Title:	McLoughlin -v- Aviva Insurance (Europe)
Neutral Citation:	[2011] IESC 42
Supreme Court Record Number:	146/11
High Court Record Number:	2010 1891 P & 2010 98 COM
Date of Delivery:	11/15/2011
Court:	Supreme Court
Composition of Court:	Denham C.J., Hardiman J., O'Donnell J.
Judgment by:	O'Donnell J.
Status:	Approved
Result:	Allow And Set Aside
Judgments by Link to Judgment Concurring Dissenting Denham C.J. Link O'Donnell J. Hardiman J. Hardiman J. Link O'Donnell J. Link

Between/

1 I agree with the judgment of the Chief Justice but wish to add some observations in order to explain why I respectfully differ from Hardiman J. both as to the outcome of the case and as to its significance.

2 First, I do not regard the case as raising any particularly novel issue nor do I consider the judgment of Denham C.J. marks any departure in the law. Furthermore the case does not in my view raise the question as to whether public interest immunity requires that documents be withheld from their owner in civil proceedings. In this case the claim for discovery encompassed not just the video tape, but also, and perhaps more importantly from all points of view, the two expert forensic reports prepared for the insurers and which were their property and not the property of Mr McLaughlin. The case therefore raises the general issue as to the entitlement of the gardaí to withhold from disclosure in civil proceedings documentation which is bona fide required for the purposes of an ongoing investigation which may result in a criminal prosecution.

3 That issue, is one on which I regard the law as well settled and indeed encapsulated in that portion of the speech of Lord Reid in Conway v Rimmer [1968] AC 910, 953 referred to in both the judgments of my colleagues. The intervening period has not lessened the force and good sense of Lord Reid’s observations and if the matter has not been the subject of more extensive discussion, it is only in my view because it is regarded as well settled.

4 It does not make any difference in my view that the footage may be considered to be the property of Mr McLaughlin if it too was bona fide required for the purposes of the gardai’s investigation. It is very well established that the police can retain items against their true owner if they are required for the investigation and prosecution of criminal offences. In the landmark case of Dillon v O’Brien and Davis (1887) 20 L.R.Ir 300 it was held that it was a good defence to a claim for detinue by the owner of certain articles taken by the police at the time of the arrest, that they were required as evidence for a criminal prosecution. Relatively recently, in Dunne v DPP [2002] 2 IR 305, this Court approved a decision in Dillon v O’Brien and Davis and cited with approval the English cases of Chic Fashions (West Wales) v Jones [1968] 2 QB 299 and Ghani v Jones [1970] 1 QB 693. In the latter case, the Court held that material in the possession of a wholly innocent third party could be seized for evidential purposes and held for so long as was reasonable. On the decided cases I do not think it makes any difference to this principle whether or not a prosecution is in being. Clearly such a prosecution is not in being at the time of seizure and every item has to be seized for the purpose of an investigation before there can be any decision on a prosecution. If the gardaí can properly resist the proprietary claim of the true owner for the return of pieces of real evidence which are necessary for the purpose of the police investigation, it does not appear to me to be in any way controversial that they can also in an appropriate case, where it is demonstrated that it is necessary to do so, resist a claim for discovery in litigation in civil proceedings, at least until a prosecution is commenced or a decision is taken not to do so, or conceivably that a reasonable time has elapsed to allow such a decision to be made. In either case it is entirely conceivable that return of the item, or disclosure of the document may hamper the investigation. As the outcome of Ghani v Jones shows, the requirement of necessity furnishes considerable protection to the citizen from whom evidential material is received, or seized.

5 I do not see that this case raises any issue as to priority between civil and criminal proceedings. In this case the Commissioner does not seek a stay on the civil proceedings: he merely seeks to maintain a public interest immunity which it is arguably his duty to assert. As it happens that immunity is limited in time, and as a result the parties to the litigation have the choice whether to proceed without the material in the same way as a party might proceed having failed in the challenge to legal professional privilege, or they can wait until the issue of public interest immunity falls away either by the disclosure of the material in criminal proceedings, or by a decision not to prosecute.

6 Finally I should say that I do not consider that this is a claim for class privilege. The immunity or privilege is not claimed because the documents or items belong to a certain class of material. The claim made is in respect of the particular significance of this material to an ongoing investigation, and not because of any generic significance of CCTV footage or expert reports. The Court is free to inspect the items if it considers it either appropriate or necessary to do so, and is not bound to accept the Commissioner’s claim. However, the Courts have repeatedly made it clear that the fact that the court may inspect material does not mean that the court must do so to verify any claim for privilege, if the nature of the claim is obvious from the description of the document. Here there was no issue as to the documents in question, or indeed as to the Commissioner’s assertion that they were necessary for the purpose of criminal investigation. The only question was whether that raised a valid claim of immunity, and for the reasons set out by Denham C. J. I consider that it does. That was the issue before the High Court. I would hope that it will not be necessary to determine in this litigation whether a reasonable time has elapsed for the prosecution authorities to make a decision as to prosecution. If that issue is to arise it would require to be determined on the basis of evidence specifically directed to that issue. Indeed if this general issue were to arise for determination again it might benefit from more extensive citation of authority and consideration of principle than was possible in this case.