From: Palinurus Newsgroups: alt.religion.scientology Subject: JOHNSTON v CHURCH OF SCIENTOLOGY AND Others 2000/232 & 2001/248 TRANSCRIPT Date: 20 Feb 2004 10:36:59 -0500 Message-ID: JOHNSTON v CHURCH OF SCIENTOLOGY AND Others THE SUPREME COURT 2000/232 & 2001/248 TRANSCRIPT 7 November 2001 PANEL: Keane CJ, Murphy, Murray JJ. JUDGMENTS: Ex-tempore Judgment: Keane CJ In this case there are two appeals before the court, one arising out of an order by Mr Justice Johnson refusing to order further and better particulars of matters referred to in the plaintiff's statement of claim, and the other an appeal from an order of Mr Justice Butler in which he declined to accede to an application on behalf of the defendants to strike out the plaintiff's claim because of what was alleged to be a failure to comply with orders for discovery previously made. I propose to deal firstly with the matter of particulars and it is to be said at once that it is most unfortunate in my view and I allocate no particular responsibility to anyone at this stage, except to say merely both parties have contributed to it and in perhaps varying degrees, that this action should still be pursuing such a laborious and protracted course through the High Court and in this Court because it relates to matters which happened and there does not appear to be any serious dispute about this, as far back as January 1992 ie, coming up to close to ten years ago. Although the proceedings were commenced by the plaintiff by plenary summons in December 1995, nearly six years ago at this stage, it has still to come to trial. That would be deplorable but perhaps explicable in some cases. In a case such as the present where the issues between the parties are in one way relatively straightforward issues -they raise somewhat novel principles of law - but they certainly have not required, in my view, the immense panoply of particulars, discovery and so on and the disputes between the parties and the interlocutory applications and the appeals to this court which appear to have resulted but and have only resulted in the generation of the vast amount of documentation of a quite disproportionate amount in relation to this case, immense delay and one can only suppose also greatly increased costs. At the end of the day, it is the actual delay in the resolution of the issues which from nobody's point of view can ever be conducive to the interests of justice which is much to be regretted. I have indicated that the legal issues are unusual both in this court and in the High Court and it is not right at this stage to say too much about them lest one should in any sense appear to be prejudging the issues between the parties which should be exclusively a matter for the High Court judge when the case does eventually come, one hopes in the relatively near future, to a hearing. There are certain matters which are obviously not in dispute between the parties. It is not in dispute that the plaintiff is a business woman in her mid thirties who came into contact with the defendants who are the Church of Scientology and persons associated with the Church of Scientology. Obviously, again it would be, I take it, common case between the parties that whatever the relationship between the plaintiff and the Church of Scientology may have been, ultimately it proved to be a fractious relationship and one that ultimately that has led to these proceedings. In these proceedings and in the statement of claim the plaintiff made certain allegations against the defendants. She said that in or about the month of January 1992 the third named defendant ie, a Mr Gerard Ryan, who is one of the persons concerned in the Church of Scientology he represented to her that certain courses would greatly improve the plaintiffs sense of well being and that he further represented to her that she should have a personality test and exerted pressure on the plaintiff to have such a test. There is a reference there to the plaintiff at that time being in an emotionally liable condition that is corrected later to an emotionally labile condition. There is then an averment that she submitted to a personality test, the evaluator of which was the second named defendant in these proceedings, a Mr Keane. Having evaluated the plaintiffs personality over a period of several months the second and third named defendants, pressurised the plaintiff into subscribing for what was described as a "purification rundown and training routine" at a cost of L1,200.00 and that notwithstanding the plaintiff's protests that she did not wish to engage in such a course and did not have the resources to do so the second and third named defendant brought such pressure to bear upon her that she felt obliged to subscribe for such a course and to pay the said monies to the defendants. There is then an allegation that she paid certain sums and then there is a further allegation that in the months following the completion of that particular procedure the defendants, their servants or agents exerted great pressure upon the plaintiff to subscribe for other courses conducted by the defendants and to pay over monies to the defendants and there are then references to monies having been paid over and a reference to the plaintiff having expressed reluctance to engage in these courses or pay monies or become involved in the Church of Scientology to the defendants having brought what is described as great pressure upon the plaintiff who said that in particular the representative of the defendant would telephone the plaintiff regularly at home and at work and would accuse her of being selfish, and thinking only of herself and one recruiter acting on behalf of the first named defendant sought to persuade the plaintiff to sell her business in Dublin and to use the proceeds of that sale to involve herself further into the Church of Scientology. There are allegations as to