Mary Johnston (plaintiff) v Church of Scientology Mission of Dublin Limited, John Keane, Tom Cunningham, and Gerard Ryan (defendants).

Practice - Discovery - Documents - Sacerdotal privilege - Communications between a counsellor of the Church of Scientology and a member of that Church - Whether such communications privileged - Whether any privilege could be waived by the member.

Documents - Discovery - Privilege - Contract between plaintiff and defendants containing confidentiality clause - Whether contractual clause can oust the jurisdiction of the court to order discovery.

Documents - Discovery - Documents having being transferred to the first defendant's sister institution in the United Kingdom - Whether such documents were within the procurement of the defendants.

The High Court (Mr Justice Geoghegan); judgment delivered 30 April 1999.

There is probably an unwaivable privilege attaching in the Irish common law to the seal of the confessional, but that privilege is not capable of development so as to attach to communications between a member and counsellor of the Church of Scientology. There could also be situations where privilege attached to counselling by a priest or minister, or to secular counselling, but it would always be capable of unilateral waiver by the person being counselled. Furthermore, the jurisdiction of the courts could not be ousted by the contract existing between the parties, particularly in circumstances where the plaintiff's claim was one where it was sought to repudiate that contract. In circumstances where documents had been sent out of the jurisdiction but prima facie seemed to have been received by another institution, linked to the first defendant, as agent of the first defendant, those documents were within the procurement of the defendants.

Mr Justice Geoghegan so held in granting an order for further and better discovery of documents by the defendants.

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

Mr Justice Geoghegan said that this was a motion for further and better discovery brought by the plaintiff against the defendants in which the plaintiff sought discovery of those documents in respect of which the defendants had claimed privilege. The most important issue raised at the hearing was that of sacerdotal privilege in relation what were described by the defendants in their affidavit of discovery as "counselling notes". Those notes arose from so-called "spiritual practices" of Scientology known as "auditing" and "training". The fourth defendant had said in an affidavit that these were conducted on a one-to-one basis and he had drawn a comparison between the relationship that would exist in other religions between minister and parishioner. The defendants were also claiming that one of the beliefs of the Church of Scientology was that for an auditor to disclose any of the communications he had with the other person, even if that person was waiving any privilege in relation to them, would leave him liable to eternal damnation, and this was analogous to the claims made by the Roman Catholic Church in relation to priests breaking the seal of confession.

Mr Justice Geoghegan also said that the defendants made two alternative arguments. First, they said that there was a public interest in the confidentiality of the communications such as would outweigh the normal public interest in the disclosure of all relevant evidence. Secondly, the defendants claimed that the plaintiff was bound by a written contract to preserve the confidentiality. These arguments overlapped to some extent.

Mr Justice Geoghegan said that only the cases Cook v Carroll [1945] IR 515 and ER v JR [1981] ILRM 125 were of assistance to him. A great deal of what Mr Justice Gavan Duffy said in the former case was obiter, and the case had only decided 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 the latter case, Mr Justice Carroll held that communications made to a minister of religion who was acting as a marriage counsellor were privileged in that the four conditions set out by Mr Justice Gavan Duffy in Cook v Carroll were present. She had followed, however, the 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.

Mr Justice Geoghegan said that this decision was in one sense an extension of the principle laid down by Mr Justice Gavan Duffy 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. The waters appeared to have been muddied to some extent in Cook v Carroll by the references to the confessor penitent relationship in the sacrament of confession and by references also to the then existing Article 44.1.2 of the Constitution, referring to the special position of the Roman Catholic Church. Mr Justice Gavan Duffy appeared to have been of the view that there were constitutional and legal effects arising out of that so-called special position. 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 Mr Justice Gavan Duffy said was the pre-Reformation common law protecting the seal of the confessional even against waiver by the penitent.

However, Mr Justice Geoghegan said that that was merely an opinion he was expressing because he did not think that the defendant could rely on an alleged analogy with the seal of confession, and the issue did not arise in this case. No evidence was produced in the affidavits or in court, even though he had requested it, by way of theological manuals or otherwise, 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 was a religion or not remained controversial throughout the world and it was not sensible to suggest that it could be determined by sundry decisions relating to tax. Mr Justice Geoghegan said that the absolute unwaivable privilege which probably does attach in Irish common law to the priest penitent relationship was probably sui juris and was not capable of development in the manner suggested.

