The High Court has allowed an appeal against an order requiring a Circuit Court judge to disclose her personal notes of a family law hearing, finding the notes were not necessary for the judicial review in which they were sought.
The appeal concerned a discovery order made by the Master of the High Court on 29 October 2008. It required Judge Olive Buttimer to make discovery on oath of her notes from a 2 June 2005 hearing in Kilkenny Circuit Court. The applicant, identified in the judgment as D. O’Q., sought the notes in judicial review proceedings concerning a later maintenance order. The respondent judge appealed the Master’s order.
The underlying family proceedings concerned maintenance for three dependent children. The applicant’s account was that, at the June hearing, the judge directed him to pay €1,000 a month until September, then cover the eldest child’s college costs and pay €667 a month for the other two children. At a later hearing on 15 December 2005, the applicant said, the judge initially read out that understanding but then stated a different arrangement after the wife disputed it. These were the applicant’s claims as described in his affidavit; the High Court was deciding the discovery appeal, not the merits of the maintenance dispute.
The applicant sought judicial review of the December maintenance order, alleging procedural impropriety, an order unsupported by evidence of the parties’ means, and bias or perceived bias. He argued that the judge’s notes could support those claims. The respondent’s solicitor argued that discovery was not justified and that judicial notes were personal aides-memoire, not part of the court record.
Mr Justice John Edwards said discovery in judicial review should be granted sparingly. He found that people present at the June hearing—including the applicant, the wife, her solicitor and the court clerk—could give evidence about what the judge had said. The notes themselves were therefore not necessary to establish the pleaded grounds. He also held it was inappropriate to order discovery before any affidavit had been filed in response to the substantive judicial review claim.
The judgment expressed serious concern that compelling a judge’s notes could undermine judicial independence and expose judges to having to explain or be cross-examined about them. It said that, if discovery of such notes were possible, it could occur only in exceptional circumstances where necessity was clearly shown. The court did not decide whether the notes are constitutionally protected from compulsion in all cases, as it considered that question unnecessary to resolve here.
The court allowed the appeal against the Master’s 29 October 2008 order. The judgment does not determine the underlying judicial review or the maintenance dispute.