High Court allows prima facie case on wrongful disclosure but dismisses fair procedure claim due to delay.

Neutral Citation [2015] IEHC 411

THE HIGH COURT

[2010 No. 5845 P.]

BETWEEN

KATHERINE BOYLE

PLAINTIFF

AND

GOVERNOR OF ST. PATRICK’S INSTITUTION, IRISH PRISON SERVICE, MINISTER FOR JUSTICE AND LAW REFORM, IRELAND AND

ATTORNEY GENERAL

DEFENDANTS

RULING of Mr. Justice Barr delivered the day of 2nd July, 2015

1. The defendants in this action have applied for a direction on the grounds that the plaintiff has not made out any case against

them. Counsel for the defendants has indicated that if his application is refused, the defendants intend to go into evidence. In these

circumstances, the principles as laid down in O’Toole v. Heavey [1993] 2 I.R. 544, provide that the trial judge has to decide whether

the plaintiff has made out a prima facie case against the defendants.

2. The plaintiff has rested her submissions on two main arguments: first, that the investigation carried out into the alleged incident on

3rd September, 2008, was done in contravention of her right to fair procedures; and secondly, that the defendants wrongfully

disclosed to a journalist detailed information about the incident, so as to portray the defendants’ security system at the prison in a

positive light. I will assess each of these limbs of the plaintiff’s case in turn.

Alleged Breach of Constitutional Right to Fair Procedures

3. The defendants have pointed out that the plaintiff has not challenged the decision of Governor Quigley to remove her security

clearance in September 2008. They submitted that as the plaintiff did not make any challenge to the investigation or the decision

within the time limits provided in O. 84 of the Rules of the Superior Courts, she cannot now purport to do the same thing by means of

a plenary action.

4. The defendants rely on the decision of Costello J. in O’Donnell v. Corporation of Dun Laoghaire [1991] I.L.R.M. 301, where it was

held that it was permissible for a plaintiff to seek declaratory relief as to the invalidity of a decision of a public authority in plenary

proceedings. However, the judge held that such procedure cannot be used to circumvent the time limits laid down in Order 84.

5. In the course of his judgment, Costello J. stated as follows at pp. 314-315:-

“It seems to me that in considering the effects of delay in a plenary action there are now persuasive reasons for

adopting the principles enshrined in O. 84, r. 21 relating to delay in applications for judicial review, so that if the plenary

action is not brought within three months from the date on which the cause of action arose the court would normally

refuse relief unless it is satisfied that had the claim been brought under O. 84 time would have been extended.

The Rules Committee considered that there were good reasons why public authorities should be protected in the manner

afforded by O. 84, r. 21 when claims for declaratory relief were made in applications for judicial review and I think

exactly the same considerations apply when the same form of relief is sought in a plenary action.”

6. The decision in O’Donnell was approved by the Supreme Court in Shell E&P Limited v. McGrath & Ors [2013] IESC 1. In the course

of his judgment, Clarke J. stated as follows:-

“7.6 Whether or not those references, properly analysed, can be said to amount to an express approval of the relevant

principles enunciated in O'Donnell might be debateable. Certainly the dictum of Fennelly J. in Murphy & ors v. Flood

seems to approve of O'Donnell as authority for the proposition that judicial review time limits cannot be circumvented by

resort to plenary action. However, it seems to me that O'Donnell was rightly decided in any event. It would make a

nonsense of the system of judicial review if a party could by-pass any obligations which arise in that system (such as

time limits and the need to seek leave) simply by issuing plenary proceedings which, in substance, whatever about form,

sought the same relief or the same substantive ends. What would be the point of courts considering applications for

leave or considering applications to extend time if a party could simply by-pass that whole process by issuing a plenary

summons?”

7. Further on in the judgment, Clarke J. stated as follows:-

“I am, therefore, satisfied that O'Donnell represents the law in this jurisdiction. In those circumstances a party cannot

circumvent judicial review requirements by the device of commencing plenary proceedings or by mounting a

counterclaim in such proceedings.”

8. In response, the plaintiff argues that she does not seek to challenge the decision reached by Governor Quigley. However, she does

argue that the investigation which was carried out, was in breach of her constitutional right to fair procedures. In particular, she was

not furnished with a copy of the statement or interview furnished by Officer Nolan, nor was she given access to the CCTV recordings

of the day in question. She states that these were only made available to her when the defendant made discovery of documents in

the course of the present proceedings in November 2014.