pressurising the plaintiff into subscribing for a particular course on a ship in the Caribbean and to pay a deposit. The plaintiff sets out in her statement of claim particulars amounting to just under L2,000.00 and then having given credit for monies repaid so that she has paid out a sum of L1,648.06 and she says that in or about the 1st May 1994 she resolved to leave the Church of Scientology. She communicated her decision to the defendants and requested that they would not bring pressure to bear on her to change her mind but the defendants brought great pressure (I am still quoting the statement of claim), to bear upon the plaintiff to change her mind and harass the plaintiff by constantly phoning her at her work and at home. The fourth named defendant wrote a number of times to the plaintiff in a manner which the plaintiff found distressing and threatening. It goes on to say that by reason of the matters aforesaid, the defendants their servants or agents had been guilty of exerting undue influence over the plaintiff, had been guilty of a conspiracy with each other and others to extract monies from the plaintiff and to be guilty of misrepresentation and have breached the plaintiff's constitutional rights to bodily integrity, mental and psychological integrity and personal privacy. The statement of claim goes on to give particulars of injuries which she claimed she suffered and it is unnecessary for the purpose of this judgment to go into detail other than to say there are fairly detailed particulars given them of various physical and mental or psychological disturbances or traumas which the plaintiff says that she suffered, of the effect that this had on her business life, on her social, domestic, recreational life and so on, her relationship with her family and friends. All of these injuries she claims are the consequences of the activities of the defendants in relation to the plaintiff referred to at an earlier stage in the statement of claim and there is a separate and quite independent claim for libel concerning a letter dated 31st October 1994 addressed to a journalist with Independent Newspapers. With one exception nothing arises out of that insofar as this motion for particulars is concerned. That in summary is the plaintiff's claim. In the relief that she seeks, she seeks a declaration that the payments made to her ought to be set aside as having been procured by the undue influence of the first named defendants and an order to repay that. That of course is a plea and raises as a cause of action which is well known to the law and established for many centuries indeed that persons who can be shown to have paid over money or transferred property because of undue influence exerted upon them by persons who occupy a particular relationship such as a person in a religious capacity can be ordered to repay the money or property to the plaintiff if indeed it has been shown to have been procured by the undue influence of the person occupying a particular relationship to the person concerned which in the view of the law would give rise to a presumption of undue influence. So far as that is concerned, whether it succeeds of not of course it is entirely a different matter, but that is a plea and it raises a cause of action which is known to the law. The claim for damages for conspiracy, misrepresentation and a breach of the plaintiff's constitutional rights raises matters which are in quite a different category because the breach in particular of the plaintiff's constitutional rights to bodily integrity and to privacy are alleged to arise from the various instances of pressure and it may be that the plaintiff would say unfair and undue pressure brought to bear in the course of all of these events which she says and this is her case, had given rise to all the physical and psychological and other consequences for her life which she sets out in the statement of claim. That is clearly a somewhat unusual case. That is not to say that the case will not succeed. It is simply to say that it is certainly a case, and indeed certainly conceded by Mr Cush to be an unusual case but one which he says and one can understand this that his client wishes to bring on to hearing and to have decided by the High Court and of course that is her privilege so to do. However, I am satisfied that at least in some respects the defendant, and I bear in mind that the defendants left matters go for quite a long time before they raised any particulars or raised the particulars which they now say they are entitled to but in relation to some aspects of the statement of claim, I am satisfied that the defendants are entitled to further particulars at this stage as to what precisely is being alleged against them. In relation to paragraph 6 there is the first reference to pressure being exerted upon the plaintiff to have such tests. Then when we come to paragraph 7 there are references to the defendants pressurising the plaintiff and then bringing further pressure to bear upon the plaintiff so that she felt obliged to pay the monies to the defendants. Further in paragraph 9 reference is made to the defendants having exerted great pressure upon the plaintiff to subscribe for other courses. In relation to those, in my view the defendants are entitled to particulars indicating what form this pressure is alleged to have taken. How the plaintiff responds to that is, of course, a matter for her, but it seems to me reasonable that the plaintiff should be asked to indicate what form that pressure is alleged to have taken, because it is clearly at the heart of the plaintiff's case. That, I emphasis, does not necessarily mean that the plaintiff is obliged to give particulars down to the day, the minute or whatever, that a particular phone call was made to her or a particular letter written to her. If you come to paragraph 9 of the statement of claim you see the