Supreme Court allows production of Northern Ireland trial evidence subject to Irish court consent.

THE SUPREME COURT

Appeal No. 110/2008

Murray C.J.

Hardiman J.

Geoghegan J

BETWEEN/

MARK CHRISTOPHER BRESLIN, CATHERINA

ANNE GALLAGHER, MICHAEL JAMES GALLAGHER,

AUDREY MARTHA MOONEY, CAROLINE FAITH MARTIN,

EDMUND WILLIAM GIBSON, ELIZABETH CATHERINE

GIBSON, ROBERT JAMES GIBSON, WILLIAM JAMES

GIBSON, WILMA SELINA KYLE, STANLEY JAMES

McCOMBE, GERALD GEORGE McFARLAND, MARIAN

ELAINE RADFORD, PAUL WILLIAM RADFORD,

COLIN DAVID JAMES WILSON, DENISE FRANCHESCA

WILSON, GARRY GODFREY CHARLES WILSON,

GERALDINE ANN REBECCA WILSON AND

GODFREY DAVID JAMES WILSON

Plaintiffs/Respondents

and

SEAMUS McKENNA, JOHN MICHAEL HENRY McKEVITT,

LIAM CAMPBELL, MICHAEL COLM MURPHY AND

SEAMUS DALY

Defendants/Appellants

JUDGMENT of Mr. Justice Geoghegan delivered the 16th day of July 2008

giving reasons for concurrence with the judgment of the court pronounced ex tempore on 4th April 2008

This was an appeal and cross-appeal from a judgment of the High Court (Gilligan J.) delivered on the 20th March, 2008 on

the issue of whether the defendants/appellants are permitted by the law of this jurisdiction to comply with orders made by

the High Court of Justice in Northern Ireland and the Court of Appeal of Northern Ireland requiring production for

inspection of books of evidence and transcripts relating to criminal trials against the appellants in this jurisdiction in the

Special Criminal Court. The Northern Ireland proceeding is a civil action brought by victims and relatives of victims of

certain criminal explosions carried out in Omagh, Co. Tyrone almost ten years ago and commonly known as “The Omagh

Bombings”. In the Northern Ireland action the respondents are seeking to establish that each of the appellants was actively

involved in the Omagh bombings.

The Northern Ireland courts did not make an absolute order for the production of these documents but made the orders

subject to there not being any rule of law in this jurisdiction against their production. Furthermore in the case of the fourth-

named appellant the order was confined to those parts of the books of evidence and transcript relevant to telephone

evidence given at the trials, a matter to which I will be returning.

Proceedings by way of special summons were issued in the High Court on behalf of the respondents on the 22nd May 2007.

In the special endorsement of claim on that summons five specific reliefs were sought. These were and are:

“1. A declaration that there is no impediment under Irish law preventing the defendants from producing for

inspection the transcripts and books of evidence relating to the criminal proceedings concerning them before

the Special Criminal Court.

2. A declaration that the documents supplied to the defendants for the purposes of their criminal trials before

special criminal courts and in particular the transcripts and books of evidence are not subject to an implied

undertaking that they would not be used for any other purpose other than the defence of the criminal

proceedings.

3. If necessary an order granting the defendants leave to produce to the plaintiffs the transcripts and books of

evidence furnished to them for the purposes of criminal proceedings before the Special Criminal Court.

4. If necessary, an order varying the terms of any implied undertaking pursuant to which the defendants were

furnished with transcripts and books of evidence from the Special Criminal Court.

5. Furthermore or in the alternative and if necessary, a declaration that in so far as a rule of law precludes,

prohibits or prevents the production of the transcripts and books of evidence from the Special Criminal Court

pursuant to the Order of the High Court of Justice in Northern Ireland then the said rule of law is

incompatible with the obligations of the Republic of Ireland under the European Convention of Human Rights

and Fundamental Freedoms.”

The judgment of Gilligan J. which is the subject of the appeal and cross-appeal herein was the judgment of the High Court

delivered in those proceedings. For the sake of completion, I should mention that prior to the issue of those proceedings the

respondents applied to the Special Criminal Court before which the various criminal proceedings had taken place for a ruling

in their favour in relation to compliance with the Northern Ireland orders but that court took the view that it had no

jurisdiction to deal with the matter. It is not relevant to consider whether that ruling was correct or not. It is now redundant

in the light of the High Court proceedings. Irrespective of whether the ruling as to jurisdiction by the Special Criminal Court

was correct or not, I am satisfied that the High Court had full jurisdiction to deal with the matter. That indeed was also the

view of the Special Criminal Court based on case law to which I will be referring.

