Cardinal withdraws High Court challenge

A HIGH COURT challenge by Cardinal Desmond Connell over the right of access to documents by a commission of investigation into child abuse in the Dublin archdiocese was dramatically withdrawn yesterday.

The case was before the High Court yesterday when it was expected that a date would be set for the full hearing of the cardinal’s challenge to the Dublin Diocesan Commission of Investigation examining 5,586 documents over which he had claimed legal privilege.

When the case was called, however, Roddy Horan SC, for the cardinal, told Mr Justice Iarfhlaith O’Neill that he was withdrawing the application.

Brian Murray SC, for the commission, applied for costs of the case and the judge granted the application, which was not opposed by the cardinal’s team.

Mr Justice O’Neill granted costs and the case was withdrawn.

The commission is investigating the handling of complaints or claims of abuse against a representative sample of 46 priests of a total of 102 priests found to fall within its terms of reference.

Cardinal Connell claimed 5,586 documents handed over by his successor Archbishop Diarmuid Martin on January 15 last to the commission are either legally privileged or confidential.

He has also complained the documents that the commission has sought include documents relating to matters concerning priests outside the representative sample of 46. The commission had undertaken not to examine the documents pending the outcome of the full hearing.

The commission, chaired by Judge Yvonne Murphy, has 5,586 of 66,583 documents given to it by Archbishop Martin following an order last December from the investigating body. The commission wants the documents so they can be examined in order to decide whether the claim of privilege is validly made. It has expressed surprise about the extent of legal privilege claimed over documents relating to insurance matters, including documents concerning steps by the Dublin archdiocese to put an insurance policy in place against claims of child sex abuse.

Cardinal Connell had claimed the commission had acted unfairly towards him and had not informed him about discussions with the archdiocese as to how claims of privilege should be addressed. The commission rejected the claims and said it was only recently that Cardinal Connell had raised any claim of personal privilege in the documents, as distinct from any claim of privilege resting in the archdiocese.

Following orders of discovery by the commission from June 2006, Archbishop Martin, in November 2007, swore a statement of discovery listing thousands of documents, including the 5,586 documents over which privilege was claimed. An agreement was later reached between the commission and Archbishop Martin on how those documents would be assessed to verify whether privilege applied or not. The proposed procedure included having the documents examined by a retired judge. However, after the archdiocese was unable to reach agreement with Cardinal Connell and others on the proposed verification procedure, the commission, concerned about delay in the discovery process, ordered the production of all of the documents to assess privilege. On January 31 last, after the commission refused to give an undertaking to Cardinal Connell’s solicitor not to examine the documents pending the outcome of proposed legal proceedings, the cardinal secured leave from the High Court to bring a judicial review challenge to the handover, and proposed examination, of the documents.

He also secured an interim injunction restraining the commission examining the documents and the matter was returned to yesterday.