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Keegan and Anor v Cummins (Approved)
Factual and Procedural Background
The Plaintiffs (the individual referred to in the opinion as the first-named plaintiff, "Plaintiff", and the second-named plaintiff, "Company A") commenced civil proceedings in the Circuit Court in February 2022 alleging defamation and malicious falsehood against the Defendant arising from a criminal complaint the Defendant accepts he made to The Police in or around April 2021. The Plaintiffs say the complaint contained allegations (harassment, coercion, false trespass allegations and an offer of money) and that they were not provided with a copy. The Defendant, an environmental activist and solicitor, pleaded a full defence, including that the complaint was measured, legitimate, in the public interest and that the proceedings are SLAPP litigation. A Circuit Court order of 2 May 2025 (Judge O'Malley Costello) directed The Police at the relevant Police Station to make non-party discovery of documents relating to complaints made by the Defendant, in particular the April 2021 complaint. The Defendant appealed that order to the High Court (Judge O'Higgins), which delivered an ex tempore judgment on 18 March 2026.
Legal Issues Presented
- Whether the Circuit Court's non-party discovery order should be upheld (and, if so, whether its wording should be varied to limit the scope of discovery).
- Whether the complaint (and related material) is protected by public interest privilege (absolute or qualified) preventing disclosure.
- Whether allegations that the civil proceedings constitute SLAPP litigation (abuse of process) justify refusing discovery at this pre-trial stage.
- Whether the plaintiffs' application complies with the procedural requirements for non-party discovery (Order 32, Rule 9 of the Circuit Court Rules).
- Whether the Keating test for non-party discovery (possession, relevance, necessity for fair disposal or saving costs, and that the order will not be oppressive) is satisfied.
Arguments of the Parties
Plaintiffs' Arguments
- The discovery application is confined to a single document — the Defendant's complaint — and that document is in The Police's possession.
- The complaint is central and necessary for fair disposal because the Plaintiffs do not know the precise wording but the Defendant relies on that wording in his defence (truth, privilege, public interest, SLAPP assertions).
- Privilege and SLAPP defences are substantive matters for trial and it is premature to refuse discovery on those bases.
- The Plaintiffs sought voluntary disclosure and have cut back the relief sought to the complaint itself; discovery is required to cure an imbalance of knowledge between the parties.
Defendant's Arguments
- The complaint attracts absolute privilege (relying on Westcott v. Westcott and related authority) or, alternatively, qualified/public interest privilege; public interest in confidential policing files outweighs the discovery interest.
- The Plaintiffs have not met the Keating test for non-party discovery.
- There is no precedent for compelling disclosure of a police complaint in these circumstances; disclosure would chill complaints to police and risk non-compliance with obligations to protect environmental defenders under the Aarhus Convention.
- The Plaintiffs chose to commence proceedings without sight of the complaint and thus assumed that risk; the Plaintiffs already pleaded particulars in the civil bill.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Westcott v. Westcott [2008] EWCA Civ 818 | Cited by the Defendant for the proposition that participants in a criminal investigation benefit from absolute privilege in relation to statements made in that investigation. | The court acknowledged the authority but declined to decide the broader privilege issue at this interlocutory stage so as not to bind the trial judge. |
| Keating v. Radio Telefís Éireann [2013] IESC 22 | Provides the governing test for non-party discovery (possession, relevance, necessity for fair disposal or saving costs, and non-oppressiveness). | The court applied the Keating criteria and concluded that the complaint was in The Police's possession, relevant to pleaded issues, necessary for fair disposal/preparation and would not be oppressive. |
| Keating v. RTÉ | Used to caution against conflating privilege resolution with discovery procedure at interlocutory stage. | The court followed McKechnie J.'s approach in Keating in keeping privilege and discovery processes distinct absent certainty that privilege must inevitably succeed. |
| Breathnach v. Ireland [1993] 2 IR 458 | Cited for the public interest in preserving confidentiality of police investigation files. | The court accepted the public interest concern but balanced it against other factors (DPP decision, limited scope of request, lack of complainant anonymity risk) and did not treat it as determinative. |
