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1. As promised, in this judgment I will deal with one aspect of the Plaintiff's Motion, namely, whether the Defendants' objection to producing the documents set forth in the second part of the First Schedule to the Affidavit of Discovery sworn by Martin Crotty is well-founded. The Defendants' objection is grounded variously on:-

2. In reality there is no divergence of opinion between the parties as to the legal principles applicable in determining whether the objection is well-founded.

3. On the question of relevance, the appropriate test is that laid down in Compagnie Financiere du Pacifique -v- The Peruvian Guano Company , [1882] 11 QBD 55 and (it was pointed out most recently by Keane J. in Skeffington -v- Rooney , [1977] 1 I.R. 22 at page 38, which I mention because topically the report came to hand yesterday) repeatedly invoked by our Courts, i.e., whether the documents in issue contain information which may either directly or indirectly enable the party requiring the documents either to advance his own case or to damage the case of his adversary.

4. The parameters of public interest privilege have been clearly delimited by the Supreme Court in Ambiorix Limited -v- The Minister for the Environment , (No. 1) [1992] 1 I.R. 277. The Defendants unequivocally accept that it is for this Court to decide whether, in the case of the relevant documents, the public interest they invoke is out-weighed by the Plaintiff's interest to have access to such documents as may be necessary to enable him to prosecute fairly and properly these proceedings in this Court. To that end, all of the documents set out in the second part of the First Schedule have been made available to the Court.

5. The matters in question between the parties, on the basis of the pleadings as they stand, are both matters of fact and matters of law and, additionally, mixed questions of fact and law.

6. In broad terms, the factual background to the Plaintiff's claim as pleaded in the Statement of Claim is as follows. Between November 1980 and 8th January, 1993, the Plaintiff, who had been a member of the force since 1959, was a Detective Sergeant in the Special Detective Unit of An Garda Siochana. He claims that on 3rd January, 1993 he received confidential information from a reliable source of an attempt on the life of a Sinn Fein Councillor, who, he claims, had been the victim of a previous incident and who, he claims, had sought Garda protection in November 1992. On 4th January, 1993 he informed the Councillor of the threat and submitted an intelligence report to his superiors. Subsequently, his superiors directed him to disclose the source of his information and he refused on the ground of what he alleges is a well accepted principle in An Garda Siochana - that sources of information are strictly confidential and never disclosed. On 7th January, 1993 he submitted a further intelligence report to his superiors in relation to the alleged previous incident involving the Councillor. Despite further directions from his superiors, he refused to reveal his source. On 8th January, 1993 he was assigned to in-door duties at the Special Task Force offices and his official firearm and ammunition and his official vehicle were taken from him. The Association of Garda Sergeants and Inspectors intervened on his behalf to no avail. On 26th January, 1993 he was notified of an intention to re-allocate him to uniform duties. This he perceived as an unjustified disciplinary sanction and a breach of contract. His re-allocation necessitated his transfer to a different garda station. He sought to appeal against both his re-allocation to uniform duties and the transfer to the Garda Siochana Review Board (the Board). The Board informed him that it had no jurisdiction to deal with the re-allocation issue. His appeal before the Board came on on 19th April, 1993. On that day the Plaintiff sought an adjournment of the appeal, a similar request having been previously made by his Solicitors in writing to the Board. The Board refused to adjourn. The Plaintiff then withdrew and his appeal proceeded in his absence. His appeal was rejected and he was permanently transferred to Pearse Street Garda Station as and from 18th May, 1993. From about mid-February 1993 he lost his detective's weekly allowance.

7. The Plaintiff claims that by reason of the foregoing matters he suffered irreparable damage to his good-standing, good name and reputation in the force with consequent distress and loss and damage. He makes his claim in the context of an assertion that he had served with distinction in the force from 1959.

8. Against the foregoing factual background the Plaintiff claims various declaratory relief including that:-

9. He also claims damages, including damages for breach of contract and slander. He alleges that the Second Defendant made defamatory remarks concerning him to the representatives of the Association of Garda Sergeants and Inspectors who intervened on his behalf.

10. The Plenary Summons was issued on 17th May, 1993.

11. For present purposes it is important to emphasise that the Defendants deny practically every allegation of fact in the Statement of Claim, thereby putting practically all of the facts alleged by the Plaintiff in issue. In particular, the Defendants deny why the Plaintiff served with distinction since 1959, putting his entire record in the force in issue.

12. Apart from the straightforward issues of fact raised on the pleadings, in which, as I have indicated, practically all of the alleged facts are put in issue, the following issues, identified by Mr. Finlay for the Defendants, arise:-

13. Having identified the issues, I now propose considering the Defendants' grounds of objection to disclosing the documents set out in the second part of the First Schedule, having regard to those issues and in the light of the principles of law applicable.

