Judgment
Title: | McLoughlin -v- Aviva Insurance (Europe) |
Neutral Citation: | [2011] IESC 42 |
Supreme Court Record Number: | 146/11 |
High Court Record Number: | N/A |
Date of Delivery: | 11/15/2011 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., Hardiman J., O'Donnell J. |
Judgment by: | Denham C.J. |
Status: | Approved |
Result: | Allow And Set Aside |
 | |
| Judgments by | Link to Judgment | Concurring | Dissenting | Denham C.J. | | O'Donnell J. | Hardiman J. | Hardiman J. | | | | O'Donnell J. | | | | |
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THE SUPREME COURT
[Appeal No: 146/2011]
Denham C.J.
Hardiman J.
O'Donnell J.
Between/
Seamus McLaughlin
Plaintiff/Respondent
and
Aviva Insurance (Europe) Public Limited Company
Defendant/Respondent
and
The Commissioner of An Garda Síochána
Notice Party/Appellant
Judgment delivered on the 15th day of November, 2011 by Denham C.J.
1. The Commissioner of An Garda Síochána, the notice party/appellant, referred to in this judgment as "the Commissioner", claims privilege in respect of certain items/documents on this appeal.
2. Seamus McLaughlin, the plaintiff/respondent, referred to as “the plaintiff”, has brought proceedings seeking a declaration, inter alia, that Aviva Insurance (Europe) Public Limited Company, the defendant, is liable to indemnify the plaintiff in respect of loss and damage suffered by him arising out of a fire which occurred on the 1st February, 2009, on the premises known as "The Waterfront", situate at James Street, Moville, Co. Donegal.
3. By notification dated the 22nd January, 2010, Aviva Insurance (Europe) Public Limited Company, the defendant/respondent, referred to as “the defendant”, refused to indemnify the plaintiff in respect of the insurance policy, on the grounds, amongst others, that it believed that the plaintiff was responsible for setting fire to the Waterfront on the 1st February, 2009. In the defence lodged on the 4th May, 2010, to the plaintiff’s claim, the defendant explained its refusal to indemnify the plaintiff, on the basis, inter alia, that the claim made by the plaintiff was fraudulent and/or that fraudulent means and devices were used by the plaintiff and/or his brother, Kevin McLaughlin, in an attempt to obtain a benefit under the policy. The defendant alleges that the plaintiff entered the premises with his brother, Kevin McLaughlin, at approximately 03.07a.m., on the morning of the 1st February, 2009, and shortly thereafter, one or both of them deliberately started the fire that damaged the premises.
4. This appeal arises in relation to a motion. On the 14th February, 2011, the Commissioner brought a notice of motion, dated the 13th September, 2010, before the High Court seeking an order that certain items were privileged and need not be discovered. The motion sought an order:-
“ […]
2.(i) Permitting An Garda Síochána to refuse consent to discovery of
on the basis that disclosure of same is privileged pursuant to Public Interest/InvestigativePrivilege.”
5. On the 14th February, 2011, the High Court (Commercial) (Kelly J.) ordered that the claim of public interest/investigative privilege sought by the Commissioner be disallowed. He also refused an application for a stay and ordered that the discovery originally directed on the 12th July, 2010, be made within twenty one days.
6. There is no formal record of the ex tempore judgment of the High Court. However, counsel's note of the judgment states:-
"This case was commenced in the Commercial List on the 16th of March 2010. The circumstances of the case are also the subject matter of a police investigation. To date unfortunately no decision has been given concerning the outcome of this police investigation. One of the reasons given by the Commissioner in respect to his claim for privilege was to await the decision of the Director of Public Prosecutions. The Commissioner seeks to object to disclosure of two species of documents, one DVR recorder and two reports (being (a) a report prepared by the Data Clinic and (b) a forensic report prepared by Critical Processes). It is said that the documents ought not to be disclosed to the suspects of the investigation. The curious thing is that they were not generated by the Gardaí, they were given to the Gardaí. We are therefore in the curious position in circumstances where the documents over which privilege [is] claimed were not generated by the police.
