The High Court has ordered Mr A and Ms B to meet the Garda Commissioner’s costs after the Commissioner was drawn into their family law proceedings as a non-party asked to provide recordings.
Mr Justice Max Barrett made the costs order under Order 31, rule 29 of the Rules of the Superior Courts. The rule provides for a party seeking non-party discovery to indemnify that person for costs reasonably incurred. The court ordered Mr A to bear 75% of the Commissioner’s costs and Ms B to bear 25%.
The judgment, delivered on 11 May 2021, followed earlier proceedings in which the parties sought access to recordings. According to facts summarised in the Commissioner’s submissions and adopted by the court, Mr A applied for discovery and inspection of the recordings, while Ms B applied for disclosure to a section 32 assessor. The Commissioner had no involvement in the substantive dispute, and the material had been generated by the parties.
The court had ordered the Commissioner on 15 February 2021 to provide a USB stick containing the relevant material to the court within five working days. The Commissioner complied, while also claiming public interest, or investigative, privilege. In a judgment dated 23 February 2021, the court acknowledged the privilege claim applied on the facts but ruled that it was overridden.
After a later reserved judgment on the substantive issues, the parties resolved their dispute, making their proceedings moot. The court said this removed the need to direct that the material be produced to either party. It vacated the orders relating to disclosure and non-party discovery, leaving no effective production order against the Commissioner.
The parties argued that no costs order should be made because the privilege judgment addressed issues of public importance. The court rejected that position, reasoning that the discovery applications had been brought for the parties’ private litigation and that the rule required indemnification of the Commissioner’s reasonably incurred costs. The costs award covers the initial motion, compliance with the 15 February order, the assertion and hearing of the privilege claim, and a stay application.