High Court allows stay of costs order pending trial but upholds reduced non-party discovery order.

THE HIGH COURT

[2026] IEHC 239

[Record No. 2025/149 CA]

BETWEEN

JOHN KEEGAN

AND

KEEGAN QUARRIES LIMITED

PLAINTIFFS

AND

KIERAN CUMMINS

DEFENDANT

EX TEMPORE JUDGMENT of Mr. Justice Micheál O’Higgins delivered on the 18th day of March 2026

Introduction

1. This is my ex tempore judgment in the defendant’s appeal of an order of the Circuit Court, Judge O’Malley Costello, dated the 2nd of May 2025, granting the plaintiffs’ application for non-party discovery of records relating to a criminal complaint made by the defendant against the plaintiffs in or around April 2021. In the underlying civil proceedings in the Circuit Court, the plaintiffs seek damages against the defendant for alleged defamation and malicious falsehood.

2. The first-named plaintiff, John Keegan, is a businessman and the director of the secondnamed plaintiff, Keegan Quarries Ltd. The defendant, Kieran Cummins, is an environmental activist and also a solicitor. According to para. 7 of the defence, the defendant participates in public interest litigation relating to planning law in Ireland. The first-named plaintiff is also the director of a number of companies, commonly referred to as the Keegan Group of Companies, which operates a number of quarries at various locations around Meath, Kildare and Dublin. The plaintiffs claim that there are poor relations between the parties and that the defendant has been involved in a long-running campaign against them to disrupt the plaintiffs’ business and development initiatives, including repeatedly objecting to planning applications made by the plaintiffs. For his part, the defendant claims inter alia that the plaintiffs are using the processes of the law for improper and oppressive purposes, and that the underlying defamation proceedings constitute strategic litigation against public participation (SLAPP), to intimidate and discourage the defendant from engaging in public participation in the planning process.

3. By order of Judge O’Malley Costello dated the 2nd of May 2025, the following order was made: “An Order pursuant to Order 32, Rule 9 of the Rules of the Circuit Court, directing An Garda Siochana in Trim, Co Meath, to make non-party discovery upon oath of all documents in its possession, power or procurement relating to the following categories of documents as set out below: All documents, records or otherwise in relation to complaints made by Kieran Cummins to An Garda Siochana concerning the Plaintiffs and in particular arising out of a complaint made to An Garda Siochana in or around April 2021 (The Complaint) the subject matter of these proceedings”.

This is the defendant’s appeal of that order.

Background Facts

4. In February 2022, the plaintiffs issued proceedings against the defendant in the Circuit Court alleging defamation and the tort of malicious falsehood, arising out of a criminal complaint which the defendant accepts he made to the gardaí in Trim, County Meath in or around April 2021 in respect of the plaintiffs. The plaintiffs’ civil bill pleads at para. 8 that on the 23rd August 2021, the first-named plaintiff was informed by An Garda Síochána that he and the second-named plaintiff were the subject of a criminal complaint made by the defendant on a date believed to be in or around April 2021. The first named plaintiff was interviewed by a senior detective from Trim Garda Station. The civil bill pleads that the complaint was recorded in writing, but that the first-named plaintiff had not been given a copy of the complaint. He was told that the complaint comprised of allegations by the defendant against the plaintiffs of harassment, coercion, making false allegations of trespass, and an offer by the plaintiffs to pay money to the defendant. The civil bill pleads that the first-named plaintiff was told by gardaí that the complaint also alleges that upon the defendant refusing the plaintiffs’ alleged offer of money, the plaintiffs commenced harassing the defendant and others, including two named directors of an ecological advocacy group, Eco Advocacy CLG. The civil bill pleads that the criminal complaint made by the defendant was defamatory of the plaintiffs, and also constituted malicious falsehood within the meaning of s. 42 of the Defamation Act 2009.

5. The defendant entered a full defence to the claim on the 18th June 2022, denying that any complaint made by him to An Garda Síochána was defamatory in nature. He pleaded that the defamation proceedings constituted SLAPP proceedings to intimidate him from engaging in public participation in the planning process. He asserts that the plaintiffs lack locus standi, that the complaint to the gardaí was measured and reasonable, that the complaint to the gardaí was published on an occasion of absolute and/or qualified privilege. The defence also pleads the truth of the publication and denies malice. Para. 10 of the defence admits that the defendant made a complaint to An Garda Síochána on the 25th April 2021. Para. 11 pleads that the complaint was a legitimate matter of public interest and was necessary because of a campaign of harassment and intimidation against the defendant and other directors of Eco Advocacy.

