In disclosure dispute, applicant's right to defend his good name prevails over others' right to privacy
Owen O'Callaghan (applicant) v Judge Alan Mahon and others (respondents)
Judicial review - Application for declarations - Tribunal of Inquiry - Discovery of documents - Whether provision of redacted documents in compliance with order - Whether material to be disclosed is confined to the factual allegations under inquiry - Whether all documents or oral statements made to tribunal relevant to credibility should be disclosed - Right to defend good name - Right to privacy of others - Hierarchy of rights.
The High Court (before Mr Justice O'Neill): judgment delivered July 29th, 2005
In seeking to redact material from a document the general content of which must be disclosed, there is no greater onus of proof or different standard of construction than would be the case if the redacted material were in an entirely separate and self-contained document.
Where the question arises, as it does in this case, as to whether or not an earlier order of the court is capable of encompassing material redacted relevant to the issue of the notice parties' credibility but not directly relevant to the factual allegations in modules Quarryvale 1 and Quarryvale 11, the question has to be approached from the point of view of vindicating the applicant's constitutional right to his good name and in particular his right to conduct a worthwhile or meaningful cross-examination for the purposes of the defence of his good name .The express constitutional right to one's good name and to defend that good name must prevail over the right of privacy of other individuals.
It would be premature and inappropriate for a court to make its determination on the issue of permissible redactions on the basis of the extent of the issues which might be canvassed by the applicant arising out of the disclosure.
Disclosure is subject to the restriction that the material only be used for the purposes for which it is disclosed.
The High Court so held in ordering which redactions in documents were permissible in compliance with a previous order of the court.
Paul Sreenan SC with John Lucey BL for the applicant; John R. Finlay SC with Kilda Mooney BL for the respondents.
Mr Justice O'Neill said the respondents were the moving party in the application. They sought a declaration that the respondents were in compliance with an order of the High Court of July 14th, 2004, in providing to the applicant the redacted documents as exhibited in the grounding affidavit of Susan Gilvarry. Alternatively, they sought orders specifying the documents or parts thereof which were to be provided to the applicant by the respondents in compliance with the aforementioned order.
Mr Justice O'Neill said that the part of the order of July 14th, 2004, that was relevant to this application was in the following terms:
"The court doth declare that the refusal by the respondents to permit the applicant through his legal representatives access to the documents which are relevant to the present or current module of the inquiry (and not to include notes by counsel solely for their purposes but to include information recorded or transcribed from the notice party by counsel), recording prior oral and written statements by Tom Gilmartin to the Tribunal of Inquiry into Certain Planning Matters and Payments for the purpose of cross-examining the said Tom Gilmartin amounts to a failure by the respondents to observe and protect the applicant's right to fair procedures and to natural and constitutional justice."
Mr Justice O'Neill quoted two passages from his judgment delivered on July 14th, 2004, which had been referred to as relevant to the application.
The first on p.26 stated that "The tribunal also apprehended a threat to the management of its business by the mixing of material from one module to another.
"In this case we are concerned only with a very limited category of documents, and of those, only those parts relevant to the current module of the tribunal.
"In my view in these circumstances there is no risk of bringing the kind of chaos to the business of the tribunal that has been mentioned."
The second on p.27 stated that: "Accordingly I will grant the declaration sought in the applicant's statement of grounds, but will amend the declaration as sought so as to confine the documents concerned to those documents which are relevant to the present or current module of the inquiry.
"I should make it clear, in this regard, also, that the declaration is not to include notes made by counsel solely for their own purposes, but is to include information recorded or transcribed from the notice party by counsel."
Mr Justice O'Neill said his judgment of July 14th, 2004, was appealed to and affirmed by the Supreme Court in its judgment delivered on March 9th, 2005.
