The High Court has ordered the Garda Síochána Ombudsman Commission (GSOC) to allow inspection of, and provide copies of, documents it had marked yellow in a discovery schedule in a personal injuries action brought by former Garda sergeant Paul Barry. The documents must be provided to Barry and the defendants within seven days. The court also awarded Barry the costs of the discovery motion against GSOC, subject to set-off and a stay.
Mr Justice Richard Humphreys delivered the ruling on 8 June 2020. The motion concerned non-party discovery: GSOC was not a defendant in Barry’s action, but had already been ordered to disclose documents relating to its investigation into his complaints. GSOC withheld the yellow-marked category, citing concern that producing it might conflict with a 2018 consent order quashing GSOC’s findings about Superintendent Michael Comyns.
Barry alleges that he faced bullying, harassment and intimidation after opposing the handling of a criminal complaint involving alleged sexual offences against a child. Those allegations were not determined in this discovery ruling. The judge recounted the history of the complaint, internal and GSOC investigations, and related decisions, while noting that issues about the events may be addressed at trial.
The 2018 judicial review was brought by Comyns against GSOC. Barry, whose complaint had prompted the GSOC process, was not served with the proceedings. The judge said a complainant in a statutory complaints process is directly affected when the process or its outcome is challenged, and must be served under the court rules. Barry did not ask to set aside the consent order; he sought a ruling that it did not affect his rights.
The judge held that the consent order did not bar discovery. An order of certiorari quashes the legal effect of the decision or its records; it does not, by itself, destroy underlying material, make it secret or create privilege. The order in Comyns’ judicial review concerned GSOC’s findings and records of those findings, not the evidence and other material before GSOC. The judge said the existing discovery order and the later consent order were not in conflict.
The court directed GSOC to produce the yellow-marked documents, but made no finding on the truth of Barry’s allegations or on the admissibility or contents of the documents at trial. On costs, Barry must still indemnify GSOC for the actual costs of making discovery. The motion costs and discovery costs are to be set off, with only the net balance payable; payment is stayed until the action is determined.