About this case:

• Citation:
  [2025] IESC 42
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Aileen Donnelly

Delivering the leading judgment for the Supreme Court, Ms Justice Aileen Donnelly determined that the appellant had failed to notify the relevant witness and failed to establish that his access to any portion of the DAR transcript was necessary in the interests of justice, but that notwithstanding those findings, it would be counterproductive to rescind the Circuit Court’s order as it could jeopardise the strength of undertakings given not to disseminate the DAR material received.

Background

KBC Bank Ireland PLC brought proceedings against the appellant, his wife and a third person seeking injunctive relief in respect of a property in Balbriggan, Co Dublin. 

Following the conclusion of prior possession proceedings in respect of the same property, KBC had sought to execute an order for possession as against the property in February 2018.

An unrelated attempt by KBC to take possession of an entirely separate property under different ownership in Co Roscommon in December 2018 led to a serious incident of violent disorder and the criminal prosecution of four persons.

Subsequently, the appellant applied ex parte to the Circuit Court for access to the Digital Audio Recording (DAR) transcript and/or audio recording relating to the testimony given by witnesses in those criminal proceedings, to which the appellant was not party.

The appellant alleged that he had attended part of the criminal proceedings and that three of the prosecution witnesses were also involved in the attempted execution of the Balbriggan order for possession, and that each had sworn affidavits on behalf of KBC in the injunction proceedings.

The appellant asserted that the affidavits contained evidence conflicting with that given orally by those witnesses in the criminal proceedings.

The Circuit Court directed that the DPP be put on notice of the application and ordered that portions of the transcript relating to the evidence of “IG” which touched upon the execution of the Balbriggan possession order should be released to the appellant, subject to his undertaking not to disseminate the transcripts received.

The appellant appealed to the High Court seeking the release of the transcripts of all three witnesses and the removal of the restriction on dissemination.

Dismissing the appeal, the High Court determined that its jurisdiction to hear the appeal was confined by the Courts of Justice Act 1936 to hearing appeals in civil matters and did not encompass an appeal from an order made in criminal proceedings.

Leave to appeal

The Supreme Court granted to the appellant leave to appeal in respect of the nature and status of the Circuit Court’s order and whether same was to be properly regarded as an order made in criminal proceedings, on the threshold for the making of an order for the disclosure of the DAR and the persons to be put on notice of such applications, and on what restrictions (if any) should be imposed on the use of the DAR material provided to an applicant on foot of a court order.

The Supreme Court

Having considered inter alia the judgment in Governor & Company of Bank of Ireland v Gormley [2020] IECA 102, Ms Justice Donnelly noted the agreement of all parties that the Circuit Court’s order concerned an application for the DAR separate to the criminal proceedings and was satisfied that no jurisdiction issue arose as to the appeal to the High Court which was governed by s.37 of the 1936 Act.

Confirming that the appellant’s application for the DAR was “clearly a civil matter”, the court then considered the appropriate approach to applications for access to the DAR.

Ms Justice Donnelly explained that each of the jurisdictional rules of court make access to the DAR dependent on the court being satisfied of the overriding consideration that it is necessary in the interests of justice to permit access, whilst pointing out that specific rules apply to access to the transcript by parties to criminal proceedings and that those specific rules take precedence over the more general rules applicable.

The court expressly adopted a number of general principles relating to access to the DAR, including that an application can be brought by a non-party, that any order concerning access is discretionary, that access can be legitimately sought because of potential relevance to other proceedings, and that generally, if a person wishes to obtain a transcript for a legitimate purpose connected with the administration of justice and is willing to pay the associated costs, then subject to any counter-argument and that it is necessarily required for a legitimate purpose, that person should be facilitated in obtaining access.

As to the relevant threshold, Ms Justice Donnelly confirmed that same must be overcome by evidence demonstrating that access is necessary in the interests of justice where its relevance for a legitimate purpose connected to the administration of justice has been established and where information of the same quality cannot be obtained elsewhere.  

As to the persons to be put on notice, the judge confirmed that parties to a case must be notified of any application for the DAR, with the notification of other parties having a sufficient interest or who may be affected by the application being at the discretion of the court.

In relation to criminal proceedings, Ms Justice Donnelly confirmed inter alia that the DPP and/or the Garda Commissioner ought to be put on notice and that victims of crime ought in general to be notified where the DAR of their testimony or other testimony closely related to the details of the offence concerned is sought.

As to restrictions on the use of DAR material, the judge explained that conditions imposed will have to address all interests at issue and that a central feature of that consideration must be that the safeguarding of the administration of justice is the primary concern of the court in controlling its own processes, and by extension, the control of the DAR.

The court further considered that the courts must be alive to the risks of material being made available on social media and that it is important that the court exercises its powers to protect victims and others from any undue and unwarranted dissemination of the DAR which is unrelated to the reason access was granted.

In respect of accessing the audio recording of the DAR, Ms Justice Donnelly noted that situations in which access is granted may vary and what is required is a consideration of the necessity of the production of the audio recording.

The judge highlighted if such access is given, it will be necessary for the court making the order to review the DAR or to invite a respondent to the application to initially review it, with a view to ensuring that no matter covered by legal professional privilege is revealed.

The court further highlighted that concerns may arise regarding the identification of witnesses who were otherwise anonymised if voice recordings of their evidence were released, and that this might amount to “an almost unanswerable consideration against the release where a legal or constitutional right to anonymity exists. Certainly, no release could take place if there was a real risk of identification.”

Applying those principles to the facts at hand, the Supreme Court determined that while the High Court had jurisdiction to hear the appeal from the Circuit Court, the appellant fell “a long way short” of demonstrating the relevance of or the necessity for access to any part of the DAR in the interests of justice, having made “the baldest of averments” in his Circuit Court affidavits and only exhibiting the plenary summons in the injunction proceedings.

The court also noted that on appeal to the High Court, the appellant’s affidavit was only marginally more informative, that mere assertions of relevance or the possibility of contradictory assertions were insufficient to persuade the Supreme Court of the relevancy to the subsequent proceedings, and added: “No court could or should be asked to adjudicate on the necessity for a DAR of other proceedings without seeing the proceedings to which its necessity is urged upon the court.”

Ms Justice Donnelly concluded that the appellant’s application for access to the DAR ought to have been refused where he had not notified IG, who was the victim of a serious assault, of the application and had failed to produce sufficient evidence to establish that access was necessary in the interests of justice.

However, in circumstances where the appellant, his wife and a third party had provided an undertaking not to disseminate the material provided, the court determined that it would be counterproductive to rescind the Circuit Court order.

Conclusion

Accordingly, the Supreme Court allowed the appeal from the High Court, refused the appellant access to any further portion of the DAR, affirmed the order of the Circuit Court, and directed that the respondent would make available to IG the portion of the transcript provided to the appellant and would explain to IG the circumstances of its release.

Gordon Smith v The Director of Public Prosecutions [2025] IESC 42