Dr James Barry (applicant) v The Director of Public Prosecutions and (by order of the court dated 17 November 1997) the District Judge for the time being assigned to deal with proceedings entitled "The Director of Public Prosecutions (Prosecutor) and Dr James Barry (accused)" in the District Court Cork (respondents).
Practice and Procedure - Judicial Review - Discovery - Inspection of documents - Renewal of application - Whether case materially altered since issue heard and determined - Rules of the Superior Courts 1986.
The High Court (Mr Justice O'Neill); judgment delivered 2 April 2001.
Where an application for inspection had previously been heard and determined by the High Court and there was no basis in the fresh affidavits served for contending that the case was materially altered, then, in light of the rule that inspection be ordered only if necessary either for disposing fairly of the matter or for saving costs, such an order for further inspection would not be made.
Mr Justice O'Neill so held in refusing the relief sought.
John White SC, Patrick Horgan SC and Barbara Seligman BL for the applicant; Feichin McDonagh SC and David O'Neill BL for the respondents.
Mr Justice O'Neill that said on 30 October 1997 the applicant had been charged with 237 offences of a sexual nature allegedly committed against 43 complainants. Leave was obtained in November 1997 to bring judicial review on the grounds, inter alia, that the prosecution was not in accordance with law due to the abolition of the offence of indecent assault and the offence of sexual assault contrary to common law, that there had been gross and inexcusable delay and that there had been a pattern of abuse of process and fundamental unfairness. On 9 March 1998 the High Court ordered that the first respondent make discovery on oath within four weeks of the documents which were and had been in his possession or power relating to the matters in question in this action. An affidavit of discovery was sworn on 8 July 1998. By way of notice of motion of 24 July 1998, the applicant sought further and better discovery and an order for the production for inspection of the documents set out in the second part of the first schedule to the said affidavit of discovery. An affidavit of discovery was sworn on 8 December 1998 by an assistant solicitor in the office of the Chief State Solicitor.
By notice of motion dated 9 December 1998 the applicant sought an order requiring the respondents to produce for inspection the documents set forth in the second part of the first schedules of the affidavits of documents already sworn in respect of which the respondents had claimed privilege. In addition, the applicant sought an order directing the respondents to make further and better discovery of material documents which the applicant claimed were in the possession of the respondent but had not been discovered.
On 28 January 1999 the court ordered that within two weeks an affidavit was to be sworn, served and filed by the applicant's solicitor to specify which of the documents discovered by the first named respondent in relation to which privilege was being claimed were being disputed and stating the reasons for such dispute. The applicant's solicitor swore a lengthy affidavit on 9 February 1999, which was expressed to be for the purpose of grounding the notice of motion dated 9 December 1998. Mr Justice O'Neill said that this affidavit, notwithstanding the date of its swearing, did not attempt compliance with the order of 28 January.
On 3 June 1999, two affidavits were sworn by the respondents, one in response to the affidavit of 9 February and the other for the purpose of clarifying the grounds upon which an executive privilege had been claimed earlier. A further affidavit sworn by the applicant's solicitor on 29 June 1999 sought production of documents for inspection in respect of which privilege was claimed by the respondents. This affidavit also complained about the delay on the part of the respondents in furnishing affidavits of discovery, having regard to the fact that the matter had come before the court on 3 June 1999 and was adjourned to 2 July 1999, on terms that the first respondent furnish to the applicant's solicitor such further affidavit or affidavits as were necessary to comply with the order of discovery of 9 March 1998 together with copies of all documents in respect of which production for inspection was not being contested, the same to be furnished to the applicant's solicitor on or before 25 June 1999. A further affidavit was sworn by the applicant's solicitor on 26 July 1999 wherein it appeared that a further adjournment of the matter had been granted to 27 July 1999 on the basis that the discovery and documents sought were to be furnished not later than a week prior to that date. This affidavit also complained of the manner of the notification to the deponent of an intended application for a further adjournment on 27 July 1999 and claimed an order requiring the first respondent to be examined on oath in relation to the documents which were or had been in his possession or power relating to the matters in issue on the basis that it was alleged that it had been admitted and established that such affidavits as had been filed on behalf of the said respondent did not constitute compliance with the order of discovery made on 9 March 1998. There was also a claim for such order or such further order as would ensure immediate compliance by the first respondent with that order of discovery.