9. The plaintiff maintains that the significance of the Nolan statements was that she asserted, in the course of her interview with

Governor Murphy on 8th September, 2008, that “I went to get the hand wand and then she produced the mobile phone from her

bra”. This, the plaintiff alleges, constituted an allegation that it was only when there was an indication that the hand wand would be

used, that the plaintiff produced her phone. The plaintiff makes the case that this was a very damaging assertion that she would

have challenged had she known about it. She claims that the investigation was unfair because she and her trade union representative

were denied access to the statements and CCTV recordings.

10. The plaintiff further alleges that even if the time limits for bringing judicial review proceedings were held to apply, she would seek

an extension of the time within which to mount her application, on the grounds that she did not know of the relevant facts until

discovery was made by the defendants in November 2014.

11. The defendants reply to this by saying that in September 2008, the plaintiff had knowledge of the essential facts, which were

that she had been found in possession of a prohibited article, being a mobile phone, in part of the prison complex where such articles

were not permitted. The defendants noted that the plaintiff had been given ample opportunity to put her side of the story. She had

attended at an interview with Governor Quigley on 4th September, 2008; she had made her own written statement, which she had

signed before Governor Murphy; and she had made extensive representations through her trade union representative, Mr. Glynn.

12. The defendants assert that if the plaintiff wanted to challenge the investigation on which Governor Quigley relied in coming to his

decision, she should have proceeded by way of an application seeking judicial review within the relevant time limits. She cannot, at

this remove, attack the decision-making process by framing her action on the basis of a breach of her constitutional right to fair

procedures.

13. The defendants argue that while the plaintiff did not have access to Officer Nolan’s statement or to the CCTV recordings in

September 2008, she had sufficient knowledge to enable her to mount judicial review proceedings within the applicable time limit.

They point out that in the email response from Dermott Ahern, T.D., to Áine Brady, T.D., on 31st October, 2008, Deputy Ahern had

stated “It was indicated to her that she would be subject to scanning with the handheld wand and at that point she produced the

mobile phone”. The defendants rely on this as a statement informing the plaintiff that it was alleged that she only produced the

phone when it was indicated that a search with the handheld wand would take place.

14. The defendants rely on the decision of Morris J. in McDonald v. McBain [1991] 1 I.R. 284, where it was held that the plaintiffs had

knowledge of the essential facts concerning a fire at their property, which would have enabled them to institute proceedings within

the relevant limitation period. What was missing was an item of poof, in that case an admission by the defendant, which could be

adduced to strengthen the plaintiffs’ case if and when it came to a hearing. As they had knowledge of the essential facts within the

limitation period, their action was statute barred because they had not instituted proceedings within this period.

15. I am satisfied that the defendants’ contention in this regard is correct. The plaintiff had the necessary knowledge in or about

September 2008 to enable her to challenge the investigation on grounds of fairness. She knew by March 2009 that the defendants

had refused to hand over the statements or the CCTV recordings. She could have instituted judicial review proceedings at that time.

She did not do so. It appears that she did not challenge the non-production of the CCTV recordings, as her trade union had obtained

legal advice to the effect that the plaintiff could not compel the production of such material to her.

16. The plaintiff cannot, in the course of these proceedings, attempt to circumvent the time limits imposed under O. 84 by

characterising her cause of action as an action in negligence, or for breach of her constitutional rights. Accordingly, I accede to the

defendants’ submission on this aspect. The plaintiff is out of time to challenge the investigation procedure on the grounds that it was

carried out in a way which breached her constitutional right to fair procedures. The defendants are entitled to a direction on this

aspect of the plaintiff’s claim.

Allegation of Unlawful Disclosure to the Press

17. Turning to the publication of the article in the Irish Daily Star on 9th September, 2008, the defendants allege that there was no

proof that the information contained in the article had been leaked by any servant or agent of the defendant. It was submitted that

there was evidence that the incident which occurred on 3rd September, 2008, had been discussed by teachers in advance of the

publication of the article. Hence, it was known to a wide variety of people, any one of whom could have furnished the information to

the journalist. The defendants further argue that the information contained in the article was not confidential information which would

give rise to a cause of action for its disclosure to the press. The plaintiff may have been embarrassed by the article, but that did not

entitle her to a claim for damages.

