Owner fails to get CCTV footage of burnt-out pub
By a two-to-one majority, the Supreme Court allowed the commissioner’s appeal against a High Court decision ordering him to hand over the items to publican Seamus McLaughlin for the purposes of his civil action against his insurer, Aviva, over its failure to pay out under an insurance policy for his premises, destroyed by fire in February 2009.
The commissioner had claimed public interest/executive privilege and investigative privilege over the materials pending a decision by the DPP on a Garda file — sent to the DPP in May 2010 — following an investigation into the fire.
The DPP has not preferred charges and no estimate has been provided as to when a decision might be taken, Mr Justice Adrian Hardiman said yesterday.
Mr McLaughlin has sued Aviva Insurance (Europe) for €3 million over failure to pay out under a policy following the fire at his Waterfront Bar and restaurant, James Street, Moville, on February 1, 2009.
Aviva had refused to indemnify him on grounds including its belief he was involved in setting fire to the pub in an attempt to obtain benefit under the policy.
Last February, the High Court ordered that CCTV material recovered from the Waterfront premises on February 13, 2009, and forensic reports related to the premises must be given to Mr McLaughlin, after finding they did not attract the public interest privilege claimed.
In his appeal, the commissioner argued the privilege claimed was not permanent and was to last only until the DPP decided if there would be a prosecution.
Mr McLaughlin argued the commissioner could not claim privilege when Aviva had had the privileged material for a year and a half and had used it in its defence to his claim.
In her judgment, Ms Justice Susan Denham said an important characteristic of this type of privilege is that it exists for a limited time — until a criminal trial had concluded or the DPP decided not to prosecute.
The items over which privilege was claimed were required for civil proceedings between Mr McLaughlin and Aviva and also for a criminal investigation, she said. Documents that are a material part of a criminal investigation and relevant to a prosecution have a public interest privilege.
The onus to establish privilege lay on the person seeking it — in this case, the commissioner — and she was satisfied the CCTV recorders and forensic reports were privileged pending a decision whether to prosecute or not.
Ms Justice Denham said the items are privileged until a decision had been made to prosecute or not. If there was no prosecution, the privilege ceased and, if there was, the material would be disclosed in the book of evidence. If materials were destroyed as part of a proposed “cannibalisation” process, that might create difficulties, she said.
