Breslin & ors v McKenna & ors

Factual and Procedural Background

Victims of the Omagh bombings (“Respondents”) issued civil proceedings in The State of Northern Ireland. The High Court and Court of Appeal in that jurisdiction ordered the production of books of evidence and trial transcripts that had been generated during earlier Special Criminal Court prosecutions in The State of Ireland against five accused individuals (“Appellants”). Those orders were expressly conditional on there being no rule of Irish law preventing compliance.

To clarify their position, the Respondents commenced a special-summons action in the Irish High Court seeking declarations that no Irish impediment existed, or alternatively that any implied undertaking restricting collateral use of the material be waived. On 20 March 2008 Judge Gilligan:

• Refused to declare that there was no impediment to releasing the transcripts.
• Granted the Appellants leave to release their books of evidence.

The Appellants appealed against the permission to release the books; the Respondents cross-appealed against the refusal concerning transcripts. The Irish Supreme Court (“the Court”), by majority judgment delivered by Judge Geoghegan on 16 July 2008 (with Judge Hardiman dissenting on the exercise of discretion), now gives its written reasons following an earlier ex tempore ruling of 4 April 2008.

Legal Issues Presented

1. Whether Irish law imposes any substantive or procedural impediment to the Appellants producing Special Criminal Court transcripts to comply with the discovery orders of the Northern Ireland courts.
2. Whether the books of evidence are subject to an implied undertaking limiting their use to the original criminal trials, and, if so, whether the Irish courts should waive that undertaking.
3. Whether the High Court correctly exercised its discretion in differentiating between transcripts (refused) and books of evidence (permitted).
4. Whether production of material could prejudice pending or potential retrials of two of the Appellants.

Arguments of the Parties

Appellants’ Arguments

• The books of evidence were furnished under an implied undertaking restricting their use to the criminal proceedings; releasing them would breach that undertaking and amount to contempt.
• The Rules of the Superior Courts, 1986 (“RSC”) and existing Irish authority prevent the handing over of transcripts to third parties.
• For the Appellant facing a retrial, even partial disclosure (telephone evidence) risks prejudicing future proceedings.

Respondents’ Arguments

• No Irish rule of law bars production; alternatively, any implied undertaking should be waived in the interests of justice.
• RSC provisions relied on by the High Court regulate appellate procedure only and do not create a substantive prohibition on disclosure.
• Authorities such as Kelly v. Ireland and Chambers v. Times Newspapers show that transcripts can be disclosed with court approval when necessary to do justice.
• The Northern Ireland courts have already decided the material is necessary; Irish courts should respect that conclusion absent demonstrable risk of injustice.

Table of Precedents Cited

Court's Reasoning and Analysis

Majority (Judge Geoghegan, with concurrence of other judges save Judge Hardiman)

• The books of evidence, while originally supplied for criminal trials, are within the Appellants’ control; any further use should be regulated not through an implied undertaking but through the Court’s supervisory jurisdiction to protect the administration of justice.
• The High Court was entitled to waive any restriction and did so correctly; identical principles apply to transcripts.
• Rules of Court are procedural and cannot create a substantive bar. Reliance on RSC O. 86 was therefore erroneous.
• Authorities such as Kelly and Cork Plastics demonstrate that, with appropriate safeguards, Irish courts may permit disclosure of court documents for use in foreign litigation.
• No concrete risk of prejudice to pending or potential retrials was shown; any Irish trial judge can mitigate hypothetical prejudice.
• The Northern Ireland courts’ assessment that the documents are necessary should be respected absent evidence of potential injustice.

Dissent (Judge Hardiman)

• Accepted the same legal principles but held that discretion could not be exercised because the Respondents provided no detailed evidence of how the material would be used in the Northern Ireland proceedings.
• Without that information the Court could not evaluate possible prejudice to the Appellants, particularly given the sensitive and sometimes disputed contents of books of evidence and transcripts.
• Suggested that the material should first have been sought from State authorities who generated it, rather than from the defendants.
• Would have allowed the appeals and dismissed the cross-appeal solely for insufficiency of factual justification, without reaching broader legal conclusions.

Holding and Implications

APPEALS DISMISSED; CROSS-APPEAL ALLOWED

The Supreme Court (by majority) affirmed the High Court’s permission to release the books of evidence and reversed its refusal regarding transcripts, declaring that both categories of documents may be produced provided the consent of the High Court (or, on appeal, the Supreme Court) is obtained.

Implications: The decision clarifies that Irish law does not impose an absolute bar on the collateral use of trial transcripts or books of evidence in foreign civil litigation. While the material remains subject to judicial control, the Court will, in the interests of justice and comity, generally accede to properly founded requests from other jurisdictions. The ruling emphasises discretionary oversight rather than implied undertakings as the mechanism for protecting the integrity of Irish criminal proceedings. No new binding test was formulated, but the judgment signals a flexible, case-by-case approach to cross-border disclosure of criminal-court documents.