Mr Justice O'Neill quoted two passages from the judgments of the Supreme Court which he said appeared to bear on the issues arising in the instant application. Geoghegan J., with whom Murray C.J., Denham J. and Fennelly J. concurred, said that for the purposes of dealing with the appeal and applying In Re Haughey IR 271 the tribunal did not comply with the requirements of the Supreme Court laid down in that case. Mr Justice Geoghegan said that the tribunal did not claim that it was absolutely hide-bound by its own policy, or by any rules or systems which it may have devised and, quietly rightly so, because whereas the tribunal undoubtedly has the latitude which may not be available to a court of law, it is always bound to ensure, as far as possible compliance with constitutional rights and obligations and that, of course, includes the vindication of a person's good name. It was absolutely essential that the documents and materials which were sought for the purposes of carrying out a worthwhile cross-examination in the extraordinary circumstances where wild allegations were flying around the tribunal against Mr O'Callaghan and of which he had not prior notice, be duly produced. Mr Justice Hardiman in his judgment stated that no doubt any court, asked to review a procedural decision of an enquiring body where allegations of great gravity and involving (if true) great turpitude, would give full weight to those factors, and refrain from interfering lightly with their legitimate procedural discretions.
But Mr Justice Hardiman said that this tribunal features very grave allegations some of which, if true, would constitute breaches of the criminal law; clear and obvious attacks on the good name of Mr O'Callaghan which is constitutionally protected; the personal credibility of Mr Gilmartin as a vital factor; little or nothing in the way of paper trail or corroboration; immediate and extensive media coverage of un-notified allegations.
Following upon the judgments and order of the Supreme Court, the respondents conducted an extensive search to find documents which were required to be disclosed. This search revealed a total of 54 documents which later became 56 documents because of the inclusion of two additional versions of the transcript of an interview between the notice party and his then solicitor. The respondents now wished to make a very substantial number of redactions in these documents for a variety of reasons which were deposed to in the affidavit of Susan Gilvarry. The several categories of redactions and the reasons therefore were as follows:
"6. The redactions marked with the letter 'A' contain notes to file by counsel to the tribunal. The tribunal has made there redactions as this information was excluded by the terms of the order.
"7. The redactions marked with the letter 'B' refer to the file path identifying where the documents can be found in the tribunal records. The tribunal has made these redactions as this information was excluded by the terms of the order.
"8. The redactions marked with the letter 'C' refer to matters redacted on the premise that nothing in the redaction is recorded or transcribing anything said either verbally or in writing byTom Gilmartin. The tribunal has made these redactions as this information does not fall within the terms of the order.
"9 The redactions marked with the letter 'D' refer to material which the tribunal has determined it will not investigate in public in the course of this module. The tribunal has therefore made these redactions as it is of the opinion that this information should not be provided pursuant to the terms of the order of the High Court.
"10 The tribunal has conducted a private inquiry in relation to the subject matter of the redactions marked 'E'. The tribunal determined that there was not sufficient evidence to warrant proceeding to a full public inquiry at this time. The tribunal has therefore made these redactions as it is of the opinion that this information should not be provided pursuant to the terms of the order of the High Court.
"11. The redactions marked with the letter 'F' refer only to personal details of an individual. The tribunal has made these redactions as it is of the view that publication of this material might constitute an unjustified interference with the rights of third parties.
"12. The redactions marked with the letter 'G' refer to the name of an individual who is not the subject of any inquiry in the current module. The tribunal has therefore made these redactions as it is of the opinion that this information should not be provided.
"13. The redactions marked with the letter 'H' refer to material the publication of which in the view of the tribunal may adversely affect the rights of third parties.
"14 The redactions marked with the letter 'I' refer to a conversation between Mr Gilmartin and a deceased person. This material is not capable of determination by the tribunal
"15. The redactions marked with the letter 'J' refer to advice given to Mr Gilmartin by his then solicitor/counsel. The tribunal has made these redactions as it is of the opinion that this information should not be provided pursuant to the terms of the order of the High Court.
"16. The redactions marked with the letter 'K' relate to Mr Gilmartin's relationship and other dealings with his then solicitor."
