1. In this application, the plaintiff seeks to challenge the assertion of privilege made by the defendants over documents which were ordered to be discovered by the High Court (Moriarty J.) on 27^th July 2016.

2. By Notice of Motion dated 21^st March 2022, the plaintiff had sought the following reliefs:

(1) An Order pursuant to O. 31, r. 15 of the Rules of the Superior Courts 1986, as amended for inspection of the documents scheduled in the affidavit of discovery of Mr. Martin Gallagher sworn on 4^th November 2016;

(2) An Order for further and better discovery of the documentation referred to in the first and second part of the first schedule of the aforementioned affidavit of Mr. Martin Gallagher sworn on 4^th November 2016.

3. The order of discovery initially made by the High Court on 27^th July 2016 included the following:

(A) Category

(i) All files, notes, documents, records and memoranda in the possession, power or procurement of the first and/or third named defendants, their servants or agents, relating to the plaintiff’s attendance at Pearse Street Garda Station on the 5^th and 6^th February 2011;

(ii) Discovery of all further files, notes, documents, records and/or memoranda relating to any subsequent communications by the first and/or third named defendants, their servants or agents and to the second named defendant.

(B) (i) All records, files, notes, documents and memoranda relating to the plaintiff’s attendance at Pearse Street Garda Station on 28^th July 2011 and all communications relating to her attendance.

(ii) All directions, communications and documents, notes, memorandum, records of the defendants relating to the prosecution of the plaintiff and Mr. [Liam] Drumgoole up to and including the subsequent abandonment of the prosecution case of the plaintiff and Mr. Drumgoole.

4. The background to the case relates to the plaintiff’s claim for damages to include aggregated damages for malicious prosecution.

5. The plaintiff alleges that she was out socialising with friends on or about 5^th and 6^th February 2011 at O’Reilly’s Bar on Tara Street in Dublin city centre, and that while talking to a doorman she was attacked, manhandled and assaulted by the same doorman and as a consequence of which, she sustained severe personal injuries.

6. The plaintiff alleges that she immediately attended Pearse Street Garda Station to report the alleged assault to the third named defendant. The plaintiff further alleges that the following day, the third named defendant contacted the plaintiff, and it is alleged that he maliciously, falsely and untruthfully informed the plaintiff that CCTV coverage revealed that the plaintiff had attacked the doorman and had not been assaulted but, rather, had fallen down. The plaintiff further contends that CCTV footage of the incident contradicts this alleged assertion by the third named defendant.

7. The plaintiff claims that following this, a decision was made to prosecute her. This was ultimately withdrawn by the second named defendant (“the DPP”) on or about April 2012 and struck out on 21^st May 2012.

8. The gravamen of the plaintiff’s case centres around the initial decision to prosecute her and the subsequent withdrawal of that prosecution, and reference is also made to the prosecution of the doorman, Mr. Drumgoole. It is alleged that the third named defendant informed the plaintiff that if she proceeded with her complaint against Mr. Drumgoole she would be prosecuted for an offence but that if she withdrew her complaint, she would not be prosecuted for an offence.

9. In her Statement of Claim delivered on 17^th December 2013, the plaintiff pleads and alleges that it was expressly and unequivocally stated to her by the third named defendant that the DPP had directed that the plaintiff be prosecuted for an offence and it is alleged that it was further expressed and/or implied that the DPP was aware of the situation and was responsible for the decision to prosecute.

10. It is pleaded and alleged that the communications between the DPP and the third named defendant are fundamentally relevant to the plaintiff’s case and necessary in order to establish whether there was an ulterior motive to prosecute the plaintiff by the third named defendant as alleged, and/or to what extent the DPP was involved in that decision.

11. It is further pleaded that if the DPP did not direct on the matter, this would directly controvert the representations made by the third named defendant and demonstrate bad faith in the defence of the proceedings.

12. The defendants delivered a Defence on 18^th November 2014.

DISCOVERY

13. On foot of exchanges seeking voluntary discovery, the matter ultimately came on for hearing before the High Court (Moriarty J.) on 25^th July 2016 when it was fully contested and on 27^th July 2016 an Order was made by Moriarty J. directing discovery to be made in the manner set out above.