Two authorities have been cited in support of the proposition Breathnach -v- Ireland No.3 and DPP -v- Corbett. In my view Breathnach on its facts has little or nothing to do with this case. None of these deals with the situation where an investigation is [on]going and the documents over which privilege is claimed are not generated in the course of the proceedings. I am unable to discern any element of privilege where the Commissioner gets documents from one party to the proceedings.
The second element of the claim of privilege is more complex for technical reasons which I need not get into. These items are in the possession of the police and they are going to carry out the process known as "cannibalisation". The Plaintiff wants to observe that process through a representative. There is no authority entitling a Court to impose this upon An Garda Síochána. As to the fruits of the cannibalisation process, both parties ought to have sight of same and if that constitutes a report they ought to have sight of such report and to be entitled to view the recording. It is said by the Commissioner that this should not happen until after the DPP has seen the recording. I have no idea how long the DPP will take to do this.
This Court has treated this Motion as a Motion for ordinary non-party Discovery. I am of the view that the appropriate Order to make in this case is to make no Order as to costs as the Application has not been successful."
7. The Commissioner has appealed that decision to this Court. By notice of appeal it was stated that the Commissioner would rely on the following grounds:-
“(i) The learned Trial Judge erred in fact and in law in determining that the privilege of the nature asserted by the Commissioner could not and did not apply to the documents and items over which such privilege was asserted.
(ii) The learned Trial Judge erred in fact and in law in determining that as the documents and items at issue were not generated by the Commissioner no privilege of the type contended for by the Commissioner could be asserted in respect of same.
(iii) The learned Trial Judge erred in fact and in law in determining the public interest/investigative privilege did not apply to the subject documents and items in light of the fact that the subject documents or items were procured or identified and received from one of the parties to the civil proceedings.
(iv) The learned Trial Judge erred in law and in fact in failing to properly or adequately take into account the proper course of the criminal investigation identified by the Commissioner and by failing to properly or adequately consider the concern expressed by the Commissioner that disclosure of the forensic reports specified at paragraph A of the notice of motion dated the 13th of September 2010 could potentially disrupt the due and proper investigation of the crime suspected.
(v) The learned Trial judge erred in fact and in law by directing disclosure of the material (report or data) (obtained as a result of the process of cannibalisation of the DVR identified at paragraph A of the Notice of Motion dated the 13th of September 2010) after a period of 14 days had elapsed after cannibalisation of the said DVR on the grounds that same fails to respect the investigative/public interest privilege contended for by the Commissioner.
(vi) The learned Trial Judge erred in fact and in law in refusing to award the Commissioner the costs of the Application.”
Documents and items
8. The documents and items the subject of the appeal were described in the notice of motion dated the 13th September, 2010, which have been set out earlier in this judgment. However, I understand that both DVRs are in issue, and not just the second DVR recorder as described in the notice of motion.
9. The Commissioner sought an order that certain items were privileged and that discovery should be refused on the basis that disclosure of the documents and items is privileged pursuant to public interest/investigative privilege.
Submissions
10. Written submissions were filed on behalf of the Commissioner and the plaintiff. The Commissioner submitted that there are two competing aspects of the public interest being:-
It was submitted that the privilege claimed is not permanent, but to last only until the Director of Public Prosecutions decides that there will be no prosecution or a prosecution is directed, at which time the items will be in the Book of Evidence. The plaintiff submitted that the Commissioner, a non-party to these proceedings, cannot invoke privilege in circumstances where the defendant, its servants and agents, have been in possession of the privileged material for a period of up to a year and a half from the commencement of the criminal investigation and where it has already used that documentation to advance its defence of the proceedings.
Law
11. There is a public interest which arises in some cases whereby certain matters may be privileged and may not be produced in evidence. The decision as to whether evidence is privileged or not is a matter for the courts: Murphy v. Dublin Corporation [1972] 1 I.R. 215. There may be different aspects of the public interest. Walsh J. noted in Murphy v. Dublin Corporation at p. 233:-
"There may be occasions when the different aspects of the public interest ‘pull in contrary directions’—to use the words of Lord Morris of Borth-y-Gest in Conway v. Rimmer [1968] A.C. 910, 955. If the conflict arises during the exercise of the judicial power then, in my view, it is the judicial power which will decide which public interest shall prevail. This does not mean that the court will always decide that the interest of the litigant shall prevail."
