McLoughlin v Aviva Insurance (Europe) [2011] IESC 42 (15 November 2011)

McLoughlin v Aviva Insurance (Europe) [2011] IESC 42 (15 November 2011)

Public interest/investigative privilege attaches to items material to a criminal investigation, even if not generated by the police, but only for a limited period—until a decision is made to prosecute or not. The privilege does not permanently bar discovery in civil proceedings. The appeal is allowed, and discovery is deferred until the privilege ceases.

Citation
[2011] IESC 42
Parties
Plaintiff/respondent: Seamus McLaughlin; Defendant/respondent: Aviva Insurance (Europe) Public Limited Company; Notice Party/appellant: The Commissioner of An Garda Síochána
Jurisdiction
Ireland
Judgment Date
15 November 2011
Procedural Posture
Civil Appeal / Supreme Court Appeal From High Court Decision on Discovery and Privilege
Outcome
Appeal allowed; High Court order set aside
Legal Topics
Discovery, Public Interest Privilege, Investigative Privilege, Insurance Indemnity, Criminal Investigation and Civil Proceedings
Civil Procedure Evidence Insurance Law Discovery Public Interest Privilege Investigative Privilege Insurance Indemnity Criminal Investigation and Civil Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Seamus McLaughlin

Plaintiff/respondent

Aviva Insurance (Europe) Public Limited Company

Defendant/respondent

The Commissioner of An Garda Síochána

Notice Party/appellant

Procedural Posture

Civil Appeal / Supreme Court Appeal From High Court Decision on Discovery and Privilege

Legal Issues

  1. 1 Whether public interest/investigative privilege can be claimed by the police over items not generated by them but obtained during a criminal investigation, to resist discovery in civil proceedings.
  2. 2 Whether such privilege applies to property belonging to a party to the civil proceedings and voluntarily given to investigators.
  3. 3 Whether the existence of a potential or ongoing criminal investigation justifies withholding discovery in civil litigation.

Ratio Decidendi

Public interest/investigative privilege attaches to items material to a criminal investigation, even if not generated by the police, but only for a limited period—until a decision is made to prosecute or not. The privilege does not permanently bar discovery in civil proceedings. The appeal is allowed, and discovery is deferred until the privilege ceases.

Court Disposition

Appeal allowed; High Court order set aside

Orders

  • The items (DVR recorders and forensic reports) are privileged and may not be discovered until a decision is made to prosecute (when disclosure will be made in the Book of Evidence) or not to prosecute (when privilege ceases).
  • No order for the plaintiff's experts to attend the cannibalisation process; concern noted but left to the prosecutor.