High Court refuses amici curiae affidavits as evidence, permitting only written submissions to assist the court.

Neutral Citation: [2017] IEHC 105

THE HIGH COURT

COMMERCIAL

[2016 No. 4809 P.]

BETWEEN

THE DATA PROTECTION COMMISSIONER

PLAINTIFF

AND

FACEBOOK IRELAND LIMITED AND MAXIMILLIAN SCHREMS

DEFENDANTS

JUDGMENT of Ms. Justice Costello delivered on the 20th day of February, 2017

1. On the 19th of July, 2016, McGovern J. joined four parties to the proceedings as amici curiae. On the 25th of July, 2016, he

directed that the issue as to whether the amici curiae will be entitled to rely on affidavits they deliver is to be decided by the court.

This is my ruling on the application by three of the four amici curiae for leave to deliver three affidavits.

2. It is clear from the order and judgment of McGovern J. that he envisaged that the amici could assist the trial court whether or not

they were permitted to file affidavits. It is also clear that he was of the view that the court had discretion whether or not to permit

the amici to file affidavits. At paras. 15 and 16 of his judgment admitting four amici curiae but refusing the application of six

applicants delivered on the 19th of July, 2016, [2016] IEHC 414 he stated:

“These proceedings do involve issues of public law. But they are not, in any real sense, a lis inter partes. One of the

reliefs sought by the plaintiff is a reference to the CJEU. It is accepted by all the applicants that, if a reference is made,

they cannot be heard before the CJEU unless they were involved in some way before the court of first instance. (See:

Article 96 of the Rules of Procedure of the Court of Justice of the European Union.)

16. Because there is no factual dispute or lis inter partes in these proceedings, the applicants argue that the usual rule,

excluding the involvement of an amicus curiae at the first instance hearing, does not apply. Furthermore, when the

issues raised in the proceedings are almost certain to involve a reference to the CJEU, it is essential that any party who

has a right to be heard as an amicus curiae should be heard in the proceedings before the High Court. It seems to me

that this is a reasonable view.”

3. It seems clear therefore that he permitted the four amici curiae to be joined in order that they not be excluded from a hearing

before the Court of Justice of the European Union if the High Court makes a reference, as requested by the plaintiff. Secondly, he

accepted the arguments advanced by the applicants that there was no factual dispute or lis inter partes in the proceedings such as

would lead to the exclusion of an amicus curiae at the first instance hearing.

4. There was nothing in his judgment to suggest that in order to fulfil their role of assisting the High Court in its determinations that

the amici curiae needed to adduce evidence. In relation to the BSA (the Business Software Alliance), he stated that they should be

in a position to offer views which might not otherwise be available to the court. In relation to Digital Europe, he held it would be in a

position to assist the court by bringing to bear its expertise in a way which might not otherwise be available to the court. In relation

to EPIC (Electronic Privacy Information Centre), he said it would be in a position to offer a counterbalancing perspective from the US

government on the position in the US and could bring an expertise which might not otherwise be available to the court. The language

he used clearly reflected the language used in the prior authorities including Fitzpatrick v. FK [2007] 2 I.R. 406.

5. He declined to join the other six applicants as amici curiae on the grounds that they could not offer any particular assistance to

the court which will not be furnished by the parties to the proceedings, or bring a new perspective beyond that of the parties and the

amici he admitted. In refusing to admit Mr. Kevin Cahill as an amicus curiae, McGovern J. stated that as a general rule an amicus

curiae is not permitted to give evidence.

6. He concluded his judgment by putting the matter back for further directions to discuss inter alia the nature of the assistance to be

given by the amici curiae and in particular whether or not such a party wishes to give evidence on US law “… as opposed to the US

regime surrounding data transfer…” and whether evidence of law should be given by way of affidavit or in submissions.

7. It is thus clear that he accepted, as do I, that there is no absolute rule that an amicus curiae can never give evidence but as a

general rule an amicus curiae is not permitted to give evidence. This reflects the decision of the Supreme Court in H.I. v. Minister for

Justice Equality and Law Reform [2003] 3 I.R. 197 in which Keane C.J. accepted that an amici curiae was not normally entitled to

adduce any evidence. The Chief Justice made this observation in the context of holding that the jurisdiction to join an amicus curiae

is to be exercised “sparingly”.

