The Supreme Court has allowed an appeal by Martin Foley, directing that the Garda Commissioner or a nominee be orally examined about whether the State owes any debts to Charles Bowden, who is participating in a witness protection scheme.
The order does not establish that any money is owed. Nor does it require documents to be disclosed to Foley or his lawyers: the judge overseeing the examination may decide whether documents can be produced, inspect them privately, or refuse disclosure on public-interest grounds.
Foley was shot in the finger and lung outside his Dublin home by an unidentified assailant. His case was that Bowden had admitted under oath in criminal proceedings in 1999 to providing the weapon and instructing an unidentified person to carry out the attack. Foley sued for damages, alleging negligence, breach of duty, breach of statutory duty and breach of constitutional rights.
Bowden was personally served with the claim in July 1999 while imprisoned. After he did not enter an appearance, Foley obtained judgment in default in December 1999. The High Court later assessed damages at £120,000 (€152,368.57), and costs were taxed at £31,978.85 (€40,604.77). The judgment said £151,978.85 (€192,973.33) was then owing.
Foley sought the examination after his lawyers said they could not enforce the judgment and considered it possible that the State made continuing maintenance payments to Bowden under the protection scheme, or had agreed to indemnify him against existing liabilities. The Commissioner filed no replying affidavit.
The High Court refused the application in December 2002. It considered that even a limited inquiry could make future participants fear that their identities or locations would be exposed, and could deter witnesses from joining the scheme. It also concluded that allowing execution against scheme benefits would put Foley in a better position because of Bowden’s participation.
The Supreme Court said Foley met the relatively low threshold for an examination under Order 42, Rule 36, despite having no direct evidence that debts existed. It noted that the Commissioner had not challenged the High Court’s finding that an examination need not reveal Bowden’s new identity or location. The court said the hearing could be conducted without disclosing either, and that the judge could protect documents where disclosure would not serve the public interest.
The Supreme Court therefore allowed the appeal and replaced the High Court order with a direction for an oral examination to ascertain what debts, if any, the State owed Bowden. It did not decide whether such debts existed or order that any judgment debt be paid from them.