as a gift to Tom Hand, for the benefit of the said Tom Hand, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tom Hand, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(v) Charge Sheet No. 10882759

For that you the said accused did, on the 4th day of May 1992 at St. John of Gods, within the County of the City of Dublin, corruptly give a sum of money as a gift to Don Lydon, for the benefit of the said Don Lydon, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Don Lydon, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(vi) Charge Sheet No. 10882694

For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, within the State, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(vii) Charge Sheet No. 10882904

For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, at the offices of Colm McGrath, Clondalkin, in the County of the City of Dublin, corruptly give a sum of money as a gift to Colm McGrath, for the benefit of the said Colm McGrath, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Colm McGrath, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(viii) Charge Sheet No. 10883025

For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, within the State corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(ix) Charge Sheet No. 10883082

For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(x) Charge Sheet No. 10883171

For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xi) Charge Sheet No. 10882889

For that you the said accused did, on the 23rd day of December 1997 at the Buswells Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xii) Charge Sheet No. 10882864

For that you the said accused did, on the 23rd day of December 1997 at Buswells Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xiii) Charge Sheet No. 10883017

For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xiv) Charge Sheet No. 10883203

For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xv) Charge Sheet No. 10883244

For that you the said accused did, on a date unknown between the 30th day of October 1997 and the 25th day of December 1997, both dates inclusive, at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xvi) Charge Sheet No. 10883269

For that you the said accused did, on a date unknown between the 30th day of October 1997 and the 25th day of December 1997, both dates inclusive, at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.”
Facts
5. A significant person in this case is Frank Dunlop. On the 13th July, 2008, the DPP directed that Frank Dunlop be charged with 16 offences of corruption. On the 21st November, 2008, Frank Dunlop was arrested and charged with the offences. On the 16th January, 2009, Frank Dunlop pleaded guilty to five charges on the Bill of Indictment. On the 29th May, 2009, Frank Dunlop was convicted and sentenced in the Dublin Circuit Criminal Court.

6. On the 24th June, 2010, the DPP directed that six persons, including the appellant, be brought before the courts on charges of corruption.

7. On the 19th October, 2010, separate Criminal Asset Bureau proceedings commenced and were at hearing all day. After leaving the Four Courts building the appellant was arrested on Inns Quay at 4.15 p.m. In the early hours of the 20th October, 2010 the appellant was hospitalised and received cardiac care; on the 22nd October, 2010, two days later, he was discharged from hospital. At 3 p.m. on the 22nd October, 2010, the appellant attended at Donnybrook Garda Station, by arrangement, for the purpose of arrest. The appellant was then brought before the Dublin District Court, charged with the offences in issue, and bail was set. Bail conditions were met and he was released from prison.

8. On the 28th October, 2010, the Book of Evidence was served.

9. The date for trial was set for the 5th October, 2011.
Judicial Review
10. However, the appellant applied to the High Court for leave to apply for judicial review, which was granted by the High Court (Peart J.) on the 7th March, 2011.

11. In the statement of grounds the appellant sought: inter alia, an injunction prohibiting the DPP from proceeding with the trial of the appellant on the said sixteen charges; if necessary an order extending the time for the bringing of the application; and damages pursuant to s. 3 of the European Convention on Human Rights Act, 2003.

12. The grounds upon which the relief was sought included the right to an expeditious trial. It was also pleaded that pursuant to s. 3 of the European Convention on Human Rights Act, 2003, the DPP and the Garda Síochána are obliged to perform their functions in a manner compatible with the State’s obligations under the European Convention on Human Rights, which obligations include the duty to comply with Article 6.
High Court Judgment
13. On the 28th July, 2011, the High Court (Hedigan J.) delivered judgment on the application. The learned High Court judge accepted that there had been delay in bringing the prosecution, but held that that of itself was not a basis to prohibit the trial. The learned trial judge held that the delay was excusable: (a) he accepted that the appellant could not be contacted so as to progress the matter; (b) he accepted that Frank Dunlop was not available as a witness until the proceedings of the Tribunal of Inquiry into Certain Planning Matters and Payments, referred to as “the Tribunal”, and the criminal proceedings involving Frank Dunlop had been concluded.

14. While the High Court’s decision on delay disposed of the matter, the learned High Court judge also stated as follows:-

“While the above finding is dispositive of this case, I feel that I should express my view that even if the delay was not excusable, I would find that the balance of justice lies very much in favour of the community’s right to have these alleged criminal charges prosecuted. In B v DPP [1997] 3 I.R. 140 Denham J. stated at 195 that:-

‘It is necessary to balance the applicant’s right to reasonable expedition in the prosecution of the offence with the community’s right to have a criminal offence prosecuted.’

The case herein arises from allegations of corruption of public officials. There is an overwhelming public interest in permitting allegations of this nature to proceed to trial before a jury. The state has invested significant resources in terms of time and money in Tribunals to investigate these allegations of corruption of public officials. Corruption of state officials is an attack on the integrity of the state itself and the whole apparatus of state governance. As such it is a crime of great gravity. Taking the entire history of this case into account including the difficulty in ascertaining where the [appellant] resided at any given time as exemplified by the contradictions contained on the affidavits and considering also the unavailability until recently of Frank Dunlop as a witness, I am satisfied that the delay herein is excusable. Even were this not the case, I am satisfied that the balance of justice would demand that these proceedings be allowed to take place. Finally in relation to any prejudice the [appellant] may encounter, there is ample judicial authority for the proposition that such prejudice may be overcome or countered by means of appropriate directions or warnings from the trial judge. In these circumstances I must refuse the relief sought.”
15. As to the claim made on the European Convention on Human Rights, the High Court held:-
“The [appellant] has argued that as a result of the delay which has occurred in this case the State is in violation of its obligations under Article 6 of the Convention which provides, inter alia, as follows:

‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

It is possible that the State could be found to have acted in contravention of Article 6 due to the duration of the Tribunal and the consequent unavailability of the main witness. However, violation of Article 6 does not ipso facto result in a prohibition of the trial in question. In TH v DPP [2006] 3 IR 520 the applicant sought to prohibit his trial on a charge of sexual assault by relying on the finding of the Court of Human Rights in Barry v Ireland. Fennelly J. speaking for a unanimous Supreme Court addressed this in the following passage:-

‘It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights. The Court does not and did not, in that case, hold that the prosecution had to be stopped. It would be most surprising if a judgment of that Court holding that the prosecuting authorities were “partially or completely responsible” for certain periods of delay had the automatic consequence that a prosecution had to be halted. .. the decision of the Court leads to a monetary award. It has no consequence for the pending prosecution.’

I am satisfied that while there has been an inordinate delay in these criminal proceedings, that delay is excusable by virtue of the difficulty in locating the [appellant] and the unavailability of the key witness.”
16. The learned High Court judge also refused to prohibit the trial on grounds of stress and anxiety to the appellant, stating that the appellant had failed to support such a claim with medical evidence.
Notice of Appeal
17. Twenty four specific grounds of appeal were filed on behalf of the appellant, as follows:-

(i) The learned trial judge erred in law and/or fact in considering documents over which the DPP had asserted privilege, despite the objection of the appellant.
(ii) The learned trial judge erred in law and/or fact in considering documents over which the DPP had asserted privilege, despite the objection of the appellant, notwithstanding the real and serious risk that justice would not be seen to be done when the finding by the learned trial judge in refusing the appellant inspection of them was that the documents considered were seriously prejudicial to the appellant.

(iii) The learned trial judge erred in law and/or fact in dismissing the appellant’s application for judicial review.

(iv) The learned trial judge erred in law and/or in fact in holding that the appellant was not entitled to relief prohibiting and/or staying the DPP from proceeding with the trial of the appellant in the Dublin Circuit Criminal Court on the 16 charges set forth in a Statement of Charges dated 28th October 2010 in proceedings entitled “The Director of Public Prosecutions v James Kennedy, Sean Gilbride, Donal Lydon, Colm McGrath, Liam Cosgrave, Tony Fox.”

(v) The learned trial judge erred in law and/or in fact in holding that the appellant was not entitled to damages pursuant to section 3 of the European Convention on Human Rights Act 2003.

(vi) The learned trial judge erred in law and/or fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not of itself sufficient to jeopardise the appellant’s right to a trial in due course of law and/or his right to a fair trial and/or his right to a trial with reasonable expedition.

(vii) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not such as to constitute prosecutorial delay.

(viii) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not deliberate on the part of the DPP.

(ix) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not such as to constitute blameworthy prosecutorial delay.

(x) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was attributable, in whole or in part, to the appellant’s conduct.

(xi) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress his file.

(xii) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress his file, when the DPP directed that the appellant be charged without any contact having been made with the appellant.

(xiii) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress his file, when the evidence did not disclose any attempt by the DPP or the investigating authorities to locate or contact the appellant with regard to the allegations the subject matter of the instant proceedings.

(xiv) The learned trial judge erred in law and/or in fact in holding that alleged difficulty in contacting the appellant excused the inordinate delay in his prosecution, when the evidence disclosed that the investigating authorities were in possession of contact information for the appellant through which no efforts were made to locate or contact the appellant.

(xv) The learned trial judge erred in law and/or in fact in holding that the prosecution of the appellant could not proceed until the Tribunal had concluded its work.

(xvi) The learned trial judge erred in law and/or in fact in holding that the prosecution of the appellant could not proceed until the Tribunal had concluded its work when (a) Liam Cosgrave and Frank Dunlop have been so prosecuted and/or (b) when the said Tribunal has yet to conclude its work.

(xvii) The learned trial judge erred in law and/or in fact in holding that Frank Dunlop was not available as a witness in the prosecution of the appellant until the proceedings of the Tribunal and/or the prosecution of Frank Dunlop were concluded.

(xviii) The learned trial judge erred in law and/or in fact in holding that the DPP had discharged the onus of excusing the inordinate delay in the prosecution of the appellant.

(xix) The learned trial judge erred in law and/or in fact in failing to hold that the death of material witnesses was such as to severely prejudice the appellant’s ability to properly defend the charges against him.

(xx) The learned trial judge erred in law and/or in fact in holding that the unavailability of material documents was not such as to severely prejudice the appellant’s ability to properly defend the charges against him.

(xxi) The learned trial judge erred in law and/or in fact in holding that the diminished recollection of witnesses including the appellant attributable to the efflux of time was not such as to severely prejudice the appellant’s ability to properly defend the charges against him.

(xxii) The learned trial judge erred in law and/or in fact in holding that the long period that has elapsed from the date of commission of the alleged offences did not give rise to presumptive prejudice to the appellant.

(xxiii) The learned trial judge erred in law and/or in fact in holding that the delay in the prosecution of the offences alleged against the appellant has not caused excessive stress and anxiety to him.

(xxiv) The learned trial judge erred in law and/or in fact in holding that the balance of justice lay in favour of the prosecution of the appellant.

Submissions
18. Oral and written submissions were made, on behalf of the appellant and of the DPP, to the Court. In oral submissions counsel for the appellant indicated that the core issue on the appeal was the delay by the DPP in advancing the prosecution, under the Constitution of Ireland and under the European Convention on Human Rights. However, before addressing those matters, counsel advanced a submission on a matter of disclosure.
19. I shall address the three core issues in the following order:-

(a) Disclosure;
(b) The right to an expeditious trial; and

(c) The European Convention on Human Rights.