14. On 4^th November 2016 the defendants’ affidavit for discovery was sworn and a number of documents were discovered.

15. The matter came before the High Court in or around March 2024 and further directions were made to file further affidavits in the matter.

16. Subsequently, an affidavit was sworn by Superintendent John Finucane on 24^th June 2024 and by Sandra Manthe, who is a solicitor in the judicial review section of the Office of the Director of Public Prosecutions, on 26^th June 2024 and a replying affidavit on behalf of the plaintiff was sworn by James McSweeney solicitor on 24^th October 2024, where he exhibited a letter of 10^th May 2024.

Documentation over which privilege is claimed

17. In an affidavit dated 28^th November 2023, Superintendent John Finucane swore an affidavit as to documents.

18. At paragraph 9 of that affidavit, Superintendent Finucane avers that the defendants object to producing the documents set forth in the Second Part of the First Schedule and asserts public interest privilege and legal advice/professional privilege over those documents.

19. The parties agree that the issue in this application therefore relates to the following documents which are listed from numbers 92 to 109 under the sub-heading “Public Interest privilege and Legal Advice Privilege” and the document listed at number 110 under the sub-heading “Public Interest Privilege” in the First Schedule, Second Part to the affidavit of Superintendent John Finucane dated 28^th November 2023.

Public Interest Privilege and Legal Advice Privilege

Document No.	Date	Description	Number of pages
92	20^th July 2011	Report from Garda Carberry to SHO A Pearse Street Garda Station seeking directions/advice in relation to prosecution	6
93	20^th July 2011	Report from Sergeant Finucane to the Superintendent, Pearse Street Garda Station seeking directions/advice re prosecution	2
94	21^st July 2011	Report from Inspector Delmar to Sergeant Finucane in respect of directions	1
95	Undated	Minutes from Garda Carberry for sending to the Chief State [Solicitors] [1] Office	1
96	4^th October 2011	Email from Inspector Delmar to Garda Carberry enclosing earlier email of Garda Carberry and Inspector Delmar in respect of further directions	1
97	31^st October 2011	Form CM13 submission to the Chief Prosecution Solicitor	3
98	8^th November 2011	Correspondence from Inspector John Keenan to the Chief Prosecution Solicitors Office	1
99	11^th November 2011	Correspondence from the Office of the Director of Public Prosecutions to the Superintendent, Pearse Street Garda Station	1
100	11^th November 2011	Further correspondence from the Office of the Director of Public Prosecutions to the Superintendent, Pearse Street Garda Station	1
101	21^st January 2012	Report from Garda Neil Carberry to the Office of the Director of Public Prosecutions	2
102	2^nd March 2012	Correspondence from the Office of the Director of Public Prosecutions to the Superintendent, Pearse Street Garda Station	1
103	10^th April 2012	Correspondence from XXXXXXXX, Professional Officer to the Chief Prosecutions Solicitor, District Court Section, Office of the Director of Public Prosecutions	2
104	20^th April 2012	Correspondence from Office of the Director of Public Prosecutions to the Superintendent, Pearse Street Garda Station	3
105	24^th April 2012	Correspondence from Office of the Director of Public Prosecutions to the Superintendent, Pearse Street Garda Station	1
106	25^th April 2012	Report from Garda Neil Carberry to the Office of the Director of Public Prosecutions	2
107	5^th May 2012	Report from Garda Neil Carberry to the Office of the Director of Public Prosecutions	1
108	16^th November 2012	Correspondence from Office of the Director of Public Prosecutions to the Superintendent, Pearse Street Garda Station	2
109	18^th August 2013	Report from Garda Neill Carberry to the Office of the Director of Public Prosecutions	2

Public Interest Privilege

110

PULSE record

20. Accordingly, in the Second Part of the First Schedule to the Affidavit of Superintendent John Finucane sworn on 22^nd June 2023, public interest privilege and legal advice privilege is claimed over eighteen documents and public interest privilege is claimed over the PULSE record.

21. The central argument made by the plaintiff is that the documentation is needed to address the ingredients of the tort of malicious prosecution. It is accepted that in the normal course, the documents would be covered by the public interest privilege and legal advice privilege but in circumstances where the claim is centred on malicious prosecution, it is submitted that these documents are required to be disclosed and produced.

22. The defendants’ objections to the production of the scheduled documentation are set out in the affidavits of Superintendent John Finucane and Sandra Manthe, a solicitor in the Office of the DPP.

