Discovery allowed against non-party Law Society for specific documents regarding unlawful Garda information sharing.

THE SUPREME COURT

Record No: 35/1999

Murphy J

Murray J

Hardiman J

Between:

Patrick Enright

Applicant/Appellant

AND

District Justice Terence Finn and The Director of Public Prosecutions

Respondents

Judgment of Mr Justice Francis D Murphy delivered the 17th day of May, 2001.

This appeal arises out of an application by the Applicant/Appellant (Mr Enright) for an order for discovery in the above proceedings

against the Law Society of Ireland (“the Society”) who are not party to those proceedings. The application was, therefore, made

under Order 31 Rule 29 of the Rules of the Superior Court which, so far as material, provides as follows:-

“Any person not a party to a cause or matter before the Court who appears to the Court to be likely to have or have had in

his possession custody or power any documents which are relevant to an issue arising or likely to arise out of the cause or

matter .... may by leave of the Court upon the application of any party to the cause or matter be directed by order of the

Court .... to make discovery of such documents or to permit inspection of such documents. ”

The circumstances in which the application arose are somewhat complex.

Mr Enright qualified as a solicitor in 1986. Between May 1988 and June 1994 he was employed in a commercial enterprise in

Castleisland, County Kerry. In June 1994 he returned to private practice. On the 21st day of October, 1994, Mr Enright was

interviewed by Detective Sergeant Patrick Sullivan and other members of the gardaí as a result of which it would appear that Mr

Enright made and signed a statement in circumstances which, according to the sworn evidence of Mr Enright, constituted an abuse

by the gardaí of their powers. In particular Mr Enright had sworn that the Detective Sergeant warned him that if he did not co-

operate, the gardaí would inform the Society of the subject matter of their investigation. Mr Enright drew attention to the fact that

on the 27th October, 1994, the Law Society commenced an investigation into his practice. Whilst it appears that that investigation

was not completed a fine of £1,000 was imposed by the Society on Mr Enright and paid by him. The Society has issued to Mr Enright

a Practising Certificate for the years 1995, 1996 and 1997.

Mr Enright particularly requested the Society to inform him of the name of the person or persons by whom complaint was made

against him. The Society declined to do so and in consequence Mr Enright instituted plenary proceedings entitled “Patrick Enright .v.

The Incorporated Law Society of Ireland, The High Court, Record No. 1996 number 67p” for the purpose of obtaining in particular the

names of the persons or person who made the complaints against him to the Society. The Society delivered a defence to the

statement of claim in those proceedings but the pleadings therein have not as yet been closed.

On the 15th August, 1996, Mr Enright was charged with ten offences involving allegations of fraudulent misconduct. Mr Enright

pleaded not guilty and the matter was adjourned from time to time. The book of evidence was served on Mr Enright on the 25th

February, 1997, and the matter subsequently adjourned to enable additional evidence to be produced. Mr Enright contended in

correspondence and in argument that the requisite material was not contained in the book of evidence and when the matter

ultimately came on for preliminary examination on the 9th June, 1997, it was contended on his behalf that the above named District

Judge Terence Finn had no jurisdiction to proceed with the matter as the provisions of sections 6 and 7 of the Criminal Procedure Act,

1967, had not been complied with. In essence it was contended that numerous exhibits had been omitted from the book of evidence

and in those circumstances, and having regard to the fact that 22 months had elapsed since the commencement of the investigation,

that the proceedings should be struck out. The District Judge declined to strike out the proceedings but instead adjourned the matter

to the 30th of June, 1997 to permit the production and service of the further exhibits and documentation.

In those circumstances the Applicant applied for and obtained leave of the High Court (Kelly J) on the 17th June, 1997, to apply for

judicial review. The relief which had been sought is set out in the statement grounding the application and was identified as follows:-

“(d)(i) An Order of Prohibition prohibiting the first named respondent from proceeding with the purported Preliminary

Examination which he purportedly embarked upon at Tralee District Court at Tralee in the County of Kerry, on the 9th day of

June, 1997.