Summary of the plaintiffs’ submissions

6. The plaintiffs contend that the discovery application is confined to one document, which is known to be in the possession of An Garda Síochána. The complaint is without doubt, they contend, the most important document in the proceedings. The proceedings could not proceed fairly if discovery of the complaint is refused. This is so for several reasons, they say. First, the precise content of the complaint is known to the defendant but not the plaintiffs. Second, the complaint contains the precise wording of the defamatory statement on which the plaintiffs sue. Third, the defendant expressly relies on the wording of the complaint in his defence to the action and asserts that the complaint was legitimate, in the public interest, necessary, measured, reasonable and fair. He also relies on the plea that the allegedly defamatory statement was true.

7. The plaintiffs submit that the complaint is of central relevance to the issues in the proceedings. It is plainly necessary for the fair disposal of the action and also for saving costs. They contend that the real purpose of the defendant opposing discovery in this case is to stymie the prosecution of the defamation claim. The plaintiffs say they are strangers to the precise words uttered by the defendant to the gardaí in the complaint. However, having been informed by the guards of the general nature of the complaint, they know that the defendant has accused them of harassment, coercion, making false allegations of trespass, and attempting to buy off complaints and legal actions.

8. The plaintiffs contend they moved multiple applications in their attempts to obtain sight of the complaint. These efforts culminated in the County Registrar finding on the 22nd July 2024 that the defendant had complied with his obligations as far as possible. This was in circumstances where on the 25th of May 2024, the defendant had written to the gardaí at Trim Garda Station to inform them that the Circuit Court had required him to hand over any documents in his possession regarding his communications with the gardaí. In a separate letter on the same date, the defendant requested the gardaí to provide him with a copy of all complaints made by him in relation to John Keegan, so that they could in turn be forwarded to solicitors for Mr. Keegan.

9. Separately, the defendant asserts on affidavit that he has been told that An Garda Síochána do not furnish victims with copies of statements made by them. He also states at para.

4 of his affidavit of the 21st March 2024 that he is conscious of his own security and that he felt sufficiently threatened at the time of making his complaint to the gardaí that he sought assurances from them as to the confidentiality of statements made to the gardaí. He also asserted at para. 5 that being fearful for his own safety and security in the past in the event that his house was burgled and his computer stolen, he was therefore extra careful to ensure that he retained a bare minimum of communications to the gardaí.

10. The plaintiffs contend that discovery of the complaint in the circumstances is plainly relevant to the issues between the parties as identified within the tramlines of the pleadings. The plaintiffs say that discovery is necessary to address a major imbalance between the parties’ current positions. The plaintiffs sue on what they believe, and have been told, is contained in the complaint. The defendant defends the proceedings on the basis of what he knows to be contained within the complaint. Further, he seeks to leverage the plaintiffs’ lack of knowledge as to the precise content of the complaint against them in his defence to the defamation proceedings. The defendant is thereby wrongfully seeking to secure an unfair result by objecting to disclosure of the complaint.

11. Addressing one of the defendant’s main arguments in the appeal, the plaintiffs say that the defendant’s pleas of absolute privilege and qualified privilege at para. 13 of the defence are substantive defences to be determined and addressed at trial. They submit it is not open to the defendant now to oppose discovery on the basis that he may successfully defend the proceedings on grounds of privilege at the trial. The plaintiffs contend that the defendant’s reliance on the public interest privilege is in any event misplaced and unsustainable and in any event premature. They submit that English authority tending in favour of a finding of absolute privilege in relation to complaints made to police as evidenced from the decision of the English Court of Appeal in Westcott v. Westcott [2008] EWCA Civ 818 ought not to be followed in this jurisdiction.

12. In relation to the defendant’s SLAPP based arguments, the plaintiffs say that these issues are also issues to be dealt with at trial, being substantive pleas raised in the defence to the claim. It is also contended that the SLAPP based arguments are misconceived and that the indicia of such proceedings are plainly not present here. The plaintiffs say it is not open to the defendant to use the SLAPP based arguments in this discovery motion to undermine the plaintiff’s ability to prove his case. In all these circumstances, the plaintiffs contend discovery should be granted and the appeal disallowed.

Summary of the defendant’s submissions

13. When the application for non-party discovery proceeded before the Circuit Court, the defendant urges that he made the same objections that are maintained now. Firstly, by way of highline summary, discovery should not be granted because the complaint attracts absolute privilege, and also, the contention that it would not be in the public interest that complainants would be discouraged from making complaints to the gardaí for fear that their complaints and their identity would be disclosed.

14. Secondly, the contention that the plaintiffs have not met the test for non-party discovery as laid down by the Supreme Court in Keating v. Radio Telefís Éireann [2013] IESC 22. Thirdly, the absence of a precedent for the orders sought.

15. Fourthly, the obligation of the state and of its organs to comply with the Aarhus Convention. Fifthly, the defendant contends that the underlying proceedings constitute SLAPP litigation, which are improperly motivated and an abuse of the court’s process.