14. These documents specifically relate to a dispute which has been the subject of separate proceedings in this Court - Judicial Review proceedings, Record No. 1994/470 J.R., in which the Plaintiff was plaintiff and the First named Defendant was defendant and in which judgment was delivered by McCracken J. on 23rd July, 1996. The Defendants claim that these documents are irrelevant, or at any rate, are only likely to be of passing relevance, given that they came into existence and relate to matters which transpired after 18th May, 1993. It is further claimed that the contents would be likely to pose a threat to the member of the Garda Siochana referred to as Garda X. in the judgment of McCracken J., would hamper the investigation of a crime and would be contrary to the public interest. Given the similarity between the disputes at the core of these proceedings and the Judicial Review proceedings respectively - the issue of the disclosure of a confidential source - in my view these documents are relevant and, the matter to which they relate having already been aired in open Court in the Judicial Review proceedings, the "pubic interest" argument does not stand up. Accordingly, these documents should be discovered. In fact, as I understand it, some documents in this series have already been disclosed (Documents 3, 4, 21 and 28 in part one of the First Schedule).

15. The Defendants claim that these documents are all privileged, as they came into existence as a result of allegedly confidential information received by members of An Garda Siochana in the course of and for the purposes of investigating alleged criminal and subversive activities and that disclosure would impede the work of An Garda Siochana.

16. I propose looking at three sub-groups in this group, namely:-

17. The documents in these sub-groups relate to matters which transpired after the commencement of the proceedings and, while they could have some relevance to the issues in the proceedings, I am satisfied that the public interest consideration of protecting the integrity and confidentiality of criminal and subversive investigations carried out by the police out-weighs the Plaintiff's interest to have them disclosed. Accordingly, I am allowing a claim to privilege in relation to the documents in these sub-groups.

18. By contrast, Documents 13 to 23 are so centrally germane to the issues before the Court in these proceedings that their disclosure should be directed. The same applies to the diary entry and manuscript document in relation to 4th January, 1993 which inadvertently were not listed in the Affidavit of Discovery. I am ordering discovery of these documents.

19. The Defendants claim that these documents are privileged, being communications between various superior officers of the Plaintiff in respect of, inter alia, conduct of subordinates in investigating criminal and subversive activities, which merit complete confidentiality in the interests of good order and management of the force. It was submitted by Mr. Finlay that internal communications within the upper echelons of An Garda Siochana are entitled to a higher degree of protection than communications between other public servants, although he did not contend for absolute protection. Having read the documents, and applying the Ambiorix principles, in my view, the public interest involved in production of these documents in these proceedings clearly out-weighs any harm which could ensue to An Garda Siochana by their production and this applies particularly in the case of Documents 49, 50, 51 (and 55, which is the same as 51) and 56 to 60 inclusive. I consider that these documents should be discovered. With a lesser degree of conviction, I consider that Documents 52, 62 and 63 should also be discovered.

20. The Defendants advance the same ground of privilege in relation to this document as they advanced in relation to the previous group, (i.e., Documents 49 to 60 inclusive). Further, they contend that it is not relevant. In my view, the Defendants are correct on both counts. This document relates to the deployment of members of the force and operational matters which have no obvious relevance to the issues in these proceedings and, even if it could be contended that there is some latent relevance attached to it, the public interest invoked by the Defendants far out-weighs the interest of the Plaintiff in having it disclosed.

21. The Defendants have sought to categorise these documents in part with Documents 49 to 60 inclusive and in part with Documents 13 to 47 inclusive and to advance similar bases of privilege. When reviewing the documents, these documents seemed to me to straddle both categories but, having regard to their direct connection with the Plaintiff, I am of the view that the balance is tilted towards disclosure, as I have already indicated.

22. It is claimed by the Defendants that these documents are irrelevant, having come into existence and relating to matters which transpired after 18th May, 1993. Additionally, privilege is claimed on the ground that they came into existence for and are related to investigation of alleged criminal and subversive activities. I am satisfied that, insofar as these documents have any relevance, the public interest consideration of protecting the integrity and confidentiality of such investigations out-weighs the Plaintiff's interest in having them disclosed. Accordingly, disclosure will not be ordered.

23. In broad terms, these documents relate to personnel or human resources matters pertaining to the Plaintiff's membership of the force since 1959. There production is objected to both on the ground of relevance and on the basis of "public interest" privilege. In my view, they are relevant, given that the Plaintiff's standing as a member of force since 1959 has been put in issue. If there is any public interest consideration in protection of personnel records of members of An Garda Siochana - and it is conceivable that there could be - in my view, it does not arise in relation to these documents, which relate to the Plaintiff himself, who has retired from the force since these proceedings were instituted. These documents should be discovered, as should the documents in existence in relation to the Plaintiff's application for promotion to Inspector in 1995 and 1996.

24. Legal professional privilege is claimed in respect of these documents, which it is asserted were prepared in connection with the defence of these proceedings and the conduct of the Judicial Review proceedings referred to above and the conduct of a Circuit Court action brought by the Councillor referred to above against the Plaintiff, Ireland and the Attorney General. I am satisfied that the claim to privilege should be allowed, except in relation to Document 123, which does not seem to be to fall into the category claimed.

25. Finally, I think it would be timely to call to mind and to record the restriction on the use of discovered documents imposed by law, both by way of caveat to the Plaintiff and reassurance to the Defendants and I propose to do so by adopting the following passage from the judgment of Finlay C.J. in the Ambiorix case at page 286:-