A High Court judge yesterday awarded substantial costs against the Garda Commissioner and the State after finding "gross and unexplained omissions" in the conduct of a discovery process in proceedings brought against them by a detective sergeant.
Mr Justice John McMenamin was ruling on an application by retired detective sergeant Michael Hughes to strike out the defence of the State and Garda to his proceedings because of the alleged "deliberate" breach over years of several court orders to make disclosure of a 1974 Garda circular on dealings with informers.
While refusing the application to strike out the defence on the grounds it would not be appropriate to take this "extreme and radical step", the judge said the court was entitled to mark its displeasure over the handling of the discovery issues. He would make an order that the defendants pay Mr Hughes the costs of his proceedings to date, which were initiated in 1993.
While the evidence showed a "rather disturbing" picture of the discovery process, the judge said he was not entitled, on the basis of the evidence before him, to make a finding of wilful default only because he had not heard all the witnesses.
He also made directions to ensure what he described as a "full and proper" discovery process was carried out before the full hearing of the action and returned the case for mention in two weeks.
Mr Hughes claimed the 1974 circular supported his claim that he had the right to refuse to name an informant who had warned him of a threat to the life of a Sinn Féin councillor. He claimed Garda authorities wilfully disobeyed court orders for discovery to pursue their own interests in defending the action he brought.
Earlier yesterday, Brian O'Moore SC, for Mr Hughes, said the Garda and State conceded the circular was a relevant document in the action but, despite some six affidavits of discovery having been sworn, his side had only learned this year of the existence of the 1974 circular when another solicitor told them it had been referred to in a memo by the Garda authorities to the Morris tribunal.
Micheál P O'Higgins, for the commissioner and State, said they had come to court with their hands firmly held up. The defence accepted the circular was relevant, that it had not been discovered and this was a serious "omission".
The failure to disclose was an "oversight" and he did not know who was responsible. It appeared the documents had been sent to the Chief State Solicitor's office as part of a process of seeking advice on disclosure and privilege, but there was no file in that office regarding the matter.
In cross-examination, Supt Martin Crotty, now retired from the Garda, who swore the affidavits of discovery in the case, said he would not like to surmise who was responsible for the non-disclosure. He believed it occurred through inadvertence, but he was not accepting it was inadvertence on his part.
In 1993, Mr Hughes initiated proceedings against the Garda Commissioner, the State and others challenging his proposed transfer from the Special Detective Unit to uniformed duties after he refused to name the source of information he got in January 1993 to the effect that an attempt was to be made on the life of Cllr Christy Burke.