16. Developing these arguments further and dealing firstly with the question of privilege, the defendant submits that the Circuit judge failed to appropriately balance the public interest in the due administration of justice, being the conduct of the civil litigation being maintained by the plaintiffs against the defendant, as against the public interest in preserving the privilege and confidentiality of a garda file in relation to a complaint made to it. In this regard, the defendant asserts alternative arguments of (a) absolute privilege, and (b) qualified privilege.

17. The defendant relies on the decision of the Court of Appeal in England, as has been seen in Westcott v. Westcott, where it was held that all those who participate in a criminal investigation are entitled to the benefit of absolute privilege in respect of the statements which they make, and that that applies whether they are informants, investigators or prosecutors. The defendant notes that the wording of the plaintiffs’ discovery application seeks access to a garda file and he submits it is striking that no authority is relied upon to support such an application.

18. The defendant contends that the public interest in preserving the confidentiality of garda investigation files, which has been recognised in cases in Ireland, such as Breathnach v. Ireland [1993] 2 IR 458, far outweighs the public interest in the administration of justice in these defamation proceedings by ordering disclosure of the documents concerned. This submission is in turn based on the contention that the determination of the defamation claim will not be inhibited by the withholding of the material sought. The defendant contends that the public interest in victims of crime coming forward to the police is more important than the protection of the reputation of the person accused of the crime.

19. Moreover, there is a risk of Ireland being in default of its obligations under the Aarhus Convention to protect environmental defenders. In that regard, the plaintiffs rely on correspondence exhibited in the defendant’s affidavits from the UN Special Rapporteur on Environmental Defenders to the Chief State Solicitor’s Office dated the 1st May 2025. In that letter, the Special Rapporteur stated inter alia the following (this is a quotation from the letter of Michel Forst): “Based on the information I have received, the two sets of court proceedings Mr. Keegan and Keegan Quarries are currently pursuing against Mr. Cummins, as well as the third court proceedings Mr. Keegan and Keegan Quarries have recently threatened to launch against him, are each clearly Strategic Litigation against Public Participation (SLAPPs). The Council of Europe has recently defined SLAPPs as “legal actions that are threatened, initiated or pursued as a means of harassing or intimidating their target, and which seek to prevent, inhibit, restrict or penalize free expression on matters of public interest and the exercise of rights associated with public participation”. In line with this definition, by penalizing and harassing members of the public seeking to exercise their rights under the Aarhus Convention, SLAPPs may violate article 3(8) of the Convention. However, despite Mr. Keegan and Keegan Quarries’ defamation proceedings against Mr. Cummins clearly being a SLAPP, I understand that An Garda Síochána has informed Trim Circuit Court that it proposes to adopt a “neutral” position on Mr.

Keegan and Keegan Quarries’ motion for non-party discovery of Mr. Cummins’ police complaint. As you may be aware, as a Party to the Aarhus Convention, the Convention’s obligations apply to all organs and bodies of the Irish State. This includes An Garda Síochána, the Chief State Solicitor’s Office and the Irish Courts. With respect to the requirements of article 3(8), the Aarhus Convention Compliance Committee has held that: the wording of article 3, paragraph 8, is not limited in its application to acts of public authorities as defined in article 2, paragraph 2, of the Convention, but rather covers penalization, persecution or harassment by any State body or institution, including those acting in a judicial or legislative capacity.

It also covers penalization, persecution or harassment by private natural or legal persons that the Party concerned did not take the necessary measures to prevent. This means that Ireland is required by article 3(8) of the Convention to ensure that all bodies and institutions of the Irish State, including An Garda Síochána, the Chief State Solicitor’s Office and Trim Circuit Court, take the necessary measures to ensure that environmental defenders like Mr. Cummins are not penalized, persecuted, or harassed for exercising their rights under the Convention by private actors, such as Mr.

Keegan and Keegan Quarries. In any State governed by the rule of law, it is fundamental that members of the public who consider they have suffered intimidation and harassment are able to report that intimidation and harassment to the police safely and confidentially. If members of the public cannot complain to the police without fear that the alleged perpetrator will get access to their confidential police complaint, this will have a serious chilling effect on law and order in that State. It will also enable perpetrators to continue their intimidation and harassment with impunity.

In their letter to An Garda Síochána dated 13 November 2024, Mr. Keegan and Keegan Quarries’ solicitors explain that the reason for their motion seeking non-party discovery of Mr. Cummins’ police complaint is to build their defamation proceedings against him. Accordingly, if An Garda Síochána, represented by the Chief State Solicitor’s Office, does not strongly oppose the motion for non-party discovery, it will have directly assisted Mr. Keegan and Keegan Quarries to build and progress their SLAPP against Mr. Cummins. Pursuant to article 3(8), it is incumbent upon An Garda Síochána, represented by the Chief State Solicitor’s Office, to robustly oppose tomorrow’s motion by Mr.