23. In his affidavit dated 24^th June 2024 Superintendent John Finucane, for example, states as follows at paragraph 7:

“It is in the public interest to protect documents from disclosure where the proper function of the garda' and the DPP may be adversely affected by disclosure including where disclosure would adversely affect prevention and detection of crime. The Garda' and the DPP need to have confidence in the knowledge that their communications will not be disclosed at a later date and to allow for open communication regarding whether prosecution will be maintained or not. This case is an example of why privilege should be preserved over the documents in question and there is no reason provided why it should be lifted. It is also asserted that the documents will not advance the plaintiff’s case to an extent necessary to justify sight of the documents.”

24. Similarly, the replying affidavit of Sandra Manthe states as follows at paragraph 3 of her affidavit:

“The second named defendant is not amenable to disclosing documents 103 and 105. They relate to the direction of the second named defendant as to the criminal prosecution in this case. It is essential that the second named defendant records an important decision like this by expressing a view as to a case and that this view is not subject to being disclosed at a later time. The said documents contain views, the expression of which the second named defendant must be able to make without fear of same being disclosed. It is essential that the special position of the second named defendant be recognised and it, unlike other statutory bodies, is under no obligation to give reasons for its decisions, absent evidence of mala fides, improper policy or motive, or other exceptional circumstances. The special position of the DPP has been repeatedly recognised by the Supreme Court. The disclosure of the DPP’s direction on this matter would be seriously injurious to the ability to independently carry out her function, with the necessity to express views about the case, the strength of the evidence or the proofs required in a criminal case. These documents also show the approach of the second named defendant to a proper prosecution of offences and would be contrary to the public interest for such information to be disclosed.”

Applicable Principles

25. The principles which inform general questions of privilege in civil litigation which seeks to discover and produce documents from a related criminal investigation have been discussed in a number of authorities, including: Breathnach v Ireland (No. 3) [1993] 2 I.R. 458, per Keane J. (as he then was) at p. 469; McDonald v RTÉ [2001] 1 IR 355; Livingstone v Minister for Justice [2004] IEHC 58; Keating v RTÉ [2013] IESC 22, [2013] 2 ILRM 145; McLaughlin v Aviva Insurance (Europe) plc [2011] IESC 42; McGuinness v Commissioner of An Garda S'ochána [2016] IEHC 549, [2016] IEHC 591, and [2017] IECA 330; AP v Minister for Justice [2019] IESC 47, [2019] 3 IR 317; Kelly v Commissioner of An Garda S'ochána [2021] IEHC 808 (Barr J.); Harrison v The Commissioner for An Garda S'ochána [2023] IEHC 371 (Jordan J.); A v B [2024] IECA 95 (Collins [2],Whelan and Allen JJ., which also discussed the case law prior to and after the judgment delivered in McLaughlin v Aviva Insurance (Europe) plc [2011] IESC 42).

26. The privilege which is asserted in this case is legal professional privilege (in particular legal advice privilege) and public interest privilege.

27. Insofar as public interest privilege is concerned, I am required to balance the public interest in the proper administration of justice (being the conduct of this damages claim being maintained by the plaintiff against the defendants) against arguments posited for non-production by the defendants which rely principally on the public interest in the prevention and prosecution of crime.

28. In my view, this is an appropriate case where the weighing of those competing interests requires my inspection of the scheduled documents referred to earlier in this judgment. In this regard and paraphrasing the observations of the High Court (Barr J.) in Kelly v Commissioner of An Garda S'ochána [2021] IEHC 808, it is appropriate that I read the scheduled documents, and having done so, balance the public interest in the due administration of justice, that being the conduct of this civil litigation being maintained by the plaintiff against the defendants as against the public interest in preserving the confidentiality of a garda file, and other documentation, in relation to a criminal investigation conducted by it.

29. Legal professional privilege provides for the confidentiality of two categories of communication: (i) communications between a client and a lawyer for the purposes of obtaining and giving legal advice and (ii) communications as between a client or his lawyer and third parties, such as potential witnesses and experts, the dominant purpose of which was preparation for contemplated or pending litigation.

