Blythe v The Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 18 September 2019
• Neutral Citation: [2019] IEHC 854
• Docket Number: [2019 No. 6893 P.]
• Court: High Court
• Date: 18 September 2019

[2019] IEHC 854

THE HIGH COURT

Richard Humphreys

[2019 No. 6893 P.]

BETWEEN

KEITH BLYTHE

PLAINTIFF

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT

Disclosure – Defamation – Speculation – Plaintiff seeking disclosure from the respondent of information – Whether the plaintiff’s proposed claim was entirely speculative

Facts: The plaintiff, Mr Blythe, applied to the High Court for an order seeking disclosure from the respondent, the Garda Commissioner, of information that identifies, or may assist in identifying, persons who participated in the dissemination of allegedly defamatory material regarding the plaintiff. The defendant objected that: (i) there was no clear and unambiguous evidence of wrongdoing; (ii) only names and addresses or identifying information can properly be sought under the Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133 jurisdiction; (iii) to provide further information about an internal disciplinary investigation would prejudice the individual concerned and the operations of An Garda Síochána; (iv) there was a failure to set out what steps the plaintiff had taken to obtain information otherwise than by way of the order sought; (v) the defendant was not in any way responsible for the messages; and (vi) the plaintiff’s proposed claim was entirely speculative.

Held by Humphreys J that: (i) a strong case had been shown that persons unknown had defamed the plaintiff and, in the context of that strong case, where a third party such as the defendant has relevant information that could identify those persons, being necessary information to enable the proposed defamation proceedings to be instituted, that is sufficient to warrant the making of an order for disclosure; (ii) the objection that only names and addresses or identifying information can properly be sought under the Norwich Pharmacal v Customs and Excise Commissioners jurisdiction had in substance been dealt with by a proposed limitation on the phrasing of the order; (iii) if a member of An Garda Síochána commits an act which is both a civil wrong and a breach of discipline, he or she is liable to be proceeded against in both ways and such a person is not prejudiced in the legal sense in the disciplinary proceedings merely by being sued civilly; (iv) a party is not under an obligation to take all conceivable steps above and beyond the option of seeking disclosure from a respondent to an application, or indeed to set out all steps taken in endless detail; (v) the court’s jurisdiction is not limited to orders against persons who are responsible for the defamatory publication; and (vi) the disclosure sought was strictly limited to the absolute minimum information required to enable the plaintiff to have access to the court. Humphreys J held that he would make an order requiring the defendant to disclose to the plaintiff the names and addresses of persons where the defendant considered that there was prima facie evidence that they were involved in publications of allegations against the plaintiff of the general nature described in the affidavit of the plaintiff of 3rd September, 2019 and in each case specifying the portions of the particular defamatory material in relation to which any such person was concerned in publishing. Humphreys J held that this information was to be provided by letter rather than affidavit, subject to hearing counsel. Humphreys J held that he would have to hear the parties as to the deadline for compliance.

Humphreys J held that, concerning Mr Power’s application for a stay, the balance of justice was in favour of refusing a stay. Having heard the parties further as regards the costs of the proceedings, including the motion, Humphreys J held that those follow the event in favour of the plaintiff. As regards the costs of making the disclosure, Humphreys J noted that the case for costs in making disclosure are stronger where the requested party doesn’t object to the order, because there must be some incentive to parties to come to terms at an early stage; also relevant was the defendant’s delay in dealing with the matter and the limited nature of the order made, and consequently the relatively insignificant quantum of any costs of compliance which seemed to have been broadly accepted by Mr Power. Humphreys J held that the appropriate order under that heading was no order as to the costs of making the disclosure.

Reliefs granted.

JUDGMENT of Mr. Justice Richard Humphreys given on the 18th day of September, 2019

1 Before the court is an application for an order seeking disclosure from the Garda Commissioner of information that identifies, or may assist in identifying, persons who have participated in the dissemination of allegedly defamatory material regarding the plaintiff.

