The High Court partly allowed the defendants’ motion to set aside a discovery order in a civil claim over property seized by gardaí. It removed the requirement to disclose records about the seizure and any forensic analysis, but upheld the order for discovery of counsel’s note concerning an alleged agreement between the parties.
The plaintiff’s statement of claim said gardaí entered his home and business premises on 10 July 2008 and seized a car, five mobile phones, a fax machine, credit cards, an international driving permit, a computer hard drive and business and financial documents. He claimed the items were being retained without lawful authority and that their loss caused economic harm. He sought damages for conversion, trespass or detinue, and an order for their return.
The defendants pleaded that the items were seized under search warrants issued by a Dublin District Court judge. They said some were being retained as potential evidence in an investigation involving the plaintiff and Vehicle Tech Limited. They also pleaded that an oral agreement was reached on 31 July 2008 for some items to be returned within agreed timeframes. The plaintiff disputed that an agreement had been reached.
The Master of the High Court had ordered discovery of counsel’s note referred to in a letter dated 5 August 2008, as well as records of the seizure and any decisions to submit items for analysis or link them to particular alleged crimes. The defendants asked the High Court to set aside that order.
The judge held that counsel’s note could bear on whether the alleged agreement existed and whether the proceedings had been issued prematurely. The order requiring its discovery on oath was therefore confirmed. The defendants could raise any claim of privilege in their discovery affidavit.
The court set aside the order for the investigative and forensic records. It said those documents, if they existed, were not relevant to an issue raised by the pleadings. The live question was whether retaining the items from 10 July 2008 to 29 November 2010 was reasonable, and whether the retention amounted to conversion or detinue.
The judgment noted that no proceedings had been commenced against the plaintiff or Vehicle Tech Limited. It also said the law permitted seizure where a garda believed an item might be evidence, subject to retention for a reasonable period. The court did not decide whether the retention was reasonable or whether the plaintiff was entitled to damages or return of the items. It extended the deadline for discovery of counsel’s note to 11 January 2011, directed that the defendants’ affidavit be made by Detective Superintendent Eugene Gallagher, and reserved the question of costs for a hearing between the parties.