Duncan v. Governor of Portlaoise Prison [1997] IEHC 13; [1997] 1 IR 558; [1997] 2 ILRM 296 (23rd January, 1997)

Duncan v. Governor of Portlaoise Prison [1997] IEHC 13; [1997] 1 IR 558; [1997] 2 ILRM 296 (23rd January, 1997)

Cross-examination on affidavits of discovery is not absolutely prohibited in Irish law but is only permissible in rare and exceptional circumstances where necessary and where other remedies are inadequate. In this case, cross-examination is unnecessary and inappropriate as the claims to legal professional privilege...

Source-derived case information.

Citation
[1997] 2 ILRM 296
Parties
Applicant: Applicant (unnamed); Notice Party: Minister for Justice; Notice Party: Attorney General; Notice Party: Director of Public Prosecutions
Jurisdiction
Ireland
Procedural Posture
Article 40 Habeas Corpus Inquiry / Interlocutory Application Regarding Discovery and Privilege
Outcome
Applications dismissed with directions for further affidavits of discovery after pleadings are exchanged.
Legal Topics
Habeas Corpus, Discovery, Legal Professional Privilege, Executive Privilege, Cross Examination on Affidavit, Remand Orders, Detention
Constitutional Law Criminal Law Civil Procedure Habeas Corpus Discovery Legal Professional Privilege Executive Privilege Cross Examination on Affidavit +2 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

Applicant (unnamed)

Applicant

Minister for Justice

Notice Party

Attorney General

Notice Party

Director of Public Prosecutions

Notice Party

Procedural Posture

Article 40 Habeas Corpus Inquiry / Interlocutory Application Regarding Discovery and Privilege

Legal Issues

  1. 1 Whether cross-examination on affidavits of discovery is permissible in Irish law
  2. 2 Whether the claims to legal professional privilege and executive privilege over certain documents are valid
  3. 3 Whether the applicant is entitled to further and better discovery

Ratio Decidendi

Cross-examination on affidavits of discovery is not absolutely prohibited in Irish law but is only permissible in rare and exceptional circumstances where necessary and where other remedies are inadequate. In this case, cross-examination is unnecessary and inappropriate as the claims to legal professional privilege and executive privilege are properly made and uncontroverted, and there is no sufficient evidence to suggest inadequate discovery. The court will not inspect or edit privileged documents to extract factual material, as this would undermine the principle of legal professional privilege.

Court Disposition

Applications dismissed with directions for further affidavits of discovery after pleadings are exchanged.

Orders

  • Application to cross-examine on affidavits of discovery dismissed.
  • Application for court inspection and editing of privileged documents dismissed.