Keegan and Keegan Quarries for an Order directing An Garda Síochána to provide non-party discovery of Mr. Cummins’ confidential police complaint.”

20. Finally, an additional point pressed in oral submissions by counsel for the defendant, Mr. Rogers SC, was the point that the plaintiffs had chosen to launch their defamation proceedings without having sight of the complaint and voluntarily chose to adopt the risk of doing so, in the full knowledge that they did not have the garda file and did not have even a copy of the actual complaint made to the gardaí in Trim. The blame for this state of affairs, it is urged, lies squarely on the shoulders of the plaintiffs.

21. Moreover, says the defendant, it has not been shown that the discovery of the garda file is necessary in circumstances where the plaintiffs have been able to plead in para. 8 of the civil bill extensive particulars of the claimed defamation. The defendant submits that the plaintiffs could not positively plead that the allegations in question were untrue if they were actually unaware of the complaint that was made. For all these reasons, which were further developed in oral submissions, the defendant submits that discovery should be refused.

Summary of submissions on behalf of the Commissioner

22. I turn now to a brief summary of the submissions made on behalf of the Commissioner of An Garda Síochána. Counsel for the Commissioner addressed the court without objection from either side. The Commissioner adopted a position of neutrality on the motion and says that as a non-party to the proceedings, the Commissioner neither consents nor rejects to the making of the order sought and will of course comply with any order made. The Commissioner indicates that a formal order of the court is required before discovery can be provided. As to the question of privilege, the Commissioner, by way of assistance to the court, cited the dictum of Denham C.J. in McLaughlin v. Aviva Insurance [2011] IESC 42. On the facts of that case, the plaintiff owned a bar insured by the defendant, Aviva Insurance. A dispute arose as to whether the plaintiff was insured by the defendant which claimed that the plaintiff himself had started the fire. A file had been forwarded to the DPP in respect of same. The DPP had yet to decide whether to prosecute the plaintiff. Chief Justice Denham, in her judgment at para. 12, stated with reference to the case of Murphy v. Dublin Corporation [1972] IR 215: “I agree with the analysis that in general documents material to an ongoing criminal investigation… 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.” The Commissioner submits that there is a fundamental public interest in criminal investigations carried out by An Garda Síochána. Chief Justice Denham in McLaughlin v. Aviva affirmed that in general, only documents material to an ongoing criminal investigation should not be required to be disclosed in criminal proceedings. The Commissioner submits that public interest privilege is not absolute, and in determining whether a document should be disclosed, the courts will be required to balance the interest relied upon by the party claiming privilege over documents with the public interest that is served by the disclosure of relevant documents. This exercise only arises if a claim of privilege is challenged.

23. Turning then to the court’s analysis of the issues, I propose to consider the legal issues arising under the following separate headings. Part (a) will be key facts in context. Part (b) will be public interest privilege. Part (c), the defendant’s arguments regarding SLAPP litigation. Part (d), the question of compliance with Circuit Court rules. Part (e), the question of relevance and necessity. And part (f), my conclusion.

(a) Key facts in context

24. This application for non-party discovery falls to be determined in the light of the individual circumstances of the case. In my view, the principal features of the present case that have a bearing on the discovery issue, include the following. Firstly, in presenting the application, counsel for the plaintiffs emphasises that the only document sought is the complaint itself. That acknowledgement has some significance because it means the order sought is less far-reaching than the order actually granted by the Circuit Court. And secondly, it means that the application does not trigger the necessity to address at this point the complex issues associated with discovery of a garda investigation file. The order of the Circuit Court that is under appeal here directs the gardaí to make non-party discovery of “All documents, records or otherwise in relation to complaints made by Kieran Cummins to An Garda Siochana concerning the Plaintiffs and in particular arising out of a complaint made to An Garda Siochana in or around April 2021”. That order requires the gardaí to discover all documents relating to the complaint made in April 2021, which arguably would include documents generated by the gardaí relating to the complaint, including documents pertaining to investigative steps taken by the gardaí on foot of the complaint, and possibly also statements taken by gardaí as part of any such investigation. Mr. Crean, Senior Counsel for the plaintiffs, indicates that that is not the purpose of the application, and that in fact, the application is limited to seeking a copy of the complaint itself. Of necessity, this acknowledgement limits the extent of the discovery sought and also limits the defendant’s scope for resisting it.