| McLaughlin v. Aviva Insurance [2011] IESC 42 | Denham C.J.'s dictum that documents material to an ongoing criminal investigation should generally not be required in civil proceedings; after verdict or decision not to prosecute privilege is removed. | The Commissioner relied on McLaughlin; the court noted the DPP had directed no prosecution and that McLaughlin's principle might be engaged but declined to resolve privilege at this interlocutory stage. |
| Murphy v. Dublin Corporation [1972] IR 215 | Referenced in McLaughlin in relation to disclosure in the context of criminal matters. | Used as part of the background authorities discussed; the court did not apply it to bar discovery in the present circumstances. |
| People (DPP) v. Sweeney [2001] IESC 80 | Authority for the proposition that conventional civil discovery rules were not intended to apply to criminal proceedings. | The court distinguished Sweeney on its facts and held there was no jurisdictional bar to ordering discovery here (this is civil proceedings relying on a non-party file). |
| Haughey v. Moriarty [1998] IEHC 6 | Example where privilege was considered at the same time as discovery for exceptional reasons. | The court observed Haughey as an exception and concluded no similar exceptional necessity to decide privilege concurrently arose here. |
| Little v. The Chief Appeals Officer [2023] IESC 25 | Cited in the costs analysis concerning ss. 168 and 169 of the Legal Services Regulation Act 2015 and the reduced discretion of costs judges. | The court applied the statutory and judicial approach on costs informed by Little and awarded costs to the Plaintiffs in respect of the appeal hearing, subject to a stay on enforcement. |
| Chubb [2020] IECA 183 | Referenced as part of costs jurisprudence (Court of Appeal authority on costs discretion). | Considered alongside Little in the court's reasoning on costs; no separate substantive application beyond costs analysis. |
Court's Reasoning and Analysis
The court organised its analysis under separate headings and addressed factual features relevant to discovery: (1) the Plaintiffs limited their application to the complaint itself, which narrowed scope; (2) the Director of Public Prosecutions had directed no prosecution; (3) the non-party (The Police/Commissioner) adopted a neutral position and indicated it would comply with any order and could consider privilege if ordered to produce; (4) the Defendant admitted he made the complaint; and (5) there was an asymmetry of knowledge between the parties.
The court held that privilege and SLAPP/abuse-of-process defences are substantive and premature to resolve on a discovery application and should generally be addressed at trial; it should not tie the trial judge by pre-emptive rulings. Applying the Keating test, the court found: (i) possession — The Police held the complaint; (ii) relevance — the complaint was central to pleaded issues (truth, malice, privilege, reasonableness); (iii) necessity — discovery was necessary to cure the imbalance and enable fair preparation; and (iv) non-oppressiveness — disclosure of a single complaint would not be oppressive. The court therefore refused the Defendant's appeal but varied the Circuit Court order to reflect that only (a) a copy of the actual written complaint made by the Defendant in April 2021 (if in writing), and (b) any record of the complaint made by The Police (if the original was otherwise than in writing), were to be discovered. The court declined to resolve the broader privilege questions (absolute/qualified) at this stage so as not to prejudice the trial judge's determination.
Holding and Implications
DISMISSED — The Defendant's appeal against the Circuit Court's non-party discovery order was refused, subject to variation limiting discovery to the complaint itself (or any police record of it) as described in the judgment.
Implications: The direct effect is that The Police are to provide the limited document(s) ordered; the Defendant remains able to raise privilege and admissibility issues at trial. Costs of the High Court hearing are to be awarded against the Defendant in favour of the Plaintiffs, but entry and execution of that costs order are stayed until the conclusion of the Circuit Court proceedings. The Commissioner (The Police) did not seek costs and will be indemnified for discovery costs by the Plaintiffs. The court expressly avoided deciding wider privilege or SLAPP issues on this interlocutory application and did not purport to establish new precedent on those substantive questions.
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