(a) Disclosure
20. The matter of disclosure was the first specific issue raised by counsel for the appellant on the appeal.
21. The issue arose because after the papers were filed in the judicial review proceedings in the High Court, including affidavits by members of An Garda Síochána, an application for discovery was made by the appellant seeking documents, including correspondence referred to but not exhibited in the affidavits of Detective Garda Martin Harrington and Detective Sergeant Michael V. Byrne.

22. The application for discovery was heard by Hedigan J., who gave judgment on the 12th July, 2011. Most of the discovery sought was refused, but the learned High Court judge ordered the DPP to make discovery of the correspondence referred to but not exhibited in paragraph 92 of the affidavit of Detective Garda Martin Harrington of the 2nd June, 2011, and paragraph 15 of the affidavit of Detective Sergeant Michael V. Byrne of the 1st June, 2011.

23. Privilege over this correspondence was claimed by the DPP, on the basis of legal professional privilege and/or public interest privilege. The appellant obtained leave to issue a motion seeking inspection of the documents, and this motion was considered and ruled upon by Hedigan J. before the commencement of the application for judicial review.

24. When the judicial review came before the High Court on the 21st July, 2011, counsel for the appellant said:-

“Just to let the Court know the running order. There is an issue on disclosure which we request the Court perhaps to deal with first and then our judicial review application itself to proceed, because part of our issues is in that context compliance with the order and that question of disclosure.”
The learned High Court judge acceded to this request.
25. During the hearing of the motion on privilege, counsel for the DPP suggested that the learned High Court judge view the documents so that he could decide whether they should be produced for inspection. The appellant objected to the procedure. However, the learned High Court judge viewed the documents.

26. The learned High Court judge then ruled on the application. He refused the application on the basis that the public interest in maintaining the confidentiality of the documents outweighed the interest of the appellant.

27. It was submitted on behalf of the appellant that the procedure adopted by the learned High Court judge was unfair to the appellant. It was submitted that the practice generally adopted, when a claim of privilege is challenged, is that the documents are examined by a judge other than the judge hearing the substantive proceedings. It was submitted that justice should not only be done but be seen to be done and that in this case the learned trial judge had examined the documents, which he held to be inadmissible. Also, during the case the learned trial judge had referred to some of the documents stating that they were “highly prejudicial” to the appellant.

28. On the issue of disclosure two aspects arose:-

(a) a question of law, arising on the submissions of counsel for the appellant on the decision in Edwards and Lewis v. The United Kingdom (2005) 40 EHRR 24, referred to as “The Edwards Case”; and
(b) a question of objective bias, raised by counsel for the appellant.

(a) The Edwards Case
29. It was submitted by counsel for the appellant that the procedure adopted by the High Court was unfair to the appellant, and reliance was placed on the Edwards case.
30. Counsel for the appellant stated, on the 21st July, 2011, at pp. 76 to 77 of the transcript, on the application for privilege on the documents discovered:-

“MR. O’BRAONÁIN: There is an issue as to whether or not the Court should inspect the documents at this stage, and the issue is this: Certainly in the case – Mr. Hayden very helpfully drew my attention to it – in the case of Edwards and Lewis in the United Kingdom, which is a decision of the European Court of Human Rights. It is reported at 2005 40 EHRR page 24. I am referring to Mr. Hollander’s text on documentary evidence. The Court held that the procedure that had been adopted in that case was inadequate to protect the Defendants. And, in my respectful submission, the procedure that is being suggested here suffers from the same inadequacy, and it is this: There the “Defendants complained that they had been entrapped into committing the offence by undercover police officers or informers and asked the trial judge to consider whether certain prosecution evidence should be excluded for that reason.
”The Defendants were denied access to the undisclosed evidence. The judge, who rejected the Defence submissions, had himself seen the undisclosed Prosecution evidence and ruled it irrelevant. The Court was concerned that the judge might have been influenced in his subsequent rulings on the voir dire to the effect that no entrapment had occurred by the evidence that he had seen but which the Defence were not permitted to see. The European Court of Human Rights held that the procedure deployed to determine the issues of disclosure of evidence and entrapment did not incorporate adequate safeguards to protect the interests of the accused.”

And the Court could see that in the ordinary course of things —

MR. JUSTICE HEDIGAN: But the rationale of that would, in effect, bar me from being the Trial Judge in the criminal case.

MR. O’BRAONÁIN: No, the rationale from that would bar you from being the Trial Judge in the judicial review proceedings.”

31. On the 22nd July, 2011, the High Court ruled on the application for privilege, which is to be found on the transcript at pp. 1 to 3:-
“MR. JUSTICE HEDIGAN: In these proceedings on the 12th of July, 2011, I made an Order of Discovery pursuant to Order 31 of the Rules of the Superior Courts in respect of the correspondence referred to in paragraph 92 of Garda Martin Harrington’s affidavit and paragraph 15 of Garda Michael Byrne’s affidavit.
Owing to the shortness of time, I stated in that decision that any claim to privilege over this documentation might be decided when the case came on for hearing.

Privilege is claimed over the correspondence on the basis of either legal professional privilege or public interest privilege.

I have inspected the documentation, as I believe that a judge hearing such an application as this ought to satisfy himself that there is nothing contained therein which privilege duly considered ought in the interests of justice be inspected by the [appellant], even on certain terms, as to preserving confidentiality.

On the basis of this inspection, it is clear the correspondence referred to by Garda Harrington involves letters between the DPP and investigating Gardaí as to the ongoing investigation and details of a confidential nature of interviews with Frank Dunlop. I can find nothing in these letters which advances or diminishes the case of either side. They are exactly as described in paragraph 92. There is an important public interest in the confidentiality of correspondence of this nature. A frank assessment of the strength of a case and of the credibility of the proposed witnesses is contained therein inevitably. That is so in this case. This public interest might well be outweighed by the [appellant’s] right to a fair trial of the issue before the Court. However, I could find nothing in my inspection of this correspondence that could outweigh the public interest in their confidentiality. I refuse inspection of this category of documentation.

As to the documentation concerning the request to the Isle of Man authorities, it is difficult to see its relevance on my reading of it. It is very tangential to the charges faced by the [appellant] and to the case being made in this application. Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the [appellant]. Their production, in my opinion, could only damage the [appellant’s] case herein. There is clearly a public interest in the confidentiality of communication between the prosecution authorities of Ireland and other countries. It must be an important aspect of the international fight against crime of all nature, including corruption. As there is no interest of the [appellant] that I can find to balance against the public interest, I will refuse inspection of this category also.

Needless to say, as I have ruled this documentation to be privileged and therefore not to be produced, I will not take any of its content into account in my consideration of this application.

That is the decision.”

32. The facts in the Edwards case included the following. Mr. Edwards was arrested following a surveillance and undercover operation. He was in a van with an undercover police officer and a briefcase containing heroin. He was convicted of possessing a Class A drug with intent to supply and sentenced to nine years’ imprisonment. He unsuccessfully appealed this decision in the United Kingdom.
Mr. Lewis was arrested in a separate incident by uniformed police officers in a pub car park after he had shown two undercover police officers some counterfeit bank notes. More counterfeit notes were found in his house. He pleaded guilty to three charges of possession of counterfeit notes with the intention of delivering them to another. He was sentenced to four and a half years’ imprisonment.

In both cases an application by the prosecution to withhold material evidence had been granted on the ground that it would not assist the defence and that there were genuine public interest reasons for not disclosing it. The judge also refused a request to exclude the evidence of the undercover officers.

In its Chamber judgment of the 22nd July, 2003, the European Court of Human Rights, referred to as “the ECtHR”, held unanimously that there had been a violation of Article 6.1 and that the finding of a violation constituted in itself just satisfaction for any non-pecuniary damages sustained. In finding this violation, the Court stated that this did not entail that the applicants were wrongly convicted.

33. Thus in the Edwards case the ECtHR held that the procedure adopted in that case was inadequate to protect the defendants. The facts of that case included that it was a criminal trial and that the defendants had claimed that they had been entrapped into committing the offences by undercover police officers. An issue arose as to whether certain documents should be disclosed. The trial judge saw the documents and denied the defendants access to the documents on the grounds that they were irrelevant, would not assist the defence, and that there were genuine public interest reasons for not disclosing the material.

34. As was pointed out in Hollander, Documentary Evidence [10th Ed., Sweet & Maxwell, Thompson Reuters, 2009] para 18-11, p. 395:-

“The ECtHR was concerned that the judge might have been influenced in his subsequent rulings on the voir dire to the effect that no entrapment had occurred by the evidence that he had seen but which the defence were not permitted to see. The ECtHR held that the procedure employed to determine the issues of disclosure of evidence and entrapment did not incorporate adequate safeguards to protect the interests of the accused.”

It is also an interesting factor, as pointed out by Hollander, at p. 395, that:-
“Whilst granting a declaration of violation of Art. 6 rights, the ECtHR expressly found that the violation of Art. 6 rights did not entail that the defendants were wrongly convicted.”
35. The procedure of inspection of documents by a court of trial is a very useful one and is often very much in the interest of the party challenging the privilege claimed. The Edwards case relied on by the appellants, refers to a criminal trial. The case before this Court is a civil process, arising on an application for judicial review. The Court was referred to no authority, either in a legal text or in a case of the ECtHR, which has applied the Edwards case outside the criminal law. It would be pure speculation to consider whether the Edwards case would apply to a civil case, such as is before the Court. The High Court did not apply the Edwards case and, in all the circumstances, I would not intervene in the determination of the learned High Court judge on this issue.
(b) Objective bias
36. The second aspect of the submission on behalf of the appellant in relation to the issue of disclosure was a claim of objective bias. Counsel for the appellant submitted, in essence, that the learned trial judge should not have proceeded to hear the application for judicial review on the grounds of objective bias, that he should have recused himself.

37. Counsel argued that the application made by counsel in relation to the Edwards case covered this aspect of the law also, covered an application in relation to objective bias, and that the learned trial judge ought to have recused himself.

38. There are a number of factors to be considered.

39. The learned High Court judge’s ruling, in relation to the request for the documents relating to the Isle of Man authorities, stated that it was “very tangential” to the charges faced by the appellant. Obviously documents that are very tangential are of at least questionable relevance.

40. The learned trial judge continued and stated:-

“Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the applicant. Their production, in my opinion, could only damage the applicant’s case herein.”
This passage was drawn to the attention of this Court by counsel for the appellant. However, this was an ex tempore ruling of the learned High Court judge and must be considered as such and while he states that the documents seem “highly prejudicial” to the appellant, he stated also that they “could only damage the [appellant’s] case herein”. Such reference appears to be to the appellant’s application for judicial review, and to it being damaged.
41. The learned trial judge then stated:-

“I will not take any of its content into account in my consideration of this application.”
In those circumstances I am satisfied that it is entirely appropriate to rely on the High Court’s ruling that the content would not be taken into consideration on the hearing of the application
42. As the application before the High Court on the issue of disclosure drew to a close, there were exchanges on the issue of costs, and the High Court ordered “no order as to costs” in these circumstances on that application. Counsel for the State indicated that he was obliged.

