THE SUPREME COURT (IRELAND)

Johnston v Church of Scientology and Others

2000/232 & 2001/248 TRANSCRIPT

JUDGES: Keane CJ, Murphy, Murray JJ.

DATE: 7 November 2001

Ex-tempore Judgment

Keane CJ

In this case there are two appeals before the court, one arising out of an
order by Mr Justice Johnson refusing to order further and better particulars
of matters referred to in the plaintiff's statement of claim, and the other
an appeal from an order of Mr Justice Butler in which he declined to accede
to an application on behalf of the defendants to strike out the plaintiff's
claim because of what was alleged to be a failure to comply with orders for
discovery previously made.

I propose to deal firstly with the matter of particulars and it is to be
said at once that it is most unfortunate in my view and I allocate no
particular responsibility to anyone at this stage, except to say merely both
parties have contributed to it and in perhaps varying degrees, that this
action should still be pursuing such a laborious and protracted course
through the High Court and in this Court because it relates to matters which
happened and there does not appear to be any serious dispute about this, as
far back as January 1992 ie, coming up to close to ten years ago. Although
the proceedings were commenced by the plaintiff by plenary summons in
December 1995, nearly six years ago at this stage, it has still to come to
trial. That would be deplorable but perhaps explicable in some cases. In a
case such as the present where the issues between the parties are in one way
relatively straightforward issues -they raise somewhat novel principles of
law - but they certainly have not required, in my view, the immense panoply
of particulars, discovery and so on and the disputes between the parties and
the interlocutory applications and the appeals to this court which appear to
have resulted but and have only resulted in the generation of the vast
amount of documentation of a quite disproportionate amount in relation to
this case, immense delay and one can only suppose also greatly increased
costs. At the end of the day, it is the actual delay in the resolution of
the issues which from nobody's point of view can ever be conducive to the
interests of justice which is much to be regretted.

I have indicated that the legal issues are unusual both in this court and in
the High Court and it is not right at this stage to say too much about them
lest one should in any sense appear to be prejudging the issues between the
parties which should be exclusively a matter for the High Court judge when
the case does eventually come, one hopes in the relatively near future, to a
hearing.

There are certain matters which are obviously not in dispute between the
parties. It is not in dispute that the plaintiff is a business woman in her
mid thirties who came into contact with the defendants who are the Church of
Scientology and persons associated with the Church of Scientology.
Obviously, again it would be, I take it, common case between the parties
that whatever the relationship between the plaintiff and the Church of
Scientology may have been, ultimately it proved to be a fractious
relationship and one that ultimately that has led to these proceedings.

In these proceedings and in the statement of claim the plaintiff made
certain allegations against the defendants. She said that in or about the
month of January 1992 the third named defendant ie, a Mr Gerard Ryan, who is
one of the persons concerned in the Church of Scientology he represented to
her that certain courses would greatly improve the plaintiffs sense of well
being and that he further represented to her that she should have a
personality test and exerted pressure on the plaintiff to have such a test.
There is a reference there to the plaintiff at that time being in an
emotionally liable condition that is corrected later to an emotionally
labile condition. There is then an averment that she submitted to a
personality test, the evaluator of which was the second named defendant in
these proceedings, a Mr Keane. Having evaluated the plaintiffs personality
over a period of several months the second and third named defendants,
pressurised the plaintiff into subscribing for what was described as a
³purification rundown and training routine² at a cost of L1,200.00 and that
notwithstanding the plaintiff's protests that she did not wish to engage in
such a course and did not have the resources to do so the second and third
named defendant brought such pressure to bear upon her that she felt obliged
to subscribe for such a course and to pay the said monies to the defendants.

There is then an allegation that she paid certain sums and then there is a
further allegation that in the months following the completion of that
particular procedure the defendants, their servants or agents exerted great
pressure upon the plaintiff to subscribe for other courses conducted by the
defendants and to pay over monies to the defendants and there are then
references to monies having been paid over and a reference to the plaintiff
having expressed reluctance to engage in these courses or pay monies or
become involved in the Church of Scientology to the defendants having
brought what is described as great pressure upon the plaintiff who said that
in particular the representative of the defendant would telephone the
plaintiff regularly at home and at work and would accuse her of being
selfish, and thinking only of herself and one recruiter acting on behalf of
the first named defendant sought to persuade the plaintiff to sell her
business in Dublin and to use the proceeds of that sale to involve herself
further into the Church of Scientology. There are allegations as to
pressurising the plaintiff into subscribing for a particular course on a
ship in the Caribbean and to pay a deposit. The plaintiff sets out in her
statement of claim particulars amounting to just under L2,000.00 and then
having given credit for monies repaid so that she has paid out a sum of
L1,648.06 and she says that in or about the 1st May 1994 she resolved to
leave the Church of Scientology. She communicated her decision to the
defendants and requested that they would not bring pressure to bear on her
to change her mind but the defendants brought great pressure (I am still
quoting the statement of claim), to bear upon the plaintiff to change her
mind and harass the plaintiff by constantly phoning her at her work and at
home. The fourth named defendant wrote a number of times to the plaintiff in
a manner which the plaintiff found distressing and threatening. It goes on
to say that by reason of the matters aforesaid, the defendants their
servants or agents had been guilty of exerting undue influence over the
plaintiff, had been guilty of a conspiracy with each other and others to
extract monies from the plaintiff and to be guilty of misrepresentation and
have breached the plaintiff's constitutional rights to bodily integrity,
mental and psychological integrity and personal privacy. The statement of
claim goes on to give particulars of injuries which she claimed she suffered
and it is unnecessary for the purpose of this judgment to go into detail
other than to say there are fairly detailed particulars given them of
various physical and mental or psychological disturbances or traumas which
the plaintiff says that she suffered, of the effect that this had on her
business life, on her social, domestic, recreational life and so on, her
relationship with her family and friends. All of these injuries she claims
are the consequences of the activities of the defendants in relation to the
plaintiff referred to at an earlier stage in the statement of claim and
there is a separate and quite independent claim for libel concerning a
letter dated 31st October 1994 addressed to a journalist with Independent
Newspapers. With one exception nothing arises out of that insofar as this
motion for particulars is concerned. That in summary is the plaintiff's
claim.

In the relief that she seeks, she seeks a declaration that the payments made
to her ought to be set aside as having been procured by the undue influence
of the first named defendants and an order to repay that. That of course is
a plea and raises as a cause of action which is well known to the law and
established for many centuries indeed that persons who can be shown to have
paid over money or transferred property because of undue influence exerted
upon them by persons who occupy a particular relationship such as a person
in a religious capacity can be ordered to repay the money or property to the
plaintiff if indeed it has been shown to have been procured by the undue
influence of the person occupying a particular relationship to the person
concerned which in the view of the law would give rise to a presumption of
undue influence. So far as that is concerned, whether it succeeds of not of
course it is entirely a different matter, but that is a plea and it raises a
cause of action which is known to the law. The claim for damages for
conspiracy, misrepresentation and a breach of the plaintiff's constitutional
rights raises matters which are in quite a different category because the
breach in particular of the plaintiff's constitutional rights to bodily
integrity and to privacy are alleged to arise from the various instances of
pressure and it may be that the plaintiff would say unfair and undue
pressure brought to bear in the course of all of these events which she says
and this is her case, had given rise to all the physical and psychological
and other consequences for her life which she sets out in the statement of
claim.

That is clearly a somewhat unusual case. That is not to say that the case
will not succeed. It is simply to say that it is certainly a case, and
indeed certainly conceded by Mr Cush to be an unusual case but one which he
says and one can understand this that his client wishes to bring on to
hearing and to have decided by the High Court and of course that is her
privilege so to do. However, I am satisfied that at least in some respects
the defendant, and I bear in mind that the defendants left matters go for
quite a long time before they raised any particulars or raised the
particulars which they now say they are entitled to but in relation to some
aspects of the statement of claim, I am satisfied that the defendants are
entitled to further particulars at this stage as to what precisely is being
alleged against them.