(ii) A declaration that the second named respondent, by himself, his servants or agents, acted unlawfully and in breach of the

Applicant’s constitutional rights in causing an investigation, wherein statutory powers of investigation were invoked, to be

initiated by the Incorporated Law Society of Ireland, by supplying them with information concerning this investigation.

(iii) An Order of Prohibition prohibiting the Second named respondent from taking up or dealing with the prosecution of the

Applicant herein on all or any of the ten charges in respect of which the Applicant was charged by the second named

respondent on the 15th August, 1996.

(iv) A declaration that the second named Respondent is estopped from dealing further with this matter as his servants or

agents advised the Applicant herein that if certain monies were tendered to the Complainant, namely New York Life Insurance

Company, no further detriment would be caused to the Applicant by the Second named Respondent, his servants or agents.”

Significantly Mr Justice Kelly expressly refused liberty to seek the declaration claimed in paragraph (d)(ii) above, that is to say, a

declaration that the Director or his servants or agents had wrongfully caused an investigation to be initiated.

The grounds on which the relief were sought were set out in paragraph (e) of Mr Enright’s Statement. That paragraph was divided

into three subparagraphs identified by roman numerals and those subparagraphs were again subdivided into further sub subparagraphs

this time identified by lettering which repeated the style of the original paragraphs and to that extent may have given rise to some

misunderstandings. In any event subparagraph (i) of paragraph (e) identifies the complaints made by Mr Enright in relation to the

inadequacies in the book of evidence. Subparagraph (ii) of paragraph (e) relates to a ground involving the Society and is expressed in

the following terms:-

“On or between 12.15 p.m. on the 21st day of October, 1994 and 5.00 p.m. on the 26th day of October, 1994, the Second

Named respondent, by his servants or agents, acted unlawfully and in breach of the Applicants constitutional rights in

furnishing information to the Incorporated Law Society of Ireland.”

Subparagraph (iii)(a) of paragraph (e) outlines grounds on which it might be claimed that the Director was estopped from pursuing the

criminal proceedings. Subparagraph (iii)(c) identifies the delay which occurred between the commencement of the investigation and

the service of the book of evidence. The remaining sub subparagraphs of subparagraph (iii) contain references to the Society and

were expressed as follows:-

“b) That by reason of the conduct of the second named defendant his servants or agents in deliberately misleading the

applicant herein into believing that no prosecution would be brought against him and involving the Incorporated Law Society of

Ireland and unlawfully permitting details of the investigation to be furnished to the media and in deliberately allowing him to

believe that no action would be taken against the applicant for 22 months during which time they delayed their investigations

for an improper purpose or purposes, it would be an abuse of the due process of the court to permit the trial of the alleged

offences to proceed.

d) the second named defendant, its servants or agents having commenced criminal investigation using statutory powers,

wrongfully and unlawfully and in breach of the applicants constitutional rights and before any charges were brought, caused to

be invoked the statutory investigative powers of the Incorporated Law Society of Ireland which body completed an

investigation and imposed a sanction being £1000.00 fine.”

Having regard to the fact that the learned trial Judge expressly refused relief in the nature of a declaration that the Director had

caused the investigation to be initiated and the refusal of the grounds [(e)(ii)] based on unlawful communications alleged to have

taken place between the 21st and 26th October 1994 it is perhaps surprising that the grounds mentioned in paragraphs (b) and (d)

were permitted but it is clear that this is what the order provides and the issues to be resolved in those proceedings must be

determined by the statement of grounds permitted by the order and the statement of opposition delivered on behalf of the

Respondents. From a reading of those documents it would appear that there is an issue of fact between Mr Enright and the Director,

or, more correctly, Inspector Patrick Sullivan, as to whether any member of the Garda Siochana has had “any role in conveying any

complaints or information to the Incorporated Law Society of Ireland as alleged by the applicant”. The relevance of that dispute is

less clear.

