About this case:

• Citation:
  [2025] IEHC 382
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Conleth Bradley

Delivering judgment for the High Court, Mr Justice Conleth Bradley explained: “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…”

Background

The plaintiff alleged that she was out socialising in February 2011 at O’Reilly’s Bar on Tara Street in Dublin and was assaulted by a doorman, causing her to suffer personal injuries. The plaintiff issued proceedings seeking damages, including damages for malicious prosecution.

The plaintiff asserted that she subsequently attended Pearse Street Garda station and reported the alleged assault to the third defendant, who purportedly maliciously, falsely and untruthfully informed her that CCTV coverage revealed that she had attacked the doorman.

The plaintiff claimed that a decision was made to prosecute her, which was subsequently withdrawn by the DPP. A prosecution was also pursued against the doorman.

The plaintiff’s case centred around inter alia the decision to prosecute her and the subsequent withdrawal of the prosecution, and she contended that the communications between the DPP and the third defendant were fundamentally relevant to her case and necessary to establish whether there was an ulterior motive to prosecute her and to what extent the DPP was involved in that decision. 

Discovery

In 2016, the High Court granted an order of discovery in favour of the plaintiff which included documents relating to the plaintiff’s attendances at Pearse Street Garda station, communications between the first and/or third defendants with the DPP, and documents relating to the prosecutions of the plaintiff and the doorman up to and including the abandonment of the prosecutions.

In her motion for further and better discovery and inspection, the plaintiff challenged assertions of public interest privilege and legal advice privilege made by the defendants over eighteen documents and a claim of public interest privilege over the PULSE record sought.

The plaintiff argued that the documentation, which was comprised mostly of communications between the DPP and the gardaí and reports from gardaí to the DPP, would in normal course be privileged but that in circumstances where her claim was centred on malicious prosecution, the documents were required to be disclosed and produced.

The defendants alleged that it was in the public interest to protect documents from disclosure where the proper functioning of the gardaí and the DPP could be adversely affected by disclosure.

The High Court

Mr Justice Bradley set out the relevant jurisprudence, explaining that insofar as public interest privilege was concerned, he was required to balance the public interest in the proper administration of justice (being the plaintiff’s damages claim) against the defendants’ arguments for the non-production of the documentation rely principally on the public interest in the prevention and prosecution of crime.

In the circumstances, Mr Justice Bradley considered that it was a case which required his inspection of the documents in order to balance the competing interests of the parties, and in that regard, he adopted the approach of the court in Nic Gibb v. The Minister for Justice & Ors [2013] IEHC 238.

The judge also highlighted that the nature of the proceedings, the claims made and the central argument that the documentation was needed to address the ingredients of the alleged tort of malicious prosecution were additional factors which he had considered.

Having inspected the documents, the court determined that document 92, being a report from the third defendant which inter alia described receiving a complaint from the plaintiff that she had been assaulted and made recommendations, should be produced to the plaintiff with redactions to personal information.

Document 93, being a further report agreeing with the report in document 92, was also directed to be produced for the same reason and with similar redactions.

In respect of document 95, being a communication between the third defendant and the Chief State Solicitor’s Office, Mr Justice Bradley considered that this was not a request for legal advice and simply listed material which had been furnished by the third defendant to the Chief State Solicitor’s Office and accordingly, that document was required to be produced to the plaintiff.

As to document 96, the court directed that the part thereof which contained an email from a Garda inspector to the third defendant expressing views on suitable charges and the summonses which were initially brought should be fully redacted, as the officer having overall charge of an investigation needed to be free to express his views without same being produced.

The court was satisfied that the production of documents 92, 93, 95 and the part of document 96 which did not require redaction would not involve the disclosure of confidential Garda sources, confidential intelligence gathering and investigation methods.

As to the remaining documents, which included inter alia the PULSE record and incident summary report in respect of the plaintiff, the DPP’s directions and reports made by the third defendant to the DPP, Mr Justice Bradley was satisfied that they were covered by legal advice and/or public interest privilege and should not be produced to the plaintiff.

In that regard, the court highlighted the public interest in the proper prosecution of criminal offences and found that production could inhibit communications from and between gardaí and the DPP and the ability of gardaí to furnish and submit reports to the DPP during an investigation, and would be injurious to the DPP’s ability to independently carry out her function.

Conclusion

Accordingly, the High Court proposed to make an order for production of documents 92, 93, 95 and proposed to make an order that privilege applied to the documents directed not to be produced.

The High Court also indicated that the plaintiff was entitled to her costs.

Wolinska v Commissioner of An Garda Síochána & Ors [2025] IEHC 382