18. In opening the case, the plaintiff’s counsel had relied on the decision in Gray & Ors v. Minister for Justice, Equality and Law

Reform [2007] 2 I.R. 654. In that case, a convicted rapist was residing in the plaintiff’s home in Ballybunion, Co. Kerry. This

information was known to the gardaí. It was accepted that this was sensitive and confidential information which was restricted to the

gardaí. This information had been furnished to a journalist. The gardaí negligently confirmed the information when a query was raised

with them by the journalist. Based on this verification, articles appeared in the local and national press. As a result of the publication

of these articles, the plaintiffs had suffered harassment and had been obliged to relocate to Dublin. The plaintiff received damages for

the disclosure of this information to the press.

19. The defendant submitted that the present case was far removed from the circumstances which pertained in Gray, where the

information disclosed was confidential and sensitive information which was only accessible to members of An Garda Síochána. The

defendant submitted that the Gray case was not authority for the proposition that anyone who is embarrassed by an article has a

cause of action. If the plaintiff felt that the article was inaccurate, she could have brought proceedings against the newspaper for

defamation. She had not taken any action against the newspaper. The fact that the plaintiff may have been stressed or embarrassed

by the article, did not give her a right to damages.

20. It was submitted that in the Gray case, the trial judge had been struck by the confidential and sensitive nature of the information

and that access to it was restricted to the gardaí. The defendant submitted that in this case, there was no proof that the article was

based on any information leaked by a servant or agent of the defendant.

21. The Press Office had been approached by Mr. O’Toole for verification of his story. They had issued a bland statement which did

not identify the plaintiff. Mr. O’Toole had confirmed in his evidence that the best way to kill off a story such as this was for the Press

Office to issue such a bland statement.

22. The defendants pointed out that in Gray, the journalist had said that without verification by the police, the article would probably

not have been published. In this case, this had not been put to Mr. O’Toole. It was submitted that the Press Office had done nothing

wrong in issuing the statement that it did.

23. In response, the plaintiff reasserted that she was not seeking the quashing of the decision reached by Governor Quigley. It was

asserted that the plaintiff’s injury and damage flowed from the wrongful disclosure of private matter to the journalist, Mr. O’Toole. She

submitted that the Gray case was part of a line of authorities stretching back to the decision in Ward v. McMaster [1988] I.R. 337,

where the duty of care was founded on the proximity of the parties and the foreseeability of damage. While public policy might deny

an injured plaintiff redress in certain circumstances, it would have to be particularly forceful to deny a plaintiff a right to redress. It

was submitted that there was no such countervailing public policy in this case. The plaintiff referred to the following portion of the

judgment of McCarthy J. in that case:-

“Whilst Costello J. essentially rested his conclusion on the ‘fair and reasonable’ test, I prefer to express the duty as

arising from the proximity of the parties, the foreseeability of the damage, and the absence of any compelling exemption

based upon public policy. I do not, in any fashion, seek to exclude the latter consideration, although I confess that such

a consideration must be a very powerful one if it is to be used to deny an injured party his right to redress at the

expense of the person or body that injured him.”

24. The plaintiff also relied on the decision in Hanahoe v. Hussey [1998] 3 I.R. 69, where it was held that the gardaí had disclosed to

the media the fact that a search warrant had been obtained, such that a number of journalists attended at the plaintiff’s offices at

the time when the search warrant was being executed. Liability was imposed on the grounds of negligence and on the ground that

the disclosure had been deliberately made. The plaintiff submitted that although the plaintiffs in that case could not prove actual loss,

the judge was prepared to find that the plaintiffs had suffered loss and damage. It was submitted that the wrong in this case was the

same as in the Hanahoe case. The plaintiff was branded as a criminal, who had tried to smuggle a mobile phone into the prison.

25. The plaintiff argued that in the Gray case, the confidential information had been in the Occurrence Book, the Collator’s Report and

the Collator’s Bulletin. In this case, there was the report of Chief Officer Buckley to Governor O’Sullivan, the report of Officer Nolan,

the letter of 4th September, 2008, from Governor O’Sullivan to Governor Quigley, the report of Chief Officer Buckley of the meeting on

4th September, 2008, and the interview note of Governor Murphy and Officer Nolan. This documentation was restricted to the

investigating officer and the makers of the various statements.