The judgment of Gilligan J. helpfully sets out the relevant criminal record of each of the respondents. For the purposes of

this judgment, I will give a shorter summary.

Seamus McKenna, the first-named defendant, was convicted by the Special Criminal Court of unlawful and malicious

possession of explosive substances with intent to endanger life or cause serious injury to property contrary to statute and

was sentenced to six years imprisonment from the 15th June 2003. That conviction was not appealed and Mr. McKenna is

now out of prison.

John Michael McKevitt, the second-named defendant, was convicted of membership within the State of an unlawful

organisation styling itself the Irish Republican Army contrary to section 21 of the Offences against the State Act, 1939, as

amended, and was sentenced to a term of imprisonment for six years. He was further convicted by the Special Criminal

Court of directing the activities of an illegal organisation styling itself the Irish Republican Army in respect of which a

suppression order had been made pursuant to section 19 of the said Act of 1939, as amended, and on that offence he was

sentenced to a term of twenty years imprisonment as from 29th March, 2001. He appealed that conviction to the Court of

Criminal Appeal. The appeal was dismissed but the certificate enabling him to appeal further to the Supreme Court was

issued under section 29 of the Courts of Justice Act, 1924. That appeal was heard in February 2008 by this court and the

court has reserved judgment.

Liam Campbell, the third-named defendant was convicted by the Special Criminal Court on two counts of membership of

an unlawful organisation and sentenced to four years imprisonment on both counts, the sentences to run concurrently. He is

now out of prison.

Michael Colm Murphy, the fourth-named defendant, was convicted by the Special Criminal Court of unlawfully and

maliciously conspiring with another person not before the court to cause an explosion of a nature likely to endanger life or

cause serious injury to property within the State or elsewhere contrary to the relevant statutory provisions. He was

sentenced to fourteen years imprisonment but that conviction was overturned by the Court of Criminal Appeal on the 21st

January, 2005 and a retrial ordered. The retrial has not yet commenced.

Seamus Daly, the fifth-named defendant, pleaded guilty to a charge of membership within the State of an unlawful

organisation and was sentenced to three years and six months imprisonment and is now out of prison.

By order of the High Court made the 20th March, 2008, the court refused to grant a declaration that there was no

impediment under Irish law preventing the defendants who are the appellants in this court from producing for inspection the

transcripts of evidence relating to the criminal proceedings concerning them before the Special Criminal Court.

The court, however, granted the defendants/appellants leave to produce to the plaintiffs/respondents the books of evidence

furnished to them for the purpose of the criminal proceedings before the Special Criminal Court.

The appellants by three separate notices of appeal served and filed on behalf of the appellant, Seamus McKenna, the

appellants, John Michael Henry McKevitt and Liam Campbell and the appellants, Michael Colm Murphy and Seamus Daly

respectively have appealed against the granting of leave in respect of the books of evidence.

The respondents have cross-appealed in respect of the refusal of the High Court to grant the declaration that there was no

impediment under Irish law preventing the appellants from producing for inspection the transcripts of evidence relating to the

criminal proceedings.

The learned High Court judge, in his careful reserved judgment, expressed the view that there was a clear distinction to be

drawn between the order for production in respect of the transcripts of evidence and the order for production in respect of

the books of evidence. In relation to the transcript, the judge came to the conclusion that there was an impediment in law in

this jurisdiction to their production for the purposes of the civil proceedings. He, essentially, based this view on the Rules of

the Superior Courts, 1986 and an interpretation of those rules by Finnegan J. in The Minister for Justice v. Information

Commissioner [2001] 3 I.R. 43. I am not convinced that this was the correct approach in the context of this particular case

and I will be giving my reasons later in this judgment when I come to consider the cross-appeal.