In relation to paragraph 6 there is the first reference to pressure being
exerted upon the plaintiff to have such tests. Then when we come to
paragraph 7 there are references to the defendants pressurising the
plaintiff and then bringing further pressure to bear upon the plaintiff so
that she felt obliged to pay the monies to the defendants. Further in
paragraph 9 reference is made to the defendants having exerted great
pressure upon the plaintiff to subscribe for other courses. In relation to
those, in my view the defendants are entitled to particulars indicating what
form this pressure is alleged to have taken.

How the plaintiff responds to that is, of course, a matter for her, but it
seems to me reasonable that the plaintiff should be asked to indicate what
form that pressure is alleged to have taken, because it is clearly at the
heart of the plaintiff's case. That, I emphasis, does not necessarily mean
that the plaintiff is obliged to give particulars down to the day, the
minute or whatever, that a particular phone call was made to her or a
particular letter written to her. If you come to paragraph 9 of the
statement of claim you see the precise allegation of pressure being
particularised where it says in particular representatives of the defendants
would telephone the plaintiff regularly at work and at home and have accused
her of being selfish and of thinking only of herself. There the defendants
in my view know the case that is being made against then in relation to that
and it does not really bring matters particularly further to say that this
happened on the 1st November 1990 or on the 3rd February 1991. It is an
allegation of a course of conduct pursued over a particular period of time
in the form of telephone calls to her work or to her home.

In the earlier part of the statement of claim where that same phrase is
used, exerting great pressure or bringing pressure to bear upon the
plaintiff, it is not particularised in that fashion and in my view the
defendants are entitled to have particulars given as to what is the nature
of the pressure in those circumstances alleged to have been brought against
the plaintiff. In other respects, I am satisfied that the defendants in the
particulars they have sought are really seeking matters which really only
relate to evidence which will have to be given by the plaintiff at the
trial, if she is to make out in evidence the pleas she has brought against
the defendants. To that extent and to that extent only, in relation to the
motion for particulars I would allow the appeal and substitute for the order
of the High Court judge an order requiring the plaintiff to furnish those
particulars which I have indicated within two weeks from today's date,
because it would be a matter of great concern that the furnishing of those
particulars should not further or in any way delay the hearing of this
action, which the court has been informed should be heard early next term.

That brings me to the second motion brought by the defendants to strike out
the plaintiff's action on the grounds that she had failed to comply with an
order for discovery made in the High Court. The order for discovery made in
the High Court which led to the defendants bringing this motion which was
unsuccessful in the High Court was an order made by consent. While it was
made by consent there is not the slightest doubt and there can be hardly any
controversy that it was an order made in an extremely wide ranging form. It
was made in a form which embraced an enormous number of categories of
different documents set out in the schedule to the notice of motion on which
it was based. It should have been obvious from the very nature of the notice
of motion and the schedule to the notice of motion that in respect of many
aspects the plaintiff might well be saying that I simply had not got these
documents or I have only very limited documents because it is enormously
wide ranging and requires the plaintiff effectively to discover documents
relating to her personal life, to her business life, to her social life and
it covers a huge quantity of correspondence between a vast number of people.
It covers documents relating to other religious movements and I am only just
indicating parts of it. It includes all medical and counselling records on a
huge range of matters, all records, notes in relation to any abortions
obtained by the plaintiff because the defendants were apparently aware that
she had had two abortions, medical records, notes, referrals and similarly
correspondence relating to at least the last five years of all diaries
maintained by the plaintiff and so on.

I do not find it necessary to particularise these. It is sufficient to say
that when the trial judge came to deal with the notice of motion requiring
that the plaintiff's claim should be struck out because of failure to comply
with this order for discovery he quite rightly in my view approached the
case on the basis that it was an extraordinarily wide ranging order for
discovery and in applying the principles that he did and correctly, in my
opinion, he quite rightly took into account the nature of the order of
discovery made. The court has a jurisdiction and there is no issue about
this, to strike out proceedings or to strike out a defence filed by a
defendant where it is satisfied that the extent of the non-compliance with
the court's order is such that it is not possible to have a fair trial as a
result and of course that may also arise where it appears from the affidavit
that some particular documents or some category of documents have been in
fact destroyed by the party concerned, whether innocently or whether
deliberately in order to interfere with the further conduct of the case.

There is no doubt that the courts enjoy such a jurisdiction but the law is
stated as follows by Mr Justice Barrington speaking for this court in the
case of Murphy -v- Donoghue Limited in which he said:

³undoubtedly cases may exist where one party may not be able to get a fair
trial because of the other party's wilful refusal to comply with an order
for discovery. In such cases it may be necessary to dismiss the plaintiff's
claim or to strike out the defendants' defence and such cases will be
extreme cases².

As Chief Justice Hamilton put it in Mercantile Credit Company -v- Heelan,
the powers of the courts to secure compliance with the Rules and Orders of
the court relating to discovery should not be exercised so as to punish a
party for failure to comply with an order for discovery within the time
limited by the order.

Applying those principles and it is not disputed by Mr Trainor

on behalf of the defendants that they are the principles which must be
applied, we undoubtedly find that - I take the categories as they have been
set out quite helpfully towards the end of today's hearing by Mr Trainor's
solicitors in a schedule - there are documents relating to abortions. There
are documents relating to these two abortions that she had. She has not said
that she has declined to produce them because they are not relevant although
it must be said that their relevance to the issues in this case appear to me
to be very limited insofar as they arise at all. But she says she has not
got any such documents and we are in no position to say in this court that
there were any such documents.

Similarly in relation to the whole matter of financial records, which covers
the next four items in this schedule the plaintiff has made voluminous
discovery and in fact at one stage it appeared to be indicated that she was
in a sense ³overdoing the discovery², and producing material which could not
possibly be relevant. She has undoubtedly disclosed a very considerable
number of financial statements and she says that this is all that she has.
When a plaintiff deposes to that effect this court has repeatedly said that
is a compliance with an order for discovery. It may come as a surprise and
the other party may well say, well I think he/she must have other documents,
they may say that, but if the plaintiff says on oath that he or she has not
got the documents then that is a compliance with the order for discovery and
the person can have no complaint. If, of course, the affidavit of discovery
shows that the party making it misunderstands what they are supposed to
produce or if it is clear from the very terms of the affidavit that there
are other documents which are still not being discovered, that is a
different matter and the court may have to make an order for further and
better discovery because of the manner in which the plaintiff has approached
it. Here the plaintiff has disclosed a considerable volume of business
matters and she says that is all she has and that in my view is the end of
that matter.

She also says that she had personal diaries but she discarded them at the
end of each year as that particular year came to an end and that she simply
does not have them any more and what she has not got, she cannot produce. I
do not in any way equate this to the situations which arose in English
decisions to which we were referred by Mr Trainor, the authority and the
common sense and the good law of which I would not for a moment dispute, but
which related to documents which in each case were crucial to the action
concerned and which were no longer in existence or which in one instance
were brought to light as a result of the motion being brought to strike out
the proceedings or the defence because of the failure to produce them. This
is a wholly different situation. If the business diaries which it is alleged
she should have produced or the personal diaries which it is alleged she
wrongfully disposed of contained any material relevant to this case and
relevant to these proceedings that would be one situation but nobody is in a
position to say one way or the other that it would have advanced the
plaintiff's case on the one hand or advance the defendants' case on the
other hand to the slightest degree. The fact is that the plaintiff has said
³these diaries are gone² and it must be taken by implication that the
plaintiff was at the end of the day only obliged to disclose material which
is relevant and that applies even in an extraordinarily wide ranging order
for discovery as was made by consent in the present case. That is where the
matter stands similarly in relation to the transcript of a speech which the
plaintiff is said to have given at some meeting or lecture or discussion
that took place in Clonliffe College, the defendants apparently have a
transcript of that speech. It is very difficult to see how their case is
advanced in the slightest degree by having any further documents in relation
to it or indeed whether any such documents exist at all.

