Non-Party Discovery of a Garda Complaint in Defamation Proceedings: Discovery Distinguished from Privilege and SLAPP Defences

1. Introduction

The High Court determined an appeal by the defendant (an environmental activist and solicitor) against a Circuit Court order directing non-party discovery from An Garda Síochána of records concerning a criminal complaint the defendant made in or around April 2021 about the plaintiffs (a quarry business director and his company).

In the underlying Circuit Court proceedings, the plaintiffs sue for defamation and malicious falsehood, alleging the criminal complaint contained defamatory allegations (and malicious falsehood within the meaning of s. 42 Defamation Act 2009). The defendant denies defamation, pleads truth, and asserts absolute and/or qualified privilege. He also pleads that the civil proceedings constitute strategic litigation against public participation (SLAPP), raising arguments linked to environmental participation and the Aarhus Convention.

The appeal required the High Court to decide whether, and in what form, non-party discovery should be ordered where the core document is a police complaint that is central to the pleaded issues, but where privilege, public interest, and SLAPP-type objections are also raised.

2. Summary of the Judgment

The High Court refused the defendant’s appeal and upheld the entitlement to non-party discovery, but varied the Circuit Court order to narrow its scope.

• The Court held the application should be confined to the complaint itself, rather than “all documents” relating to it (which could have captured investigative materials).
• Applying Keating v. Radio Telefís Éireann [2013] IESC 22, the Court held the complaint was in the possession of the gardaí, plainly relevant, and necessary for fair disposal (and not oppressive to obtain).
• The Court treated privilege/public interest privilege and SLAPP arguments as substantive issues for trial (or for a later privilege process), cautioning against conflating discovery with privilege.
• The Court placed weight on contextual factors: the alleged complaint being the central document; the defendant’s admitted authorship; the DPP direction of no prosecution; the Commissioner’s neutrality; and an “imbalance” where the defendant knew the complaint’s precise terms and relied on them in the defence while the plaintiffs did not.

Costs

The Court awarded the plaintiffs their costs of the High Court appeal (costs following the event), but stayed entry and execution of that costs order until the conclusion of the Circuit Court proceedings. No costs were sought against the Commissioner.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

(a) The governing test for non-party discovery: Keating v. Radio Telefís Éireann [2013] IESC 22

The Court treated Keating v. Radio Telefís Éireann [2013] IESC 22 as the controlling authority on non-party discovery, adopting McKechnie J.’s four-part test (possession/power, relevance, necessity for fair disposal or saving costs, and non-oppressiveness).

The decision’s practical significance lies in its application of Keating to a context involving a police complaint:

• Possession: the gardaí in Trim necessarily held the complaint/record.
• Relevance: the complaint was “centre stage” given the pleadings (truth, reasonableness, privilege, malice).
• Necessity/fair disposal: the plaintiffs could not fairly prosecute a defamation claim without the precise words sued upon.
• Non-oppressive scope: once narrowed to the complaint/record only, the burden was minimal.

(b) Discovery must be kept distinct from privilege: discussion of Keating v. RTÉ and Haughey v. Moriarty [1998] IEHC 6

The Court relied on the principle (emphasised in Keating v. RTÉ) that discovery and privilege are separate stages and should not be conflated. It also cited commentary (Delaney and McGrath on Civil Procedure) referencing Haughey v. Moriarty [1998] IEHC 6 as an example where privilege was dealt with at the discovery stage for exceptional reasons—something the Court found unnecessary here.

This separation underpinned the Court’s rejection of the defendant’s attempt to defeat discovery by advancing privilege (absolute/qualified and public interest privilege) as effectively dispositive at the interlocutory stage.

(c) Public interest privilege and Garda investigations: McLaughlin v. Aviva Insurance [2011] IESC 42, Murphy v. Dublin Corporation [1972] IR 215, and Breathnach v. Ireland [1993] 2 IR 458

Counsel for the Commissioner relied on Denham C.J.’s dictum in McLaughlin v. Aviva Insurance [2011] IESC 42, which (with reference to Murphy v. Dublin Corporation [1972] IR 215) recognises that documents material to an ongoing criminal investigation generally should not be disclosed in civil proceedings, but that once the criminal process ends (verdict or no prosecution), “there is no need for the privilege.”