In the notice of motion dated the 26th March, 1998, Mr Enright sought the discovery from the Society of two categories of

documents, namely:-

“1) All documents, notes, memoranda, reports, written material of any nature whatsoever concerning the investigation which

Mr. Connolly directed into the practise of the Applicant on or around October 25th, 1994.

2) All documents, notes, memoranda, reports, written material of any nature whatsoever concerning the communication of

information, statements or other material relating to an investigation by the agents of the 2nd named respondent into

allegations against the applicant to The Law Society of Ireland either directly or indirectly between October 21st, 1994 and

October 27th, 1994.”

It would appear from paragraph 1 aforesaid that Mr Enright was seeking documents relating to the investigation undertaken by the

Society whereas paragraph 2 seems to relate exclusively the communications relating to the investigation “by agents of the secondly

named respondent between the 21st October, 1994 until the 27th October, 1994”. The affidavit of Mr Enright grounding the motion

and more particularly the letter of the 6th February, 1998, exhibited therein seems to make it clear that what Mr Enright was seeking

was what was described in that letter in the following terms:-

“1) The name(s) and address(es) of the person or person who furnished the information received by the Law Society which

caused the society to initiate the investigation.

2) A copy of the information tendered.”

When asked by the Society to advise them of the relevance of the documents sought Mr Enright in a letter of the 16th April, 1998

declined to respond contending that the relevance of the documents was a matter for the Court. Clearly Mr Enright was mistaken in

refusing to provide information by which the relevance of documents in their possession fell to be considered.

On a consideration of the foregoing facts it is reasonably clear that the documents generated by the inquiry undertaken by the

Society have no relevance to any matter in dispute or in issue between Mr Enright and the Director of Public Prosecutions or the

learned Judge of the District Court. However, there is an issue as to whether the Director or any person who might be considered his

agent entered into correspondence with or communicated to the Society between the 24th October and 27th October in such a

manner as did or may have instigated the inquiry which took place. The resolution of that dispute does not seem of itself to be of

decisive importance one way or another. Certainly the fact that documentation might cast doubt upon the credibility of a witness or

provide material which could be helpful on cross-examination would not be sufficient justification for ordering discovery. However, it is

a part of part Mr Enright’s case that the second named Respondent, his servants or agents, acted wrongfully and unlawfully in

furnishing information to the Society and in causing the statutory investigative powers of the Society to be invoked. To that extent

the documents relating to that issue would be relevant and material in the sense in which those words are used in the much quoted

case of the Peruvian Guano Company Case [1882] 11 QBD 62 which continues to govern the law as to what is relevant or material for

the purposes of an affidavit of discovery.

It would seem to me that the learned trial Judge was, understandably, misled by the extent of the leave given to bring the judicial

review proceedings and that contrary to his conclusion there is this limited area in which discovery might be relevant for the reasons

aforesaid.

That does not conclude the matter. The Plaintiff has, as already noted, instituted proceedings claiming a constitutional right to

inspect the documents of which he is now seeking discovery. If he does possess such a right, an order for discovery would be

unnecessary. If he does not possess such a right the granting of such an order would preclude an effective defence of those

proceedings by the Society. In my view it would be inappropriate to make an order for discovery unless Mr Enright gives an

undertaking to discontinue the plenary proceedings instituted by him against the Society.

In the event of an order issuing it will be limited to documentation in the possession, control or custody of the Society and received

by it from the secondly named Respondent or his servants or agents during the period between the 21st October, 1994 and 27th

October, 1994, and subject to the right of the Society to make a specific claim for privilege in respect of any document which may be

identified in the affidavit of discovery. Any such claim for privilege would be determined by the High Court in the event of dispute. To

avoid any doubt which might otherwise arise I would make it clear that the order should not extend to the discovery of documents

containing communications to or with the Society by any persons other than the Director of Public Prosecutions, his servants or

agents or members of the Garda Siochana.

To that extent and subject to those conditions I would allow the appeal.