30. In Breathnach, Keane J. observed at page 471 of the reported judgment that the public policy which protects from production communications in this (first) category, i.e., legal advice privilege “undoubtedly applies equally to communications between the Director of Public Prosecutions and professional officers in his department, solicitors and counsel as to prosecutions by him which are in being or contemplated. Mr. Gaffney conceded that this was so and that the claim for privilege was properly raised in respect of the documents set out in the third part of the schedule and to some at least of the documents in the second schedule”;

31. At page 472 of the reported judgment in Breathnach, Keane J. then goes on to describe other issues, including those relating to the question of the production of documents:

“I have already referred to Mr. Gaffney’s submission that the material, other than communications between the Director of Public Prosecutions, members of his staff, solicitors and counsel, is not privileged because the proceedings in question have terminated. He submitted that it was only communications in the first category, i.e. legal advice simpliciter, which retained their privileged nature after the conclusion of the relevant proceedings. This may or may not be a correct proposition of law: it does not seem to me to derive support from the Irish decision cited by Mr. Gaffney, since in that case it was held that the documents in question would not have been privileged even in the original litigation. But it seems to me that in any event the documents in question in this case could not be equated to the documents which come within the second heading of legal professional privilege, i.e. communications between a client or his lawyer and third parties the dominant purpose of which is preparation for contemplated or pending litigation.

It is obvious that in every case where the commission of a crime, whether trivial or serious, is suspected, documentary material will be assembled by the garda' irrespective of whether a prosecution is ever initiated. The fact that the documents in question may, as in the present case, be submitted by the investigating garda' to the Director of Public Prosecutions in order to obtain his decision as to whether a prosecution should be instituted could not possibly give that material the same status as, to take an obvious example, a medical report obtained by a plaintiff in a personal injuries action solely for the purpose of his claim. If privilege exists in relation to such documents, it can only be because of the other factors referred to by Mr. Liddy, of which undoubtedly the most important is the desirability of freedom of communication between the garda' and the Director of Public Prosecutions. The extent to which that freedom might be inhibited by the knowledge that the documents furnished to the Director of Public Prosecutions may subsequently be disclosed in court proceedings is clearly a matter which has to be taken into consideration in determining whether the public interest in the particular case requires its production”.

32. In Harrison v The Commissioner for An Garda S'ochána [2023] IEHC 371, the High Court (Jordan J.), at paragraph 18 of his judgment, stated that the leading authorities on the application of legal advice privilege were Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] 1 I.R. 469 as well as the House of Lords decision in Three Rivers D.C. v Bank of England (No. 6) [2005] 1 AC 610.

33. In Harrison, Jordan J. referred to paragraph 40-16 of Abrahamson, Dwyer & Fitzpatrick’s Discovery and Disclosure (Third Edition, 2019), which describes the applicable test for legal advice privilege as follows:

“The authorities reveal that, in order to attract legal advice privilege, the material in question must satisfy a number of criteria.

(a) First, the material must constitute or refer to a communication between lawyer and client.

(b) Secondly, that communication must arise in the course of the

professional lawyer–client relationship.

(c) Thirdly, the communication must be confidential in nature.

(d) Fourthly, it must be for the purpose of giving or receiving legal advice.”

34. Insofar as legal advice privilege was claimed in Harrison v The Commissioner for An Garda S'ochána [2023] IEHC 371, Jordan J., when reviewing the documentation (beginning at paragraph 29 of his judgment), referred to certain documentation which involved correspondence passing between An Garda S'ochána and State Solicitors, correspondence with the Office of the DPP and correspondence passing between An Garda S'ochána and its own internal Human Resources and People Development section – for the attention of Legal Affairs.

35. In relation to his review of that documentation, Jordan J. observed as follows:

“It is clear from a review of all of the documentation that all of it does satisfy the criteria necessary to attract legal advice privilege. While the situation is different from the normal situation given the entities involved the situation is nonetheless that there is a client (An Garda S'ochána) involved in confidential communications with solicitors acting for the State. The communications involve essentially requests for advice or directions from the DPP – which are channelled through the State Solicitor – and related matters concerning investigations and possible prosecutions. The additional items of correspondence between An Garda S'ochána and the Legal Affairs section of its Human Resources and People Development section do meet the same criteria. An Garda S'ochána is the client and the communications are confidential communications which arise in the course of the necessary interaction between An Garda S'ochána and its Legal Affairs section – for the purpose of receiving legal advice. The Court has not been advised as to the makeup of the Legal Affairs section in the Human Resources and People Development section of An Garda S'ochána. However, as a matter of probability the Court is satisfied that the Legal Affairs section of An Garda S'ochána includes lawyers/staff with legal qualifications and expertise and there is no good reason in the instant case to hold that legal advice obtained in-house does not merit the same legal professional privilege/legal advice privilege as would otherwise apply. Furthermore, a review of the actual documentation in this regard satisfies the Court that the claim of privilege made is bona fide and justified. The Plaintiff is not entitled to see these documents.”

