The High Court has allowed David Kavanagh to obtain a transcript of an earlier hearing for the purposes of an appeal, finding that access was in the interests of justice. The court did not direct that he receive the digital audio recording itself.
Mr Justice Allen’s ruling concerned a hearing on 8 April 2020, when Kavanagh, acting for himself, sought an interim injunction to suspend the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020. His application argued that the legislation was invalid because no new Government had been appointed after the dissolution of Dáil Éireann and the subsequent general election. The judge refused that application on the day.
On 27 April, Kavanagh sent the registrar a proposed notice of motion seeking a transcript of the digital audio recording of the hearing. The notice indicated that he wanted it for an appeal. The defendants had not been served with the original proceedings and had not been notified of the ex parte application.
The judge considered the rules governing access to court records. He said access to a digital audio recording is not automatic, even for a party to proceedings, and an applicant must give a legitimate reason. Kavanagh had a constitutional right of appeal, and the judge was satisfied that providing access to the transcript was in the interests of justice.
Because the earlier application and decision had been heard in open court, the judge said there was no benefit in requiring Kavanagh to issue and serve a notice of motion. He dealt with the access application ex parte.
The order was for access by transcript, on payment of the transcript writer’s fee. The judge understood Kavanagh’s request for “oral transcripts [DARS]” to mean a transcript rather than a copy of the audio. He said that if Kavanagh instead sought the audio recording, there was no reason to depart from the usual rule that access be provided by transcript.