Mr Trainor clearly acknowledged that by implication he had some problem to
this extent that he was inviting the court both in the High Court and this
Court, to take a very extreme step, dismissing an entire proceeding, and
conscious as he was of that he did indicate on more than one occasion that
of course there was an alternative, namely that this court should substitute
for the order of the High Court an order simply requiring the defendant to
make further and better discovery of specific items and these are the ones
which he has indicated in this schedule which he has put before us today. We
have to deal with this motion as it came before the High Court. It came
before the High Court in this form. In the course of an exchange between Mr
Trainor and the High Court judge, it was made perfectly clear that Mr
Trainor was asking the High Court judge to strike the proceedings out
because of what he claimed was the inadequate, unsatisfactory discovery and
as he put it the actual destruction of relevant documents and the
concealment by the plaintiff of relevant documents. He quite rightly said
when the High Court judge asked him if that was the stance he was adopting,
he quite rightly said well there is not any need for an order for further
and better discovery, because the order has been made and we could hardly
imagine an order in more wide ranging terms. So one could well see why he
felt it necessary to concede that much. He was asking for a very extreme
remedy of striking out the entire proceedings of the plaintiff because of
what was alleged to be inadequate discovery and for the reasons I have
indicated and applying I am satisfied perfect and correct principles the
High Court judge declined to accede to that application. I think he was
correct in so doing and I think at this stage it is too late in the day,
even if it could be done, for this court to be making an order of a
different nature from that which the High Court judge was invited to make
and which indeed was the whole subject matter of the notice of motion
brought before him.

To conclude on the motion for discovery aspect, I would dismiss the appeal
on that aspect and affirm the order of the High Court.

Appeal dismissed.

-------------------

HIGH COURT

Mary Johnston, Plaintiff, v Church of Scientology Mission of Dublin Limited,
John Keane, Tom Cunningham and Gerard Ryan, Defendants

[2001] 1 IR 682

[1995 No 9640P and SC No 145 of 1999]

30 APRIL 1999

SUPREME COURT

27 FEBRUARY 2001

Practice ­Discovery ­ Documents ­ Sacerdotal privilege ­ Possession, custody
or power ­ Documents in custody of associate outside jurisdiction ­
Counselling notes arising from spiritual practices ­ Whether defendants
could claim sacerdotal privilege in relation to notes ­ Whether plaintiff
could waive any privilege arising out of confidentiality of counselling ­
Whether public interest in preserving confidentiality of notes greater than
public interest in disclosure of all relevant evidence ­ Whether plaintiff
bound by contract to preserve confidentiality ­ Whether documents held by
associate outside jurisdiction within power of defendant.

The plaintiff was suing the defendant for damages for conspiracy,
misrepresentation, breach of constitutional rights, libel, and for the
return of monies paid by her to the first defendant. An order for discovery
in general terms was made against the defendants, who claimed sacerdotal
privilege in respect of certain ³counselling notes². Those notes arose from
spiritual practices of the first defendant, known as ³auditing² and
³training², which were conducted on a one-to-one basis.

Held by the High Court (Geoghegan J), in ordering discovery and inspection
of those documents in respect of which privilege was claimed, 1, that the
defendant was not entitled to rely on the pre-reformation common law
protecting the seal of the confessional even against waiver by the penitent.

Cook v Carroll [1945] IR 515 considered.

2. That, while there could be situations where a privilege might arise in
relation to counselling by a priest or minister, or in relation to secular
counselling, any such privilege might always be waived by the person being
counselled.

Cook v Carroll [1945] IR 515 distinguished; ER v JR [1981] ILRM 125
followed.

3. That the plaintiff was not precluded by the terms of her contract with
the first defendant from seeking discovery of the documents concerning
herself where the plaintiff was repudiating that contract in the substantive
proceedings.

4. That documents in the possession of another branch of the same
institution in the United Kingdom were procurable and must be discovered.

The defendants appealed to the Supreme Court in relation to the documents
held in the United Kingdom, submitting that they were not within their
possession, custody or power.

Held by the Supreme Court (Denham, Murphy and Murray JJ), in allowing the
defendants' appeal, 1, that, subject to rare exceptions in the exercise of
discretion in the circumstances of particular cases, to be discovered, a
document must be in the possession, custody or power of a party.

[2001] 1 IR 682 at 683
Bula Ltd v Tara Mines Ltd [1994] 1 ILRM 111; Quinlivan v Conroy [1999] 1 IR
271 approved. Northern Bank Finance Ltd v Charlton (Unreported, High Court,
Finlay P, 26th May, 1977), Yates v Ciba Geigy Agro Ltd (Unreported, High
Court, Barron J, 29th April, 1986) considered.

2. That, since the documents in question had not been created by, nor were
they being held as agent for the first defendant, the first defendant had no
legal right to obtain them, and they were therefore not in the power of the
first defendant and were not discoverable.
Cases mentioned in this report:-

Bula Ltd v Tara Mines Ltd [1994] 1 ILRM 111.

Bula Ltd (in receivership) v Tara Mines Ltd (Unreported, High Court, Murphy
J, 11th January, 1991).

Cook v Carroll [1945] IR 515.

ER v JR [1981] ILRM 125.

Horgan v Murray (No 2) [1999] 1 ILRM 257.

Irish Nationwide Building Society v Charlton (Unreported, Supreme Court, 5th
March, 1997).

Lonhro Ltd v Shell Petroleum [1980] QB 358; [1980] 2 WLR 367, CA; [1980] 1
WLR 627, HL (E).

Murphy v Dublin Corporation [1972] IR 215; (1972) 107 ILTR 65.

Murphy v J Donohoe Ltd [1996] 1 IR 123; [1996] 1 ILRM 481.

Northern Bank Finance Ltd v Charlton (Unreported, High Court, Finlay P, 26th
May, 1977).

Pais v Pais [1970] 3 WLR 830; [1970] 3 All ER 491.

Phelan v Goodman [2000] 2 IR 577; [2000] 2 ILRM 378.

Quinlivan v Conroy [1999] 1 IR 271.

Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] 1 IR 469; [1990]
ILRM 588.

Yates v Ciba Geigy Agro Ltd (Unreported, High Court, Barron J, 29th April,
1986).
Motion on notice.

The facts have been summarised in the headnote and are more fully set out in
the judgment of Geoghegan J, infra.

The plaintiff issued a plenary summons on the 7th December, 1995, claiming
damages for conspiracy, misrepresentation, breach of her constitutional
rights, libel, and for the return of monies paid by her to the first
defendant. On the 11th April, 1997, the Master of the High Court made an
order and cross-order for discovery in general terms. The defendants

[2001] 1 IR 682 at 684
filed an affidavit of discovery on die 2nd September, 1997, in which they
claimed privilege in respect of certain documents. By notice of motion dated
the 3rd July, 1998, the plaintiff sought, inter alia, to challenge the claim
of privilege. The orders sought in this notice of motion are more fully set
out in the judgment of Geoghegan J, infra.

The matter was heard by the High Court (Geoghegan J) on the 23rd and 24th
February, 1999.

John Hennessy for the plaintiff.
David O'Neill for the defendants.

Cur adv vult

30 April 1999

GEOGHEGAN J

This is a motion for further and better discovery brought by the plaintiff
against the defendants. The notice of motion seeks:-

    *  
      1.     An order directing the defendants to make available for
inspection the originals of all the documents discovered and disclosed by
the defendants in their affidavit of discovery.

    *  
      2.     An order directing the defendants to make further and better
discovery of certain documentation referred to in paras 9 and 10 in the
affidavit of Dympna Murphy, solicitor for the plaintiff.

    *  
      3.     An order directing the defendants to disclose to the plaintiff
those documents in respect of which the defendants have maintained a claim
of sacerdotal privilege.

    *  
      4.     An order directing the defendants to list each and every
document in respect of which a claim for legal professional privilege is
maintained.