43. The High Court judge said at page 4 of the transcript for the 22nd July, 2011:-

“Very good. Then we will continue.”
Counsel for the appellant then stated:
“Judge, I’m dealing with the substantive application, and I mean, the Court has between the Discovery and, obviously, the associated case and the application relating to Discovery a fair idea and background as to what is at issue. And subject to the Court, I will go through the affidavits in general form, but unless the Court wishes and My Friend …”
And so the application by way of Judicial Review for an injunction of the criminal trial commenced, and there was no request to the learned trial judge to recuse himself on the grounds of objective bias.
Law on objective bias

No law as to objective bias was opened to the High Court. There was no reference to cases such as Dublin Wellwoman Centre Ltd v. Ireland [1995] 1 I.L.R.M. 408; Bula Ltd. v. Tara Mines Ltd (No. 6.) 4 I.R. 412, and Kenny v. Trinity College Dublin [2008] 2 l.R. 40. Neither the general principles nor the case-law were opened to the High Court.

Circumstances
45. The circumstances of this case include the following:-
(i) the issue of objective bias did not, and could not, arise until after the learned trial judge had given his ruling on the issue of the Edwards case;
(ii) the law on objective bias was not opened to the High Court;

(iii) there was no application to the learned trial judge to recuse himself on the basis of objective bias;

(iv) there was no decision on the issue of objective bias in the High Court;

(v) an issue not raised or determined in a trial court may not be an issue in a subsequent appellate court.

Thus the issue of objective bias may not be raised in this Court.
46. Even if the issue of objective bias had been raised and determined in the High Court, which it was not, I am satisfied that, applying the test as set down in our case-law, there was no objective bias in this case.

47. Consequently, I am satisfied that the appellant has not established a basis upon which his appeal could succeed on the first issue, i.e. the issue of disclosure, and I would dismiss this aspect of the appeal.
Right to an expeditious trial
48. I shall now consider the second issue on this appeal. Under this rubric the appellant has raised: (i) the right to an expeditious trial; (ii) prosecutorial delay; (iii) stress and anxiety.

49. Counsel for the appellant raised the issue of delay in prosecuting the appellant and referred to several articles of the Constitution. The Constitution does not expressly state that there is a right to an expeditious trial, but counsel referred the Court to Article 38.1 of the Constitution which provides:-

“No person shall be tried on any criminal charge save in due course of law”.
Reference was made also to Article 40.3.1° of the Constitution which states:-
“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.
It was submitted that the appellant has a personal right to an expeditious trial.
50. A personal right to a trial with reasonable expedition has been recognised by this Court. In State (O’Connell) v. Fawsitt [1986] I.R. 362, Finlay C.J. at p. 378, with whom Walsh J.,Henchy J., Griffin J., and McCarthy J. agreed, stated that:

“…a person charged with a criminal offence is entitled, as part of his right to be tried in due course of law, to a trial with reasonable expedition”.

At p. 379 he stated further:-

“I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of prohibition.
[…]

A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before a jury.”

51. This right was considered recently in P.M. v. Malone [2002] 2 IR 560 where Keane C.J. held, at pp. 572 to 573:-
“It must be acknowledged that a reading of some of the Irish authorities in this area might suggest that the right to a reasonably expeditious trial is recognised and protected by the law solely in order to ensure the fairness of the trial process itself. As it is sometimes put, it is not the delay, but the effects of the delay, which are crucial. Witnesses may die or disappear or, where they are available, their memories of events in the past may be clouded and unreliable. The defendant may experience difficulty in establishing an alibi because of vagueness and imprecision as to when events are said to have occurred.
That such consequences may flow from a failure, however caused, to bring the accused promptly to trial is obvious. But it does not follow that impairment of his ability to defend himself is a necessary precondition to the successful invocation by him of the discrete constitutional right to a speedy trial. Where there has been significant and culpable delay to which he has not contributed in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or presumptive prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his ability to defend himself and, hence, fatally compromise the fairness of the trial. That, however, may not be the only consequence for the accused of significant and culpable delay to which he has not contributed.

The first major consequence may be the loss of his liberty while the trial is pending. That does not arise in this case and, where it does arise, is capable of remedy through the machinery of bail and habeas corpus. The second major consequence is the anxiety and concern of the accused resulting from a significant delay in his being brought to trial.

There are thus three interests of defendants which the right to a speedy trial is intended to protect, the third being the possibility that the defence will be impaired. These were identified by Powell J. in his opinion in the United States Supreme Court decision of Barker v. Wingo (1972) 407 U.S. 514 in a passage which was approved of in this court in Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236, having previously been endorsed by the Judicial Committee of the Privy Council in Bell v. D.P.P. [1985] AC 937 and by Murphy J. in The State (O’Connell) v. Fawsitt [1986] I.R. 362.”

52. The three interests protected were set out in Barker v. Wingo (1972) 407 U.S. 514 at p. 532 as:-
(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and

(iii) to limit the possibility that the defense will be impaired.

53. Thus, while the right to an expeditious trial is not expressly stated in the Constitution, it has been recognised as a personal right of an accused. The question then arises as to whether the appellant’s right has been impaired. Therefore, the circumstances of a case require to be analysed to enable a determination as to whether the personal right of an accused has been breached.
Pre-trial incarceration
54. As the appellant has been on bail there is no pre-trial incarceration issue in this case. Thus, this aspect of an infringement of the right does not arise.
Stress and anxiety
55. The appellant did raise the issue of stress and anxiety. However, no evidence was before the Court to establish this ground. As has been stated previously, it is necessary to provide an evidential basis to establish this ground so as to prohibit the trial.

56. There is well established jurisprudence that such a claim may not succeed where an appellant is suffering from normal stress and anxiety from a pending prosecution. Evidence is required to ground any exercise of discretion by the Court in favour of an applicant: P.M. v. Malone [2002] 2 IR 560. In this case the appellant has laid no such foundation, and hence may not succeed on this submission.

57. Further, even if evidence was before the Court as to specific stress and anxiety, the Court is then required to engage in a balancing process between an accused’s right to be protected from such stress and anxiety and the public’s interest in the prosecution and conviction of those guilty of criminal offences.

58. Thus, this aspect of an infringement of the right does not arise.
Delay – impairment of trial?
59. Counsel for the appellant submitted that there had been delay in the prosecution of the appellant such that the prosecution should be prohibited.
Prosecutorial Delay
60. There has been delay in bringing these prosecutions. However, that is not the test, as this is a criminal trial, the issue is that of prosecutorial delay. Thus, it is necessary to analyse the prosecutorial delay and all the circumstances of the case.

61. The chronology of the investigation is set out in the affidavits of Detective Garda Harrington sworn on the 2nd June, 2011, and the 19th July, 2011, and the affidavit of Detective Sergeant Michael V. Byrne sworn on the 1st June, 2011. It was an extensive investigation. Many people had to be interviewed regarding the serious allegations which had been made.

62. While there was some evidence of difficulty in contacting the appellant, who seeks to maintain a residence outside the State, and the learned High Court judge gave some weight to that factor, the core reason for the delay in the prosecution of the appellant appears to have been the decision of the DPP in relation to Frank Dunlop. It is apparent that the DPP decided not to prosecute the appellant until a key witness in any trial of the appellant, Frank Dunlop, had been prosecuted and decision of conviction or acquittal obtained.

63. I am satisfied that it was reasonable for the DPP to await the conclusion of the trial of Frank Dunlop on corruption charges before prosecuting the appellant. It was reasonable for the DPP to await the conclusion of the trial of Frank Dunlop before calling him as a witness in a prosecution against the appellant. For, amongst other factors, if Frank Dunlop had been called as a prosecution witness, in circumstances where he had not already been convicted and sentenced, there could be a perception that he was simply giving evidence to secure some benefit for himself and his status as a witness could have been undermined.

64. I reach the same conclusions as in Cosgrave v. Director of Public Prosecutions [2012] IESC 24, where I stated in paragraph 59:-

“There has been delay in the prosecution of the current charges on corruption. However, the reason for the delay, the fact that the DPP waited until Frank Dunlop was prosecuted and convicted before he brought these charges, grounded on the evidence of Frank Dunlop, is reasonable. Indeed, if this prosecution had been brought prior to the prosecution of Frank Dunlop it would have left the prosecution open to challenge as to the status of Frank Dunlop as a witness. In fact, in this appeal the issue of delay is subsumed in the issue of abuse of process, upon which I have reached a decision as stated previously.
However, it is also a factor, which it is not necessary to weigh in the balance in this case, that it is not the appellant’s interests only which have to be considered. It is necessary to balance the appellant’s right to reasonable expedition in the prosecution of the charges with the community’s right to have the criminal offences prosecuted. In cases such as this, where there are charges of corruption of public officials, there is a very significant public interest in permitting such allegations to proceed to trial.”

I adapt and apply the same reasoning in this case.
65. I am satisfied that while there was delay, the reasons given by the DPP for the delay, including the unavailability of the key witness, Frank Dunlop, to give evidence, are reasonable.

66. Consequently, I do not find that there is blameworthy prosecutorial delay in this case. Therefore, there is no need to take any further step to analyse and balance conflicting interests on this aspect of the case as blameworthy prosecutorial delay is not of itself sufficient to prohibit a trial. An applicant would have to establish also that one of his interests protected by his right to an expeditious trial has been interfered with: P.T. v. Director of Public Prosecutions [2007] 1 I.R. 701; D. v. Director of Public Prosecutions [1994] 2 I.R. 465; P.M. v. Malone [2002] 2 IR 560; P.M. v. Director of Public Prosecutions [2006] IESC 22, [2006] 3 IR 172.

67. Even if I were satisfied that there was blameworthy prosecutorial delay by the DPP, a further analysis would be required to determine if there had been consequential prejudice to the appellant. While it is not necessary to take this further step, in the circumstances, I do address the matter.
Prejudice
68. Counsel on behalf of the appellant submitted that as a consequence of the delay in the prosecution the trial of the appellant would be prejudiced.

69. Counsel on behalf of the appellant has submitted that his trial would be prejudiced by the deaths of a number of potential witnesses, being (i) Councillor Sean Gilbride on the 1st January, 2011, who was also charged with the appellant; (ii) Councillor Frank Smyth on the 24th May, 2003, (iii) Philip Monahan on the 3rd August, 2003; (iv) Dr. Brian Meehan on the 13th June, 2004 and (v) Liam Lawlor on the 22nd October, 2005. Other potential witnesses had died prior to Frank Dunlop’s evidence to the Tribunal and the beginning of the criminal investigation arising as a result; these were Councillor Tom Hand who died in 1996; Fintan Gunne on the 9th October, 1997; Councillor Jack Larkin in May 1998 and Councillor Cyril Gallagher in March, 2000.

70. In written submissions the appellant referred to nine potential witnesses who have died and who might have corroborated his version of events surrounding the charges against him. However, during the Supreme Court hearing, questions from the Court to counsel for the appellant highlighted that four of these witnesses had died before the allegations of Mr. Dunlop were aired in the Tribunal and the Garda investigation into offences of corruption began. Also, O’Donnell J. pointed out the inconsistency between the appellant’s written submissions and his affidavit regarding the death of Mr. Fintan Gunne, who died on the 9th October, 1997, as opposed to 2007, which was the date referred to in the written submissions. Thus, it was open to the appellant to say that five witnesses have died since the Garda investigation began.