25. The second important feature of the case is that it appears to be an agreed fact that the Director of Public Prosecutions in September 2022 directed that there should be no prosecution against Mr. Keegan with respect to the allegations made by Mr. Cummins in April 2022. This is evidenced in an undated letter which Superintendent Martina Noonan sent to Kent Carty Solicitors for the plaintiffs sometime in October 2023 and referenced at para. 5 of the affidavit of Gavan Carty, Solicitor, sworn on the 7th December 2023. Counsel for the defendant, Mr. Rogers SC, drew a distinction between the confirmation being given that the DPP had directed no prosecution, and the fact that correspondence between the defendant and the gardaí in Trim, including an email from Inspector Suzanne Byrne, dated the 25th June 2024, which indicates that the inspector was organising for the crime prevention officer to visit the defendant regarding ongoing concerns that he had expressed for his own personal safety. It seems to me that while that correspondence does indicate an ongoing liaison between the gardaí in Trim and Mr. Cummins, it does not wipe from the slate, as it were, the confirmed fact that the DPP had directed there should be no prosecution arising out of the defendant’s complaint in April 2021. For reasons that will become apparent later in this judgment, I do not propose to address this issue further at this stage. This potentially triggers the applicability of Chief Justice Denham’s observation in McLaughlin v. Aviva Insurance at para. 12, “that in general documents material to an ongoing criminal investigation… should not be required to be disclosed in civil proceedings”.

26. The third key feature of the case, in my view, is the position of the non-party from whom the discovery is being sought. The declared position of the Commissioner is effectively two-fold. One, the Commissioner is neutral on the application, and two, the Commissioner has confirmed that in the event the court orders discovery here, the Commissioner will at that point give consideration to the question whether privilege should be claimed with respect to the documents the subject of the discovery order. It seems to me this view is consistent with the long-established principle that the fact that a claim of privilege may be made in respect to a document does not exempt it from the discovery process. In general, therefore, the fact that a document may be privileged from production is not a ground for refusing discovery of that document. To this general principle, there are exceptions, and the authors of Delaney and McGrath on Civil Procedure, 3rd Ed., at page 257, para. 10.190 cite the example of Haughey v. Moriarty [1998] IEHC 6, where Mr. Justice Geoghegan dealt with the question of privilege at the same time as a discovery issue. Because for exceptional reasons in that case, it was appropriate to do so, and in circumstances where it is almost certain that the claim of privilege would be challenged. No such necessity, it seems to me, arises here. Moreover, the parties have drawn the court’s attention to a passage of Mr. Justice McKechnie’s decision in the leading case of Keating v. RTÉ, where at para. 46 McKechnie J. cautions against conflating the two separate stages of the process.

27. The fourth feature of the case that has a bearing on the discovery question is the absence of the risk of the complainant’s identity being compromised on the facts of this case. Somewhat unusually, this is a case where the complainant himself has confirmed on the record that he is the person who made the criminal complaint to the gardaí in April 2021. The defendant admits at para. 10 of the defence that he made the complaint. Therefore, the question of withholding discovery in order to preserve the confidentiality of the complainant does not arise on the facts here. Obviously, that fact in and of itself cannot be determinative of the issue, but it is nonetheless a relevant feature.

28. The fifth feature of the case that in my view, has a bearing on the question of discovery concerns the somewhat unusual imbalance between the knowledge of the respective parties as to the nature and extent of the defamatory statement being sued upon. In my view, there is much force to the point made by counsel for the plaintiffs that the precise content of the complaint is known to the defendant but not the plaintiffs. And the supplemental point that this difference in knowledge as to precisely what was said to the gardaí has been utilised by the defendant in his defence to the action at paras. 3, 11, 12, 13, 14 and 15 of the defence.

29. Para. 3 includes a complaint that the plaintiffs’ claim relies wholly and exclusively on hearsay and anecdotal information. Para. 11 pleads that the complaint was a legitimate matter of public interest and was measured and reasonable, and therefore protected by s. 26 of the Defamation Act of 2009 as amended. Para. 12 denies malicious falsehood and crucially pleads truth of publication of whatever was said. Para. 13 pleads absolute and/or qualified privilege. Paragraph 14 pleads truth. Para. 15 denies malice and particularises the absence of malice in eleven individual respects. In my view, without in any sense determining the substantive issues that are the preserve of the trial judge, the extent to which the defence utilises the difference in the party’s knowledge as to the precise context of the complaint is striking.

30. It seems to me that in this application, the defendant effectively seeks to deprive the second-named plaintiff of access to the very document on which he himself relies in the defence of the defamation proceedings, in circumstances where the imbalance in knowledge of the respective parties would be immediately cured by production of the document. In my view, there is force to the plaintiffs’ grievance that the defendant simultaneously asserts truth and legitimacy of the criminal complaint, but seeks to deprive the plaintiffs of the document itself, resulting in their being unable to engage with these contentions. If one of the purposes of discovery is to eliminate or reduce litigation disadvantage between the parties, then it seems to me, the levelling of the playing pitch in the present case would be assisted by discovery of the document.