Mr Justice Geoghegan said that, like Mr Justice Carroll, he did accept that there could be situations where a privilege might arise in relation to counselling by a priest or minister, but any such privilege might always be waived by the person being counselled and to that extent he was not prepared to follow the views expressed by Mr Justice Gavan Duffy in relation to counselling by a parish priest of a parishioner. Indeed, it was difficult to see why a relationship between a parish priest and parishioner was any different from a relationship between a priest or clergyman of any kind and a person coming from anywhere being counselled by him. Furthermore, although Mr Justice Carroll had left the question open, Mr Justice Geoghegan said that he thought that in modern times, when all kinds of secular counselling was available, and in particular marriage counselling, there might 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 had waived any privilege alleged to exist and the plea of sacerdotal privilege could not be upheld.

Turning to the argument of the defendant based on contract, Mr Justice Geoghegan said that the plaintiff had signed a document dated 11 September 1993, and headed: "Church of Scientology Mission of Dublin 9 hereinafter referred to as `the Church': Religious Services Enrolment Application / Agreement and Release." Paragraph 7 provided that the church might compile a folder containing its notation of the plaintiff's spiritual progress, as well as other ecclesiastical files. The contents of the folders were to be kept confidential from persons who lacked the ecclesiastical authority to gain access to such documents, including the person whom the files concerned and were the subject of priest/ penitent privilege. The plaintiff also gave up any rights of ownership, possession and control, copying or viewing of the folder and the other files concerning her, both with respect to the files themselves and the information contained therein.

Mr Justice Geoghegan said that he was satisfied that a private contract inter partes could not oust the jurisdiction of the court to order discovery of the documents. Citing Murphy v Dublin Corporation [1972] IR 215, at 233, and the judgment of the then Chief Justice Mr Justice Finlay in Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] 1 IR 468, at 475, he said that the power to compel the attendance of witnesses and the production of evidence was an inherent part of the judicial power of the Government of the State and was the ultimate safeguard of justice in the State.

Mr Justice Geoghegan added that he would, in any case, interpret the contractual obligation as an obligation not to make a voluntary disclosure. It did not cover an obligation not to make a compulsory disclosure. Even if there were cases where a court might refuse to make an order for discovery because of particular and special contractual terms between the parties (which he did not necessarily accept), he did not believe that this would ever be done in a case where effectively the contract was being repudiated in the action itself. The plaintiff's fundamental claim, though it might prove to be entirely false, was that she was "brainwashed" in circumstances where she was not a genuinely free agent.

For all these reasons, Mr Justice Geoghegan said that the contractual terms could not be relied on to prevent an order for discovery being made in relation to the documents referred to in that contractual term. He also rejected the argument that there was 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 were correct, then she was improperly and 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 was in the greater public interest.

Finally, Mr. Justice Geoghegan said that there was another argument for non-disclosure being made. It had been suggested by the defendants that some of the documents were 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 UK.

Mr Justice Geoghegan said that he did not find it credible that these documents were not procurable, and he thought it was likely that this was being used as a method of defeating discovery in the Irish courts. The plaintiff had joined the Mission of Dublin in the Church of Scientology, 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 fourth defendant had sworn an affidavit in 1997 in which he had said that he was making arrangement for documentation held in the UK to be returned to the Dublin Mission. Mr Justice Geoghegan said that this clearly reinforced his view that those documents were within the procurement of the defendants.

The defendants had argued that even if it were true that, on request to England, documents would be returned, this did not mean that they were within the procurement of the defendants within the meaning of the Rules of the Superior Courts 1986. Mr Justice Geoghegan said that he accepted that proposition in circumstances where the requesting party and the retaining party had no institutional link with each other and were fully at arm's length with each other. In such a case, the test was whether the documents could be recovered by action and not whether as a matter of probability they would be voluntarily handed over on request. But he did not accept that this was the position where two branches of the same institution were involved.

Mr Justice Geoghegan made an order in terms of the notice of motion save that he limited discovery to those documents which referred to the plaintiff.

Solicitors: Ivor Fitzpatrick & Co (Dublin) for the plaintiff; Ferrys (Dublin) for the defendants.