36. In terms of carrying out a review or inspection of the scheduled documentation, in Nic Gibb v. The Minister for Justice and Others [2013] IEHC 238, the High Court (O’Malley J.) suggested the following approach at paragraph 28: “[i]n order to preserve the interests of the parties I will not describe the documents in any detail. Having examined them in the light of the established principles, and in particular the consideration that the plea of public interest privilege must be evaluated by reference to the circumstances actually presenting, I have reached the following conclusions”

INSPECTION OF SCHEDULED DOCUMENTS

37. I adopt the approach referred to by O’Malley J. in Nic Gibb in the following review of the scheduled documentation in this case. (A similar approach is apparent at pages 474 and 475 of the official law report in Breathnach v Ireland (No. 3)).

Document 92 – Date: 20 July 2011 – Description: Report from Garda Carberry to SHO A, Pearse Street Garda Station, seeking a recommendation

Document 93 – Date: 20 July 2011 – Description: Report from Sergeant Finucane to Superintendent, Pearse Street Garda Station

38. In reviewing the Documents at 92, 93, 95 (and that part only of Document 96 which is not to be redacted, as discussed below), the production of these documents (as redacted) do not, in my view, involve the disclosure of confidential garda sources, confidential intelligence gathering and investigation methods. The balancing exercise involved in this review is fact dependent and absent clear examples of privilege, the more important the material is relevant to the proper disposition of these proceedings, the greater the case is for production; alternatively, if the documents are not germane to the dispute, the greater the case is for not producing them.

39. The nature of these proceedings and the claims which are made are an additional factor which I have considered and the central argument made by the plaintiff is that documentation is needed to address the ingredients of the alleged tort of malicious prosecution. According to the affidavit of Emma Meagher sworn on 29^th April 2022 (at paragraph 4), the plaintiff alleges that CCTV coverage acquired of the incident contradicts the alleged assertion by the third named defendant that the plaintiff had assaulted the doorman and that the plaintiff had not been assaulted but fell down; it is further stated that the plaintiff can address the allegation that the third named defendant allegedly informed her that, if she proceeded with her complaint against the doorman, she would be prosecuted for an offence and, if she withdrew her complaint, she would not be prosecuted for an offence.

40. Document 92 is a report from the third named defendant who describes receiving a complaint from the plaintiff that she had been allegedly assaulted at O’Reilly’s Bar, Tara Street, Dublin 2 by a member of the door staff.

41. I direct that that Document 92 should be produced to the plaintiff subject to the following redactions. The address, in relation to the member of the door staff, Mr. Drumgoole, should be redacted. The report sets out the investigation of the incident, and makes further reference to CCTV evidence from two sources: CCTV from O'Reilly’s Bar and CCTV from a security camera belonging to Irish Rail. The report further sets out the background to the parties involved and makes recommendations. The report refers to statements taken. The addresses set out at S.5, S.6, S.6a and S.7 should be redacted. Further, under subheading “Injuries of injured person and the medical reports”, the address of the medical practitioner referred to should be redacted.

42. Document 93 is a report from Sergeant Finucane which agrees with the report from the third named defendant in Document 92. For the same reasons as those set out in relation to Document 92, I direct that this document should be produced to the plaintiff. The address, in relation to the member of the door staff, Mr. Drumgoole, should also be redacted.

Document 95 – Undated – Description: Minute from Garda Neil Carberry for sending to the Chief State Solicitor’s Office

43. Whilst Document 95 is a communication between the third named defendant and the Chief State Solicitors Office, it is not a request for legal advice and lists material which has been furnished by the third named defendant to the Chief State Solicitors Office. I direct, therefore, that this document should be produced to the plaintiff.