31. The sixth and final feature of the case that, in my view, points in favour of granting discovery is the somewhat contradictory position adopted by the defendant at different stages of the discovery correspondence process. The defendant confirms in his affidavit of the 15th July 2024, that he wrote two letters to Inspector Byrne on the 25th May 2024, to request a copy of all the complaints made by him, to the gardaí in relation to the plaintiffs, so that they could be passed on to the solicitors for the plaintiffs. In other words, at that stage of the process, the defendant appears to be perfectly happy with the idea that the plaintiffs would be given sight of all documents relating to the complaint. That position now appears to have undergone revision, insofar as the defendant now seeks to resist the making of discovery on the various grounds now advanced. In my view, it is difficult to reconcile these two different positions. While the defendant is undoubtedly within his rights to alter his position or emphasise different legal points that may arise, this change in emphasis has not been sufficiently explained.

(b) The defendant’s reliance on the plea of absolute privilege

32. Mr. Rogers SC for the defendant emphasises the crystal clarity of the decision of the English Court of Appeal in Westcott v. Westcott, and also the strong statements of Mr. Justice Geoghegan in the People (DPP) v. Sweeney [2001] IESC 80 to the effect that the rules relating to discovery would not have been intended to include criminal proceedings. On page 6 of the judgment, Geoghegan, J. states that: “In the hundred years that followed [the Judicature Ireland Act of 1877] there was never discovery of documents ordered in criminal proceedings… because… the rules relating to discovery would not have been intended to include criminal proceedings.” On page 12, Geoghegan J. states that: “Subject to some modern statutory exceptions in relation to alibi evidence the defence is entitled to spring surprises and above all is perfectly entitled, pending the trial, to give no indication as to what issues might be raised. In that state of affairs discovery of documents under the Rules of Court is wholly inappropriate and it is another reason why those rules can never have been intended to apply to criminal proceedings.”

33. Stepping back from matters, in my view, the rationale employed by Geoghegan J. in the Sweeney case is not destructive of the court’s jurisdiction to grant discovery in the present case. In fairness, I should point out that that was not the purpose of Senior Counsel citing the Sweeney authority, but nonetheless, it is important I make that point. In Sweeney, Mr. Justice Geoghegan held that the High Court (Mr. Justice Smith) was not entitled as a matter of principle sitting as a judge of the High Court exercising civil jurisdiction to make orders directing discovery against the Rape Crisis Centre in that case for the purposes of criminal proceedings which the DPP had brought against the applicant, who was the accused facing rape charges in the Central Criminal Court. Geoghegan J. held that Smith J. in the High Court had wrongly purported to exercise a civil jurisdiction in what was a criminal case. He had no jurisdiction to do so, because a civil discovery order cannot be made in the context of criminal proceedings.

34. Ordinarily, as noted by Mr. Justice Geoghegan, an accused’s rights to disclosure of documents are governed by the Criminal Procedure Act 1967, as amended, and the entitlement of the accused to receive the book of evidence prepared by the prosecutor, and any additional statements of proposed evidence, coupled with his right in modern times to see relevant documents in the hands of the prosecution by way of the disclosure process. This latter right, as noted by Mr. Justice Geoghegan at page 10 of the judgment, arises from the constitutional obligation of the court to ensure fair procedures. This has nothing whatsoever to do with the conventional discovery procedure set out in the Rules of the Superior Courts. Accordingly, in the present case, I see no jurisdictional bar to the court granting discovery in the present case based on the Sweeney judgment, and it would appear from the affidavits that no such jurisdictional argument was raised before the Circuit Court.

35. In relation to the question of privilege itself, I acknowledge the tension between the Irish case law as evidenced by the Supreme Court’s decision in McLaughlin v. Aviva, and the English case law in Westcott v. Westcott. But it seems to me, it would be inappropriate for the court to even comment on this issue at this stage, for fear of tying the hands of the trial judge in the Circuit Court at the trial of the action.

(c) Defendant’s argument regarding SLAPP litigation

36. In my view, the plaintiffs are correct to argue that the defences, firstly of public interest privilege, and secondly, of abuse of process by way of SLAPP litigation, are substantive matters to be addressed before the court of trial. I do not wish that anything I may say in this judgment about these issues should in any way influence or tie the hand of the trial judge. Merely because discovery of the complaint may be directed at this point, does not preclude (a) a claim of privilege being asserted or (b) a submission being made at trial, that the document should not be admitted into evidence for any particular legal ground that may be advanced by the defendant at hearing. Accordingly, I hold that as a matter of principle, the plaintiffs are correct that the raising of these substantive issues is premature at this point and not a basis for resisting discovery.