For all practical purposes the important issue raised at the hearing of this
motion was the question of sacerdotal privilege in relation to what are
described in the affidavit of discovery as ³counselling notes². These
counselling notes arise in the main from a so-called ³spiritual practice² of
Scientology known as ³auditing², though partly also, I think, from another
³spiritual practice² known as ³training². The fourth defendant, Gerard Ryan,
in his affidavit of the 27th January, 1999, says that auditing and to a
large extent training are conducted on a one to one basis and he draws a
comparison between the relationship that would exist in other religions
between minister and parishioner with what he describes as ³the one to one

[2001] 1 IR 682 at 685
confidential communication between the parishioner and his or her auditor²
in Scientology. More particularly, a claim is being made that for an auditor
for instance to disclose any of the communications he had with die other
person even if that person is waiving any privilege in relation to them
would be so fundamentally contrary to the beliefs and tenets of the Church
of Scientology as to render him liable to eternal damnation analogous to the
claims made by the Roman Catholic Church in relation to priests breaking the
seal of confession.

As I understand it, the defendants in resisting disclosure of the
counselling notes are making two other alternative arguments. They are
saying that such confidentiality attaches to them that the court must weigh
up the public interest in the preservation of such confidentiality against
the normal public interest in the disclosure of all relevant evidence and
must in all the circumstances come down in favour of preservation of the
confidentiality and as a second alternative the defendants are arguing that
the plaintiff is bound by written contract to preserve the confidentiality.
These last two alternative arguments to some extent overlap. There are also
other issues in this motion of less importance and with which I will deal in
due course.

I start with sacerdotal privilege. I believe that there are only two decided
Irish cases which can give me any worthwhile guidance in this connection.
They are Cook v Carroll [1945] IR 515 and ER v JR [1981] ILRM 125. A great
deal of what Gavan Duffy J had to say in Cook v Carroll is obiter dicta. The
head-note gives an accurate summary of what the learned judge actually
decided. He held that communications made in confidence to a parish priest,
in a private consultation between him and certain of his parishioners, were
privileged and that such privilege could not be waived by a party thereto
without the consent of the priest. In ER v JR, Carroll J held that
communications made to a minister of religion who was acting as a marriage
counsellor are privileged in that the four conditions set out by Gavan Duffy
J in Cook v Carroll were present. She followed, however, the English case of
Pais v Pais [1970] 3 WLR 830, in holding that the privilege was that of the
spouses and not of the minister for religion and might be waived by mutual
consent of the spouses.

This decision was in one sense an extension of the principle laid down by
Gavan Duffy J in that it went beyond the relationship of parish priest and
parishioner but on the other hand it seems to repudiate the idea that the
priest counsellor himself could have a privilege which he would have to
waive.

I think that the waters were muddied to some extent in Cook v Carroll [1945]
IR 515, with all respect to Gavan Duffy J, by the references to the
confessor penitent relationship in the sacrament of confession and by

[2001] 1 IR 682 at 686
references also to the then existing article in the Constitution referring
to the special position of the Roman Catholic Church. Gavan Duffy J appears
to have been of the view that there were constitutional and legal effects
arising out of the so-called special position of the Roman Catholic Church.
However, in other decided cases the view was expressed that it had no such
legal effect and that it was really nothing more than a statement of fact.
It being a fact, then, as a matter of common sense and justice, it was
reasonable for the courts to revive what Gavan Duffy J says was the
pre-reformation common law protecting the seal of the confessional even
against waiver by the penitent. However, that is merely an opinion I express
because I do not think it arises in this case. I do not accept that the
defendants can rely on an alleged analogy with the seal of confession.
Neither in the affidavits nor in court and even though I requested it, was
any evidence produced by way of theology manuals etc that it was part of the
doctrines of the Church of Scientology that any disclosure of what
transpired in auditing or training sessions led to some kind of eternal
punishment. Furthermore, the whole question as to whether the Church of
Scientology is a religion or not remains controversial throughout the world
and it is not sensible to suggest that it can be determined by sundry
decisions relating to tax. I think that the absolute unwaivable privilege
which probably does attach in Irish common law to the priest penitent
relationship in the confessional is sui generis and is not capable of
development in the manner suggested.

I do accept, as Carroll J accepted, that there can be situations where a
privilege may arise in relation to counselling by a priest or minister but
any such privilege may always be waived by the person being counselled and
to that extent I am not prepared to follow the views expressed by Gavan
Duffy J in relation to counselling by a parish priest of a parishioner.
Indeed it is difficult to see why a relationship between a parish priest and
parishioner is any different than a relationship between a priest or
clergyman of any kind and a person coming from anywhere being counselled by
him. Furthermore, although Carroll J left the question open, I would be
inclined to think that in modern times when all kinds of secular counselling
is available, and in particular marriage counselling, there may well be a
privilege which the courts would uphold in some circumstances, but it would
always be capable of waiver unilaterally by the persons being counselled.

In this case the plaintiff waives any privilege alleged to exist, and in
these circumstances and for the reasons I have given I cannot uphold the
plea of sacerdotal privilege.

I now turn to the argument based on contract. The plaintiff undoubtedly
signed a document dated the 11th September, 1993, and headed:-

    [2001] 1 IR 682 at 687
    ³Church of Scientology Mission of Dublin (hereinafter referred to as
'The Church') Religious Services Enrolment Application / Agreement and
General Release²

Paragraph 7 of that document reads as follows:-

    ³In connection with the service, the Church may compile a folder
containing its notations of my spiritual progress, known as a 'Pre-clear
Folder' (PC Folder), as well as other ecclesiastical files containing
notations regarding my spiritual progress. The contents of the folders are
kept confidential from persons who lack the ecclesiastical authority to gain
access to such documents, including the person who the files concern, and
are subject to the priest-penitent privilege. I understand that as a
condition of being accepted for participation in the Service, I am giving up
any and all rights of ownership possession and control, copying and viewing
of the PC Folder and other files concerning myself, both with respect to the
files themselves and the information contained therein.²

I am satisfied that a private contract inter partes cannot oust the
jurisdiction of the court to order discovery of the document in which the
contract is contained. ³Power to compel the attendance of witnesses and the
production of evidence is an inherent part of the judicial power of
Government of the State and is the ultimate safeguard of justice in the
State.² (see Murphy v Corporation of Dublin [1972] IR 215 at p 233). This
passage is quoted and relied upon by Finlay CJ in his Supreme Court judgment
in Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] 1 IR 469 at p
475. I would at any rate interpret the contractual obligation as an
obligation not to make a voluntary disclosure. It does not cover an
obligation not to make a compulsory disclosure. Even if there are cases
where a court might refuse to make an order for discovery because of
particular and special contractual terms between the parties (which I do not
necessarily accept) I do not believe that this would ever be done in a case
where effectively the contract is being repudiated in the action itself.
There are a number of causes of action in the statement of claim but
fundamentally the plaintiff is claiming that she was ³brainwashed² in
circumstances where she was not a genuine free agent. This allegation of
course may prove entirely false but that is beside the point. I can only
look at the statement of claim as it stands. For all these reasons therefore
I am satisfied that the contractual term relied on cannot prevent an order
for discovery being made in relation to the documents referred to in that
contract term.

Finally, I reject also the argument that there is a greater public interest
in upholding the confidentiality than the public interest in relevant
evidence being produced in court for the purposes of the administration of
justice. If the plaintiff's allegations are correct then she was improperly
and

[2001] 1 IR 682 at 688
illegally placed in situations where moral or legal obligations of
confidentiality arose or where there was an apparent relationship of
confidentiality. In an action of this kind disclosure is in my view in the
greater public interest. All the documents therefore which have been
disclosed as relevant but the production of which is being withheld on
alleged grounds of privilege or confidentiality must be disclosed and
produced on request.