In relation to the issue, the subject of the appeal itself, that is to say, the leave granted in respect of the books of evidence,

essentially, this was predicated on the concept that by analogy with the principle that documents discovered in one set of

proceedings may not be used in another set of proceedings without the approval of the court, a similarly adapted approach

should be taken in relation to documents which had been produced in criminal proceedings and were sought to be used in

subsequent civil proceedings, this argument being based on the concept that there was an implied undertaking by an accused

not to use the book of evidence for any purpose other than his own criminal trial. As to whether there was such an implied

undertaking or not formed the main thrust of the argument in relation to this aspect of the case. In his closing submissions,

Mr. Collins, on behalf of the plaintiffs, suggested to the learned High Court judge that he might consider approaching the

matter on an assumption (without so deciding) that there was an implied undertaking. There appeared to be no disagreement

as to this approach and the suggestion commended itself to the learned High Court judge and was adopted by him.

Making that assumption, the learned High Court judge made the following finding:

“I am satisfied that the books of evidence are in the control of the respective defendants and not the

de jure control of the Special Criminal Court. For the purpose of these proceedings and for that

sole purpose, I am satisfied to assume that the books of evidence were furnished to the defendants

pursuant to an implied undertaking that they were not to be used for any collateral purpose. In the

particular special circumstances of this case, I am satisfied in the exercise of my discretion to

waive the assumed implied undertaking that the books of evidence would not be used for any

collateral purpose, so as to enable them to be produced in accordance with the order of Morgan J.

of the High Court in Northern Ireland. I am satisfied in the circumstances to come to the

conclusion that in discovering and producing the books of evidence and in particular, having

regard to the observations of counsel on behalf of the DPP when the application was made initially

to the Special Criminal Court and the subsequent letter of consent from the DPP, that each of the

defendants will not be committing any contempt of court in discovering and producing the relevant

books of evidence.”

Although the learned judge then concludes his judgment with the statement that he had come to the conclusion that there

was no impediment in law in this jurisdiction to the discovering and producing the books of evidence, this does not seem to

me to be strictly accurate because his decision was based on an agreed assumption of an implied undertaking which could

only be dispensed with by order of the court.

As this part of his order is the subject matter of the appeals as distinct from the cross-appeal, I will deal with it first.

I should mention at the outset that at the stage of the original application to the Special Criminal Court to permit the handing

over of the books of evidence and transcripts, both the Attorney General and the Director of Public Prosecutions were

represented and each informed the court that in the words of the ruling of the Special Criminal Court “as far as they were

concerned the release by any one defendant or defendants of documents in their possession, power or procurement to the

plaintiffs does not cause them any problem.”

As I have already indicated, the learned High Court judge, as a matter of discretion, gave leave for the discovery and

production of the books of evidence on the assumption (without so deciding) that the appellants held their respective books

of evidence upon an implied undertaking not to use them for the purpose of any other proceeding without the consent of the

court. Now that the matter has come on appeal to this court, I do not think that this court can decide the case on an

assumption. It must consider what exactly is the legal position in relation to custody and possession of books of evidence.

The analogy with civil discovery is not an apt one in my view, largely for the reasons against importing discovery under the

rules into criminal proceedings expounded by Keane C.J. in a judgment with which the other four members of this court

concurred in H (D) v. Groarke [2002] 3 I.R. 522 following an earlier three judge decision of this court in DPP v. Sweeney

[2001] 4 I.R. 102. It was, of course, made clear in both of those cases that the now well recognised obligation on the part of

the prosecution to disclose all relevant material still applied. The application and enforcement of that principle however was

not governed by the rules of court relating to discovery which had quite distinct features. If such an undertaking as was

found to exist by the learned High Court judge did exist then I would find his reasoning based to a large extent on the

judgment of Clarke J. in Cork Plastics (Manufacturing) v. Ineos Compounds U.K. Limited [2008] 1 ILRM 174

impeccable. Indeed that case is still relevant to the somewhat different view which I have taken of the law and which I will

be expressing later in the judgment. Before I indicate what my view is however, I would like to refer to the reliance which

was also placed before Gilligan J. on the House of Lords decision in Taylor v. Serious Fraud Office [1999] 2 A.C. 177. I

do not find it necessary to decide whether that decision represents Irish law or not. It relates to “unused material”. That

expression, of course, is ambiguous because it could mean material that was furnished to the accused by the Director of

Public Prosecutions with no intention to include it in the book of evidence or it could have a wider meaning by embracing

also what was contained in the book of evidence but which were not in fact utilised by the Director of Public Prosecutions

at the trial. When I say that I do not find it necessary to make any decision as to whether Taylor represents good law in this

jurisdiction or not, I am referring to “unused material” in the narrower sense.