8. In Fitzpatrick v. F.K. Clarke J. in the High Court considered the question of joining an applicant as an amicus curiae. He held that

an important factor to be taken into account was whether the party might reasonably be said to be in a position to bring to bear

expertise in respect of an area which might not otherwise be available to the court. But he also accepted that an amicus curiae will

more readily be joined at the stage of a final court. He emphasised the importance of the involvement of the amicus in the legal

debate. In para. 31 of the report he stated:

“It is obvious, therefore, that an amicus should not be permitted to involve itself in the specific facts of an individual

case. It is only after those facts have been determined that the extent to which issues of general importance may

remain for decision will be clear. That is far more likely to be the case at the appellate rather than at the trial

level…..While I am not persuaded that there is an absolute bar to parties being joined as amicus curiae at trial level, I

believe that the circumstances in which it would be appropriate so to do should, ordinarily, be confined to cases where

there is no significant likelihood that the facts of an individual case are likely to be controversial or to have a significant

effect on determining what issues of general importance required to be determined.”

9. Clarke J. does not envisage amici curiae having any role in adducing evidence at the trial. It would be very much the exception for

a court to permit an amicus curiae adduce evidence at a trial.

10. It is absolutely clear that an amicus curiae cannot contest the undisputed facts in the case (see EMI Records (Ireland) Ltd and

Ors v UPC Communications (Ireland) Ltd [2013] IEHC 204 para. 69).

11. The role of an amici curiae is to assist the court. Therefore, the question the court must ask is: Will the evidence sought to be

adduced assist the court in its determination?

12. In this case the plaintiff seeks declarations in relation to the standard contractual clauses (SCCs) insofar as they apply to data

transfers from EEA to the United States and a preliminary reference to the CJEU for ruling on the validity of the SCCs insofar as they

apply to data transfers from EEA to the United States. Mr. Schrems’ complaint to the Data Protection Commissioner relates to data

transfers by Facebook Ireland Ltd to Facebook Inc. in the United States. It follows that the issues for determination by this court

relate to transfers of data to the United States; not to any other third country outside the EEA.

13. Mr. Higgins on behalf of Digital Europe has sworn an affidavit which is concerned with transfers of data to third countries,

including the United States, pursuant to SCCs. The only third country with which this case is concerned is the United States.

Facebook Ireland Ltd has adduced evidence in relation to transfers to the United States. I believe that Digital Rights may still fulfil its

brief as an amicus curiae based on the evidence which has been adduced by the parties. It is not necessary for the court to depart

from the normal rule and admit into evidence an affidavit largely concerned with matters outside the parameters of the case. I

therefore refuse to permit Digital Europe to file the affidavit of Mr. Higgins.

14. Counsel for the BSA submitted that the touchstone is whether the evidence will assist the court. I agree. However, the fact that

the evidence is new material and not contested by any party is not sufficient. The normal rule is that parties to the proceedings

adduce the evidence and in this case the plaintiff and the first named defendant oppose the introduction of the proposed additional

evidence and the second named defendant is neutral. The test the court should apply is not whether there is no reason not to permit

the affidavit to be adduced; but, in light of the evidence to be adduced by the parties, this additional evidence would assist the

court.

15. The BSA says that it is not trying to get involved in the facts in the dispute though it clearly wishes to fill what it says is a deficit

in the court’s factual framework. However, the issue is not whether there are omissions from the evidence available to the court but

whether the additional evidence would assist the court in reaching its determination on the issues before it for decision. The role of

the amicus curiae is to help the court in its task. Having read the written submissions filed on behalf of the BSA, I am of the opinion

that it will be able to fulfil its brief as an amicus curiae without the need to adduce evidence which will not be adduced by the parties

to the proceedings. I see no reason to depart from the normal rule that an amicus curiae does not adduce evidence and therefore I

refuse the application of BSA to deliver the affidavit of Professor Boué.

16. Professor Butler on behalf of EPIC filed an affidavit which deals with US law and practice. Counsel for EPIC explained that this was

done in order to introduce materials into evidence in relation to US law at a time when the affidavits adduced by the parties on US

law had not yet been filed. To that extent his affidavit has been overtaken by events. The court has and will have evidence from five

experts who will give evidence on behalf of the parties in relation to the areas of US law which they identify as relevant. Extensive

materials have been adduced in evidence and the experts will be cross examined. With due respect to Professor Butler’s expertise, his

affidavit of US law and practice is not, in the circumstances necessary for the court.

17. I note that at para. 17 of his affidavit grounding the application for the admission of EPIC as an amicus curiae he confirmed that

the intervention would be limited to written or oral submissions on relevant questions of law. It was not suggested before McGovern J.

that he would need to give evidence. I understand why, as a matter of timing, he swore his affidavit but it has been overtaken by

events and it is not necessary that EPIC file the affidavit in order that it may assist the court as an amicus curiae. Indeed he implied

that this was not necessary in his affidavit grounding the application to be admitted as an amicus curiae. I likewise refuse to admit

his affidavit.