Adams v British Broadcasting Corporation
| Jurisdiction | Ireland |
| Judge | Mr. Justice Meenan |
| Judgment Date | 01 July 2020 |
| Neutral Citation | [2020] IEHC 441 |
| Docket Number | [2017 No. 4816 P] |
| Court | High Court |
| Date | 01 July 2020 |
[2020] IEHC 441
Meenan J.
[2017 No. 4816 P]
THE HIGH COURT
Defamation – Discovery – Replies to particulars – Plaintiff seeking discovery and to compel replies to a notice for particulars – Whether the particulars already pleaded were sufficient
Facts: The plaintiff, Mr Adams, brought two motions before the High Court, seeking discovery and to compel replies to a notice for particulars. These motions arose in defamation proceedings. Some seven categories of discovery were sought. There was agreement on three of these categories, and on the remaining four there was engagement between the parties. In the notice for particulars, the plaintiff sought further and better particulars of “all material facts (and not the evidence thereof)” in support of the allegations contained in paragraph 22(a), (b), (d) and (e) of the defence of the defendant, the British Broadcasting Corporation. The defendant refused to supply particulars on the basis that the particulars already pleaded were sufficient and that what was being sought was evidence.
Held by Meenan J that, regarding category 1, he would direct discovery of: “All documents evidencing and/or recording the circulation and extent of publication of both the programme and the article within the jurisdiction of Ireland.” Regarding category 2, he followed the wording proposed by the defendant: “All documents evidencing and/or recording all editorial decisions (including relevant editorial guidelines) bearing upon the defendant’s decision to publish the contents of the programme and article. Subject to a temporal limitation being all documents created up until 21 September 2016.” Categories 4 and 5 had been agreed in the following terms: “4. All documents created up until 21 September 2016 comprising source material (including but not limited to all audio and video tape/recordings, dialogue, archive footage/resources, scripts and draft scripts) for the programme and, in particular, the claim that the IRA was responsible for the murder of Denis Donaldson and the allegation that the plaintiff sanctioned that murder.” and “5. All documents created up until 21 September 2016 evidencing and/or recording the attempts made, and the means used, by the defendant, its servants or agents to verify the assertions and allegations concerning the plaintiff in the programme and article.” He directed that documents be discovered for category 3 in accordance with the proposed wording of the defendant: “All documents evidencing and/or recording all research, investigation, analysis, inquiries, interviews, meetings and/or communications of any kind carried out or made by or on behalf of the defendant, its servants or agents for the publication of the programme and the article. Subject to a temporal limitation on all documents created up until 21 September 2016.” Category 6 had been agreed as follows: “All documentation created up until 21 September 2016 in relation to the efforts made by the defendant, its servants or agents, to obtain and convey the plaintiff’s position in the programme.” He directed discovery of category 7 in the terms proposed by the defendant: “All documents evidencing the plaintiff’s alleged involvement with the IRA and his alleged responsibility for IRA atrocities on which the defendant intends to rely.” He would hear the parties as to the time to be allowed for such discovery and the deponent of the affidavit.
Meenan J held that the plaintiff had not established a basis for him to direct the defendant to answer the notice for particulars. He refused the plaintiff’s motion to compel replies to particulars.
Discovery directed. Motion to compel replies to particulars refused.
There were two motions before the Court, both brought by the plaintiff seeking discovery and to compel replies to a notice for particulars. These motions arise in defamation proceedings. I will deal with each motion separately but, before doing so, I will consider the pleadings and identify the issues involved.
On or about September, 2016, the defendant broadcast an episode of the “Spotlight” television programme, entitled “Spy in the IRA”. On 21 September 2016, the defendant published an article on its website under the headline: “Gerry Adams ‘sanctioned Denis Donaldson killing’”. The plaintiff claims that both the programme and the article were defamatory of him in that the words contained therein meant, and were understood to mean, in their natural and ordinary meaning and/or by way of innuendo, that the plaintiff sanctioned and approved the murder of Denis Donaldson.
The Statement of Claim delivered sets out extracts from both the programme and the article. The plaintiff seeks damages (including aggravated and/or exemplary damages) for defamation.
The defendant delivered its Defence on 15 June 2018. It is necessary to consider the Defence in order to identify the issues that arise. The defendant expressly makes no admission as to the extent and publication of the words complained of in the programme and the article. It is also denied that there was any publication of the programme through its webpage or on the iPlayer in Ireland.