Mr Justice O'Neill said that the applicant through his counsel took objection to all of these redactions except those in categories 'A' and 'B'. Since the order of the High Court was affirmed by the order of the Supreme Court, the tribunal has commenced upon the "Quarryvale II" module, by which is meant that documentation in relation to that module has now been circulated to interested parties. It was submitted that the extent of disclosure and therefore the scope for redactions is to be informed by the purpose for which a disclosure is made in the first place, namely, to enable the applicant to cross-examine the notice party on inconsistencies between his sworn evidence in the public inquiry and statements, oral or written, made by him prior to that, and also, as to the failure to have disclosed to the tribunal in its private investigative stage, material given in oral evidence in the public inquiry.
It was submitted that the applicant was not entitled to reargue the issues which led to the judgments of this court and the Supreme Court, and hence the disclosure which they were entitled to, of written or oral statements of the notice party, was confined to utterances by him which could be said to be inconsistent with his oral evidence, or in respect of which he was silent prior to giving his oral evidence. Necessarily excluded therefore from disclosure would be disclosure of information which notwithstanding its potential impact on the credibility of the evidence of the notice party, was either unrelated to the factual allegations under inquiry in either the Quarryvale I or Quarryvale II modules and/or could not be used for the purposes of demonstrating inconsistency. It was submitted that matters disclosed by the notice party to the tribunal in its private investigative stage and never repeated elsewhere could not be said to be inconsistent with anything. It was submitted that the applicant had applied to the High Court for disclosure solely for the purposes of demonstrating inconsistency between the oral evidence of the notice party and prior statements or for the purpose of demonstrating silence in the private investigative stage in respect of evidence given in the public inquiry. It was not now open to the applicant to seek a much broader range of material for the purposes of demonstrating that things that were said to the tribunal in private concerning the applicant and a considerable number of other individuals, were either outlandish or demonstrably false, or in respect of which enquiries would reveal them to be false, notwithstanding that in other forensic fora this range of disclosure might be available to the applicant, and indeed if it were available, might significantly impact on the credibility of the evidence of the notice party.
The applicant submitted that a central issue, if not the central issue, in both modules is an assessment of the credibility of the notice party. Reliance was placed on the Supreme Court judgment in this case as support for the proposition that the applicant was entitled to the fullest scope of disclosure for the purposes of conducting a meaningful cross-examination of the notice party. Hence it was submitted that, as the redacted material was capable of a bearing upon the credibility of the notice party either because it would reveal a series of outlandish or outrageous allegations against a wide variety of people, or it could be easily demonstrated to be false.
In order to vindicate the applicant's right to his good name he was entitled to that broad range of material for the purposes of cross-examination. It was submitted therefore that in assessing the validity of the various categories of redaction that these categories could only be justified on the basis that the material redacted under each category was irrelevant to the credibility of the notice party. As no issue of privilege was raised, the only basis for redaction would be relevance to the central issue of credibility.
Mr Justice O'Neill said that in seeking to redact material from a document the general content of which must be disclosed, there is no greater proof or different standard of construction than would be the case if the redacted material were in an entirely separate and self-contained document. It is immaterial that the material sought to be redacted is included in a document which must otherwise be disclosed.
The central issue is whether or not the material to be disclosed is confined to the factual matrix of factual allegations under inquiry in either the Quarryvale I or Quarryvale II modules, or whether, as was contended for by the applicant, all written or oral statements by the notice party made to the tribunal or in the possession of the tribunal which could be relevant to the credibility of the notice party should be disclosed. It was conceded that the redactions under categories 'A' and 'B' are permissible.
Mr Justice O'Neill said he had read all the redacted material, and was satisfied that the material under categories 'J' and 'K' could not realistically be of any assistance to the applicant in cross-examining the notice party as to his credit. Insofar as material is redacted, as in the case of categories 'F', 'G' and 'H', on the grounds that the material affects the privacy of third parties, Mr Justice O'Neill said he was not satisfied that these grounds of redaction were permissible. It must be borne in mind, as has been alluded to, that the individuals affected do of course have a right to privacy, but that is a right which not just the tribunal but also the applicant must respect and observe, and the applicant could only use any material disclosed solely for the purpose of defending his good name by means of cross-examination, or where appropriate, calling rebuttal evidence. The express constitutional right of the applicant to his good name, and to defend his good name, must prevail over the right of privacy of other individuals in respect of whom statements are made by the notice party, but only to the extentthat disclosure of material which might offend their right to privacy is absolutely necessary for the purpose of enabling the notice party to defend his good name. In this regard, it would be appropriate to impose restrictions on the use which may be made of the material disclosed.