The defendant invoked Irish authority recognising confidentiality of garda investigation files, including Breathnach v. Ireland [1993] 2 IR 458, arguing that public interest in encouraging complaints outweighs civil reputation interests.

The Court did not finally adjudicate the privilege balance at this stage, but it treated the DPP direction of no prosecution as a key contextual factor that reduced the force of “ongoing investigation” concerns (while noting there was still liaison about safety concerns).

(d) English absolute privilege for police complaints: Westcott v. Westcott [2008] EWCA Civ 818

The defendant relied heavily on Westcott v. Westcott [2008] EWCA Civ 818 (English Court of Appeal) for the proposition that statements to police in criminal investigations attract absolute privilege.

The High Court acknowledged “tension” between Irish and English positions but declined to comment substantively, expressly to avoid tying the hands of the Circuit Court trial judge on privilege/admissibility. The result is that Westcott was not adopted or rejected; it was treated as part of a future merits debate rather than a discovery-stage bar.

(e) Civil discovery vs criminal proceedings: the People (DPP) v. Sweeney [2001] IESC 80

The defendant cited strong statements from Geoghegan J. in the People (DPP) v. Sweeney [2001] IESC 80 emphasising that civil discovery rules were not intended to apply in criminal proceedings and that criminal disclosure operates on distinct constitutional/statutory principles.

The High Court held that Sweeney did not undermine jurisdiction here because the case at hand involved discovery in a civil defamation action (albeit relating to a prior criminal complaint), not civil discovery orders being used to reshape a criminal prosecution.

(f) Modern costs principles: Little v. The Chief Appeals Officer [2023] IESC 25 and the “Chubb case ([2020] IECA 183)”

On costs, the Court applied the post-2015 framework (ss. 168–169 Legal Services Regulation Act 2015), noting that while discretion remains (as discussed in Little v. The Chief Appeals Officer [2023] IESC 25 and the “Chubb case ([2020] IECA 183)”), the “default” is less tolerant of routinely reserving costs. The Court found a clear “event” (discovery granted, appeal refused) and awarded costs accordingly, while staying execution given the live merits issues.

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3.2 Legal Reasoning

(1) Framing the real discovery request: limiting scope to the complaint/record

A decisive feature was the plaintiffs’ clarification that they sought only the complaint itself (or the garda record if oral), not the broader investigative file. The Court treated this narrowing as legally significant because it avoided “complex issues” about discovery of an investigation file (investigative steps, third-party statements, etc.) and reduced potential oppressiveness and public interest sensitivity.

(2) Treating privilege and SLAPP as premature at discovery stage

The Court’s core methodological move was to hold that:

• Privilege claims (absolute/qualified/public interest privilege) do not generally prevent an item from being discoverable; privilege is typically asserted at the production stage, potentially then litigated.
• SLAPP/abuse-of-process arguments are merits-based and should be determined by the trial court on evidence, not pre-trial in a way that prevents a party obtaining the document that defines the pleaded wrong.

In adopting this approach, the Court echoed McKechnie J.’s warning in Keating v. RTÉ against collapsing discovery into a premature merits adjudication. It also articulated a threshold idea: absent near-certainty that a privilege plea “inevitably must succeed,” discovery should proceed and the privilege issue take its proper course later.

(3) Emphasis on fairness, “levelling the playing pitch,” and pleading-driven necessity

The Court placed unusual weight on informational asymmetry: the defendant knew the precise words of the complaint and pleaded detailed defences (truth, reasonableness, privilege, absence of malice), while the plaintiffs were forced to plead from hearsay summaries provided by gardaí.

This mattered because the complaint was not simply “relevant”; it was the publication sued upon. The Court saw the defendant as attempting to leverage the plaintiffs’ lack of access to the core document while simultaneously relying on it.

(4) Public interest/confidentiality concerns assessed in context

The defendant advanced a classic chilling-effect argument: if complainants fear disclosure, they will not report to police. The Court did not dismiss that general public interest, but found several contextual facts reduced its weight here:

• The defendant admitted he made the complaint, so complainant identity confidentiality was not in issue on these facts.
• The DPP had directed no prosecution (diminishing “ongoing investigation” concerns, though not deciding privilege).
• The Commissioner took a neutral stance, indicating privilege could be considered once a formal order existed.
• The order (as varied) targeted only the complaint/record, not a broader investigation file.