If I am right in the view which I take, the difference will be for the most part academic because like the learned High Court

judge, I believe that if the books of evidence are going to be used for some wholly different purpose from their original

intended use, the approval of the court should be sought. This will normally be the court of trial but in the case of the

Special Criminal Court, an appropriate court would seem to me to be the High Court. Rather than base this requirement on

an alleged implied undertaking, I would prefer to base it on the courts’ overall responsibility to ensure the due administration

of justice. In considering whether a court should accede to the application or not, the principles to be applied would be no

different than the principles which would apply if there was an implied undertaking as originally suggested. Therefore, in that

sense, I would uphold the granting of leave by Gilligan J. and I would agree with him that considerable assistance is to be

gained from the judgment of Clarke J. in the Cork Plastics case cited above in so far as two different jurisdictions were

concerned.

It is neither possible nor indeed desirable to attempt a precise definition of what set of circumstances would be regarded as

use of the books of evidence for some other purpose. It would not be the case that the book of evidence was confidential in

the sense that an accused could not discuss it with his spouse or members of his family or other advisors. Permission would

be required however to use it for wholly different proceedings or indeed for any uncontemplated public or semi-public

purpose. These restrictions are necessary in the interest of justice having regard to the ultimate finality of the verdicts of guilt

or otherwise in the due process. I, therefore, believe that the learned High Court judge was correct in his exercise of

discretion and in the manner in which he exercised it even though I do not agree with the presumption of law on which it

was based. This agreement is wholly immaterial in my view because no different principles would have applied in exercising

the discretion on the basis which I have suggested.

Everything which I have said so far is subject to my consideration of the special circumstances attaching to the second-

named appellant who potentially could face a new trial. This depends on the outcome of a reserved judgment of this court.

It is also subject to the special circumstances attaching to the fourth-named appellant who is in fact facing a retrial. As their

circumstances are relevant to the matters contained in the cross-appeal as well as the appeal, I will postpone their

consideration to later in the judgment.

In the cross-appeal, it is submitted that the learned High Court judge was wrong in his view that the handing over of the

transcripts could be prohibited as a matter of law by the Rules of the Superior Courts. In considering the question of

whether the transcripts can be handed over or not in the circumstances sought in this case, I am unable to agree that the

Rules of the Superior Courts are relevant except possibly to a very minor degree. Rules of court are not part of the

substantive law. They are designed to regulate in the interests of justice how litigation should be conducted and they include

wide powers of amendment and dispensation. With respect to the learned High Court judge, I cannot agree that the rules

could in any way be a determining factor in relation to the important question which arises in this case. It is clear from his

judgment however that the main reason why the judge followed the route of O. 86 of the Rules of the Superior Courts was

because of the decision of the High Court (Finnegan J.) in Minister for Justice v. Information Commissioner [2001] 3

I.R. 43. The respondents in their written and oral submissions correctly point out that that decision of Finnegan J. was made

in a very special context namely, whether certain transcripts would fall to be produced under the Freedom of Information

Act, 1997. Section 46 of that Act provided that the Act was not to apply to court records with two exceptions, the relevant

one of which was contained in section 46(1)(a)(I). It was when Finnegan J. had to decide whether particular documents

sought came within that exception or not that he gained some assistance from the status and origin of the documents which

in turn he was able to discover from O. 86 of the Rules of the Superior Courts. But that is very different from the reliance

placed by the learned High Court judge and sought to be placed by the appellants on this appeal on the rules for the purpose

of determining the issue in this case.

I find myself in full agreement with the arguments made by the respondents in their written submissions. First of all, they

point out, correctly in my view, that O. 86, rules 14 and 17 are essentially dealing with the administrative arrangements for

bespeaking transcripts for the benefit of a party to an appeal or an application for leave to appeal. It is, therefore, not

directed to the issue of the production of transcripts by other persons for quite different though responsible purposes

whether pursuant to an order for production for inspection or otherwise. Interestingly, Finnegan J., despite his restrictive

interpretation of O. 86, acknowledged that in an appropriate case a transcript could be the subject of non-party discovery

under O. 31, r. 29. The respondents in their submissions make the valid point that if in an appropriate case the production of

a transcript by the court may be directed pursuant to that rule despite O. 86, then it would seem to follow that ordinary inter

parties discovery which covered a transcript may also be permissible.