37. The same, in my view, applies to the defendant’s arguments with respect to SLAPP litigation. In the alternative, if it is necessary to consider the public interest privilege issue at this stage, pre-trial, I propose to follow the lead of McKechnie, J. in Keating v. RTÉ and consider that the defendant has not established at this stage, where the evidence has yet to be heard, that the plea of privilege permits of no possible outcome other than it inevitably must succeed. Absent such certainty of outcome, the discovery process should be kept separate from the privilege process, which should be allowed to take its course at the appropriate time.

(d) Compliance with Circuit Court Rules

38. In my view, the plaintiffs have demonstrated that the application for discovery is procedurally in order and complies with the requirements for non-party discovery in Order 32, Rule 9 of the Circuit Court Rules. The plaintiffs have exhausted the alternative remedies opened to them. They issued the appropriate letter seeking voluntary discovery by letter dated the 13th of November 2024, and this was copied to the defendant. The plaintiffs have provided an undertaking to identify the non-party in this instance any costs reasonably incurred in making the discovery as sought. They have also undertaken to maintain the confidentiality of the documents concerned, and have also, as I have said at the start, cut back the discovery request to the complaint itself.

(e) The issues of relevance and necessity

39. I will now address the core issues of relevance and necessity, which are ordinarily the two main issues in any discovery application. The parties are agreed that the governing test for non-party discovery is that identified by Mr. Justice McKechnie in Keating at para. 51 at page

26 of the judgment, where in relation to the equivalent provision of the Superior Court Rules, Order 31, Rule 29 RSC, he states that the moving party must establish: “(i) that the [non-party] has or is likely to have in its possession or power the documents [in question] …

(ii) that such are relevant to an issue or issues in the action.

(iii) that an order for discovery is necessary for disposing fairly of the cause or matter or for saving costs; and

(iv) that any order made, by reference to its scope, is not oppressive.”

40. For the reasons previously discussed, it is clear that the complaint is within the possession of the gardaí in Trim, so requirement 1 is established. The pleadings then, particularly in the defendant’s defence, drive the complaint centre stage as an item of undoubted relevance. The discovery of the complaint will assist the trial judge in determining the issues disclosed as arising on the pleadings. The question as to the precise terms and extent of the criminal complaint goes to the pleaded issues as to (i) whether the complaint was legitimate, measured and reasonable, (ii) whether the allegations comprised within the complaint were true, (iii) whether the complaint was reasonably made or maliciously made,

(iv) whether the complaint was made in circumstances that attract privilege. Separately, I am satisfied that discovery of the complaint is necessary to enable the trial judge achieve justice in the case and to enable both parties prepare for trial, fully aware and certain as to the extent of the allegedly defamatory statement being sued upon. It will remain open to the defendant to argue that it was inappropriate and/or reckless for the plaintiffs to launch proceedings without sight of the complaint itself.

41. Moreover, I am satisfied that the prospects of a fair and balanced trial outcome will be enhanced by the court granting discovery. Nor has it been suggested that criterion 4 in Keating is engaged because, of course, discovery of the complaint will not involve an oppressive burden on the notice party or on the defendant.

42. Drawing these different strands together, particularly the features discussed at the commencement of this ruling, being:

1. The limiting of the application to the complaint itself;

2. The agreed fact that the DPP has directed no prosecution;

3. The absence of objection from the non-party from whom discovery is sought;

4. The absence of prejudice to the complainant in terms of their identity being exposed, and the absence of prejudice to the public interest at this point, I emphasise, by a complainant’s identity being disclosed against his will; and

5. The imbalance in knowledge between the parties as to the precise contents of the alleged defamatory statement being sued upon, I propose to refuse the defendant’s appeal, save that I will vary the wording of the order to reflect counsel for the plaintiffs’ acknowledgment that only the complaint itself is being sought. I will hear the parties on the precise wording that should follow. I propose to make an order in the following terms, which the parties perhaps may wish to take a note of and consider, as follows: An order pursuant to Order 32, Rule 9 of the Rules of the Circuit Court, directing An Garda Síochána in Trim Garda Station, County Meath to make non-party discovery upon oath of the following documents in its possession, power or procurement relating to the following categories:

1. A copy of the actual written complaint made by the defendant in around April 2021, if same was made by the defendant in writing, and

2. A copy of any record of the said complaint made by An Garda Síochána, if the original complaint was otherwise than in writing.

That concludes my ruling.

Costs

43. The court has been informed that the Commissioner, who participated as a non-party, the non-party from whom discovery is sought, makes no application for costs, and no party has sought any costs order - quite appropriately - as against the Commissioner. What is in dispute, however, is the question of costs of the matter that I have just determined as between the plaintiffs and the defendant. In urging that their costs should be reserved to the trial judge, Mr. Rogers, Senior Counsel for the defendant, emphasises a number of points. Firstly, the fact that the breadth of the discovery order sought has now been reduced or limited by the court. That is to say, it could be said that there is an event for cost purposes, because the Circuit Court order is being varied in a manner that reduces discovery, the breadth of the order.