2 The detail of the alleged defamation is of limited relevance for present purposes, and indeed there may be a general question as to whether it is just and fair for a plaintiff to have to publicly circulate and draw attention to details of a defamatory allegation in order to seek redress for that defamation. On the face of it, while open justice is of course crucial, it is not without its limits and the unrestricted reporting of all details of the alleged defamation in every case may raise an issue in particular circumstances as to the right to an effective remedy, without which all other rights are meaningless. The Supreme Court in Sunday Newspapers Limited v. Gilchrist [2017] IESC 18 [2017] 2 I.R. 284 left open room for orders under the court's general jurisdiction, going beyond the statutory jurisdiction, to restrict reporting if there was a clear and pressing basis for doing so. That is simply a general comment I make in the context of this particular case, where the actual content of the allegations is not of central relevance to the matter that I have to determine.

3 Very sensibly, the parties agreed that the trial of the motion for disclosure would be treated as the trial of the action because there was really nothing further left in the case beyond the reliefs sought in the motion, and I have now received very helpful submissions from Mr. Paul O'Higgins S.C. (with Mr. Conor O'Higgins B.L.) for the plaintiff and from Mr. Conor Power S.C. (with Mr. James Geoghegan B.L.) for the defendant.

4 The hearing began with a minor procedural skirmish in the sense that on 18th September, 2019 the plaintiff delivered two late affidavits. Mr. Power objected to those being admitted, but in fairness the objection was of a rather faint character and he couldn't point to any particular factual averment that he would have disputed had he had the affidavits earlier, so on that basis I allowed the affidavits, although on any view they don't appear to be really central to the key questions on this application.

The Court's jurisdiction

5 Strong reliance is placed by Mr. Power on the Supreme Court decision in Megaleasing v. Barrett (No. 2) [1993] 1 I.L.R.M. 497, but to some extent that decision has been over-interpreted by the defendant. The judgments delivered in the Supreme Court are very fact-specific as appears from the judgment of Finlay C.J. at p. 504 which inter alia refers “the breadth and scope of the inquiries which the plaintiffs seek”. Thus he was not satisfied that making an order for disclosure would be appropriate in terms of whether “to apply [the jurisdiction to order disclosure] to the facts of this particular case”. McCarthy and O'Flaherty JJ. make other fact-specific points in their separate judgments.

6 The jurisdiction of the court to make an order for disclosure or discovery, whether against a party or a non-party, derives from two related but congruent and mutually consistent sources. Firstly, it is inherent in the judicial power that, at least as a general proposition, the court can require interested parties to assist the doing of justice; and secondly, the constitutional right of access to the courts and the related EU and ECHR right to an effective remedy, which is also perhaps a better way to phrase the unenumerated constitutional right, implies that the court must have the jurisdiction to make such orders as are necessary to vindicate the right to effective access to the court and to an effective remedy at the end of the day. In cases such as the present one, where a plaintiff is unable to sue because a holder of information about the proposed defendants in the defamation action is not prepared to part with that information, to refuse the order would deprive the plaintiff of that right to an effective remedy. Both of those factors, while mutually consistent, are relevant, and the fact that the scope of the judicial power is engaged by discovery and disclosure orders takes the matter beyond one of being a purely human rights issue.

7 Costello J., as he then was, in his judgment in Megaleasing (with which the Supreme Court differed) relied on English caselaw as it stood at the time, but that law has been undergoing continuous evolution and has been extended further, particularly by the judgment of the UK Supreme Court in Rugby Football Union v. Consolidate Information Services Limited [2012] 1 W.L.R. 3333. That evolution was noted by MacEochaidh J. in O'Brien v. Red Flag [2015] IEHC 867 (Unreported, High Court, 21st December, 2015).

8 The conclusion that inevitably follows both from the inherent nature of the scope of the judicial power and from the right of access to the court and to an effective remedy, whether taken separately or in conjunction, is that in principle and in general there is jurisdiction to direct discovery or disclosure that is in aid of, and will facilitate the institution of, an anticipated action by a third party against someone else: see also para. 14 of MacEochaidh in O'Brien v. Red Flag. Nonetheless the court would need to be satisfied of the appropriateness of such an order on the particular facts of the given case. In...