Insofar as category 'I' was concerned, Mr Justice O'Neill said the respondents had failed to demonstrate that there was a good reason for withholding the material. Notwithstanding the fact that a party to a conversation may be deceased, the statements made by the notice party in the conversation may still be capable of being demonstrated to be untrue. With regard to category 'C', having read the material redacted under this category, Mr Justice O'Neill said he was not satisfied that the applicant was in any way disadvantaged or deprived of material relevant to the cross-examination of the notice party as to his credibility.
Mr Justice O'Neill said that categories 'D' and 'E' posed the central question to the application. The first thing to be noted was that the problem apprehended by the respondents when the matter was initially heard, namely bringing chaos to the business of the tribunal by the mixing of material from one module to another, did not now arise as the tribunal has moved on to deal with Quarryvale II. If the material was disclosed to the applicant it could not be anticipated at this stage what use the applicant would make of it.
Undoubtedly, some of it would be used for the purposes of cross-examination and undoubtedly also the applicant might seek to call evidence to rebut things said by the notice party. Also, as had been said many times, the respondents are the masters of their own procedures and if these issues come up, then the tribunal would be required to make rulings on the extent it would allow issues to arise for determination by it, arising out of the disclosure of this material. Mr Justice O'Neill said that at that stage it would be both premature, and indeed inappropriate, for the court to make its determination on the issues raised in the application on the basis of the extent of the issues which might be canvassed by the applicant arising out of the disclosure, when that was not yet apparent. He stated that it would be inappropriate in the sense that it was for the tribunal to rule on these questions when they arose, if they arose.
Mr Justice O'Neill said that the more fundamental question that arose was whether or not the order of July 14th, 2004, was capable of encompassing material redacted relevant to the issue of the notice party's credibility, but not directly relevant to the factual allegations in Quarryvale I and II modules. Mr Justice O'Neill said in his view the question had to be approached from the point of view of vindicating the applicant's constitutional right to his good name, and in particular, his right to conduct a worthwhile or meaningful cross-examination for the purposes of defending his good name. Could it be said that without access to this redacted material the credibility of the notice party could be fully and properly tested by counsel for the applicant in cross-examination? Mr Justice O'Neill said in his view the answer to that question is in the negative.
In any other forensic contest where credibility was an issue and where material of the kind redacted under categories 'D' and 'E' was in the possession of an amenable party, it could not be seriously argued that it should not be made available to a party damnified by allegations of the kind made. In order to vindicate the applicant's constitutional right, it is necessary that those who have the responsibility for defending his good name, his legal advisors, should have access to this redacted material for the purposes of cross-examination.
Whilst there was a risk of interference with what might be described as the orderly conduct of its business by the tribunal, Mr Justice O'Neill said that administrative convenience or order cannot prevail over the administration of justice.
Mr Justice O'Neill said he was satisfied therefore that the order of July 14th, 2004, must, of necessity extend to the material relevant to the issue of the notice party's credibility, but not directly relevant to the factual allegations in modules Quarryvale I or II.
The paramount reason was the necessity to vindicate the constitutional right of the applicant to his good name. Material redacted under categories 'D' and 'E' should be disclosed.
Mr Justice O'Neill said it was appropriate that the disclosure be subject to the kind of restriction that goes with the disclosure of material on discovery of documents in civil actions, namely, that the material only be used for the purposes for which it is disclosed. The applicant would be restrained from using the material for any purpose other than the cross-examination of the notice party, or for necessary enquiries related thereto.
Mr Justice O'Neill summarised his judgment saying that redactions were permissible in categories 'A', 'B', 'C', 'J' and 'K', but not permissible in categories 'D', 'E', 'F', 'G', 'H' and 'I'.
Solicitors: Ronan Daly Jermyn (Cork) for the applicant; Tribunal Solicitor for the respondent.
PJ Breen, barrister