Document 94 – Date: 21 July 2011 – Description: Report from Inspector Delmar to Sergeant Finucane in respect of directions as to suitable charges

Document 96 – Date: 4 October 2011 – Description: Email from Inspector Delmar to Garda Carberry enclosing earlier email of Garda Carberry and Inspector Delmar in respect of further directions

44. Document 94 is a report from Inspector Gerald Delmar to Sergeant Finucane, dated 21^st July 2011 which gives directions as to suitable charges and the summonses which were initially brought. In considering the question of production and non-production and weighing up the public interest in the proper administration of justice against arguments posited for non-production by the defendants which rely principally on the public interest in the prevention and prosecution of crime, Documents 94 and 96 involve the considerations of Inspector Delmar as the officer having overall charge of the investigation.

45. I consider that public interest privilege applies to his deliberations and decisions in relation to these matters and that the production of these documents could have the effect of inhibiting his views on these matters without having any appreciable advantage to the claims made by the plaintiff. Document 94 should not, therefore, be produced.

46. Similarly, I consider that that part of Document 96 which contains the email from Gerald C. Delmar; sent 04/10/2011 at 13:34 to John Finucane and Neil J. Carberry and ‘Subject: Re: DPP-v- Wolinska’ should be redacted in full and not produced. As just mentioned, I am satisfied that Inspector Delmar, as the officer having overall charge of the investigation, must be free to express the various views referred to therein without same being produced and that public interest privilege applies to this document also.

47. Once this email communication is redacted in full in Document 96, the rest of the document can be produced to the plaintiff.

Document 97 – Date: 31 October 2011 – Description: Form CM13 submission to the Chief Prosecution Solicitor

48. Document 97 is in the format of a pro forma document which has been completed by Sergeant Randles and submitted to the Chief Prosecution Solicitor.

49. In my view, Form CM13 is necessary in order to ensure the public interest in the proper prosecution of criminal offences and so as not to inhibit communications between the Garda' and the DPP and the Office of the Chief Prosecution Solicitor.

50. This document is, in my view, governed by public interest privilege and should not be produced to the plaintiff.

Document 98 – Date: 8 November 2011 – Description: Correspondence from Inspector John Keenan to the Chief Prosecution Solicitor’s Office

Document 99 – Date: 11 November 2011 – Description: Correspondence from the Office of the Director of Public Prosecutions to the Superintendent, Pearse Street Garda Station

Document 100 – Date: 11 November 2011 – Description: Further correspondence from the Office of the Director of Public Prosecutions to the Superintendent, Pearse Street Garda Station

Document 102 – Date: 2 March 2012 (date stamp receipt of 5 March 2012) – Description: Correspondence from the Office of the Director of Public Prosecutions to the Superintendent, Pearse Street Garda Station

Document 104 – Date: 20 April 2012 – Description: Correspondence from the Office of the Director of Public Prosecutions to the Superintendent, Pearse Street Garda Station

51. Documents 98, 99, 100, 102 and 104 are covered by legal advice privilege and should not be produced. (Document 104 also encloses correspondence from the Plaintiff’s solicitor dated 19^th April 2012).

Document 103 – Date: 10 April 2012 – Description: Correspondence from XXXXXXXXX, Professional Officer to the Chief Prosecution Solicitor, District Court Section, Office of the Director of Public Prosecutions

Document 105 – Date: 24 April 2012 – Description: Correspondence from the Office of the Director of Public Prosecutions to the Superintendent, Pearse Street Garda Station

52. These documents (Document 103, dated 10^th April 2012 and Document 105 dated 24^th April 2012) are expressly referred to in the replying affidavit of Sandra Manthe, solicitor in the Office of the DPP, at paragraphs 3, 4 and 5 (which have been referred to earlier in this judgment). These documents attract both legal advice privilege and public interest privilege and should not be produced. I agree that the production of the DPP’s directions on this matter would be injurious to the ability to independently carry out her function with the necessity to express views about the case, the strength of evidence or the proofs required in a criminal case. I agree that these documents also show the approach of the second named defendant to the proper prosecution of offences and it would be contrary to the public interest for such information to be produced. I also consider that the production of these documents will not advance the plaintiff’s case to any extent necessary to justify sight of the documents by the lifting of the privilege. Therefore, the directions issued by the Director of Public Prosecutions are privileged and should not be produced to the plaintiff. I consider that this is necessary in order to ensure the public interest in the proper prosecution of criminal offences so as not to inhibit communications from and between the Garda' and the DPP and vice versa. As Barr J. noted in Kelly v Commissioner of An Garda S'ochána [2021] IEHC 808, Keane J. had previously held that the direction of the DPP in relation to the charges against the accused in Breathnach v Ireland (No. 3) [1993] 2 I.R. 458 at p. 475 were privileged, as follows: “(12) The direction of the Director of Public Prosecutions in relation to the charges against the accused is clearly privileged and should not be produced”.

