Access to video evidence denied in indemnity action

McLoughlin -v- Aviva Insurance (Europe)

Supreme Court

Neutral citation (2011) IESC 42. Judgments were delivered on November 15th, 2011, by the Chief Justice Ms Justice Susan Denham, with Mr Justice Donal O’Donnell concurring and Mr Justice Adrian Hardiman dissenting.

Judgment

The Supreme Court, by a two to one majority, overturned a High Court order requiring the Garda Commissioner to provide a publican with CCTV material recovered from his fire-destroyed premises in Co Donegal and also give him forensic reports related to the premises.

Background

Publican and nightclub owner Séamus McLoughlin sought the documents for the purposes of his civil action against his insurer Aviva over its failure to pay out under a policy for his premises, the Waterfront Bar and restaurant, in Moville, Co Donegal, destroyed by fire in February 2009.

Aviva refused to indemnify him on grounds including its belief he was guilty of fraud and had been involved in setting fire to the pub in an attempt to obtain benefit under the policy.

It sought and obtained from Mr McLoughlin equipment including the CCTV surveillance system, which was the property of Mr McLoughlin. The insurance company later gave this to the Garda.

The commissioner had claimed public interest/executive privilege and “investigative” privilege over the materials pending a decision by the Director of Public Prosecutions (DPP) on a Garda file sent to him in May 2010. This followed an investigation into the fire.

Last February, the High Court ordered that CCTV material recovered from the Waterfront premises on February 13th, 2009, along with forensic reports related to the premises, be given to Mr McLoughlin after finding they did not attract the public interest privilege claimed.

In his appeal, the commissioner argued the privilege claimed was not permanent and was to last only until the DPP decided whether or not there would be a prosecution.

Mr McLoughlin argued that the commissioner, a non-party to his court action, could not claim privilege when Aviva had had the privileged material for a year and a half and had used it in its defence to his action.

Decisions

In her Supreme Court judgment, with which Mr Justice O’Donnell agreed, the Chief Justice Ms Justice Denham said it was an important part of the analysis of this type of privilege that it exists for a limited time – until a criminal trial had concluded or the DPP decided not to prosecute.

The items over which privilege was claimed were required for civil proceedings between Mr McLoughlin and Aviva and for a criminal inquiry. There was a public interest privilege in documents which are a material part of a criminal investigation and relevant to a prosecution. The onus to establish privilege lay on the person seeking it, the commissioner, and Ms Justice Denham was satisfied that the CCTV recorders at issue and the forensic reports were privileged pending a decision whether to prosecute or not.

The fact the items were not originally created by the Garda did not prevent them attracting privilege as they were now material documents and items in a criminal investigation attracting public interest and investigative privilege. That the documents arose in civil proceedings did not mean privilege did not apply, she said.

The judge directed the items were privileged until a decision had been made to prosecute or not. If there was no prosecution, the privilege ceased and, if there was, the material would be disclosed in the book of evidence. However, if materials were destroyed as part of a proposed “cannibalisation” process, that might create difficulties, she warned.

In his dissenting judgment, Mr Justice Hardiman said this was an unprecedented case where it was undisputed that the material sought by Mr McLoughlin was relevant and was his property, having been given to the insurer by him or recovered from his premises after the fire.

As the third anniversary of the fire approached, the DPP had not preferred any charges and no estimate had been provided as to when a decision might be taken, he said.

The commissioner essentially argued the material should not be disclosed to Mr McLoughlin until the DPP had decided whether or not to prosecute and his objection to discovery was therefore one of priority and timing. There was no rule of law whereby a civil case ready to proceed must yield in priority even to a criminal case actually in being, much less was there a rule a civil case must yield to a “purely hypothetical” criminal case which may not come into being, Mr Justice Hardiman added. The commissioner had failed to show any element of privilege where he had got the documents voluntarily from one party in this case.

Agreeing with Ms Justice Denham, Mr Justice O’Donnell said the case did not raise any particular novel issue. The claim for discovery encompassed not just the video tape, but also the two expert forensic reports prepared for the insurers, which were their property.

The case therefore raised the general issue as to the entitlement of the Garda to withhold from disclosure in civil proceedings documentation which was bona fide required for the purposes of an ongoing investigation which may result in a criminal prosecution.

He said this issue was one on which he regarded the law to be well settled. It did not matter whether the footage may be considered the property of Mr McLoughlin if it was bona fide required for the Garda investigation. Nor did it make any difference in principle whether or not a prosecution was in being.

Full judgments are on courts.ie

Séamus O’Donnell BL, instructed by BP McMullin and Son, Donegal Street, Ballybofey, for the plaintiff; Emily Egan McGrath BL, instructed by Corrigan and Corrigan, Andrew Street, Dublin 2, for the respondent; Frank Callanan SC and Patrick O’Reilly BL, instructed by the Chief State Solicitor, for the State