Of course there is another argument for non-disclosure being made. It is
suggested that in the case of some of the documents which would be material,
they are no longer in the possession or procurement of the defendants in
that they have been sent to branches of the Church of Scientology in the
United Kingdom. I do not find it credible that these documents are not
procurable and I think it likely that this is being used as a method of
defeating discovery in the Irish courts. It was the Mission of Dublin in the
Church of Scientology which the plaintiff joined and any documents prepared
in connection with her membership would seem to be to be clearly in the
possession and ownership of one or more of the defendants. The argument has
been made on behalf of the defendants that even if it were true that on
request to England, documents would be returned, this does not mean that
they are within the procurement of the defendants within the meaning of the
Rules of the Superior Courts. I accept that proposition in circumstances
where the requesting party and the retaining party have no institutional
link with each other and are fully at arms length with each other. In such a
case the test is whether the documents could be recovered by action and not
whether as a matter of probability they would be voluntarily handed over on
a request, but I do not accept that that is the position where two branches
of the same institution are involved. There would seem to be strong prima
facie evidence here that any documents relating to the plaintiff and in the
possession of an English branch of the Church of Scientology are being held
by the English branch as agents for the defendants or one or other of them.
I will therefore direct that the documents which come within this category
must be procured by the first defendant, and included in a supplemental
affidavit of discovery if not already discovered and must be produced for
inspection to the plaintiff if requested, and the plaintiff must be given
copies thereof.

Some of the other discovery sought by the plaintiff seems to me to be
excessive. However, I am prepared to make an order in the terms of para 2 of
the notice of motion, that is to say, an order directing the defendants to
make further and better discovery of the documentation described in paras 9
and 10 in the affidavit of Dympna Murphy but limited to such of the
documents as are mentioned in those paragraphs as refer to the plaintiff and
which are not fully and adequately discovered already. Otherwise I will make
all the orders as set out in the notice of motion of the 3rd July, 1998.

[2001] 1 IR 682 at 689
With reference to the documents now in England, it is worth noting what the
fourth defendant swore in his affidavit of discovery of the 30th July, 1997,
in paragraph 3. He said the following:-

    ³The counselling notes were last in my possession, power or procurement
in 1995. At that time the documents were transmitted by me to the Church of
Scientology at East Grinstead, Sussex in the United Kingdom. I am now making
arrangements for this documentation to be returned to the Dublin Mission.²

This clearly re-enforces my view that those documents are within the
procurement of the defendants.

The defendants appealed to the Supreme Court by notice of appeal dated the
20th December, 2000. The appeal was heard by the Supreme Court (Denham,
Murphy and Murray JJ) on the 16th January, 2001
James Connolly SC (with him David O'Neill) for the defendants.
John Hennessy (with him Michael Cush SC) for the plaintiff.

Cur adv vult

27 February 2001

DENHAM J
1. Proceedings

This is an appeal by the defendants from a reserved judgment of the High
Court of the 30th April, 1999, and order dated the 4th June, 1999. The
plaintiff instituted an action against the defendants in 1995 in which she
seeks, inter alia, damages for conspiracy, misrepresentation and breach of
her constitutional rights, damages for libel, a declaration that the
payments made by the plaintiff to the first defendant, its servants or
agents, in the sum of £1,915.45 ought to be set aside as having been
procured by the undue influence of the first defendant, its servants or
agents and an order directing the first defendant, its servants or agents,
to repay to the plaintiff the sum of £1,648.06 being the balance of the said
sum of £1,915.45 due and owing to the plaintiff. The plaintiff brought a
motion for

[2001] 1 IR 682 at 690
further and better discovery against the defendants. On the hearing of the
motion before the High Court, the main issue raised was that of sacerdotal
privilege in relation to counselling notes. The defendants claimed that
there should not be disclosure of the documents on the basis of sacerdotal
privilege. The High Court rejected this claim. The issue of sacerdotal
privilege has not been appealed and is not an issue before this court. There
were other issues before the High Court relating to the nondisclosure of
documents. It was submitted that the documents were in the procurement of
the defendants. It is the issue of the possession, custody or power of
documents which is at the kernel of this appeal.

2. The High Court

The High Court (Geoghegan J) ordered that certain documents must be procured
by the first defendant. He stated at p 688:-

    ³Of course there is another argument for non-disclosure being made. It
is suggested that in the case of some of the documents which would be
material, they are no longer in the possession or procurement of the
defendants in that they have been sent to branches of the Church of
Scientology in the United Kingdom. I do not find it credible that these
documents are not procurable and I think it likely that this is being used
as a method of defeating discovery in the Irish courts. It was the Mission
of Dublin in the Church of Scientology which the plaintiff joined and any
documents prepared in connection with her membership would seem to be
clearly in the possession and ownership of one or more of the defendants.
The argument has been made on behalf of the defendants that even if it were
true that on request to England, documents would be returned, this does not
mean that they are within the procurement of the defendants within the
meaning of the Rules of the Superior Courts. I accept that proposition in
circumstances where the requesting party and the retaining party have no
institutional link with each other and are fully at arms length with each
other. In such a case the test is whether the documents could be recovered
by action and not whether as a matter of probability they would be
voluntarily handed over on a request, but I do not accept that that is the
position where two branches of the same institution are involved. There
would seem to be strong prima facie evidence here that any documents
relating to the plaintiff and in the possession of an English branch of the
Church of Scientology are being held by the English branch as agents for the
defendants or one or other of them. I will therefore direct that the
documents which come within this category must be procured by the first
defendant and included in a supplemental affidavit of discovery

    [2001] 1 IR 682 at 691
    if not already discovered and must be produced for inspection to the
plaintiff if requested, and the plaintiff must be given copies thereof.

    Some of the other discovery sought by the plaintiff seems to me to be
excessive. However, I am prepared to make an order in the terms of para 2 of
the notice of motion, that is to say, an order directing the defendants to
make further and better discovery of the documentation described in paras 9
and 10 in the affidavit of Dympna Murphy but limited to such of the
documents as are mentioned in those paragraphs as refer to the plaintiff and
which are not fully and adequately discovered already. Otherwise I will make
all the orders as set out in the notice of motion of the 3rd July, 1998.

    With reference to the documents now in England, it is worth noting what
the fourth defendant swore in his affidavit of discovery of the 30th July,
1997, in paragraph 3. He said the following:-

    'The counselling notes were last in my possession, power or procurement
in 1995. At that time the documents were transmitted by me to the Church of
Scientology at East Grinstead, Sussex in the United Kingdom. I am now making
arrangements for this documentation to be returned to the Dublin Mission.'

    This clearly re-enforces my view that those documents are within the
procurement of the defendants.²

The order of the High Court dated the 4th June, 1999, stated:-

    ³It is ordered that within 6 weeks from the date hereof or from the date
of lifting of the stay hereinafter granted whichever date shall be the
later:-

    1)     the defendants do make available for inspection the originals of
all documents being discovered and disclosed by the defendants pursuant to
the order of the Master made on the 11th April, 1997;

    2)     the defendants do make further and better discovery of the
documentation described in paras 9 and 10 of the said affidavit of Dympna
Murphy but limited to such of the documents as are mentioned in those
paragraphs as refer to the plaintiff and originals or copies of which would
routinely be procurable at the request of the defendants and which are not
fully and adequately discovered already;

    3)     the defendants do disclose to the plaintiff those documents in
respect of which the defendants have maintained a claim of sacerdotal
privilege;

    4)     the defendants do list each and every document in respect [of
which] a claim to legal professional privilege is maintained.²

[2001] 1 IR 682 at 692
3. Grounds of appeal

Against that judgment and order, in an amended notice of appeal, the
defendants have appealed on the following grounds:-

    ³1.     That the documents referred to at para 2 of the learned trial
judge's order would not in fact have been routinely procurable at the
request of the defendants, even if appropriate searches had disclosed them
still to be in existence.

    2)     That the learned trial judge erred in law, or upon a mixed
question of law and fact, in finding at p 688 of his judgment that there
were documents within the description set out in para 2 of his order held or
created by non-parties as agents for the defendants.

    3)     That the learned trial judge erred in law so far as by para 2 of
his order he directed the defendants to disclose any documents not within
their possession, custody or power, but within their 'procurement,' and
insofar as he required the defendants to disclose documents originals or
copies of which would routinely be procurable at the request of the
defendants.²

4. Issue

The issue on this appeal is the disclosure of specific documents. The
documents are those set out in the affidavit of Dympna Murphy, dated the 2nd
July, 1998, at paragraph 10. The documents referred to in para 10A and 10B
have been discovered. At issue are the documents mentioned in paras I0C, D,
E and F, of which it is deposed:-

    ³Š I am instructed that there are specific documents which have not been
discovered by the defendants and which are in their possession, control or
power of procurement. The plaintiff can identify certain instances where
there should be documents available.

