The Court of Appeal has narrowed a discovery order in Brian Murphy’s judicial review challenge to Revenue prosecutions, requiring disclosure only of specified documents created by 31 August 2015 about the terms of an instalment agreement and prosecution action.
In a judgment delivered on 27 February 2020, Mr Justice Haughton said the documents could include emails, letters and telephone-call records held by the Revenue Commissioners or their solicitors, Pierse Fitzgibbon. They must concern the 31 August agreement, particularly whether existing prosecutions would continue or future prosecutions would be initiated, and whether the agreement would be without prejudice to prosecution action.
The appeal arose from a High Court order granting discovery in two categories. Murphy sought documents in five categories in proceedings asking the court to restrain the Revenue Commissioners and the Director of Public Prosecutions from pursuing summonses issued in 2014 and 2015. The respondents cross-appealed, opposing discovery.
Murphy’s case is that he entered an instalment arrangement on the understanding that existing prosecutions would not continue and new ones would not be brought if he kept up payments. The respondents deny making such an agreement or representation. They say the August arrangement concerned specified tax liabilities and did not affect separate enforcement action or prosecutions.
The Court of Appeal found that communications leading up to the agreement could be relevant to the pleaded claims about its terms and legitimate expectation. It removed a specific reference to previous drafts as unsupported by evidence, while noting that relevant drafts, if they existed, could fall within the revised category.
The court refused discovery of records of calls in late October 2015, after Murphy was served with a summons. It said the alleged expressions of surprise during those calls did not raise a factual dispute central to the issues, which focused on events culminating in the August agreement. It also refused documents about the timing and internal decision to prosecute, and a later review of the file, finding those categories irrelevant to the core issues or speculative. Documents in another category had already been furnished.
The judgment also addressed the deletion of recordings of the October calls under the solicitors’ 18-month data deletion policy. The court was satisfied on the affidavits that the deletion was accidental and that the respondents did not learn of it until November 2019. As discovery of the call records was refused, it said the deletion was moot and should have no adverse consequence in the appeal.
The ruling concerns discovery in the judicial review proceedings. It does not decide whether the alleged agreement or legitimate expectation existed, or whether the prosecutions should be restrained.