12. There is a public interest in criminal investigations carried out by An Garda Síochána. Lord Reid stated in Conway v. Rimmer [1968] A.C. 910 at p. 953 – 954:-
"The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is essential that there should be no disclosure of anything which might give any useful information to those who organise criminal activities. And it would generally be wrong to require disclosure in a civil case of anything which might be material in a pending prosecution: but after a verdict has been given or it has been decided to take no proceedings there is not the same need for secrecy."
I agree with the analysis that in general documents material to an ongoing criminal investigation by An Garda Síochána should not be required to be disclosed in civil proceedings. However, after the verdict in the criminal trial or after it has been decided not to prosecute, there is no need for the privilege.
13. It is an important part of an analysis of this type of privilege that it exists only for a limited time. Thus, it would apply only until the criminal trial is concluded or until the Director of Public Prosecutions has decided not to prosecute. It is not unusual that a civil trial awaits the conclusion of a criminal trial.
14. The special position of the Director of Public Prosecutions was referred to by Keane J. in Breathnach v. Ireland (No.3) [1993] 2 I.R. 458 at 471:-
"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 Director of Public Prosecutions 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 Director of Public Prosecutions and professional officers in his department, solicitors and counsel as to prosecutions by him which are in being or contemplated."
In this instance, the privilege sought is different and is only for a limited time i.e. until the case is prosecuted or a decision is made not to prosecute in the criminal courts.
Decision
15. The items of which the Commissioner seeks to claim privilege are required for the purpose of civil proceedings between the plaintiff and the defendant and also for a criminal investigation. The Commissioner claims privilege pending the decision not to prosecute or pending the service of a Book of Evidence, which would contain the items.
16. There is a public interest privilege in documents which are a material part of a criminal investigation. There is a public interest privilege in documents created, sought, or obtained for, and relevant to, a criminal prosecution by a prosecutor.
17. The fact that the documents and/or items were not originally created by a prosecutor does not exclude them from privilege as there is a public interest privilege in documents and/or items which are a material part of a criminal investigation.
18. The onus to establish that the privilege lies upon the person seeking the privilege. In this case, the Commissioner carries the onus.
19. I am satisfied that it is established that the documents and items sought, being the two DVR recorders and the two forensic reports, are privileged. This privilege exists until the decision is made not to prosecute or until the decision is made to prosecute, when the matters will be disclosed in the Book of Evidence.
20. The fact that these documents and/or items were not originally created by An Garda Síochána does not prevent them attracting privilege. They are now material documents and items in a criminal investigation by An Garda Síochána and they attract privilege on the basis of public interest and investigative privilege.
21. The fact that the documents arose in civil proceedings does not mean that the privilege does not apply to them. They are now a material part of a criminal investigation and, as a consequence, privilege attaches to them.
22. On occasions, when considering a privileged document, the court may have to balance interests. However, the issue of balancing interests does not arise in this case.
23. Thus I would order that the items are privileged and may not be discovered until either the decision has been made to prosecute, when disclosure will be made in the Book of Evidence, or a decision is made not to prosecute, when the privilege ceases.
24. This case is decided upon its facts and circumstances. The issues raised are important and may arise for further consideration in another case, where there would be more elaborate argument and scrutiny than was available in both the High Court and in this Court in this case.
25. An additional issue arises in that the plaintiff seeks that his experts see the items before they are altered, and attend at the process by which they are "cannibalised", and after. This is not an order that I would make. However, it does raise a degree of alarm that evidence may be destroyed. I draw attention to the possibility of difficulties arising if the experts of the plaintiff are excluded. However, that is a matter for the prosecutor.
26. In conclusion, for the reasons given, I would allow the appeal and order that there is a public interest privilege in the items and would therefore order that there be no discovery until the privilege has ceased to exist either by way of a decision not to prosecute, or by a decision to prosecute when the matters will be disclosed in the criminal proceedings.