precise allegation of pressure being particularised where it says in particular representatives of the defendants would telephone the plaintiff regularly at work and at home and have accused her of being selfish and of thinking only of herself. There the defendants in my view know the case that is being made against then in relation to that and it does not really bring matters particularly further to say that this happened on the 1st November 1990 or on the 3rd February 1991. It is an allegation of a course of conduct pursued over a particular period of time in the form of telephone calls to her work or to her home. In the earlier part of the statement of claim where that same phrase is used, exerting great pressure or bringing pressure to bear upon the plaintiff, it is not particularised in that fashion and in my view the defendants are entitled to have particulars given as to what is the nature of the pressure in those circumstances alleged to have been brought against the plaintiff. In other respects, I am satisfied that the defendants in the particulars they have sought are really seeking matters which really only relate to evidence which will have to be given by the plaintiff at the trial, if she is to make out in evidence the pleas she has brought against the defendants. To that extent and to that extent only, in relation to the motion for particulars I would allow the appeal and substitute for the order of the High Court judge an order requiring the plaintiff to furnish those particulars which I have indicated within two weeks from today's date, because it would be a matter of great concern that the furnishing of those particulars should not further or in any way delay the hearing of this action, which the court has been informed should be heard early next term. That brings me to the second motion brought by the defendants to strike out the plaintiff's action on the grounds that she had failed to comply with an order for discovery made in the High Court. The order for discovery made in the High Court which led to the defendants bringing this motion which was unsuccessful in the High Court was an order made by consent. While it was made by consent there is not the slightest doubt and there can be hardly any controversy that it was an order made in an extremely wide ranging form. It was made in a form which embraced an enormous number of categories of different documents set out in the schedule to the notice of motion on which it was based. It should have been obvious from the very nature of the notice of motion and the schedule to the notice of motion that in respect of many aspects the plaintiff might well be saying that I simply had not got these documents or I have only very limited documents because it is enormously wide ranging and requires the plaintiff effectively to discover documents relating to her personal life, to her business life, to her social life and it covers a huge quantity of correspondence between a vast number of people. It covers documents relating to other religious movements and I am only just indicating parts of it. It includes all medical and counselling records on a huge range of matters, all records, notes in relation to any abortions obtained by the plaintiff because the defendants were apparently aware that she had had two abortions, medical records, notes, referrals and similarly correspondence relating to at least the last five years of all diaries maintained by the plaintiff and so on. I do not find it necessary to particularise these. It is sufficient to say that when the trial judge came to deal with the notice of motion requiring that the plaintiff's claim should be struck out because of failure to comply with this order for discovery he quite rightly in my view approached the case on the basis that it was an extraordinarily wide ranging order for discovery and in applying the principles that he did and correctly, in my opinion, he quite rightly took into account the nature of the order of discovery made. The court has a jurisdiction and there is no issue about this, to strike out proceedings or to strike out a defence filed by a defendant where it is satisfied that the extent of the non-compliance with the court's order is such that it is not possible to have a fair trial as a result and of course that may also arise where it appears from the affidavit that some particular documents or some category of documents have been in fact destroyed by the party concerned, whether innocently or whether deliberately in order to interfere with the further conduct of the case. There is no doubt that the courts enjoy such a jurisdiction but the law is stated as follows by Mr Justice Barrington speaking for this court in the case of Murphy -v- Donoghue Limited in which he said: "undoubtedly cases may exist where one party may not be able to get a fair trial because of the other party's wilful refusal to comply with an order for discovery. In such cases it may be necessary to dismiss the plaintiff's claim or to strike out the defendants' defence and such cases will be extreme cases". As Chief Justice Hamilton put it in Mercantile Credit Company -v- Heelan, the powers of the courts to secure compliance with the Rules and Orders of the court relating to discovery should not be exercised so as to punish a party for failure to comply with an order for discovery within the time limited by the order. Applying those principles and it is not disputed by Mr Trainor on behalf of the defendants that they are the principles which must be applied, we undoubtedly find that - I take the categories as they have been set out quite helpfully towards the end of today's hearing by Mr Trainor's solicitors in a schedule - there are documents relating to abortions. There are documents relating to these two abortions that she had. She has not said that she has declined to produce them because they are not