    Š

    C.     The plaintiff completed an IQ test, an aptitude test and an OCA
test in or around the 1st April, 1994, at the first defendant's headquarters
in St Hill, East Grinstead, England, which has not been discovered.

    D.     The plaintiff completed a 'success story' in St Hill in or around
the 1st April, 1994, which has not been discovered, although other 'success
stories' have been discovered.

    E.     A 'security check list' (a list of questions designed to gain
information from members to ensure that they only have good intentions
towards the organisation) which the plaintiff completed in St Hill in or
around the 1st April, 1994, has not been discovered.

    F.     The plaintiff signed an agreement with the Sea Org (an elite,
dedicated group of staff members within the organisation who

    [2001] 1 IR 682 at 693
    make a commitment of one billion years to work for the organisation) in
or around the 4th April, 1994, in St Hill which has not been discovered.²

In the affidavit of Gerard Ryan, made on behalf of the defendants, on the
19th October, 1998, in relation to the said paras 10, C, D, E and F, he
deposed as follows :-

    ³C.     The defendants do not have these documents.

    D.     The defendants do not have these documents in their power or
possession.

    E.     The defendants do not have these documents in their power or
possession.

    F.     Again this is not in our possession or procurement.²

5. Submissions of the defendants

Counsel for the defendants submitted that: (a) a party must disclose all
relevant documents that either are or have been in his physical possession
whether he has, or has previously had, a proprietary interest in them or
not, or; (b) although they are not at present in his physical possession,
are, or formerly were, under his control, either by his having, or having
had, some, though not necessarily the entire, proprietary interest in them,
or by his having, or having had, absolute control over them. Despite the
reference by the learned trial judge to ³procurement,² he submitted that
there is no such provision in the Rules of the Superior Courts.

Counsel referred to Bula Ltd v Tara Mines Ltd [1994] 1 ILRM 111 at p 113
wherein it was stated that there were three distinct concepts: possession,
custody and power, that the three concepts are to be considered
disjunctively, that is any document to which any one of them applies must be
listed. He submitted that a party is not obliged to take steps which would
place documents in his power or possession at some stage in the future, but
which are not in his power at present; Lonrho Ltd v Shell Petroleum [1980]
QB 358. He submitted that usually documents in a party's power are those
which are his property but which are not in his physical possession. Even
where documents are not a party's property, and are not in his physical
possession, they may still be liable to disclosure and production if he has
absolute control over them. The only established category of documents
liable to disclosure on this ground is documents belonging to a company
which is under the unfettered control of and therefore the alter ego of a
director who is a parry to the proceedings: Yates v Ciba Geigy Agro Ltd
(Unreported, High Court, Barron J, 29th April, 1986), Horgan v Murray (No 2)
[1999] 1 ILRM 257. He submitted that documents in the possession or custody
of a subsidiary company are not necessarily in the power of its parent
company: Lonrho Ltd v Shell

[2001] 1 IR 682 at 694
Petroleum. He submitted that otherwise documents that are not a party's
property are not in his power. Mere rights of inspection which a party may
enjoy over other peoples' documents are usually conferred for a specific
purpose, which does not include the defence of the inspecting party's
personal interest.

Counsel submitted that the two cases that appear to recognise a separate
concept of procurement are Northern Bank Finance Ltd v Charlton (Unreported,
High Court, Finlay, P, 26th May, 1977) and Yates v Ciba Geigy Agro Ltd
(Unreported, High Court, Barren J, 29th April, 1986). He submitted that if
the sole basis of the decision in Northern Bank Finance v Charlton was that
the directors of the non-party company from whom the documents were to be
procured were agents of the plaintiff, the decision was incorrect and that
documents of one company are not within the power of another, wholly
unrelated company, merely because they share a director who has a right to
inspect documents belonging to the first company in his capacity as its
director; the decision may, however, be justified on the ground that in that
case the non-party company appears to have been largely controlled by the
plaintiff and, in such circumstances, its documents might be considered to
have been in the power of the plaintiff. He referred to Yates v Ciba Geigy
Agro Ltd and to Barron J, at p 3 of his judgment, where he held that
documents in the possession of the defendant's parent company were within
its ³procurement² in that if the defendant sought them it would probably be
supplied with them, and it was admitted that the documents would be made
available to the defendant for the purpose of the trial. He argued that
Barron J appeared to think that ³procurement² was a distinct head of control
for the purpose of the rules, additional to ³possession or power². However,
no authority was cited other than Northern Bank Finance Ltd v Charlton
(Unreported, High Court, Finlay P, 26th May, 1977) and it was submitted
there is no authority for it in the Rules.

Counsel submitted that there were a number of High Court decisions
inconsistent with Northern Bank Finance Ltd v Charlton (Unreported, High
Court, Finlay P, 26th May, 1977) and Yates v Ciba Geigy Agro Ltd
(Unreported, High Court, Barron J, 29th April, 1986). He referred to Bula
Ltd (in receivership) v Tara Mines Ltd (Unreported, High Court, Murphy J,
11th January, 1991); and Murphy v J Donohoe Ltd [1996] 1 IR 123, at p 129
cited with approval a passage from Halsbury's Laws of England (4th ed), vol
13, para 39. Counsel submitted that the decisions Northern Bank Finance Ltd
v Charlton and Yates v Ciba Geigy Agro Ltd appear to be inconsistent with
the subsequent decision of the Supreme Court in Bula Ltd v Tara Mines Ltd
[1994] 1 ILRM 111, where the court, referring to the terms used in the
rules, held that a party was only obliged to disclose

[2001] 1 IR 682 at 695
documents in his ³possession, custody or power². He referred to Quinlivan v
Conroy [1999] 1 IR 271 where Kinlen J at p 275, referring to Bula Ltd v Tara
Mines Ltd [1994] 1 ILRM 111 specifically noted that there was no such
concept as ³procurement² in the Rules. Counsel referred to the observation
in the Supreme Court of O'Flaherty J, in the same case at p 281, that even
if the Assistant Commissioner who endorsed an extradition warrant was in
some sense the ³agent² of the British authorities, this ³agency² did not
confer on the Commissioner an enforceable legal right to obtain the
documents from those parties, consequently they were not within his power.

Counsel also referred to the judgment of this court in Irish Nationwide
Building Society v Charlton (Unreported, Supreme Court, 5th March, 1997)
where Murphy J referred to the plaintiffs having obtained copies of
correspondence between their solicitors and solicitors for a non-party from
the latter solicitors and added at p 7 of his judgment that: ³The plaintiffs
clearly were not bound to obtain such documentation Š²

In relation to the issue of agency, counsel submitted that a document held
by the agent of a party is normally the party's property if it was created
in the course of the agency and for the purpose thereof. He submitted that
to this there are exceptions. For example, a contract of agency may confer
the proprietary interest on the agent.

Counsel submitted that in this case there is no corporate relationship at
all between any of the English church corporations and any of die
defendants. None of the English church corporations has any legal interest
in the first defendant, their only link is that they are obliged to
propagate the same belief system. Even if they had a corporate link, which
they do not, only if the controller is the party does it have the documents
of the entity controlled in its power, it can have no power over documents
that have never been in its physical possession and that belong to the
controller. A subsidiary's documents may be in the power of its parent, but
the parent's documents cannot be in the power of the subsidiary. He
submitted that the English church corporation are not agents of the
defendants generally. They were not, specifically, agents of the defendants
for the purpose of the creation or holding of any undisclosed document in
this case and no such documents were created in the course or for the
purpose of such an agency. There were documents created in the course of the
relationship between the second, third and fourth defendants, on the one
hand, and the plaintiff on the other, which are in the custody of the
English church corporations, but no objection on the ground of this custody
was ever taken to the disclosure or production of these documents, and they
have now all been disclosed.