44. Secondly, reliance is placed upon the emphasis within the court’s judgment on the point that the question of the admissibility of the alleged complaint will be a matter to be dealt with at trial. Mr. Rogers emphasises that the determination of the admissibility question will therefore be the real determinant of the equities with respect to the costs question. And it is urged that even more than usual, the trial judge will be best placed, with a bird’s eye view of established facts, to achieve justice with respect to the issue of costs.

45. By way of fallback argument, it is urged that in the event the court is minded to grant costs, that there ought be a stay, based upon the availability of an appeal to the Supreme Court under Article 34. In other words, that the fact that this is a Circuit appeal to the High Court doesn’t necessarily mean the end of the road.

46. Ms. Goode BL, on behalf of the plaintiffs, urges a different course and urges that costs should effectively follow the event. Sections 168 and 169 of the Legal Services Regulation Act 2015, and in particular Order 99 RSC, cut down the breadth of discretion which the costs judge used to have when ruling on interlocutory applications.

47. Ordinarily, the default position is that costs applications should be dealt with and finalised with respect to costs at the interlocutory stage, and the criteria within ss. 168 and 169 applied, and it should no longer be the default position that, as it were, costs are reserved for the trial judge. In addition, it is urged that the defendant’s reliance upon the variation of the discovery order is not a sufficient reason to depart from the normal rule of costs following the event, because this was not a situation where the defendant offered discovery in terms of the reduced order, but rather, this is a case where discovery was resisted full stop. That is to say, there was a full-blooded objection made to the principle of discovery here on substantive grounds, which has been found to be, in essence, a premature issue to raise at this point, and in circumstances where a very forthright opposition was put forward to the making of any discovery whatsoever.

48. It is also urged that the ultimate issue that the court has decided involves a clear-cut outcome. The default position, therefore, under ss. 168 and 169 of the 2015 Act, is that the costs should follow the very clear result that has ensued. For all these reasons, it is urged that there should be a costs order made at this point in favour of the plaintiffs.

Analysis of costs

49. It seems to me that the law has undergone quite a revision with the introduction of ss.

168 and 169, and undoubtedly, the Supreme Court have analysed this further in a clear-cut manner, in Little v. The Chief Appeals Officer [2023] IESC 25, a case I have had cause to consider in a number of recent cost applications, and undoubtedly the wide discretion which a costs judge used have, has now been reduced by the enactment of 2015. However, it is also clear that it is not a situation where the court’s discretion has been removed altogether. It is clear from that case and also the Chubb case ([2020] IECA 183) from Mr. Justice Murray in the Court of Appeal that there remains a discretion, but it is a discretion to be exercised in accordance with the criteria identified within the statute.

50. It seems to me that Ms. Goode also raises a valid point when she indicates that the rules relating to costs also now emphasise the desirability, all things being equal, that a judge at the interlocutory stage deal with the costs issue in a discrete fashion and not in a default way, reserve it over to the trial judge. That is obviously a general proposition, there are exceptions to it, but it seems to me that point is in the mix here.

51. In my view, I am persuaded more by the plaintiffs’ arguments on the issue, and it seems to me that while there is merit to Mr. Rogers’ point concerning the holding over of the substantive issues, I do think that there is a very clear event here which costs ought follow. And that is that discovery has been granted, and in principle, the decision of the Circuit Court has been upheld, albeit the discovery has been reduced, the breadth of it has been reduced.

52. It seems to me that the order that would best reflect the judgment that I have just delivered is an order that costs should be awarded against the defendant with respect to the motion. That is the order that I propose to make. However, it does seem to me that, having regard to the circumstances of the case, and in particular my finding that the substantive issues are substantive issues, number one, and are issues that fall to be dealt with by the trial judge, it is certainly a case where it would be just and fair to grant the stay sought, and that is the order that I propose to make. So, I will place a stay on entry and execution of the costs order until the conclusion of the Circuit Court proceedings, and that is the order that I propose to make.

53. And with respect to the Commissioner’s costs, I note that the costs of making the discovery have been indemnified by the moving party, the plaintiffs, and I note that the Commissioner is not seeking costs with respect to this application. I will not interfere with the order of the Circuit Court. Ms. Goode quite properly has indicated that that order was made having regard to other separate factors which have not been disturbed by this ruling, and therefore, I will not make any order altering the order made by the Circuit Court. The costs order that I have indicated applies to the hearing before me only.

Signed: Micheál O’Higgins

Appearances: For the plaintiffs: Frank Crean SC & Jennifer Goode BL instructed by Kent Carty Solicitors LLP For the defendant: John Rogers SC & Cathal Lenihan BL instructed by O’Connell & Clarke Solicitors LLP