relevant although it must be said that their relevance to the issues in this case appear to me to be very limited insofar as they arise at all. But she says she has not got any such documents and we are in no position to say in this court that there were any such documents. Similarly in relation to the whole matter of financial records, which covers the next four items in this schedule the plaintiff has made voluminous discovery and in fact at one stage it appeared to be indicated that she was in a sense "overdoing the discovery", and producing material which could not possibly be relevant. She has undoubtedly disclosed a very considerable number of financial statements and she says that this is all that she has. When a plaintiff deposes to that effect this court has repeatedly said that is a compliance with an order for discovery. It may come as a surprise and the other party may well say, well I think he/she must have other documents, they may say that, but if the plaintiff says on oath that he or she has not got the documents then that is a compliance with the order for discovery and the person can have no complaint. If, of course, the affidavit of discovery shows that the party making it misunderstands what they are supposed to produce or if it is clear from the very terms of the affidavit that there are other documents which are still not being discovered, that is a different matter and the court may have to make an order for further and better discovery because of the manner in which the plaintiff has approached it. Here the plaintiff has disclosed a considerable volume of business matters and she says that is all she has and that in my view is the end of that matter. She also says that she had personal diaries but she discarded them at the end of each year as that particular year came to an end and that she simply does not have them any more and what she has not got, she cannot produce. I do not in any way equate this to the situations which arose in English decisions to which we were referred by Mr Trainor, the authority and the common sense and the good law of which I would not for a moment dispute, but which related to documents which in each case were crucial to the action concerned and which were no longer in existence or which in one instance were brought to light as a result of the motion being brought to strike out the proceedings or the defence because of the failure to produce them. This is a wholly different situation. If the business diaries which it is alleged she should have produced or the personal diaries which it is alleged she wrongfully disposed of contained any material relevant to this case and relevant to these proceedings that would be one situation but nobody is in a position to say one way or the other that it would have advanced the plaintiff's case on the one hand or advance the defendants' case on the other hand to the slightest degree. The fact is that the plaintiff has said "these diaries are gone" and it must be taken by implication that the plaintiff was at the end of the day only obliged to disclose material which is relevant and that applies even in an extraordinarily wide ranging order for discovery as was made by consent in the present case. That is where the matter stands similarly in relation to the transcript of a speech which the plaintiff is said to have given at some meeting or lecture or discussion that took place in Clonliffe College, the defendants apparently have a transcript of that speech. It is very difficult to see how their case is advanced in the slightest degree by having any further documents in relation to it or indeed whether any such documents exist at all. Mr Trainor clearly acknowledged that by implication he had some problem to this extent that he was inviting the court both in the High Court and this Court, to take a very extreme step, dismissing an entire proceeding, and conscious as he was of that he did indicate on more than one occasion that of course there was an alternative, namely that this court should substitute for the order of the High Court an order simply requiring the defendant to make further and better discovery of specific items and these are the ones which he has indicated in this schedule which he has put before us today. We have to deal with this motion as it came before the High Court. It came before the High Court in this form. In the course of an exchange between Mr Trainor and the High Court judge, it was made perfectly clear that Mr Trainor was asking the High Court judge to strike the proceedings out because of what he claimed was the inadequate, unsatisfactory discovery and as he put it the actual destruction of relevant documents and the concealment by the plaintiff of relevant documents. He quite rightly said when the High Court judge asked him if that was the stance he was adopting, he quite rightly said well there is not any need for an order for further and better discovery, because the order has been made and we could hardly imagine an order in more wide ranging terms. So one could well see why he felt it necessary to concede that much. He was asking for a very extreme remedy of striking out the entire proceedings of the plaintiff because of what was alleged to be inadequate discovery and for the reasons I have indicated and applying I am satisfied perfect and correct principles the High Court judge declined to accede to that application. I think he was correct in so doing and I think at this stage it is too late in the day, even if it could be done, for this court to be making an order of a different nature from that which the High Court judge was invited to make and which indeed was the whole subject matter of the notice of motion brought before him. To conclude on the motion for discovery aspect, I would dismiss the appeal on that aspect and affirm the order of the High Court. DISPOSITION: Appeal dismissed.