In general support of their submissions, the respondents place reliance on the judgment of O’Hanlon J. in Kelly v. Ireland

[1986] ILRM 318. A passage from that judgment is cited in the written submissions and I think that it is worth quoting in

this judgment. It reads as follows:

“(Counsel) for the plaintiff submitted that there was no procedure available for the formal proof in

later proceedings of decisions taken in the course of a criminal trial before the Special Criminal

Court. An official transcript was kept for the purposes of appeals and applications for leave to

appeal to the Court of Criminal Appeal, but this was not available for any other purpose. (O. 86, r.

14, Rules of the Superior Courts). An application by counsel for the plaintiff to see the transcript

after the court had ruled on the admissibility of the statements had been refused during the course

of the trial.

I do not think this objection is well-founded. Rule 25 of the Special Criminal Court Rules, 1975

(S.I. No. 234 of 1975) makes provision for the official record of the proceedings before the Special

Criminal Court and while the practice has been (in accordance with the provisions of section 41 of

the Offences against the State Act, 1939) for the court to control its own procedures in all respects,

I have no doubt that where it is necessary for the purpose of doing justice in a case involving

litigation between contesting parties, an extract from the transcript of the proceedings before the

court would be made available or its production could be compelled should it become necessary to

do so.”

I am in complete agreement with the view expressed by O’Hanlon J. In my view, there is no prohibition on the handing over

of transcripts for production for inspection purposes with the permission of the High Court, if it is necessary for the purpose

of doing justice and provided there is no relevant legal prejudice to the other party as a consequence of doing so. Where the

proceeding in which the production is required is in another jurisdiction, the courts of this jurisdiction should accept any

finding by that court that the documents are necessary unless there is any reason to believe that for some reason or other the

handing over of the documents could lead to a fundamental injustice.

The respondents in both their written and oral submissions also rely on the High Court judgment of Morris P. in Chambers

v. Times Newspapers Limited [1999] 2 I.R. 424 where although the judge refused non-party discovery against the

Registrar of the Special Criminal Court in relation to copies of the book of evidence and transcript of a trial in that court, he

accepted the principle that they could be made the subject of such an order in an appropriate case.

In my view, this court should accept that a fair trial will be conducted by the High Court of Northern Ireland and I see no

reason why this court now should not, as a matter of discretion, permit both the relevant books of evidence and the relevant

transcripts to be produced in accordance with the orders made by the High Court and Court of Appeal in Northern Ireland. I

take the view, furthermore, that no distinction should be made in either the case where there will definitely be a retrial of the

criminal proceeding or the case where potentially there could be a retrial. I cannot see any reason why the production of the

documents the contents of which the appellants have full knowledge could prejudice, in any legal sense, a future criminal

trial in this jurisdiction. Indeed the trial judge in this jurisdiction would be obliged to ensure that that did not happen.

There is one remaining aspect of the appeal with which I must consider. The relevant ruling of Morgan J. in the High Court

in Northern Ireland relating to the fourth-named appellant confined, as I have already mentioned, the production order in his

case to those parts of the book of evidence and transcript as related to the so called telephone evidence. With regard to the

retrial of the fourth-named appellant, Morgan J. in his ruling said the following:

“There remains some controversy in relation to the alleged admissions. It appears, however, that

there has been no such controversy about the factual telephone evidence which I am told was given

without objection by the fifth-named defendants (i.e. fourth-named appellants on this appeal) trial.

In those circumstances, I consider it unlikely that production of the materials in relation to his

admissions would have been ordered at this stage if those materials have been the subject of

proceedings in this jurisdiction because of the public interest in preventing contamination of the

criminal process. I accept that I should exercise caution in respect of the criminal process in the

Republic of Ireland. Accordingly, in the case of the fifth-named defendant (i.e. the fourth-named

appellant) I confine the order for production to the telephone material in both the transcripts and

the book of evidence at this stage.”

It is argued on behalf of that appellant that in making that ruling, Morgan J. was in error in allegedly believing that the

telephone evidence was not in controversy at the trial and that indeed the Court of Appeal in Northern Ireland was also in

error in affirming it. It appears from the judgment of Gilligan J. that this argument was made to him by reference to the

judgment of the Court of Criminal Appeal delivered on the 21st January, 2005 by Kearns J. in The People (DPP) v.

