IESC 6 · Supreme Court

THE SUPREME COURT

Record No: 112/98

Murphy J

McGuinness J

Fennelly J

Between:

JOHN MCDONALD

Plaintiff

AND

RADIO TÉLEFÍS ÉIREANN

Defendant

AND

PATRICK CULLIGAN and MICHAEL P STAUNTON

Notice Parties

Judgment of Mr Justice Francis D Murphy delivered the 25th day of January, 2001.

I have read the judgment about to be handed down by Mrs Justice McGuinness and I have considered the files referred to therein. I

agree with the judgment of my colleague and the order which she proposes.

I would like to add certain observations in relation to the manner in which the Courts may resolve a conflict between the public

interest in preserving the confidentiality of documents pertaining to the exercise of the Executive powers of the State and the

interest of the individual in obtaining a fair hearing of legal proceedings. The landmark decision of this Court in Murphy .v. Corporation

of Dublin [1972] IR 227 and its affirmation in Ambiorex Ltd & Ors .v. The Minister for the Environment & Ors [1992] 1 IR 277 made it

clear that this conflict must be resolved by the Judicial power and not by the Executive. In many cases - including the instant case -

the Courts perform this task by reading the documents identified in the affidavit of discovery and for which privilege is claimed on the

grounds of public interest immunity. It is important to note that this is not the only manner in which the Court can discharge this

important function and in some cases it may not be an effective method of doing so. I think it well to draw attention to the comments

of Walsh J in this regard in the Murphy Case where he explained (at page 234):-

“It is clear that, when the vital interests of the State (such as the security of the State) may be adversely affected by

disclosure or production of a document, greater harm may be caused by ordering rather than by refusing disclosure or

production of the document. In such a case a Court should refuse the order but would do so on their own decision.”

He then went on to deal with the evidence which might be appropriate to enable a Court to make that decision. He said (at page

234):-

“The evidence that the Courts might choose to act upon to arrive at that decision would be determined by the Courts, again

having regard to the circumstances of the case again, taking the example of the safety of the State, it might well be that the

Court would be satisfied to accept the opinion of the appropriate member of the Executive or of the head of the government

as sufficient evidence of the fact upon a claim being made for non disclosure or non production, as the case may be, on that

ground.”

In the Ambiorex Case Finlay CJ, in setting out the practical conclusions which were applicable to a claim of privilege by the Executive,

stated, amongst other things (at page 283) that:-

“There is no obligation of the Judicial power to examine any particular document before deciding that it is exempt from

production, and that it can and will in many instances uphold a claim of privilege in respect of a document merely on the basis

of a description of its nature and content which it (the Judicial power) accepts.”

In general the examination of disputed documents may be the best method for the Court to exercise this important jurisdiction. Cases

do arise, however, where the examination of documents by a judge without any information as to the significance of particular

documents or any explanation as to how they might benefit one party or embarrass the other could lead to an injustice. The present

case illustrates how this might happen. One objection to the production of all of the papers contained in what is described as the

Oliver File is that the production of the entire thereof might disclose a limitation on the extent of the information available to the

gardaí in relation to an ongoing investigation. If a problem of that nature existed it might not be identified by a judge reading the

documents contained in the file.

However in the present case the documents have been examined by my colleagues and myself as well as by the learned trial Judge

with the benefit of detailed information and helpful arguments and I am satisfied that in those circumstances this procedure is an

appropriate one to enable the judicial power to be exercised. I draw attention to the fact that it may not always be so.