71. However, having heard the submissions on this issue, I am not satisfied that the prejudice alleged is such as to prohibit a trial, as the deaths of witnesses referred to relates to evidence, the essence of which can be obtained from other sources. In fact, when this matter was addressed during the hearing it became clear that there was insufficient engagement with the facts so as to show that there was a real risk of an unfair trial. Indeed the argument fell apart and the prejudice was not established.

72. This case is unlike a situation where many years after an event, without prior notice, an accused is charged with an offence from many years ago. The matters raised in this trial have been known to the appellant throughout the intervening years as they have been raised in other fora. Therefore, it is not a case where issues may have lain dormant for many years and then unexpectedly been raised out of the blue.
European Convention on Human Rights
73. The appellant, in his Notice of Motion applying for judicial review, claimed the following relief:-

“Damages pursuant to section 3 of the European Convention on Human Rights Act 2003”.
This was repeated in the statement of grounds grounding the application for judicial review.
74. However, such damages were not sought in the High Court.

75. Counsel for the appellant informed this Court that he had not made and did not make a claim for damages. He stated that no order for damages was sought in the High Court nor was it advanced in this Court.

76. Therefore, the issue of damages pursuant to s. 3 of the European Convention on Human Rights Act, 2003, was not, and could not be, an issue before this Court. Clearly, a decision was taken by and on behalf of the appellant not to pursue this remedy. In other words, the claim for damages was abandoned. Therefore no such issue falls to be determined in this Court

In written submissions on behalf of the appellant reference was made to Article 6(1) of the European Convention on Human Rights, which provides, inter alia,:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
78. Reference was made also to s. 3 of the European Convention on Human Rights Act, 2003, which provides:-
“(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.
(2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate.”

79. However, as the appellant did not advance his claim for damages, it was not an issue determined in the High Court and was not an issue advanced in this Court.
80. The remedy sought in this Court by the appellant was to prohibit his criminal trial. That is a remedy open to an accused under Irish jurisprudence. I have had no case open to me where a decision of the ECHR determined that as a consequence of delay a trial shall be prohibited. Consequently, as the remedy sought by the appellant was to prohibit his trial, an option under Irish law, but not apparently under the ECHR, consequently this claim has been determined on Irish law.

81. The fundamental facts in this case are that the appellant was charged with 16 charges on the 22nd October, 2010, the Book of Evidence was served on the 28th October, 2010, and the trial date was set for the 5th October, 2011. However, that trial date had to be vacated as the appellant brought these proceedings by way of judicial review, which he initiated on the 7th March, 2011. His application was dismissed by the High Court on the 28th July, 2011, and he exercised his right of appeal to this Court.

82. On his appeal to this Court he sought to prohibit his trial as set out earlier in the judgment.

83. For the reasons given, I would dismiss the appeal and affirm the order of the High Court. Thus, the trial of the appellant may proceed.

JUDGMENT of Mr. Justice Fennelly delivered the 7th day of June 2012.

1. I agree that this appeal should be dismissed. I agree with the judgment which has been delivered by the Chief Justice on the issue of delay. The Chief Justice has given an outline of the facts and history of the case which I gratefully adopt. I write separately only on the issue of objective bias.

2. Counsel for the appellant submitted at the hearing that the learned High Court judge should not have heard the case. The reason was that the judge had seen evidence, not disclosed to the parties, which he described as being “highly prejudicial to the applicant.” Consequently, it is argued, he should have recused himself.

3. The procedural background is as follows. The respondent claimed to be entitled to refuse to produce certain documents whose existence was disclosed in the affidavit of discovery sworn on his behalf, based on legal professional privilege and/or public interest privilege. The appellant issued a motion seeking inspection of the documents over which privilege was claimed, to be heard at the commencement of the hearing of the application for judicial review.

4. Counsel for the appellant objected to the proposal made by counsel for the respondent that the learned judge should himself view the documents to enable him to decide whether they should be produced for inspection. The objection was that this would be an unfair procedure because, if the judge were to rule that the appellant was not entitled to see the documents, the judge would himself have seen them and that there was a risk that he could be influenced by his inspection of the documents. The objection was overruled and the learned judge proceeded to view the documents. As the Chief Justice has explained in her judgment the objection was based on the decision of the European Court of Human Rights in Edwards and Lewis v. The United Kingdom (2005) 40 EHRR 24.

5. In the course of making his objection, counsel for the appellant submitted that the rationale of that decision was, not that it would bar the judge from subsequently being the trial judge in ensuing criminal proceedings, but, as counsel specifically objected, it would bar him from being the judge in these very judicial review proceedings. He submitted that, although a judge might inspect documents in private for the purpose of determining a disputed issue of privilege, a different judge should then hear the substantive proceedings.

6. The learned judge decided that he would inspect the documents. He did so and then made the ruling which is the gravamen of the allegation of objective bias. He ruled that the public interest in not disclosing the documents outweighed any interest of the appellant. Indeed he could find nothing in the latter respect which could outweigh that public interest. He then proceeded to make the remarks to which objection has been taken:

“As to the documentation concerning the request to the Isle of Man authorities, it is difficult to see its relevance on my reading of it. It is a very tangential to the charges faced by the Applicant and to the case being made in this application. Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the Applicant. Their production, in my opinion, could only damage the Applicant’s case herein. There is clearly a public interest in the confidentiality of communication between the prosecution authorities of Ireland and other countries….”

The learned judge added: “as I have ruled this documentation to be privileged and therefore not to be produced, I will not take any of its content into account in my consideration of this application.”

7. Counsel for the appellant then proceeded, without any break in the hearing, to present the application for judicial review. No objection was taken to the above remarks, although it is now contended that they exhibit objective bias on the part of the trial judge. Specifically, it is said that the judge acknowledged having seen documentation which was “highly prejudicial” to the appellant and that it was such that it, in his opinion, “could only damage the Applicant’s case herein.”

8. In response to the appellant’s argument that the learned judge was obliged to recuse himself so as to permit a different judge to hear the application for judicial review, the respondent lays particular emphasis on the absence of any objection to that effect. Counsel relied on the decisions of this Court in State (Byrne) v. Frawley [1978] IR 326; Corrigan v. Irish Land Commission [1977] IR 317). The effect of those decisions is that, by virtue of estoppel or waiver, a person may be precluded from relying on a ground of objection which was not made at the appropriate time.

9. Before considering any authority, I propose to examine the remarks of the trial judge to which objection was taken. It must be remembered that these remarks were made ex tempore and cannot be expected to have the coherence and logic of a written text. The first point to note is that the learned judge found it difficult to see any relevance in the documentation. It was, he said, “tangential” both to the criminal charges the appellant was facing and to the case he was making in the very judicial review application itself. Taken on its own, therefore, the judge’s remark that the documents were “highly prejudicial” cannot, in logic, give rise to any prejudice related to the issues in the present case. It is only the ensuing remark that the documentation, if produced, “could only damage the Applicant’s case herein,” which is problematic. It is inconsistent with what went before and a great deal of meaning has to be placed on the single word “herein.”

10. I am prepared to accept, however, that, read literally, this part of the judge’s remarks could be read as indicating that what he had seen documentation which would be prejudicial to the appellant. Whether the words meet the standard of the reasonable objective bystander seems, however, to be doubtful. The test has been restated many times in recent years and is usefully encapsulated in the judgment of Denham J (as she then was) in Bula Ltd. v Tara Mines (No. 6) [2000] I.R. 412 at page 441:

“However, there is no need to go further than this jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the Applicants would not have a fair hearing from an impartial judge on the issue. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test – it invokes the apprehension of the reasonable person”.

11. Keane C. J. expressed the matter in very similar terms Orange Communications Ltd. v Director of Telecoms (No. 2) [2000] 4 IR 159 at 186 as follows:

“While the test for determining whether a decision must be set aside on the ground of objective bias has been stated in different ways from time to time by the courts in the United Kingdom, there is, in the light of the two [Irish] authorities to which I have referred, no room for doubt as to the applicable test in this country: it is that the decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found that, although there was no actual bias, there is an appearance of bias.”

12. It is not unfair to test the matter in this case by reference to the reaction of counsel for the appellant, who might be expected to be astute to raise an objection of bias, having regard to the submissions they had made to the learned judge before he gave his ruling. The fact that no objection was made must lead to the inference that it did not appear to counsel listening to the judge’s ruling that he was exhibiting signs of objective bias. The situation is analogous to that which not infrequently presents itself to the Court of Criminal Appeal, where counsel advances an objection which was not made at trial. The court is sceptical as to the merits of any objection of which it did not occur to counsel to make at the time and, in particular, discourages the practice of “trawling” through the transcripts in search of possible grounds of complaint.

13. Corrigan v. Irish Land Commission concerned an objection made by way of appeal on a point of law to the Appeal Tribunal of the Land Commission and thence to this Court to the fact that the two land commissioners who had certified that the land proposed to be acquired was necessary for the relief of congestion also sat as the Lay Commissioners to determine the landowner’s objection. No objection was made to the lay commissioners themselves when they sat to hear the objection. Henchy J considered that two experienced counsel who appeared for the objector had consciously and knowingly accepted the composition of the tribunal. Writing for the majority of this Court (Kenny J dissenting) said, at page 324, that he considered “it to be settled law that………………if [a party] expressly or by implication acquiesces at the time in that member taking part in the hearing and in the decision, he will be held to have waived the objection on the ground of disqualification which he might otherwise have had.” In the particular case, Henchy J held that any objection to the participation of a particular commissioner had been “knowingly waived by counsel for the appellant when they elected to accept the tribunal as they found it composed o the day of the hearing.”

14. Griffin J, who agreed with Henchy J, cited authority to the effect that a waiver must be intentional and emphasised the need for knowledge of what was being waived. For my part, I would be slow to hold that counsel had knowingly waived a ground of objection available to his or her client in the course of a hearing and without the opportunity for consultation. In Corrigan Henchy J went to great lengths to infer from the status of counsel and their advance knowledge of the composition and procedures of the Land Commission that they had knowingly and deliberately waived any objection by their acquiescence.

15. The present case is, I think different. There can be no suggestion, nor has one been made, that counsel made the sort of calculated decision which arose in Corrigan. On the other hand, I do not think the words used by the learned High Court judge, when considered in context, are capable of being interpreted as exhibiting bias on his part. He said, in effect, that he had seen material which was highly prejudicial to the appellant, but it was tangential to any issue in the judicial review proceedings and he had difficulty in seeing its relevance. The fact that counsel did not object is itself strongly indicative of the fact that no “reasonable person in the circumstances would have a reasonable apprehension that the Applicants would not have a fair hearing from an impartial judge on the issue.”

16. It would be possible to rule against the objection simply on the ground that there is no ground of appeal related to it. The first two grounds of appeal repeat the objection made in the High Court to the judge inspecting documents, despite the objection of the appellant, over which the respondent had asserted privilege. There is no ground expressly covering the distinct complaint that the learned judge had, in the course of his ruling on the first issue, shown bias by saying that he had seen material which was “highly prejudicial” to the appellant. Like Clarke J, I would be slow to rule against the appellant on that ground alone. However, it seems to me that the absence of any such ground of appeal provides further confirmation of the fact that it did not appear to the parties at the time that there was any ground for asserting objective bias.

