About this case:

• Citation:
  [2024] IEHC 540
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Liam Kennedy

Delivering judgment for the High Court, Mr Justice Liam Kennedy stated: “I have no doubt that disclosure of the entire file at this stage would be helpful for the plaintiff, but the plaintiff’s broad assertion is not sufficient to satisfy me that it is essential, rather than helpful.”

Background

In 2019, the plaintiff complained to gardaí in respect of sexual abuse that he suffered as a child in 1979. No prosecution was brought as the suspect priest had died years earlier.

The plaintiff made a request for information concerning the investigation which was refused by the Director of Public Prosecutions (DPP).

The plaintiff sought a Norwich Pharmacal order of the investigation file and disclosure of the identity of the suspect, undertaking that the materials would be used only to identify the suspect and to seek legal advice with a view to obtaining redress.

The plaintiff submitted that he had met the threshold conditions of Norwich Pharmacal Co. v Commissioners of Customs and Excise [1974] AC 133, showing a strong case that a serious criminal or civil wrong had been committed and that the defendant had become “mixed up” in that wrongdoing, that the information sought was in the defendant’s possession and necessary for commencing legal proceedings or pursuing some legitimate remedy arising from the alleged wrongdoing and that he had no other practicable or more appropriate means of obtaining the information.

The defendant accepted that the plaintiff had met the threshold conditions with the exception of demonstrating that the file was necessary to commence proceedings.

The High Court

Mr Justice Kennedy considered inter alia Irish jurisprudence on Norwich Pharmacal orders, noting the parties’ consensus that as per Blythe v Commissioner of An Garda Commissioner [2023] IECA 255, even where all three threshold conditions were satisfied, the order is a matter for judicial discretion.

Being satisfied that the plaintiff had met the “arguable wrong” criterion, the court highlighted that there was a dispute between the parties as to the extent to which the entire investigation file (as opposed to the suspect’s identity) was necessary to enable the suspect to be pursued.

Noting that it had already made an order directing the disclosure of the suspect’s identity to the plaintiff, the court deemed it appropriate to consider the issue of necessity first as it would be dispositive of the motion.

Having regard to Mr Justice Maurice Collins in Blythe, the court was not satisfied that the investigation file at this stage constituted “a specific and limited piece of information (or documentation) which is needed in order to confirm that such a cause of action or complaint is well-founded”.

Pointing out that the plaintiff could bring a further application if after disclosure of the suspect’s identity further information was still required to initiate proceedings, the judge also expressed surprise that “rudimentary checks did not appear to have been undertaken to enable counsel to understand what information is actually held and its volume, whether it might or might not be reasonably required by the plaintiff before proceedings are issued and the extent to which the defendant would have specific (rather than generic) public policy objections to the disclosure of some or all of the particular file”.

The court continued: “While the Commissioner is certainly not required to do a full file review before an order is made (which would defeat the purpose of the application process), it is highly undesirable that situations such as that experienced in Blythe should occur (where two court hearings were required, both ultimately funded by the taxpayer, although the Commissioner never had any further information to disclose in any case).”

Proceeding to consider the “mixed up” condition, Mr Justice Kennedy emphasised that the courts traditionally have been reluctant to order pre-action disclosure against non-parties to litigation. Noting the “need for some level of ‘involvement’ in order to justify such an order”, the court considered that it would not determine the precise position in this regard in light of its determination that the necessity requirement had not been met.

Moving to the “overall justice” condition, the court considered that if it had been required to exercise its discretion and to consider the proportionality of an order disclosing the entire investigation file, “then, while being mindful of the significant public policy factors which may arise and to the provisions of section 62 of the 2005 Act and sympathetic to the dangers of unnecessarily imposing burdensome discovery obligations on the defendant, I might nevertheless have exercised my discretion in favour of the plaintiff, in view of the exceptional circumstances of this individual case and also in view of the absence of any specific evidence from the defendant as to why such an order might be disproportionate in this case”.

As to costs, Mr Justice Kennedy had regard to the general rule described in Blythe: “Even if a respondent bona fide — but unsuccessfully — resists the making of a Norwich Pharmacal application, they ought still to have their costs, absent further circumstances that warrant a departure from that general approach.”

Conclusion

Accordingly, the High Court gave leave to the plaintiff to bring a further application if necessary and noted that it may review the relevant documents in the event of any such application if the parties could not resolve their issues through constructive engagement.

The court also awarded the defendant its costs, and placed a stay on the enforcement of that award to allow the plaintiff to bring any such claim against the alleged wrongdoer(s).

Randall v The Commissioner of An Garda Síochána [2024] IEHC 540