This section is reprinted from The Irish Times, February 1, 2008. View original link at http://www.ireland.com/newspaper/ireland/2008/0201/1201501881517.html

Cardinal Desmond Connell's solicitor Diarmaid Ó Catháin said in an affidavit that the cardinal was unaware until recently of discussions between solicitors for the Dublin Archdiocese Commission of Investigation and Archbishop Diarmuid Martin's solicitors relating to the documents or of an agreement between the commission and Archbishop Martin as to how issues of privilege should be determined.

Mr Ó Catháin said he had only learned last November that Archbishop Martin had sworn an affidavit of discovery of documents to the commission in June 2007 and that his lawyers had reached an agreement with the commission regarding the waiver of legal privilege for certain documents. That agreement was not implemented, however, because the commission, concerned about delay in making discovery, had ordered the production of all of the documents.

The solicitor said he had expressed concern that the commission, without Cardinal Connell's knowledge or participation, had discussed with Archbishop Martin's lawyers how the claim of legal privilege would be verified. The commission had denied any unfairness to Cardinal Connell.

Mr Ó Catháin said Cardinal Connell was Archbishop of Dublin from March 1988 until his resignation on April 26th, 2004 when Archbishop Martin was appointed.

Between January 1975 and May 1st, 2004, complaints or claims of child sexual abuse were made against most, if not all, of the 46 priests named in the representative sample selected by the commission and it was examining and reporting on the nature of the cardinal's response to those complaints.

Mr Ó Catháin said he was informed that, while the cardinal was archbishop, many documents relating to complaints and claims of child sexual abuse against diocesan priests "attracting solicitor-client confidentiality and/or legal professional privilege" came into existence and were placed in the diocesan files.

Mr Ó Catháin said he was advised by counsel that the person entitled to assert and maintain legal privilege over those documents was the person who received such legal advice. The legal privilege attaching to those documents belonged to Cardinal Connell.

Cardinal Connell had attended before the commission on four occasions to date to give evidence. In July 2007, the commission's solicitors had informed Cardinal Connell it had finalised its selection of the representative sample of complaints and set out a list of 46 priests in that sample.

However, on October 28th, 2007, counsel for the commission had described the representative sample as "a preliminary sample", Mr Ó Catháin said.

This came as a "shock" to Cardinal Connell's legal advisers as the commission had been established in March 2006 and was required to make a final report to the Minister for Justice within 18 months from that date. The commission had secured an extension of time to September 2008 to make its report.

In describing the sample as "preliminary", the commission was straying outside its terms of reference and the use of the word "preliminary" was for the "improper purpose" of enabling the commission to justify the production of all documents over which a claim of legal privilege is made, Mr Ó Catháin said.

Cardinal Connell had attended before the commission on October 5th last. His counsel expressed concern at that hearing that the commission had a document which was covered by legal professional privilege when Cardinal Connell had not waived his claim of privilege.

© 2008 The Irish Times