17. I have had the opportunity of reading in draft the judgment which Clarke J is about to deliver. I full agree with his treatment of the procedural issue of examination of documents by a trial judge of documents over which privilege is claimed. I also agree with his treatment of the issue of delay considered in the context of the European Convention of Human Rights. I would prefer to reserve for another occasion consideration of the correct burden to be imposed on an application for prohibition of a criminal trial on the ground of delay generally. For the present case, the test of a real risk of an unfair trial suffices.

Judgment of Mr. Justice Clarke delivered the 7th June, 2012.

 

1. Introduction
1.1 I agree with the Chief Justice that this appeal should be dismissed and the order of the High Court affirmed. However, my reasons for coming to that conclusion differ in some respects from those of the Chief Justice and those reasons might be thought, at least to some extent, to suggest a possible evolution of the jurisprudence in this area.

1.2 Therefore I set out in this judgment some observations on the legal principles behind some of the issues which arise in this case. However, given that, on the facts of this case, the evolution in the jurisprudence which those observations might suggest may not be decisive, my suggestions should be regarded as tentative. The one point of substance on the facts of this case on which I respectfully disagree with the Chief Justice arises equally if the existing jurisprudence is applied unchanged.

1.3 In addition it is, in my view, important to keep clear the distinction between the different rights asserted as being applicable in this case and also to keep clear the implications and consequences which arise from possible breaches of, on the one hand, the Constitution and, on the other hand, rights guaranteed under the European Convention on Human Rights (“ECHR”). I also include, therefore, some observation on the relevance of those distinctions to this case.

1.4 Those distinctions are of particular importance when a challenge is brought on a wide range of grounds invoking different rights or different aspects of rights deriving from both the Constitution and the ECHR. I do not think it would be unfair to characterise the challenge initiated on behalf of the applicant/appellant (“Mr. Kennedy”) as involving something of a scattergun approach. While it is, of course, the right of any litigant to place before the Court argument based on any proposition where the raising of the issue concerned does not amount to an abuse of process, it nonetheless remains the case that a court, when faced with a scattergun approach, has to exercise significant care in identifying with some precision the issues that fall for determination and the precise rights invoked which are relevant to each specific issue. Against that background I now turn to the facts and issues of the case.

 

2. Facts and issues
2.1 The background facts are fully set out in the judgment of the Chief Justice and it is unnecessary to repeat them here. In addition the three issues raised by counsel for Mr. Kennedy in this appeal are also identified in that judgment.

2.2 However, at this stage I should also record that there was, it seemed to me, a tendency on the part of counsel for Mr. Kennedy to conflate the issues which arose under the ECHR with those which arise under the delay jurisprudence of the Irish courts. Therefore before going on to consider those issues it does seem to me to be important to set out in clear terms the respective applications of both the Constitution and the ECHR to the issues which arise in this case. However, before turning to those questions I propose to add some observations on the disclosure issue noted in the judgment of the Chief Justice.

 

3. The Disclosure Issue
3.1 As appears from the facts set out in the judgment of the Chief Justice the central underlying issue under this heading is as to whether it was appropriate for the trial judge to look at the documents in respect of which public interest or executive privilege was asserted while at the same time retaining seisin over the substantive judicial review proceedings. In addition to that underlying issue there is a second question as to what precise issues remain properly before this Court by virtue of the events which occurred at the trial in the High Court and the issues raised on the notice of appeal. However, before addressing that latter question it seems to me to be important to analyse the situation which arises when public interest privilege is asserted.

3.2 The overall legal principles are now well settled. As is clear from Ambiorix Ltd & Ors v. Minister for Environment (No. 1) [1992] I.R. 277 and Murphy v. Dublin Corporation of Dublin [1972] I.R. 215 the Court must conduct a balancing exercise between the asserted public interest in the non-disclosure of the materials concerned on the basis of confidentiality attaching to the exercise of the executive power of the State, on the one hand, as against the public interest in the relevant materials being adduced in evidence before the Court at trial so as to assist in the administration of justice and so as to contribute to the fairness of the trial process, on the other. It is also well established that, in an appropriate case, in seeking to exercise that balance, a judge may review the documents or materials concerned so as to form an opinion as to the weight to be attached to the confidentiality asserted on behalf of the executive and to balance that weight against the importance of the relevant materials to the issues which are likely to arise at the trial.

3.3 It is against that background that, as a matter of Irish constitutional jurisprudence, a determination has to be made as to which judge should review the documents in question for the purposes of engaging in such a balancing exercise. The argument in favour of the trial judge reviewing the documents stems from the fact that the trial judge will have a much better understanding of the issues which are likely to arise in the case and thus may be able to assess, with much greater precision, the importance of the documents to the case. As that is an important part of the balancing exercise which must be engaged in, it clearly is a factor to which appropriate weight should be attached in deciding which judge should examine the documents in question. On the other hand the argument in favour of a judge different from the trial judge reviewing the documents or materials stems from the possibility that the trial judge will, in reviewing the materials, become aware of matters which have not been established in evidence and which will not, in the event that disclosure is not directed, be available to one side of the litigation.

3.4 It seems to me that the decision as to whether it is appropriate that the exercise of scrutinising documents in respect of which public interest privilege has been claimed is to be conducted by the trial judge or by another judge is one which must be conducted on a case by case basis. As pointed out it may well be to the advantage of the party in opposition to the State (obviously in the criminal context the accused) to have that exercise carried out by the trial judge rather than a judge who will, necessarily, have a more limited understanding of the potential importance of any documents to the case which the accused might wish to make. It must be remembered that, precisely because the party in opposition to the State does not get to see the documents and does not, save in the most general way, get to address the importance which the documents might have to his case, the judge is left to form an assessment of the importance of the relevant documents to that party’s case largely on the basis of the judge’s own understanding of the issues. In that context there can be little doubt but that an accused might be disadvantaged by having a judge who is not fully familiar with the issues carry out that assessment.

3.5 It seems to me that there is nothing, therefore, in principle wrong with the trial judge looking at documents for the purposes of determining whether public interest privilege should be upheld. It may be that there will be cases where, having reviewed those documents, the trial judge unfortunately realises that a potential and significant prejudice has occurred which would warrant the trial judge declining to hear the case further. It is for that reason that it is to be strongly recommended that issues of this type are decided in advance of the hearing date so that, in the event that the trial judge does have to recuse, another judge can take over the trial without any difficulty. However, for understandable reasons, such a course of action did not prove possible in this case.

3.6 So far as the analysis of Edwards and Lewis v. United Kingdom [2005] 40 EHRR 24 is concerned and its application (or rather non application) to the facts of this case is concerned, I agree fully with the judgment of the Chief Justice.

3.7 So far as the claim of objective bias is concerned I have come to the view that that issue does arise under the notice of appeal in this case even if not very clearly expressed. Ground of Appeal (ii), as cited in the judgment of the Chief Justice, does seem to me to amount, in substance, to a contention that, in the light of the comments made by the trial judge when he had reviewed the documents (and in particular his reference to same being highly prejudicial) objective bias arises. I would not be prepared to shut Mr. Kennedy out from making the objective bias argument because the ground of appeal concerned may be ambiguous.

3.8 However it seems to me that there is a difficulty with Mr. Kennedy raising that ground at this stage. Without the comment made by the trial judge concerning the documents being highly prejudicial to Mr. Kennedy’s case it is difficult to see how there would be any case in objective bias. Shorn of those comments all that would have occurred is that the trial judge would have looked at documents and found them to be only tangentially relevant. The trial judge would also have declared that he would not take the documents in question into account. If that was all that happened it is difficult to see how there would be any case for objective bias. For the reasons already set out it seems to me that there is nothing wrong in principle with the trial judge viewing documents for the purposes of assessing whether a claim to public interest privilege should be maintained. If, having reviewed such documents, the judge indicates that some are of only marginal relevance to the case and that he will not take them into account, it is hard to see how the notional objective and informed bystander could have any legitimate concerns. The only possible problem that emerges in this case stems, therefore, from the comment of the trial judge to the effect that the documents were highly prejudicial. It was only when that comment was made that, in my view, a stateable case for recusal could be have been raised on behalf of Mr. Kennedy. The problem is that no such case was made on the occasion in question. It would have been open to counsel to argue that, at that stage, and in the light of the fact that the trial judge considered the documents to be highly prejudicial, the trial judge should no longer continue to hear the case. No such submission was made and in those circumstances I agree with the judgment of the Chief Justice to the effect that no such case can now be made.

3.9 I appreciate that in coming to that conclusion I differ to some extent from the views expressed by Fennelly J. in his concurring judgment in this case (a copy of which I have had the opportunity to read in advance). Fennelly J., in that judgment, comes to the conclusion that, properly construed and taken in context, the words of the trial judge could not reasonably be taken by the notional impartial and informed observer to have a meaning sufficient to support the view that the trial judge’s ruling exhibited objective bias. I agree with that analysis of Fennelly J. In those circumstances, even if I had not been satisfied, contrary to the views expressed in the judgment of Fennelly J., that Mr. Kennedy was precluded from raising an argument based on objective bias at this stage, I would nonetheless have held, for the same reasons as are set out in the judgment of Fennelly J., that no objective bias arises. As indicated earlier I propose, before turning to the precise delay issues which arise in this case, to make some observations on the interaction of both the Constitution and the ECHR with the issues which arise in this case.

4. The Constitution and the ECHR
4.1 The ECHR provides an express entitlement to a trial within a reasonable time (Article 6(1)). It does, of course, need to be noted in that context that the relevant obligation in International Law to which Ireland subscribed by ratifying the Convention, is one which rests on the State as a whole so that the State may be found to be in breach of the obligations in question by virtue of actions or inaction on the part of the Executive, the Legislature, the Courts and any other relevant agencies of the state including all persons employed in the process. From the perspective of the European Court of Human Rights (“ECtHR”) it is not particularly relevant to identify or apportion blame between various State actors. Obviously significant contribution to delay by the complainant can be material. However from the perspective of the ECtHR it does not matter whether the delay was caused by prosecuting authorities or by the courts and if by the courts whether the cause or blame for that delay might rest on individual judges, on systemic failures, on the government for failing to resource the system or introduce appropriate legislative or quasi legislative measures to improve efficiency or any of the many other possible causes on which the delay in an individual case might be blamed. The judgments of the ECtHR need to be seen in that light. If, making all allowance for the complexity of the case and any other factors which could legitimately lengthen the time within which the case might expect to be concluded, and paying appropriate regard to any material contribution by the complainant to the lapse of time concerned, the case is nonetheless not finished in a timely fashion then a breach of the Convention will be established and the complainant will be entitled to an appropriate award of damages.

4.2 However it does not seem to me to follow that every case in which the ECtHR determines that there has been a breach of a right to a reasonably expeditious trial necessarily gives rise to a situation where the accused could not have a fair trial, whether for the purposes of the ECHR or under the Constitution (to the extent that there might be any difference in the relevant jurisprudence). Counsel for Mr. Kennedy seemed to suggest that the fact that ECtHR only had jurisdiction to award damages in the event that a breach was established was the only reason why the ECtHR confined itself, in many of the cases, to making a finding of a breach of the right to a reasonably expeditious trial coupled with an award of damages.