(5) Procedural compliance

The Court found compliance with Order 32, Rule 9 Rules of the Circuit Court: prior request for voluntary discovery, undertaking as to reasonable costs, and confidentiality undertakings. These steps supported the proportionality and regularity of the application.

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3.3 Impact

(1) Practical precedent for defamation actions founded on police complaints

The judgment signals that where a civil defamation/malicious falsehood claim is founded on a complaint to An Garda Síochána, the plaintiff will ordinarily be entitled (subject to proper scope) to obtain the complaint itself by non-party discovery, because it defines what was “published” and anchors the pleaded issues.

(2) Scope discipline: complaint/record versus “Garda file”

While permitting discovery, the Court implicitly warns against overbroad orders that might sweep in investigative materials. The variation made on appeal is likely to be cited to support carefully drawn categories (complaint/record first) before any attempt to reach investigative steps or third-party statements.

(3) Interlocutory restraint on privilege and SLAPP merits

Parties resisting discovery in similar contexts may face difficulty if they attempt to turn discovery motions into early determinations of:

• whether absolute/qualified privilege applies to police complaints; or
• whether the underlying claim is a SLAPP/abuse of process.

The Court’s approach promotes trial-stage determination on evidence, while ensuring that the allegedly defamatory words are available to both sides for fair preparation.

(4) Costs: “event” focus with tailored protection via stay

The costs ruling illustrates a post-2015 tendency: interlocutory costs are more likely to be decided immediately (rather than reserved), but a stay can be used to mitigate perceived unfairness where substantive trial issues may later reshape the overall equities.

4. Complex Concepts Simplified

4.1 Non-party discovery

“Discovery” is a pre-trial procedure requiring disclosure of documents. “Non-party discovery” compels disclosure from someone who is not a litigant (here, An Garda Síochána). The moving party must meet the Keating v. Radio Telefís Éireann [2013] IESC 22 criteria: possession, relevance, necessity for fair disposal/saving costs, and non-oppressiveness.

4.2 Absolute privilege vs qualified privilege (defamation)

• Absolute privilege (if applicable) is a complete defence: even false statements made on certain occasions (classically in court/parliamentary settings) cannot ground defamation liability.
• Qualified privilege protects statements made on certain occasions unless the plaintiff proves malice (improper motive or recklessness as to truth in a legally relevant sense).

The defendant invoked both in relation to a complaint to police, relying in part on Westcott v. Westcott [2008] EWCA Civ 818. The High Court did not decide these defences; it held they should not defeat discovery at this stage.

4.3 Public interest privilege (including policing confidentiality)

Public interest privilege can justify withholding documents where disclosure would harm a public interest (e.g., effective policing, informant protection, investigative methods). The Court pointed to the balancing approach referenced in McLaughlin v. Aviva Insurance [2011] IESC 42, especially the distinction between ongoing investigations and concluded matters (no prosecution).

4.4 SLAPP allegations and the Aarhus Convention

A SLAPP is litigation allegedly used to deter public participation. The defendant relied on this characterisation and on Aarhus Convention themes (including correspondence from a UN Special Rapporteur). The High Court treated these as substantive matters for trial and not a basis, by themselves, to prevent discovery of the document at the heart of the pleaded publication.

4.5 Malicious falsehood (s. 42 Defamation Act 2009)

Malicious falsehood concerns publication of false statements causing financial loss, typically requiring proof of falsity and malice (in the relevant legal sense). Here, the complaint’s precise terms were central to assessing both defamation and malicious falsehood.

5. Conclusion

Keegan and Anor v Cummins (Approved) [2026] IEHC 239 establishes a clear, practice-focused principle: in civil defamation/malicious falsehood proceedings founded on a criminal complaint, the complaint (or its official record) is ordinarily discoverable from An Garda Síochána as a non-party where it is central to the pleaded issues, and courts should avoid turning the discovery stage into a premature determination of privilege, admissibility, or SLAPP/abuse-of-process merits.

The judgment’s distinctive contribution is its insistence on (i) tightly scoped discovery (complaint/record, not a broad garda file), (ii) procedural separation between discovery and privilege, and (iii) trial-centric resolution of substantive defences—while using discovery to correct an evidential imbalance that would otherwise distort fairness.