26. In Gray, the judge had been prepared to draw the inference that on the balance of probabilities, the information in the article was

leaked by the gardaí. The judge held that the proximity of the relationship between the gardaí and the persons concerned was

undeniable if the information was confidential and sensitive. Quirke J. stated as follows at para. 56 of his judgment:-

“[56] The proximate relationship between the State and those of its citizens who may be affected by the by the State’s

procurement of sensitive and confidential information is undeniable. That relationship can give rise to a duty of care

owed by the State to persons who may be adversely affected by the disclosure or publication of such information. The

negligent disclosure of sensitive and confidential information by Gardaí to journalists or other members of the media will

give rise to a cause of action for damages for negligence if the disclosure results in reasonably foreseeable loss, damage

or injury to a person affected by the disclosure.”

27. The plaintiff submitted that here, the plaintiff was in the contemplation of the Prison Service. There was a proximate relationship

between the Prison Service and the plaintiff. It was foreseeable that the plaintiff would suffer damage by disclosure of this

information.

28. It was further submitted that the plaintiff’s right to privacy had been violated in this case along similar lines to what had

happened in the Gray case. In this case, there was no public interest in disclosing the information; the only interest was that of the

Prison Service in having the matter published. In this regard, it was submitted that the court should ask: for whose benefit was the

information leaked? It was submitted that it was the Prison Service who gained, by having it made known that their newly installed

security scanning system had operated satisfactorily.

29. The plaintiff submitted that the court should have regard to the content of the article, which would provide evidence as to the

likely source of the leak. It was pointed out that the article states that the person concerned in the incident was not a prison officer.

It was submitted that this showed that the source was intent on making it clear that a prison officer was not the offending party.

The article went on to say that “one insider” had provided information which was directly quoted in the article. Mr. O’Toole stated

that the quotation was an accurate representation of what had been made known to him. The plaintiff submitted that the reference

to “insider” showed that the information came from within the Prison Service.

30. The reference in the article to the plaintiff saying that it must have been her bra which was setting off the machine was, more or

less, a direct quote from the interview given by Officer Nolan to Governor Murphy. This showed that the source of the information had

access to that particular confidential document. The plaintiff also submitted that in the article there had been reference to the fact

that a female prison officer would have to search the plaintiff; this was only known to very few people, being Officers Nolan and

Mahony, Governors Murphy, O’Sullivan and Quigley and the principal of the school, Mr. Duffy. The plaintiff submitted that when it was

asked who benefited from these disclosures, the only answer was that it was the Prison Service who benefited.

31. The plaintiff also pointed out that the statement from the Press Office as quoted in the article, was inaccurate. The plaintiff had

not been suspended. In giving this statement, the Press Office had confirmed Mr. O’Toole’s information from the “leak”. The

defendants stated that the Press Office had given this statement so as to dampen down the story. The plaintiff submitted that there

was a compelling case that the information came from one of a small number of prison officers, who had the relevant information and

had an interest in leaking the information. It was submitted that given the tenor and object of the article, it was designed to portray

the Prison Service in a favourable light.

32. Having regard to the evidence led by the plaintiff, I am satisfied that she has established a prima facie case that on the balance

of probabilities, it can be inferred that the information in the article came from a servant or agent of the Prison Service. The

information contained in the article was known to a relatively small number of people. As pointed out by the plaintiff, the information

provided was quite detailed. Some of those details were known to a few people in the employment of the defendants. In these

circumstances, the plaintiff has established a prima facie case against the defendants in relation to the disclosure of the information.

Accordingly, I refuse the defendants’ application for a direction insofar as the plaintiff’s cause of action concerns the alleged wrongful

disclosure of private information to the journalist in the period between 3rd September, 2008 and 8th September, 2008.

33. Finally, I should point out three things. First, although some evidence has been led on behalf of the defendants, this evidence was

taken while awaiting the last of the plaintiff’s witnesses to give evidence. It was agreed that the defendants would go into evidence

without prejudice to their right to seek a direction at the conclusion of the plaintiff’s case. In these circumstances, I have not had

regard to the defendants’ evidence to date in coming to my conclusions. Secondly, as already stated on the test set out in O’Toole v.

Heavey, where a defendant indicates that if he is unsuccessful in the application they reserve the right to go into evidence, the court

only has to be satisfied that the plaintiff has raised a prima facie case. Accordingly, my conclusions herein on the disclosure of

information to Mr. O’Toole should not be regarded by either party as my final decision on that issue. Thirdly, although submissions

were made on the question of the vicarious liability of the defendants for any unauthorised act of a servant or agent of the defendant

in disclosing the information, I will hold over a consideration of this issue until all the evidence has been concluded in this case.