4.3 However it seems to me that the distinction between the right to a reasonably expeditious trial and the right to a fair trial, under the jurisprudence of the ECtHR, is much wider than conceded by counsel. The fact that, in either case, the ECtHR is confined to awarding damages, cannot be doubted. However it does not follow that every case in which the ECtHR finds a breach of the right to a reasonably expeditious trial also involves a finding by that court to the effect that the trial was unfair. It further does not follow that it would, necessarily, be a breach of the right to a fair trial under the ECHR to allow a trial to go ahead after a lapse of time which amounts to a breach of the right to a reasonably expeditious trial. The appropriate response to a finding of a breach of the right to a reasonably expeditious trial does not necessarily require that there can be no trial but rather can involve a range of measures including, if appropriate under the law of the relevant contracting State, the award of damages, amelioration of the sentence imposed on conviction in criminal proceedings, or any other measure which the ECtHR might consider to be a proper proportionate and appropriate response to the breach established. It does not, therefore, follow that the ECHR requires, for the avoidance of a breach of its provisions, that a trial be prohibited in every case where there has been a breach of the right to a reasonably expeditious trial.

4.4 As pointed out by the Chief Justice in her judgment, while there was a claim for damages under the provisions of the European Convention on Human Rights Act, 2003 originally made in these proceedings, that claim was not pursued in the High Court and must be now taken to have been abandoned. Therefore the question of whether there has being a breach of the right to a reasonably expeditious trial per se (as recognised by the ECHR) does not arise. Further even if there is such a breach it does not follow that the trial must be prohibited. The only relief sought by Mr. Kennedy is to prevent his trial going ahead. The question of whether there is a breach of his right to a trial with reasonable expedition is not, therefore, of itself, relevant to that question. In that context it seems to me that the trial judge was correct when he cited the judgment of Fennelly J. (speaking for this court) in TH v. D.P.P. [2006] 3 IR 520 where the following is stated:-

“It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights. The Court does not and did not, in that case, hold that the prosecution had to be stopped. It would be most surprising if a judgment of that Court holding that the prosecuting authorities were “partially or completely responsible” for certain periods of delay had the automatic consequence that a prosecution had to be halted … the decision of the Court leads to a monetary award. It has no consequence for the pending prosecution.”
4.5 It is, therefore, fundamentally mistaken to view the jurisprudence of the ECtHR on the right to a reasonably expeditious trial as implying that any case in which a failure to provide for such a trial is established necessarily gives rise to an entitlement on the part of the accused to avoid a trial on the merits. I would leave to a case in which a claim for damages for breach of a right to an expeditious trial was pursued, a decision as to whether Irish constitutional law or the ECHR, insofar as it is applicable in Irish domestic law, can give rise to such a claim. I would not rule out such a possibility. There are, however, difficulties which would need to be addressed not least the extent to which such a claim could be maintained where the breach of a right to a reasonably expeditious trial was wholly or substantially attributable to problems encountered in the courts. As pointed out, however, the claim for damages in this case was not pursued and it is not, therefore, appropriate to express any definitive views on that issue.

5. The Irish Delay Jurisprudence
5.1 Turning to the Irish constitutional jurisprudence on delay I am mindful of the fact that this court, and indeed the High Court, has had to deal with a very large number of cases in recent times in which accused persons have sought to prevent a trial on the merits by placing reliance on the lapse of time between the alleged criminal conduct and the trial. I am also mindful of the fact that, in particular in relation to offences involving sexual abuse of minors, the relevant jurisprudence may be said to have undergone a significant evolution. The existing jurisprudence is analysed in the judgment of the Chief Justice. However it seems to me that some analysis of the current state of the jurisprudence is warranted. Given that I agree with the overall conclusion of the Chief Justice it may be that it is unnecessary to express a concluded view on some of these questions. However I do feel that some tentative comment is appropriate.

5.2 First it is important to recall that there is a difference between the right to a fair trial (and the factors which may render a trial unfair) on the one hand and the right to a trial with reasonable expedition on the other hand. There is, of course, a connection. Lapse of time (to use a neutral term) can have an obvious effect on the ability of parties to present their case. But it does need to be noted that the factors which can affect the ability of a party to present its case are not necessarily time dependent. While it is much more likely that witnesses will be missing, documentary evidence be unavailable or forensic investigation and evidence gathering impaired or impossible, where there is a significant lapse of time between the relevant events and a trial, it nonetheless remains the case that any or all of such problems can occur over a short time scale as well. Where a trial comes on for hearing with expedition it may, nonetheless, be the case that witnesses have unfortunately died or become unavailable, that documentary evidence has been misplaced or destroyed or that forensic investigation that might have been useful may have become impossible by, for example, the destruction or alteration of buildings or equipment. While all of these things are much more likely to occur where there is a significant lapse of time it is important to have regard to the fact that such adverse occurrences are not necessarily time dependent.

5.3 Second it also needs to be noted that the fact that there has been some impairment (again to use a neutral term) in the ability, in criminal matters, of an accused to present his defence, does not of itself render a trial unfair. If it were otherwise then there would be very few fair trials for it will always be possible to point to some aspect of the case that an accused wishes or might wish to present which has been impaired even if there is no significant lapse of time. Some impairment in the conduct of litigation is almost inevitable. That impairment may, as a general rule, be expected to increase as time passes. However the fact that there is some impairment could not, in my view, render a trial unfair as such. There may, however, be a threshold where the degree of impairment is such that it can have a decisive effect on the fairness of the trial process.

5.4 I have used the neutral terms “lapse of time” and “impairment” so as to avoid any possible confusion with the terms “delay” and “prejudice” which have come to have a fairly precise meaning in the jurisprudence. That being said I would wish to make clear that I fully agree with the jurisprudence relating to prejudice which requires any allegation of specific prejudice to engage with the facts of the case so as to demonstrate that there is a real impairment, by virtue of the problem relied on, in the ability to present a defence rather than a theoretical possibility which might loosely be summed up under the phrase “you never know what might have turned up”. Likewise I fully agree with the jurisprudence that places reliance on the fact that any impairment in the ability of an accused to present a defence may be reduced, or even completely cured, by other appropriate measures such as directions from the trial judge. It seems to me that the degree of impairment must be assessed by reference to such considerations. Finally, I agree that there are many cases where the best place to identify impairment and to weigh it with any competing factors will often be before the trial judge who will have a much clearer view of the real issues likely to be material. There is, in my view, an excessive tendency to seek to prohibit trials in advance rather than allow the trial judge to decide on impairment or fairness issues.

5.5 In the light of those observations it seems to me that any case made by an accused in which an order is sought preventing a trial going ahead based on an allegation of delay or prejudice needs to take into account two separate types of question although there may, in many cases, be at least some connection between the two. First there is the question of whether the accused can have a fair trial at all. It seems to me that that question is not necessarily dependant on there being any significant lapse of time although, for the reasons already analysed, it is much more likely that the sort of factors which can give rise to a situation where a fair trial is not possible will be present after a significant lapse of time. If, however, the absence of evidence of a particular type is so extreme so as to make a fair trial impossible then that situation exists whether or not the reason for the absence of the evidence concerned is lapse of time, deliberate action by the prosecuting authorities or just bad luck. It seems to me, therefore, that there is an argument for the proposition that an assessment as to whether a fair trial is possible is not dependent either on lapse of time or on culpable prosecutorial delay but rather requires an assessment as to whether, in the light of the evidence that is no longer available and its materiality, a fair trial has become impossible. In passing I should note that this case is not concerned with a situation where material evidence is said to be unavailable, and thus the ability of the accused to defend impaired, by reason of culpable prosecutorial action or inaction separate from delay. In considering, on the facts of any individual case, whether a situation can be said to exist where a fair trial has become impossible the court might, of course, have to assess the extent to which any evidence no longer available might be truly material by reference to the sort of engagement with the facts noted in the jurisprudence and also by reference to other factors identified in the jurisprudence such as the extent to which the absence of the evidence or materials concerned can be partially or wholly cured by measures such as an appropriate direction by the judge to the jury.

5.6 However it seems to me that, in balancing the public interest in stateable criminal prosecutions being tried on the merits with the entitlement of the accused to due process, it is at least arguable that a trial should only be prohibited on the basis of what I might call “no fault impossibility of fair trial” if it is clear to the court which is invited to prohibit the trial that a fair trial is not possible. My reason for suggesting that high threshold is that, in a case where the problems which the accused faces do not derive from any culpable prosecutorial delay, the public interest requires that there be a trial unless the level of impairment of the accused’s ability to mount a defence is so great that the court is satisfied that a fair trial is not possible. It seems to me that it is only at that threshold that prohibition, in the absence of culpable prosecutorial delay, is a proportionate response to the difficulties of the accused.

5.7 Where the degree of impairment falls short of that standard then it seems to me that the court may have to engage in a proportionate balancing exercise of the public interest in prosecution and the rights of the accused. If that be so it seems to me that the first issue which must be addressed is to determine whether there has been culpable prosecutorial delay for in the absence of such blameworthy activity it seems to me that a trial cannot be prohibited unless it meets the high threshold earlier described. Where impairment falls below that threshold then a trial should not be prohibited in the absence of culpable prosecutorial delay. Where, however, such culpable action or inaction is established, it seems to me that the court must take into account all relevant factors in assessing where the balance of justice lies. The Court must fashion a proportionate response to each of the rights involved. The extent of the culpable prosecutorial delay and the effect of any such delay on the impairment of the ability of the accused to mount his defence seems to me to be an important factor. The extent to which culpable prosecutorial delay may have caused or contributed to the other factors identified in the jurisprudence (by reference to Barker v. Wingo [1972] 407 U.S. 514) must also be assessed. Clearly the extent, if any, to which the accused may himself have contributed to the delay needs also to be weighed in the balance. Where the ability of the accused to mount his defence has been impaired by lapse of time not caused by prosecutorial delay then that too should be taken into account but it seems to me that the weight to be attributable to any such impairment must be significantly less than the weight to be attributable to an impairment in the accused’s ability to mount his defence which can be attributable to prosecutorial delay. Finally, and for reasons which I hope will become apparent, of particular relevance to this case it seems to me that culpable prosecutorial delay itself must be weighted in the light of any explanation or excuse given.

5.8 There will be cases where the reason given for the time taken will, in the court’s view, render any lapse of time excusable and thus bring the case outside the scope of those where it can be said that there was culpable prosecutorial delay at all. There may, at the other end of the spectrum, be cases where there is no real explanation at all or none which the court regards as acceptable. However in between those extremes there may be cases (and for reasons which I hope to set out this is one), where it is appropriate to regard the explanation given as going someway towards providing an excuse but not an excuse which is sufficient to provide a complete explanation. In such cases it seems to me that the court should weigh in the balance the extent, if any, to which any prosecutorial delay may be excused. It may well be that such an approach, if ultimately finding favour, would, at least in many cases, not lead to any different result to that which would occur under the existing jurisprudence.

