Frizzell (Patrick) v PSNI
| Jurisdiction | Northern Ireland |
| Judge | McAlinden J |
| Judgment Date | 27 September 2019 |
| Neutral Citation | [2019] NIQB 90 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 27 September 2019 |
1
Neutral C itation No: [2019] NIQB 90
Judgme nt: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McA11073
Delivered: 27/9/2019
IN THE HIGH C OURT OF JUSTICE IN NORTHERN IR ELAND
________
QUEEN’S BENCH DIVISION
________
PATR ICK FRIZZELL
-v-
PSNI
________
McALINDEN J
[1] This is an application brought by the Plaintiff in this action for an o rder
pursuant to Orde r 24 Ru le 17 of the Rules of the Court of Ju dicature and unde r the
inherent ju risdiction of the court for permissi on for the disclosure of docu ments
which will be provided by way of discovery by the Defendants in this lead case, with
permission being sought for such disclosure to be provided to the other Plaintiffs
and their legal representatives in the linked mid-Ulster murder cases, whether
issued or pending.
[2] The summons was issued on 6 March 2019 and the summons is supported by
an affidavit which was sworn b y Mr Anurag Deb dated 6 March 2019. I have
carefully considered the conte nts of the affidavit and the paragraph that I wish to
draw to the attention of the parties is paragraph 10 and it reads as follows:
“At the review on 7 September 2018 at which I
attended counsel for the plaintiff, Mr Justice Maguire
directed that three cases Frizzell, Dillon and
McKearney should progress as the Vanguard cases.
The other actions were deemed non-Vanguard cases
and would be able to proceed to a certain point before
being stayed. Mr Justice Maguire designated the
actions in this way due to the submission by the
defendants that it would be in effect impossible for
discovery to proceed across all the mid-Ulster actions
and that there was a need to have certai n actions
progress ahead of the others, inter alia, due to the
2
volu me of d isco very and the number of cases in the
group. Those actions were to cover the main issues
across the wider mid-Ulster actions.”
[3] This paragraph sets out the factual background to the making of the
application in this case. I als o refer to a helpful position paper which was presented
by the representatives of Mr Frizzell and the Defendants at the review on 22
February 2019. This sets out and expands the factual matrix underlying the
application in this case. I do not co nsider that it is ne cessary to quote from that
document. I si mply refer to it and I pl ace emp hasis on the fact that it is an agreed
document.
[4] This application is brought pursuant to Order 24 Rule 17 and under the
inherent jurisdiction of the court and Order 24 Rule 17, for the avoid ance of any
doubt, states that:
“Any u ndertaking whether express o r impl ied not to
use a docu ment for any purp oses other than those of
the proceedings in which it is disclosed shall cease to
apply to such docume nt after it has been read to or
by the court or referred to in o pen court unless the
court fo r spe cial reasons has otherwise orde red on
the application of the party or of the person to whom
the document belongs.”
This provision sets out the implied undertaking which is owed by any person
receiving documents disclosed or discovered in the course of proceedings and it
quite clearly states that this undertaking persists and remains in place until such
time as the document is read to or by the co urt or re ferred to in open co urt. It is
quite cl ear that the docu mentati on which i s the subject of this application has not
been in any sense referred to or by the court or opened to the court in the course of
the Frizzell proceedings and, therefo re, the implied undertaking clearly applies to
the documentation which i s the subje ct of this application.
[5] The legal basis for the relaxation of or any excep tion to that undertaki ng is
contained, set out and explaine d in two important decisions. The first decision is a
decision of the House of Lords in C rest Homes plc v Marks [1987] 2 All ER 1074 and
the second decision is a more recent first instant case of the High Court in England
and Wales, ACL Netherlands and Others v Lynch and Hussain [2019] EWHC 249 (Ch)
and I will re fer to both those case s at this junctu re. The first p assage from the speech
of Lord Oli ver in Crest Homes that I wou ld wi sh to refer to is set out at page 1078 at
letter e and it states:
“The implied undertaking is one which is given to the
court ordering discovery and it is clear and is not
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