The Supreme Court dismissed the Garda Commissioner’s appeal against an order requiring disclosure of material relevant to a civil insurance claim over a fire that destroyed a Donegal bar and restaurant. The court upheld the High Court’s decision that the Commissioner had not established a general public interest privilege over material voluntarily provided by the plaintiff, or a right to delay disclosure until a possible criminal prosecution.
The plaintiff, publican and nightclub owner Seamus McLaughlin, had insured the Waterfront Bar and Restaurant in James Street, Moville. The premises and contents were destroyed by fire on 1 February 2009. Aviva later refused his claim, alleging that he had been involved in starting the fire. McLaughlin brought a civil action seeking indemnity under the policy.
Investigators recovered items including the premises’ CCTV surveillance system, which belonged to McLaughlin and had been given to investigators at their request. The material was later passed to the Gardaí. In the civil proceedings, the High Court ordered discovery of CCTV footage and the system, along with documents showing results of forensic examinations. It allowed the Commissioner to object on public interest or investigative privilege grounds to a second digital video recorder and two forensic reports.
The Commissioner appealed after the High Court rejected the privilege claim. The Supreme Court noted that McLaughlin and another person had already viewed available footage, and that the Gardaí were prepared to provide a copy of footage that was available. The Commissioner’s position was that the material should not be disclosed until the Director of Public Prosecutions decided whether to prosecute; the Garda investigation file had been sent to the DPP in May 2010, but no charges had been directed.
Delivering judgment on 15 November 2011, Mr Justice Hardiman said the Commissioner bore the burden of establishing the privilege claimed. He found no rule requiring a civil case or a step in it to wait for a criminal case that might never be brought. The objection was substantially about timing and priority, rather than relevance or necessity.
The court also rejected the general claim that Gardaí should inspect recovered footage before the subject of an investigation. As recovery from the recorder might be destructive, the judge said McLaughlin should have the opportunity to attend or be represented during the process involving his own property. The judgment left open whether a specific, case-related reason for withholding particular material could be raised later in proper form.
The appeal was dismissed and the High Court judgment upheld. The Supreme Court did not decide what the position would be if criminal proceedings were already under way.