5.9 It seems to me, therefore, that it is arguable that the first question which a court should ask in a delay case is as to whether a fair trial is possible. In other words has the impairment of the accused’s ability to defend himself been so significant that it can no longer be said that the accused can have a fair trial. If the answer to that question is yes then the trial cannot go ahead. It seems to me, at the level of principle, that it is arguable that that question can arise even if there is no culpable or indeed any delay at all for if there cannot be a fair trial then it is hard to see how the court, in vindicating the constitutional right of the accused concerned, can allow the trial to go ahead even if it is no one’s fault. However in order for the threshold necessary to establish that the accused cannot have a fair trial to be met it seems to me that the court would have to be satisfied that the impairment caused by the absence of an ability to present evidence or materials to the court which might otherwise have been available must be so significant that there is, in truth, no real ability to present a defence at all rather than an inability to present as good a defence as might otherwise have been available. I would reiterate that such an assessment is one which is more easily reached by a trial judge rather than a court addressing a prohibition application. It is, however, the possibility that impairment can arise without either fault or delay that leads me to tentatively suggest that a high threshold must be met where it is sought to prohibit a trial without culpable prosecutorial delay.

5.10 Where, however, the degree of impairment is not such as renders a fair trial impossible but where there has been culpable prosecutorial delay such as has significantly impaired the ability of the accused to present his case or caused any of the other adverse consequences identified in Barker v. Wingo then the court must determine where the balance of justice lies. In carrying out that exercise a proportionate response is required. It may well be that such an exercise will be the same, or at least very similar, to that mandated by the existing jurisprudence.

5.11 It seems to me, therefore, that it may well be that the three questions which a court must ask itself in a case such as this are:- (a) is a fair trial possible; (b) if so has there been culpable prosecutorial delay; and (c) if so where does the balance of justice lie. In the light of those observations I next propose to consider the application of those principles to the facts of this case.

6. Is A Fair Trial Possible?
6.1 It is true that some of the persons who might have been able to give evidence which, on one view, might be favourable to Mr. Kennedy, are deceased. However it remains the case that there are other witnesses who can, if their account be helpful to Mr. Kennedy, be called to give evidence directed to at least many of the possible bases on which Mr. Kennedy might seek to defend. As pointed out by the Chief Justice the prosecution case against Mr. Kennedy is very significantly dependent on the evidence of Frank Dunlop.

6.2 Doubtless the credibility of Mr. Dunlop as a witness will be a significant feature at the trial. It is possible to say that Mr. Kennedy may have somewhat less ammunition with which to challenge the credibility of Mr. Dunlop than might have been the case had there been a trial soon after the events alleged to constitute the offences with which Mr. Kennedy is charged. However it seems to me that any impairment which Mr. Kennedy may suffer from in the presentation of his defence falls a long way short of the standard which would allow a court to conclude that it was not possible for him to get a fair trial. In those circumstances it seems to me that the court must next turn to the question of whether there has been culpable prosecutorial delay.

7. Has There Being Prosecutorial Delay?
7.1 The facts relevant to this issue are again fully set out in the judgment of the Chief Justice. I agree with the views expressed in that judgment to the effect that it was reasonable for the D.P.P. to delay prosecuting Mr. Kennedy until such time as Mr. Dunlop had been convicted. It was accepted that there was no rule of law which would have precluded Mr. Dunlop being called as a prosecution witness against Mr. Kennedy. However it does have to be noted that Mr. Dunlop’s evidence, for it to be useful to the prosecution, would necessarily have involved an admission of serious wrongdoing on Mr. Dunlop’s own part. Mr. Dunlop would have been entitled, in those circumstances, to decline to give incriminating evidence. While it might be said that the evidence suggests that Mr. Dunlop was being cooperative at all material times, nonetheless the difficulty in successfully mounting of a prosecution against Mr. Kennedy at a time when Mr. Dunlop would not, in practice, have been a compellable witness (at least so far as much of the evidence sought to be relied on by the prosecution against Mr. Kennedy was concerned), is, in my view, a factor which any reasonable prosecuting authority is entitled to take into account. I am, therefore, satisfied that a decision to defer prosecuting Mr. Kennedy until after Mr. Dunlop had been convicted was not unreasonable.

7.2 However I respectfully disagree with the view of the Chief Justice that that state of affairs provides a full explanation for the lapse of time in this case. A file was sent to the D.P.P. seeking directions in relation to alleged corruption offences relating to Mr. Dunlop, Mr. Kennedy, and certain other persons on 22nd October 2004. While it may be that some additional investigations could have been necessary to ensure that the case against or all of those accused was in a position to be brought to trial, no specific evidence was tendered on behalf of the D.P.P. in that regard. In the absence of any specific difficulty being established in evidence it would, in my view, in the ordinary way have been reasonable to suggest that a prosecution might be brought, even in a complex case, within a number of months of the file being forwarded to the D.P.P. The direction by the D.P.P. that six persons including Mr. Kennedy be charged did not occur until 24th June 2010. There is, in substance, therefore, a lapse of time of the order of five years which needs to be explained. In passing, in that context, I should note that I am not satisfied that there is any culpable prosecutorial delay established for the period after the decision to prosecute was taken up to the arrest and charge of Mr. Kennedy. There was some debate both in the High Court and before this court as to whether efforts could have been made to effect the arrest of Mr. Kennedy on foot of a European Arrest Warrant. However given the difficulties that might well have been encountered with any such process and the fact that delay might well have occurred in attempting to pursue such a course of action in any event, it seems to me that the actions of the prosecuting authorities after a decision was made to prosecute Mr. Kennedy were reasonable.

7.3 The question of culpable prosecutorial delay turns, therefore, on whether there is an adequate explanation for the period of approximately five years which elapsed from the time when it might have been reasonable to expect a prosecution to be brought and when it was actually brought. The question really turns on whether the decision to await the conviction of Mr. Dunlop (which, as I have already indicated, was in itself a not unreasonable position to adopt) amounts to a sufficient explanation for that five year period.

7.4 Where the reason relied on by a prosecuting authority for delaying the commencement of criminal proceedings is the necessity to complete some other process prior to the commencement of those proceedings and where that other process is within the hands of the prosecuting authority itself, it seems to me that the court must assess whether that other process was conducted expeditiously. If it were not so then a prosecuting authority could unfairly delay a criminal prosecution by reference to a factor which, although legitimate in itself, would not justify the lapse of time concerned. I am not satisfied that any adequate explanation has been placed before the court as to why it took so long to actually bring the prosecution against Mr. Dunlop to conclusion. If there be such an explanation it was not one which the court was given an opportunity to analyse. On the face of it the position is that Mr. Dunlop made inculpatory statements at an early stage in the process and would appear, on all the evidence, to have been co-operative with the prosecuting authorities. There is nothing in the evidence to suggest that there was a good reason for waiting until 21st November 2008 to arrest and charge Mr. Dunlop. While I accept, therefore, that the need to improve the position of the prosecution by ensuring that Mr. Dunlop had been convicted before mounting a prosecution against Mr. Kennedy provides, at the level of principle, a legitimate explanation, I am not satisfied that that explanation goes far enough to excuse the lapse of time of five years which I have already identified.

7.5 On that basis I am satisfied that there is a partial but not complete explanation for the lapse of time in bringing the prosecution against Mr. Kennedy in this case. In passing I should note that there is sometimes a tendency to conflate the terminology adopted in the jurisprudence in relation to delay in civil proceedings with the terminology used in relation to criminal proceedings. The term culpable prosecutorial delay is the one most commonly used in the criminal delay jurisprudence. The test in civil delay cases remain that identified in Rainsfort v. Limerick Corporation [1995] 2 ILRM 561 which requires the court, before going on to consider the balance of justice, to determine as to whether there has been “inordinate and inexcusable” delay. However it does not seem to me that there is, in reality, any difference between the two concepts. Inordinate delay implies that the case has taken longer to come to trial than might reasonably be expected for a case of its complexity and having regard to any other legitimate factors that might influence how long it might reasonably take a case of that type to be able to come to trial. “Inexcusable” implies that no adequate excuse has been tendered for any inordinate delay that has been established. Thus the test in civil proceedings involves analysing whether the length of time it has taken for the case to come to trial is too long in all the circumstances and, if so, subject to the extent to which blame may attach to the defendant, whether the plaintiff has put forward a sufficient excuse.

7.6 In truth culpable prosecutorial delay seems to me to raise exactly the same questions. Has the case taken too long to come to trial? If so, can the accused be blamed for any of that lapse of time? To the extent that the accused cannot be blamed has the prosecuting authority put forward an adequate explanation or excuse. If there is too great a lapse of time which cannot be attributed to the accused and for which an adequate explanation or excuse cannot be given then it seems to me that such a situation can properly be described as one where there has been culpable prosecutorial delay.

7.7 As was, in my view quite properly, conceded by counsel for the D.P.P. in this case there is a lapse of time which requires explanation. In the ordinary way it would not be acceptable for a period of over 5 years to elapse from the time when Garda investigations were complete to the time when a trial might take place. I take that view while acknowledging, as pointed out earlier, that in certain types of cases it is likely that the investigations leading to the file being submitted to the D.P.P., no matter how competently conducted by An Garda Síochána, may not be the end of the evidence gathering route from the prosecution’s point of view. It may well be that, when the ubiquitous “Garda file” is sent to the D.P.P. and reviewed by officials in the D.P.P.’s office, An Garda Síochána will be directed to carry out further enquiries for the purposes of supplementing the evidence that might be required in order to present the prosecution case to its best advantage. Some lapse of time for such further enquires might well be reasonable although, in the absence of any specific explanation or evidence, it is hard to see how factors such as that could explain anything other than a relatively brief part of the lapse of time in this case. Taking that factor into account together with what I might call the Dunlop factor provides, in my view, a partial explanation. It seems to me that there has, therefore, being culpable prosecutorial delay but that the degree of that culpability must be assessed by reference to the fact that a partial legitimate explanation has been given for at least a material portion of the lapse of time concerned. Against that background it is necessary to turn to the balancing exercise which must then be conducted.

8. The Balancing Exercise
8.1 I fully agree with the views expressed by the Chief Justice as to the absence of significant specific prejudice caused by culpable prosecutorial delay in this case. As pointed out by the Chief Justice a careful analysis of the witnesses said to be relevant but no longer available makes clear that no potentially important witness would have been available even if a prosecution had been mounted immediately after the Garda file was submitted to the D.P.P.

8.2 The extent to which Mr. Kennedy has been able to demonstrate any significant impairment resulting from prosecutorial delay is, therefore, slight in the extreme. There is a somewhat greater amount of impairment which arises from lapse of time, independent of prosecutorial delay, but for the reasons already analysed in Section 6 of this judgment, that impairment is not at a very high level and in any event, for the reasons already analysed, it is not, in my view, appropriate to place the same weight on any impairment which cannot be attributed to culpable prosecutorial delay. The overall assessment of the impairment to Mr. Kennedy must therefore be towards the lower end of the scale having regard to the virtual non existence of specific impairment attributable to prosecutorial delay, the limited nature of any general impairment caused by lapse of time and, indeed, the fact that any general impairment is significantly reduced by the fact that the issues which are likely to be at the heart of the criminal trial have been a matter of controversy, to Mr. Kennedy’s knowledge, for much of the period between those events and today. This is not the sort of case where a knock comes to the door many years after an event leading the accused (and indeed any other relevant witnesses) with the difficult task of having to recollect events, which occurred a very long time ago, for the first time in many years. It would be surprising in the extreme if any of the participants in the events likely to be of any relevance to this trial have not had ample opportunity to turn their minds to those events regularly over the last number of years.

8.3 Turning to the question of stress and anxiety it seems to me that no real evidence was presented to suggest a significant level of additional stress and anxiety attributable to delay in criminal prosecution in this case. There was, of course, no significant pre-trial incarceration.