Murphy [2005] 2 I.R. 125 wherein at p. 131 it was specifically stated as follows:

“As was pointed out by the trial court, the accused’s admission that he borrowed Mr. Morgan’s

mobile phone is consistent with Mr. Morgan’s original evidence, although in the teeth of the later

retraction. The court decided to accept as truthful Mr. Morgan’s original evidence and rejected Mr.

Morgan’s purported retraction of evidence having observed his demeanour and having noted the

general tenor of his evidence on both occasions. In so far as the telephone evidence was concerned,

the court decided it could accept the veracity and accuracy of the telephone evidence beyond

reasonable doubt. The court further held that the accuracy of the records had not been challenged

by the defence.”

In this connection, the learned High Court judge goes on to refer to a later part of the judgment of the Court of Criminal

Appeal in which at pp. 157 and 158 the following passage appears with reference to the evidence of the said Mr. Morgan.

“The evidence given by Mr. Morgan including the sequence of that evidence and the circumstances

in which Mr. Morgan retracted evidence previously given by him, is fully set out earlier in the

course of the judgment. Under this ground the accused argues that the court erred in accepting the

earlier evidence of Mr. Morgan which confirmed that the accused had borrowed his mobile phone

on Friday the 14th August, 1998, notwithstanding the later evidence given by him, when recalled on

the 11th January, 2002 to the effect that he had left his mobile phone in an open glove compartment

in his van on the worksite on the 14th August.

It seems clear to this court that the question of the credibility of the evidence given by Mr. Morgan,

whether in its entirety or in respect of either of the conflicting accounts given by him was a matter

entirely within the competence of the trial court which had the opportunity of hearing and

observing Mr. Morgan while he was giving evidence. While the obvious contradiction between the

two accounts given by Mr. Morgan is a matter which was, quite properly, canvassed by the defence

at the trial, it does not seem to this court that it would be appropriate for it to seek to ‘second

guess’ the assessment of the credibility of Mr. Morgan. The grounds advanced by the appellant to

suggest that the court should decline to accept the trial court’s assessment of Mr. Morgan’s

credibility would involve this court in an impermissible inquiry into the assessment made. It was

open to the trial court to decide as it did that the evidence given by Mr. Morgan when he was first

before the court was truthful. On that basis the court rejects this ground of appeal.”

The learned High Court judge disposed of the argument relating to the telephone evidence in the following passage of his

judgment.

“It is quite clear that both the High Court in Northern Ireland and the Court of Appeal were aware

that the fourth-named defendant was facing a retrial. It is clear from the judgment of Kearns J., in

the Court of Criminal Appeal that the Special Criminal Court had come to the conclusion that the

accuracy of the actual telephone records had not been challenged by the defence. Clearly Mr.

Morgan retracted his earlier evidence and as set out by Kearns J. in the judgment of the Court of

Criminal Appeal, it was open to the trial court to decide as it did that the evidence given by Mr.

Morgan when he was first before the court was truthful. I do not agree with the submission of Mr.

Hogan that the production of the book of evidence in so far as it relates to the telephone evidence in

respect of the fourth-named defendant would in some way prejudice his anticipated retrial. This

aspect has already been referred to in general terms but quite clearly the fourth-named defendant

will be in a position, if there is any doubt in the matter, to produce to the trial judge in Northern

Ireland the judgment of the Court of Criminal Appeal and to make any relevant submissions

thereon.”

I am in complete agreement with the approach adopted by the learned High Court judge but I would go a step further. I am

not convinced and, indeed, I think it unlikely that Morgan J. made any error or certainly any error of significance. He speaks

of there having been “no such controversy about the factual telephone evidence” and goes on to say that he was actually

told that this was given “without objection” in the trial. I think it likely that he was referring here to the uncontroverted

records mentioned by Kearns J. But even if I were wrong in that interpretation, I would fully agree with the view expressed

by the learned High Court judge. Of course those observations would have to be extended to the books of evidence as well

as the transcripts on the view which I have taken.

For these reasons therefore, I am concurring in the judgment of the court already delivered ex tempore by the Chief Justice

to the effect that the consent should be given in relation to both the books of evidence and the transcripts, that the appeals

be dismissed, that the cross-appeal be allowed and that consequently that part of the order of the High Court which refused

the declaration in relation to the transcripts be set aside and that in lieu thereof the declaration sought be granted with the

addition of the words “provided there is the consent of the High Court, or the Supreme Court on appeal”.

Breslin & Ors. v. McKenna & Ors.