O’Q -v- Judge Buttimer
High Court
Judgment was given by Mr Justice John Edwards on January 26th, 2009.
Judgment
The notes made by a Circuit Court judge during the hearing of a case do not form part of the record of the case and cannot be the subject of an order for discovery. An order for the discovery of the judge’s notes had been made by the master of the High Court.
Background
The case arose from a family law case in which there was a dispute between the applicant husband and the wife, a notice party in these proceedings, about the interpretation of the Circuit Court judge’s order.
There were three hearings in 2005 connected with the proceedings, and they included the issue of the recognition of a foreign divorce. This was refused, and the decision of the judge, Judge Olive Buttimer, was challenged by the husband in judicial review.
There was a separate hearing in June 2005 on the issue of maintenance for the couple’s three children, where there was an existing order for the payment of €1,000 a month. The eldest child was due to enter third-level education. The husband offered to pay all his college expenses, along with €667 a month for the other two children.
The wife sought €500 for each of the other children, a total of €1,000, on top of the college fees. According to the husband’s affidavit, the judge said that his offer was very fair and ruled that he should pay the college expenses and €667 for the other two children, while paying €1,000 until the eldest child started college.
He paid the €1,000 a month until the child started college in September 2005, when he paid his expenses, including €333 a month towards his living expenses, and €667 for the two younger children.
In October the wife challenged his interpretation of the judge’s ruling, claiming that she had ruled he should pay €1,000 for the two younger children.
The husband wrote to the county registrar seeking clarification of the issue. The matter was listed before Judge Buttimer on December 15th.
According to his affidavit, the judge first supported his interpretation, then read through the case file which referred to the judicial review on the foreign divorce, and then she read out a statement echoing the words of the wife’s solicitor on the maintenance issue, that is, that he should pay €1,000 in addition to the college expenses.
He said at this hearing that he could not afford this, and the judge said he should apply to reduce maintenance due to a change of circumstances, but that it should be listed before another judge due to the judicial review.
The husband then sought the quashing of the maintenance order by way of judicial review, failing in the High Court.
He then succeeded in obtaining leave from the Supreme Court to seek an order of certiorari by way of judicial review.
He sought discovery of Judge Buttimer’s notes of the June 2005 hearing, at which the original maintenance order was made, in pursuit of the judicial review proceedings.
The master of the High Court granted the order for discovery in October 2008 and Judge Buttimer appealed this order.
An affidavit from a solicitor in the Chief State Solicitor’s office stated that the respondent was not taking any part in the proceedings, and the only potential legitimus contradictor was the notice party, who had not filed any papers in opposition.
She also said the master was not entitled to make the order, as there was no affidavit grounding the application.
She said that there had been no request for voluntary discovery. She further said that it was inappropriate to order discovery in circumstances where it could not aid the applicant.
She said that the personal notes taken by a judge did not form part of the court file and were outside the scope of any application for discovery.
The applicant contested these points, stating that the entire case had evolved “due to misinterpretations, misunderstandings and ambiguity and in an in camera court hearing where personal recordings are not accepted as legitimate records, then the only true record of what was ruled by the judge is indeed the judge’s notes themselves”.
He referred to the constitutional statement that all citizens are equal before the law.
Decision
Mr Justice Edwards pointed out that the Supreme Court had ruled that citizens were equal before the law “as human persons”, and this was for what they were themselves, rather than any activities, trades or pursuits in which they might engage.
“However, the entitlement of a judge on the bench to administer justice does not derive from any facet of his or human personality but rather from the fact that the judge is a constitutional officer appointed in accordance with Articles 34, 35 and 36 of the Constitution,” he said.
“It follows [from Articles 34, 35 and 36] that a judge, when acting as a judge, is not equal to, but rather is in a different position to, other citizens and indeed other public servants,” he said.
“He or she has a constitutionally guaranteed independence and freedom of action, subject only to the Constitution and the law, and this is something that must be vigorously defended in the public interest.”
He also said that judges had immunity from suit in respect of things said and done by them as judges.
“In the view of this court a strong argument can also be made in favour of the existence of a constitutional immunity or privilege rendering a judge’s notes non-compellable in any proceedings,” he added.
The order made by the master of the High Court was objectionable on a number of grounds, he said. It represented an impingement on the judge’s constitutionally guaranteed independence.
A judge’s notes were a personal aide memoire and intended only for the judge’s use. There was no requirement that they be kept according to any established protocol.
The difficulty with making them available to a third party was that they would frequently require deciphering or explanation by the note-taker. This raised the spectre of a judge having to explain, and possibly being cross-examined on, his or her notes, which was inimical to the concept of judicial independence.
The master had ordered that the respondent should make the discovery personally.
The Supreme Court had expressly stated that it is undesirable for a judge to swear an affidavit concerning the exercise of his or her judicial function.
If the notes were discoverable, and the court had the gravest doubts about this, the appropriate person to swear the affidavit of discovery would be the court clerk or registrar.
If the discovery of a judge’s notes were theoretically possible, “it could only happen in the most exceptional circumstances”.
It was difficult to conceive of a case where it might be necessary, and certainly not here.
Although this case was heard in camera, the applicant was present, the notice party (the wife) was present, her solicitor was present and the court clerk was present, all of whom could depose what the judge said in reading out her notes.
The applicant was arguing a procedural impropriety as part of his judicial review proceedings, and this did not need discovery. The issue of whether or not the judge should have excused herself could also be established without discovery.
He allowed the appeal against the master’s order.
The full judgment is on www.courts.ie
Applicant appeared in person; opposing affidavits filed by Emma Golden in the Chief State Solicitors Office