A full High Court hearing is expected to take place later this month of the dispute over documents between Cardinal Desmond Connell and the Government-appointed commission investigating the handling by the cardinal and others of complaints of child abuse against clergy in the Dublin archdiocese.
Mr Justice Iarfhlaith O'Neill said yesterday the court would do its utmost to facilitate an early hearing as he was conscious the work of a public tribunal "may be held up".
The commission is investigating the handling of complaints or claims of abuse against a representative sample of 46 priests of a total 102 priests found to fall within its terms of reference.
Pending the outcome of the full hearing, the commission, chaired by Judge Yvonne Murphy, has undertaken before the court not to examine some 5,586 of 66,583 documents given to it by Archbishop Diarmuid Martin, Cardinal Connell's successor as archbishop of Dublin.
Cardinal Connell claims the 5,586 documents - handed over by Archbishop Martin to the commission on January 15th last following a commission order of December last - are either legally privileged or confidential. He has also complained that the documents which the commission has sought include documents relating to matters concerning priests outside the representative sample of 46.
The commission says it 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, it is understood, documents concerning steps by the Dublin archdiocese to put an insurance policy in place against claims of child sex abuse.
Cardinal Connell has 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 has rejected such claims and has said it was only recently that Cardinal Connell had raised a 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 an affidavit 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, ultimately ordered the production of all of the documents to assess privilege and Dr Martin produced the documents on January 15th last.
Last Thursday, 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, Cardinal Connell, represented by Roddy Horan SC, secured leave 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 when Brian Murray SC, for the commission, said his side had received the papers in the case and would serve full opposition documents by Thursday and wanted the case adjourned to next Monday with a view to fixing a hearing date.
Counsel said the forthcoming application to continue the injunction could be treated as the full hearing. Mr Horan, for Cardinal Connell, said he agreed with the procedure proposed. Shane Murphy SC, representing Archbishop Martin, said he wanted to see all the legal papers before deciding whether to apply to be joined as a notice party. Mr Horan said the papers would be given to Dr Martin's side.
Mr Justice O'Neill indicated the court would facilitate an early hearing and adjourned the matter to Monday next.