Counsel submitted that a court may not go behind the oath of a party that he
does not have certain documents in his possession, custody or

[2001] 1 IR 682 at 696
power merely because, for whatever reason, it concludes mat it is probable
that the parties have more documents. The court must be satisfied by
specific evidence that the party's statement is incorrect, and he referred
to Phelan v Goodman [2000] 2 IR 577.

Counsel pointed out that the documents sought as being in the procurement of
the defendants in that they or copies of them allegedly would be supplied by
the English church corporation on request are an IQ test, an OCA test, an
aptitude test, allegedly completed by the plaintiff in or about the 1st
April, 1994, at East Grinstead, a success story allegedly completed by her
in or about the same time, a security check-list allegedly prepared by her
in or about the same time, a project to prepare sheet allegedly completed by
the plaintiff at East Grinstead on or about the 4th April, 1994, pursuant to
her intention to join the CSEA Organisation and an alleged agreement dated
the 4th April, 1994, between the plaintiff and the CSEA Organisation.
Counsel submitted that, contrary to the learned trial judge's findings in
his judgment, none of these documents was ever in the possession of the
defendants or was ever their property or indeed would such documents or
copies of them be furnished to the defendants on request nor, if they exist,
were they in any sense created in any capacity as agents of the defendants
or any of them. Nor can the defendants state whether they ever existed, or
control, or authorise, a search for them in England, or give an account of
their whereabouts.

Counsel submitted to the court that it was important that the scope of
disclosure be limited. He argued that the main reason for such limitation is
that, if a party fails to comply with an order for discovery, he or she may,
if a defendant, have his or her defence struck out and be placed in the same
position as if he or she had not defended. This may be acceptable so far as
the documents are in his or her physical possession so he or she has direct
control over them or has a proprietary interest which, if need be, the court
can require him or her to enforce. However, it is not satisfactory for
parties here, including the three personal defendants, who can have their
defence struck out because they are in no position to comply directly with
the order. He submitted that to preclude a defendant from defending
proceedings because of the alleged default of some person over whom he has
no control would be a denial of a defendant's constitutional right to fair
procedure. He submitted that this is the reason why the fact that documents,
or copies thereof, which are in the possession of a foreign entity of a
similar description to a party resident within the jurisdiction which might
be supplied in the ordinary course by the foreign entity to the resident
party cannot place the resident party under an obligation to obtain the
documents. If a foreign organ is under the control of the resident party the
documents may well be within the party's power but otherwise it would be
unfair and unconstitutional

[2001] 1 IR 682 at 697
to make the party's right to defend an action depend on its ability to
obtain documents from a person outside the jurisdiction whom he could in no
way control.

Counsel submitted that the point at issue is of great importance over and
above the facts of this case. A rule that limits discovery to documents that
are or have been the property of a party, or are or have been in his or her
physical custody, or are under his absolute dominion where no other person
has a legal right to interfere with disclosure, sets clear limits to the
duty to disclose. A rule that requires a party to ³procure² documents that
are not within these categories on the other hand is potentially boundless.
It requires searches to be undertaken by people who are not under the
control of the party for documents that the party has never seen and has no
right to obtain. He referred to Lonrho Ltd v Shell Petroleum [1980] QB 358.

Counsel submitted that the learned trial judge appears to have believed that
it was argued for the defendants that there were relevant but undisclosed
documents that were no longer in the possession of the defendants in that
they had been sent to branches of the church in the United Kingdom. However,
he submitted, no such argument was ever made and there are no such documents
and there was no evidence before the court supporting the learned trial
judge's conclusion that there were such documents. Further, he said, the
English church bodies are not branches but separate corporate entities.

Counsel submitted that the learned trial judge appears to have believed that
documents were being shifted out of the jurisdiction to avoid discovery. He
said there was no evidence before the court for this conclusion. He
submitted that that is not so and that the existence of any documents,
including in particular those included in the counselling folder, which had
been transferred abroad, have been disclosed.
6. Submissions of the plaintiff

Counsel for the plaintiff submitted that the defendants had made lengthy
submissions on the subject of ³possession, custody or power² much of which,
he submitted, was irrelevant to the matters under appeal. He argued that the
net issue is whether the learned trial judge was correct in law in ordering
the defendants to make discovery of certain specific documents which are
mentioned in para 10 of the affidavit of Dympna Murphy recited above and
which refer to the plaintiff, originals or copies which would routinely be
procurable at the request of the defendants and which are not fully and
adequately discovered already. He distinguished Bula Ltd v Tara Mines Ltd
[1994] 1 ILRM 111 and said that the issue of interpretation is still open.
He pointed out that the statement of law by O'Flaherty J in Quinlivan v
Conroy [1999] 1 IR 271 is obiter dicta. He

[2001] 1 IR 682 at 698
submitted that to make an enforceable legal right an absolute prerequisite
for documents to fall within the power of a party under O 31, r 12 of the
Rules of the Superior Courts, 1986, would be too restrictive. In particular,
it would risk permitting organisations with operations outside the State to
evade discovery of relevant documents otherwise obtainable by ensuring that
they originated and remained with the foreign operation. He submitted that
this was the thinking behind the order of the learned High Court Judge and
that it was correct. He submitted that the learned trial judge recognised in
his judgment that, notwithstanding the formal corporate structures adopted
by the Church of Scientology in various jurisdictions, ³two branches of the
same institution are involved². He referred to references in affidavits to
the first defendant and its sister organisation operating as a single
organisation. He referred to statements in documents relating to original
documents being sent to England, to original documentation being
requisitioned from England, and contact being made about documentation with
England. And, finally, he referred to the affidavit by the fourth defendant,
quoted by the learned High Court Judge at p 689 where it was said:-

    ³The counselling notes were last in my possession, power or procurement
in 1995. At that time the documents were transmitted by me to the Church of
Scientology at East Grinstead, Sussex in the United Kingdom. I am now making
arrangements for this documentation to be returned to the Dublin mission.²

The court was informed that there was no dispute as to the obligation to
produce counselling notes.

Counsel submitted that the nature of the relationship between the Irish and
the English branches of the Church of Scientology is akin to a
parent/subsidiary relationship between corporations. He argued that the
relevant case law is set out in the judgment of Barron J in Yates v Ciba
Geigy Agro Ltd (Unreported, High Court, Barron J, 29th April, 1986). In that
case, the learned trial judge found that discovery could be ordered in
respect of documents in respect of the parent company of the defendant on
the grounds that: ³Possession alone is not the test. Documents may be in the
power or procurement of a party even though they are not in his possession²
and ³In the present case, there is no reason to suppose that a request for
such documents by the defendant would be refused² (at p 3 of the judgment).

Counsel pointed out that the Rules of the Superior Courts make no reference
to the concept of procurement. He pointed out, however, that one of the
defendants used the term ³procurement² in one of the affidavits.

Counsel referred to the argument in relation to agency. The fact that it was
submitted that even if the documents in question are at present outside

[2001] 1 IR 682 at 699
the control and possession of the defendants, the English branch of the
Church of Scientology was acting as agent for the first defendant when the
relevant documents were created. He referred to the finding of agency by die
learned trial judge.

Counsel submitted that the documents which the plaintiff believes to be in
the possession or power of a United Kingdom branch of the Church of
Scientology were, in fact, created as a result of the plaintiff's attendance
at courses delivered to her by the United Kingdom branch acting as agent for
the first defendant. Counsel submitted that the agency is demonstrated by a
number of facts, not least of which being the fact that one of the
activities undertaken by the plaintiff in the United Kingdom branch was a
continuation of a course already commenced with the first defendant in
Dublin. Further, it was the plaintiff's case that she joined the first
defendant and that when she attended courses run in the United Kingdom she
did so in her capacity as a member of the first defendant. As a result, the
United Kingdom branch of the Church of Scientology having no other basis for
having an interest in the plaintiff acted as agent of the first defendant in
delivering such courses to the plaintiff.