On 26 July 1999 the court ordered that the matter be adjourned peremptorily to 11 October 1999. A further affidavit of discovery was sworn by a solicitor in the office of the first respondent on 7 September 1999. An affidavit of discovery was sworn by a superintendent of An Garda Siochana on 7 October 1999 and a further affidavit of discovery was sworn by another solicitor on 8 October 1999. A further affidavit was sworn by the applicant's solicitor on 7 October 1999 which complained that an agreement had been made on 5 August 1999 that inspection facilities in respect of the documents listed in part one of the first schedule of the affidavit of discovery of the superintendent, already made, would be provided on 10 August 1999 but that agreement had been breached by letter of 9 August 1999 which purported to refuse the aforesaid inspection facilities.
In the light of this refusal, which, it was contended by the applicant's solicitor was a further disobedience of the order of 9 March 1998, the applicant's solicitor repeated his application made in an earlier affidavit for an order requiring the first respondent to attend to be examined on oath as to the documents in his possession or power and to explain the manner in which he had conducted himself in relation to these proceedings. A further affidavit was sworn by the applicant's solicitor on 2 December 1999 exhibiting and verifying correspondence which had passed between the parties since the date of the previous affidavit.
On 3 December 1999 the matter came on for hearing before Mr Justice Geoghegan who ordered that the first respondent produce for inspection and taking of copies by the applicant the witness statements of complainants, the addresses of persons making the statement to be blocked out. The court made no order regarding expert reports or statements obtained by the first respondent. The applicant's application for inspection was duly determined by this order.
The day before the substantive judicial review proceedings came on for hearing before Mr Justice O'Neill the respondents served a number of additional affidavits, numbering 11 including an affidavit of service of the other 10. In one of these affidavits there were exhibited all of the statements made by the 43 complainants in respect of whom the 237 charges arose.
As a consequence of this the applicant submitted that the case against him was now altered beyond recognition and renewed his application for inspection. He submitted that when the matter proceeded on 3 December 1999 he had merely sought the documents referred to in the order, and, in the light of what he contended was the wholly altered nature of the case which he now had to meet, his renewed application for inspection was in respect of all of the documents in respect of which privilege was claimed by the respondents on various grounds, save those created after 30 October 1997.
Mr Justice O'Neill said that in pursuit of this extensive challenge to the privileges claimed by the respondents, the argument on the issue extended far and wide over the entire topic of legal professional privilege and public immunity privilege involving a consideration of all of the authorities in this jurisdiction and some from the United Kingdom on these topics. The respondents argued strenuously in favour of the validity of the privileges claimed but also placed considerable reliance on Order 31 Rule 18(2) of the Rules of the Superior Courts.
Mr Justice O'Neill said that the application for inspection had been heard and determined by the court on 3 December 1999. He said that there was no basis in the fresh affidavits served for contending that the case was materially altered. While it was undoubtedly the case that the respondents were grossly in delay in producing these affidavits at that time, the applicant could not be permitted to derive an otherwise unmerited tactical advantage from the default of the respondents.
Mr Justice O'Neill said that as of 3 December 1999 the applicant, notwithstanding numerous and lengthy affidavits sworn by his solicitor, had failed to comply with the order of 28 January 1999, directing him to specify which of the documents discovered by the respondent in relation to which privilege was claimed was disputed and the reasons for such dispute. Nevertheless, he said, the matter was before the court on 3 December 1999 and the applicant had been content to limit his application and not to pursue extensive inspection on the basis of the affidavits before the court at that time and the matter was determined by Mr Justice Geoghegan. Mr Justice O'Neill concluded that nothing had materially changed since then and therefore it was not necessary either for disposing fairly of the cause or for saving costs that further inspection be ordered.
Mr Justice O'Neill said that in the light of the foregoing conclusions it was not necessary for him to deal with the extensive submissions made on the authorities relating to the principles applicable to legal professional privilege or executive or public policy privilege and he refused the application for further inspection.
Solicitors: Denis O'Sullivan & Co (Cork) for the applicant; the Chief State Solicitor for the respondents.
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