The defendant pleads that the programme and article “were published in good faith and in the course of, or for the purpose of, the discussion of subjects of public interest, which was for the public's benefit. In particular, the issue stated and discussed in the programme and article were issues of vital importance and interest to the people of Ireland”. The defendant maintains that publication of the statements “constituted responsible journalism and was the result of a careful investigation by the defendant into the matters so broadcast and published”. Thus, the defendant relies on the defence of fair and reasonable publication under s. 26 of the Defamation Act, 2009 (the Act of 2009) and/or the benefit of the defence of qualified privilege pursuant to s. 18 of the said Act. The defendant also claims that the programme was made in accordance with its editorial guidelines.
The defendant denies that the plaintiff has suffered any damage to his reputation and states at para. 22 in its Defence that it will give evidence, with the leave of the Court, in a number of matters which it claims have a bearing upon the reputation of the plaintiff. These matters are stated as follows: -
“(a) The plaintiff was for many years on the IRA Army Council.
(b) The plaintiff was for many years a leading member of the IRA.
(c) During the plaintiff's period of leadership and/or membership, the IRA engaged in a campaign of horrific murder and violence, particularly in Northern Ireland and the United Kingdom, and engaged in thousands of acts of murder.
(d) The plaintiff continued to play a very important and senior role in the IRA up to and including the time of the Denis Donaldson murder.
(e) The plaintiff has continuously lied about his membership of the IRA.
(f) The plaintiff has a history of not condemning the killing of informers by the IRA and many years previously had said that anyone living in West Belfast knows that the consequences for informing is death.”
Arising from the Defence, the following can be stated: -
(i) Publication of the programme and article is in issue; and
(ii) The defendant will be relying upon the defences provided for in ss. 18 and 26 of the Act of 2009.
No reply has been delivered to the Defence.
Arising from the Defence, the plaintiff has sought some seven categories of discovery, three of which have been agreed. Before examining the various categories, I will set out the legal principles that are applicable to an application such as this.
The issue of discovery has been most recently considered in the judgment of the Supreme Court in Tobin v. The Minister for Defence, Ireland and the Attorney General [2019] IESC 57. This comprehensive judgment sets out with clarity the principles that are applicable to an application such as this. I will be referring extensively to the judgment of Clarke C.J.
To make an order for discovery, the court has to be satisfied that the documents sought are both relevant and necessary. As Clarke C.J. stated: -
“6.2 The established definition of the test of relevance is to be found in the principles outlined in the judgment of Brett ü in Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano (1882) 11 Q.B.D. 55 ( ‘ Peruvian Guano’). With regard to necessity, in Ryanair plc. v. Aer Rianta c.p.t. [2003] IESC 62, [2003] 4 I.R. 264( ‘ Ryanair’), Fennelly J. held that, in order to establish that discovery of particular categories of documents is ‘necessary for disposing fairly of the cause or matter’, the applicant does not have to prove that they are in any sense ‘absolutely necessary’. He went on, at p. 277, to hold that the court should:-
‘…consider the necessity for discovery having regard to all the relevant circumstances, including the burden, scale and cost of the discovery sought. The court should be willing to confine categories of documents sought to what is genuinely necessary for the fairness of the litigation. It may have regard, of course, to alternative means of proof which are open to the applicant.’”
As for the importance of discovery, in Tobin, Clarke C.J. stated: -
“7.5 I emphasise all of these points precisely because it is important not to lose sight of the valuable contribution which discovery can make. It improves the chances of the court being able to get at the truth in cases where facts are contested. In that way, it makes a significant contribution to the administration of justice.”
As for “relevance,” Clarke C.J. stated: -
“7.25 I should also make one final point of general...
To continue reading
Request your trial
-
Darragh Mackin v Denis O'Brien and James Morrissey
...Justice in Tobin, apply to discovery in the context of defamation proceedings and Mr. Justice Meenan made this clear in Adams v. BBC [2020] IEHC 441, stating: “ This comprehensive judgment sets out with clarity the principles that are applicable to an application such as this”. Although no ......
-
Mackin and Another v O'Brien and Another
...and was fortified in that view by the fact that similar discovery had been directed by the High Court (Meenan J) in Adams v BBC [2020] IEHC 441. He rejected the Defendants' contention that the extent of circulation and publication was a matter for proof by the Plaintiffs and therefore shoul......