Counsel submitted that documents held by an agent and created in the course
of the agency and for the purpose thereof are the property of the principal.
He submitted that this places the documents in question in the ownership of
the first defendant, giving it a legally enforceable right to obtain them
and thereby rendering them discoverable under O 31, r 12 and the decision of
this honourable court in Bula Ltd v Tara Mines Ltd [1994] 1 ILRM 111.
Counsel submitted that there is no merit in the defendants' submissions
relating to the position in which they find themselves if they fail to
comply with the order of the High Court. The order limits the discovery
obligation to those documents which would be routinely procurable by the
defendants. At the hearing held to clarify the scope of the order the
learned trial judge made it clear that he would be very sceptical of any
assertion by the defendants that any of the documents covered by his order
had been bona fide destroyed. It is clear that documents routinely
procurable can, by definition, be obtained and produced and that therefore
the defendants must be prepared to face the full consequence of
non-compliance with the order of the High Court if they fail to produce the
documents.
7. Law

O 31, r 12(1) of the Rules of the Superior Courts, 1986, states:-

    ³Any party may Š apply Š for an order directing any other party to any
cause or matter to make discovery on oath of the documents

    [2001] 1 IR 682 at 700
    which are or have been in his possession or power, relating to any
matter in question therein.²

In the said Rules, Appendix C, No 10, para 7 sets out the form of affidavit
provided.

The averment is:-

    ³According to the best of my knowledge, information, and belief, I have
not now, and never had in my possession, custody or power, or in the
possession, custody or power of my solicitors or agents, solicitor or agent,
or in the possession, custody or power of any other persons, or person on my
behalf, any deed, Š relating to the matters in question in this suit, or any
of them, or wherein any entry has been made relative to such matters, or any
of them, other than and except the documents set forth in the Š schedules
hereto.²

8. Decision

In relation to the discovery of documents the law evokes three concepts,
possession, custody and power: see O 31, r 12(1) of the Rules of the
Superior Courts, 1986, and Appendix C, No 10, paragraph 7. In Bula Ltd v
Tara Mines Ltd [1994] 1 ILRM 111 at p 113, O'Flaherty J stated:-

    ³I believe that the three concepts come into play, viz possession,
custody and power and they are to be considered disjunctively.²

³Power² was defined by O'Flaherty J at p 113 as:-

    ³A document is within the power of a party if he has an enforceable
legal right to obtain from whoever actually holds the document inspection of
it without the need to obtain the consent of anyone else.²

This statement was reinforced in Quinlivan v Conroy [1999] 1 IR 271 at p
281, when O'Flaherty J, in a judgment agreed to by the four other members of
the court, referred to the fact that an enforceable legal right to obtain
the documents is necessary, stating:-

    ³Nor would the relationship (if it existed) give to the defendants the
enforceable legal right to obtain those documents which, as has been held by
this Court in Bula Ltd v Tara Mines [1994] 1 ILRM 111, is necessary to
establish that documents are within the 'power' of a party or person for the
purposes of O 31, r 12 of the Rules of the Superior Courts, 1986.²

Thus a document to be discovered must be in the possession, custody or power
(in accordance with the enforceable legal right test) of a party.

In this case, the learned High Court Judge in his judgment directed that the
documents now in issue be procured by the first defendant and be produced
for inspection to the plaintiff. That direction was based on the premise
that the documents in question were in the possession of the

[2001] 1 IR 682 at 701
English Church of Scientology Corporation as agents of the first defendant.
In effect the learned High Court Judge was holding that the documents were
within the power of the first defendant because of an agency relationship
with the English Church of Scientology and for that reason could be procured
by them.

As to the matter of agency, the first defendant is sued in its capacity as a
corporation. On the basis of the facts adduced in this application, the
first defendant is a separate corporate body to the English Church of
Scientology corporation. While it has been shown that both corporations work
towards the same goal and that they have co-operated in matters of mutual
interest, it has not been established that, on the facts of this case, the
English corporation acted as the agent for the first defendant in relation
to the documents at issue. This is not to say that the first defendant and
the English Church of Scientology must be treated in all circumstances as if
they were wholly separate and distinct corporate entities operating at arms
length. The court is not concerned with the general relationship between
those two entities, but only with their relationship so far as it is
relevant to the documents in issue in this discovery application. The
documents now in issue between the parties originated in England, were
created by the English Church of Scientology and have never been in Ireland.
It has not been established by the plaintiff that the English corporation
created or has custody of those documents as the agent for the first
defendant. Indeed, in this case the evidence is that the English corporation
acted independently and not as agent for the other in respect of those
documents. Accordingly, the plaintiff has not established that the first
defendant had an enforceable legal right to obtain the documents in question
from the English corporation. The fact that the English corporation may have
acted as the agent of the first defendant in other specific situations does
not confer on the first defendant an enforceable right to obtain the
documents in question and they therefore are not within its power.

A party is only obliged to disclose documents in his possession, custody or
power. To this rule there may be rare exceptions. However, these rare
exceptions are examples of the judge, in his or her discretion in the
circumstances of a particular case, making a determination on the facts.
Such exceptions may be seen in the cases of Northern Bank Finance Ltd v
Charlton (Unreported, High Court, Finlay P, 26th May, 1977) and Yates v Ciba
Geigy Agro Ltd (Unreported, High Court, Barron J, 29th April, 1986).
However, the facts of neither are on all fours with the facts of this case
and may be distinguished.

The decision of Finlay P in Northern Bank Finance Ltd v Charlton
(Unreported, High Court, Finlay P, 26th May, 1977) may be seen as a
practical solution to a special problem rather than a novel interpretation
of

[2001] 1 IR 682 at 702
the relevant rules. What the learned President said at p 19 of the
transcript of the judgment was as follows:-

    ³I am therefore satisfied that within the meaning of the principle
applicable to an affidavit of discovery I must at this stage at least decide
prima facie that these documents are within the procurement of the plaintiff
and that there is not any reason to believe that if the plain- tiff in
pursuance of the obligations of the directors of JG Mooney & Company
properly have to them as their nominees requested the handing over even
though it might be on a returnable basis of these documents that that
request would be refused. If it is a further application may have to be made
to me and different considerations may apply depending upon the grounds for
that refusal.²

It will be appreciated that the learned President was dealing with a
particular document which he believed - having regard to the relationship
between the plaintiff company and the company is whose possession it was -
could be obtained for the asking. But he made no concluded finding to that
effect and, in the terms quoted, effectively reserved the right to the
plaintiff to return to the court to explain whether the document was
forthcoming.

It may therefore have been an exception in practice rather than an exception
in principle. Certainly the facts are readily distinguishable from the
present case. Non-party discovery will resolve any such problems in the
future where it relates to documents within the jurisdiction.

In Yates v Ciba Geigy Agro Ltd (Unreported, High Court, Barron J, 29th
April, 1986), Barron J referred to Northern Bank Finance Ltd v Charlton
(Unreported, High Court, Finlay P, 26th May, 1977) and at p 3 of the
unreported judgment stated:-

    ³In the present case, there is no reason to suppose that a request for
such documents by the defendant would be refused. Indeed, counsel for the
defendant has admitted they will be made available to him for the purposes
of the trial and that they have already been made available for the purposes
of the preparation of the defendant's defence. Prima facie such documents
must be regarded as being available to the defendant if they are requested.²

Thus this too may be regarded as a practical solution to a particular set of
circumstances rather than an exception in principle. I am satisfied that the
relevant legal principles were correctly set out by O'Flaherty J in Bula Ltd
v Tara Mines Ltd [1994] 1 ILRM 111 and Quinlivan v Conroy [1999] 1 IR 271.
[2001] 1 IR 682 at 703
9. Conclusion

Documents which are in the possession, custody or power of a party must be
discovered. A document is in the power of a party when that party has an
enforceable legal right to obtain the document.

The documents in issue in this case are not in the possession, custody or
power of the defendants and the defendants have no enforceable legal right
to obtain them. Accordingly, the plaintiff is not entitled to the discovery
sought. I would allow the appeal.

MURPHY J

I agree with the judgment of Denham J.

MURRAY J.

I also agree with the judgment of Denham J.

Solicitors for the plaintiff: Ivor Fitzpatrick & Co.
Solicitors for the defendants: Ferrys (in the High Court); Duncan Grehan &
Partners (in the Supreme Court).
Siobhán Stack, Barrister