8.4 On the other hand there is a very significant public interest in ensuring that a trial of the serious issues concerning public life which are at the heart of the allegations in this case is conducted on the merits. When taken in conjunction with the fact that the prosecutorial delay in this case is partly explained, although remaining culpable to some extent, it seems to me that the balance of justice clearly favours the trial going ahead.

8.5 It follows that, whether applying the existing jurisprudence noted by the Chief Justice or the possible slight refinement of it tentatively suggested in this judgment, the result is the same. Even on the basis of the existing jurisprudence my view that there was some culpable prosecutorial delay would not alter the result.

9. Conclusion
9.1 For those reasons, I would, although not fully agreeing with the judgment of the Chief Justice, agree with the order which she proposes.

JUDGMENT of Mr. Justice Hardiman delivered the 7th day of June, 2012,
The nature of this appeal and the issues arising on it are so fully set out in the judgment of the Chief Justice that it is unnecessary for me to rehearse them further. But I am unable to agree with the learned Chief Justice on a significant aspect of the case, that related to delay on the part of the prosecution, so that it is appropriate that I should briefly explain the grounds of my dissent. I also wish to comment on certain dicta of the learned Trial judge.

The facts of this case demonstrate beyond doubt that there has been very considerable delay on the part of the prosecution in prosecuting the charges against the applicant. These charges relate to periods as early as May, 1992 (now twenty years ago) and as lately as December, 1997, (now almost fifteen years ago). Delay of this order is, as the learned trial judge found, “clearly inordinate”. But the prosecution claims to be entitled to proceed with the charges notwithstanding this clearly inordinate delay on the ground that the period of time involved, though inordinate, is nevertheless “excusable”.

This case overlaps in certain of its facts the case of DPP v. Liam Cosgrave, in which this Court gave judgment on the 26th day of April, 2012.

As in that case, the underlying prosecution in this case depends on the testimony of a single witness, described by the learned trial judge as “the key witness”, Frank Dunlop. Mr. Dunlop’s background and relevant activities are summarised in my judgment in Cosgrave and it is unnecessary to repeat that material here. Without him, there would be no case at all.

Mr. Dunlop, under some pressure, notoriously and very publicly claimed to the Flood Tribunal as long ago as October, 2000, that he made corrupt payments to councillors, which are the payments in relation to which the appellant here is charged. Notwithstanding that these allegations were made almost twelve years ago, and made in a public forum, the applicant was not charged until October, 2010, a decade later.

The nature of the case against Mr. Kennedy clearly emerges from the affidavit of a Detective Garda Martin Harrington, sworn on behalf of the respondent in these proceedings. At para. 12 he says that the charges against Mr. Kennedy arise “out of the allegation that he corruptly gave sums of money to certain County councillors as an inducement or a reward for voting in favour of motions to rezone certain lands at Carrickmines, Co. Dublin in 1992 and 1997”.

In the following paragraph he says:

“It is alleged that the money was given by James Kennedy to Frank Dunlop who made the corrupt payments to the named councillors as set out in the charge sheets”.

Excusable delay?
As the learned Chief Justice has held, the “key reason why there was such delay was because the D.P.P. had decided not to prosecute the appellant until Frank Dunlop had been himself prosecuted”. This occurred in May, 2009. The direction to charge the appellant was given in June, 2009.

For the reasons set out in my judgment in Cosgrave, I do not consider that it was legally necessary for the Director of Public Prosecutions to wait until after the prosecution of Mr. Dunlop had been concluded before commencing proceedings against the appellant. Equally, for the reasons separately out in that judgment, I do not believe that the alleged necessity to wait until Mr. Dunlop had been tried was the real or actual reason for the D.P.P.’s delay in charging Mr. Cosgrave, or Mr. Kennedy either. On the contrary, I believe, for the reasons set out in my earlier judgment that the decision to defer the bringing of charges until Mr. Dunlop had been charged and convicted was a ploy to gain tactical advantage, and nothing more.
The nature of this tactical decision can be tersely described. The D.P.P. did not wish to present the witness Frank Dunlop as an unconvicted accomplice, because that might tend to undermine his credibility, on which the whole case against Mr. Kennedy depends. But neither was he in a position to proceed to prosecute Mr. Dunlop earlier than 2009, because the State wanted his cooperation in other matters, including other prosecutions. This is why, I believe, a period of ten years elapsed between these allegations first being made in a public forum and charges being brought against the applicant in respect of them.

If this reason, which I believe to be the actual reason for the delay, had been advanced as the factor rendering the admittedly inordinate delay “excusable”, the Court would have had to form a view on that issue. But it was not advanced as the factor rendering the delay excusable but rather a quite different reason was relied on.

It is therefore incumbent on me, consistent with the reasoning of the judgment which I delivered in Cosgrave to find that the “key” reason for delay was not accurately stated and that the reason which was advanced is inadequate to explain or excuse the delay which the learned trial judge rightly found to be “clearly inordinate”.

Second hand evidence.
The affidavit of Detective Garda Harrington, referred to above, did not contain, and could not have contained, first hand evidence of the reason for the delay in prosecuting Mr. Kennedy because the decision that gave rise to that inordinate delay was not taken by Garda Harrington. He can only therefore speak of it at second hand which he does at para. 92 of his affidavit:
“Directions were not received to charge Frank Dunlop until 31st July, 2008. The DPP made it clear to the investigating members that it [sic] would only consider prosecuting James Kennedy and the councillors if Frank Dunlop was convicted of the related charges and then only upon receipt of confirmation that Frank Dunlop would be prepared to give evidence in the criminal court in any prosecution that the DPP might consider bringing against James Kennedy and the councillors. Following the conviction of Frank Dunlop enquiries were carried out by the investigating members with him through his solicitors LK Shields and it was confirmed again that Frank Dunlop was prepared to give evidence in any proceedings arising out of the statements he had made to CAB”.

In my judgment in the Cosgrave case, I have made clear my very strong view of the unfairness that arises out of the decision to put centrally important material before the Court in this second hand fashion. Material put before the Court by way of affidavit can only be challenged or further explored by a cross examination of the deponent. In this case, there is no point in cross examining Mr. Harrington because, while he knows that “directions were not received to charge Frank Dunlop until the 31st July, 2008”, he does not know why that was so or why it did not take place years earlier. Equally, while he may (it is not clear) know of his own knowledge what the DPP said to the investigating members, he does not know the reasons for the attitude allegedly communicated to them.

The interposition of Garda Harrington between the Court and those who actually made the prosecutorial decisions in this case has in my view worked a grave unfairness to the applicant. But it has assisted the prosecution by shielding the real decision makers from scrutiny in cross-examination.

The balance of justice.
In his decision in this matter the learned trial judge,
Hedigan J, whose judgment is also very fully exerted in the judgment of the learned Chief Justice, held that the delay in this case, though “clearly inordinate” is excusable. He went on to say:
“Even if this were not the case, I am satisfied that the balance of justice would demand that these proceedings be allowed to take place”.

This is apparently because:
“The case herein arises from allegations of corruption of public officials. There is an overwhelming public interest in permitting allegations of this nature to proceed to trial before a jury. The State has invested significant resources in terms of time and money in Tribunals to investigate these allegations of corruption of public officials. Corruption of State officials is an attack on the integrity of the State itself and the whole apparatus of State governance. As such it is a crime of great gravity”.

No-one could doubt that the corruption of County Councillors, if it occurred as alleged, is a grave matter and one requiring to be pursued by all lawful means. The same could be said of any allegation of crime. I do not agree with any suggestion, if one can be found in the passages I have quoted, that because the allegations arise out of a hugely expensive and almost incredibly prolonged Tribunal, there can be a specially lenient attitude towards delay in prosecuting them.

A Tribunal of Inquiry is not a method of gathering evidence for a criminal prosecution and should not be regarded as such. On the contrary, it is a special form of inquiry in which the rights of citizens are very gravely abrogated and is purely for the purpose of allowing a non-binding opinion to be expressed on “definite matters of urgent public importance”. See the judgment of this Court in Goodman International v. Hamilton (No. 1) [1992] 2 I.R. 542.

From time to time, certain offences arise which attract a particular opprobrium in the public mind. In our time these offences have included offences of terrorist mass murder, sexual offences against children, and financial offences, especially those involving corruption.

It is, as the learned trial judge said, important that these and other crimes should be pursued by all means within the limits of the law. It is also important to bear in mind that there is a particular risk of miscarriages of justice in precisely those cases where it is very strongly felt that there is a great public interest in the conviction of malefactors.

The mass murder which took place at the hands of those who bombed the city of Birmingham in 1974 was a classic example of an offence where there was “an overwhelming public interest” in convicting those responsible. Unfortunately this entirely natural and legitimate public interest, and an investigation and trial insufficiently constrained by the laws of the time, led to the conviction of six innocent people and their incarceration for more than two decades. This occurred due to an excess of an anger undoubtedly righteous in itself.

Most of the defendants in this case and in the earlier case to which I have referred are elected public officials, or people connected with such officials. It would be very wrong if people in this class were treated with special favouritism by the law. But it would equally be very wrong if they were treated less favourably than another person who could make the same points. If the rights of defendants are more coarsely vindicated because, in a particular case, they belong to a particular class of person or are charged with offences regarded as particularly outrageous, it will not be long before the coarsening of the vindication of the rights of the defendants will affect all citizens. Experience shows that when civil rights are trenched upon in relation to one category of the person, or one category of crime, a similar diminution in the rights of citizens generally tends very soon to follow. Levelling, in such cases, tends to be levelling down rather than levelling up.

This trend is precisely illustrated in delay cases. There was a fairly recent time, characterised in cases like The State (O’Connell) v. Fawsitt and the D.P.P. [1986] 1 I.R. 362 and Joan Fitzpatrick v. District Justice Daniel Shields and the D.P.P. [1989] I.L.R.M. 243 not to mention civil cases such as Ó’Dómhnaill v. Merrick [1984] 1 I.R. 151, when delays of a much shorter order than the delay in question in this case, would have led to the prohibition of a trial. This changed, at first only in the restricted category of cases of alleged child sexual abuse where prosecutions were permitted, ultimately, after astonishingly long periods. I am concerned that this present case illustrates a spreading of this permissive attitude to delay from child sexual abuse cases, which were arguably in a special category, to cases of a quite different sort, such as this. To my mind, a prosecution for a twenty year old offence might be permitted, exceptionally, if the delay were genuinely excusable and the Court was sure that a fair trial could be had. But in the present case, as it appears, I do not consider the delay excusable and do not consider even that the true reason for delay has been accurately stated.

I wish to add that a long delayed trial is gravely unfair to a defendant and carries a greatly enhanced risk of a miscarriage of justice. This is so for the reasons extensively discussed in my judgment in
JO’C v. D.P.P. [2000] 3 I.R. 478. I wish to record my alarm at the tendency, which this case illustrates, to permit a trial of a twenty year old allegation, after prosecutorial delay expressly found to be “inordinate”, and to emphasise my view of the grave risk of miscarriage of justice which this poses. The gravity of that risk will vary with the extent to which the case depends on bare assertion by a prosecution witness.
Conclusion.
I would allow the appeal and grant the appellant the relief sought.