Document 101 – Date: 21 January 2012 – Description: Report from Garda Neil Carberry to the Office of the Director of Public Prosecutions

Document 106 – Date: 25 April 2012 – Description: Report from Garda Neil Carberry to the Office of the Director of Public Prosecutions

Document 107 – Date: 5 May 2012 – Description: Report from Garda Neil Carberry to the Office of the Director of Public Prosecutions

Document 109 – Date: 18 August 2013 – Description: Report from Garda Neil Carberry to the Office of the Director of Public Prosecutions

53. As Documents 101, 106, 107 and 109 are reports to the Office of the Director of Public Prosecutions from the third named defendant addressing, inter alia, matters raised in correspondence with that office, including in the context of Document 106, what was then an upcoming court appearance and a prosecution, these documents are subject to public interest privilege and legal advice privilege and, therefore, should not be produced. Document 101, whilst dated 21^st January 2012, addresses matters after that date and, therefore, the date of 21^st January 2012 appears to be incorrect. It is in the form of a report to the Office of the Director of Public Prosecutions from the third named defendant and discusses litigation. This document therefore attracts both legal advice privilege and public interest privilege and should not be produced. In carrying out the balancing exercise in relation to the competing interests of production and non-production in relation to each of the Documents 101, 106, 107 and 109, and having regard to the fact that these documents were furnished by the third named defendant to the Office of the DPP, I consider that there is an importance in the ability of those garda' carrying out an investigation to furnish and submit periodically reports to the DPP or to the Office of the Chief Prosecution Solicitor and that the production of these documents would inhibit that function which would not be in the interests of justice, or in the interest of the public in the proper prosecution of criminal offences, and therefore,

the same should not be produced.

Document 108 – Date: 16 November 2012 – Description: Correspondence from the Office of the Director of Public Prosecutions to the Superintendent, Pearse Street Garda Station

54. Document 108 is a report from the Principal Prosecution Solicitor and Head of District Court Section of the Office of the Director of Public Prosecutions to the Superintendent of Pearse Street Garda Station and is subject to legal advice privilege and public interest privilege, and, therefore, should not be produced.

Document 110 – Date: 1 November 2023

55. Document 110 is the PULSE record and the incident summary report comprising of two pages which was created on 1^st November 2023. I consider that the public interest in not producing the PULSE record outweighs the plaintiff’s interest in obtaining sight of it. Further, I do not consider that the production of the PULSE record to the plaintiff would have any material benefit to the plaintiff in her claims against the defendants in this case. Document 110, therefore, comes within the public interest privilege asserted and should not be produced.

PROPOSED ORDER

56. I propose to make an order that the defendants produce to the plaintiff’s solicitors those documents which I have indicated in this judgment subject to the directions and redactions outlined. As the defendants have carriage of the documents in the First Schedule Second Part of the Affidavit as to documents (“the scheduled documents”), they should carry out the necessary redactions to those documents which have been ordered to be produced, as set out in this judgment, and make same available for my attention only in the first instance.

57. I also propose to make an Order that privilege applies to those documents which I have directed should not be produced.

58. This matter came before me on Thursday 3^rd July 2025 addressing the issues of redaction and costs. The parties agreed the question of redaction which is reflected in the judgment. The plaintiff is entitled to her costs of the motion before me, subject to a stay on the execution of those costs until the substantive matter is determined.

CONLETH BRADLEY

1^st JULY 2025

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Wolinksa v Commissioner of And Garda Siochana & Ors (Approved) [2025] IEHC 382 (01 July 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC382.html Cite as: [2025] IEHC 382

High Court of Ireland Decisions