Burke v Associated Newspapers (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 10 December 2010
• Neutral Citation: [2010] IEHC 447
• Court: High Court
• Date: 10 December 2010

Burke v Associated Newspapers (Ireland) Ltd

BETWEEN

JOSEPH BURKE

APPLICANTS

AND

ASSOCIATED NEWSPAPERS (IRELAND) LIMITED

DEFENDANTS

[2010] IEHC 447

[No. 6170 P/2003]

THE HIGH COURT

PRACTICE AND PROCEDURE

Particulars

Defamation proceedings - Motion to compel reply to request for further and better particulars - Principles to be applied - Whether particulars sought necessary or desirable - Murphy v Flood [2010] IESC 21, (Unrep, SC, 21/4/2010) distinguished - Hickey v Sunday Newspapers Ltd [2010] IEHC 349, (Unrep, Kearns P, 8/10/2010) approved -Cooney v Browne [1985] 1 IR 185; Mahon v Celbridge Spinning Co Ltd [1967] 1 IR 1; McGee v O'Reilly [1996] 2 IR 229; Doyle v Independent Newspapers (Ireland) Ltd [2001] 4 IR 594 applied - Rules of the Superior Courts 1986 (SI 15/1986), O 19 - Constitution of Ireland 1973, articles 34 and 40 - Application dismissed (2003/6170P - Hogan J - 10/12/2010) [2010] IEHC 447

Burke v Associated Newspapers (Ireland) Ltd

Facts The plaintiff commenced defamation proceedings against the defendant in May 2003 following the publication of a newspaper article, in which it was stated that the plaintiff was being investigated by Mr. Justice Feargas Flood over his role in discussions he had on behalf of the then Taoiseach, Mr. Ahern with property developer, Tom Gilmartin. The defendant denied that the words carried the defamatory imputations claimed by the plaintiff but maintained that if they did so carry that meaning then they were true in substance and in fact in that meaning. The plaintiff demanded that the defendant give particulars of the plea of justification and by way of response the defendant essentially maintained that Mr. Gilmartin had contacted Mr. Ahern in relation to a particular development; that Mr. Ahern had said that the plaintiff would be in contact with him in relation to this; that the plaintiff in his capacity as Vice Chairman of the Planning and Development Committee of Dublin Corporation had "seen to it" that a deal would be done with Mr. Gilmartin and that the plaintiff subsequently called to see Mr. Gilmartin to advise him of these developments. The replies further stated that in the following year the plaintiff called to Mr. Gilmartin's office and amongst other things asked Mr. Gilmartin if he would meet with Mr. Ahern and the plaintiff then drove Mr. Gilmartin to a number of places where he hoped to meet Mr. Ahern. Subsequently, the plaintiff sought further and better particulars, essentially seeking details regarding the location and name of each place allegedly driven to by the plaintiff in the company of Mr. Gilmartin and the identity of any persons that they met in the course of the alleged drive. The defendant responded to that request stating that the requests were matters for evidence and not appropriate matters for particulars. Consequently, the plaintiff issued a motion seeking an order compelling a response to those particulars pursuant to Order 19, rule 7 of the Rules of the Superior Courts.

Held by Hogan J. in refusing the application: That the provision of details regarding the places to which the plaintiff allegedly drove Mr. Gilmartin in their quest for Mr. Ahern would not materially affect the nature of the case to be advanced by the defendant. The request to identify potential witnesses who may or may not have been present at any of the alleged meetings between the plaintiff and Mr. Gilmartin would be a matter for evidence rather than pleading. Similarly, the request for information regarding the precise dates or venues of those meetings was immaterial to the defence that the defendants were advancing. In this case, the plaintiff already knew in broad outline the case he would have to meet. Consequently, it was not necessary or desirable to direct that the defendant reply to the request for further and better particulars. Mahon v. Celbridge Spinning Co. Ltd. [1967] I.R. 1 and Cooney v. Browne [1985] I.R. 185 followed and applied.

Reporter: L.O'S.

RSC O.19

RSC O.19 r7(3)

RSC O.19 r7(1)

COONEY v BROWNE 1985 IR 185

CONSTITUTION ART 34.1

MAHON v CELBRIDGE SPINNING CO LTD 1967 IR 1

MCGEE v O'REILLY 1996 2 IR 229

DOYLE v INDEPENDENT NEWSPAPERS (IRELAND) LTD 2001 4 IR 594

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.6.1

HICKEY v SUNDAY NEWSPAPERS LTD 2011 1 IR 228 2011 1 ILRM 333 2010 IEHC 349

MURPHY v FLOOD 2010 3 IR 136 2010/38/9563 2010 IESC 21

1 1. In October 2002, the Ireland on Sunday newspaper published an article concerning an inquiry which was then to be conducted by the Flood Tribunal into allegations of political corruption and the zoning for planning purposes of certain lands at Quarryvale in West Dublin. The plaintiff, Mr. Burke, is a building contractor and is a former Dublin City councillor. Mr. Burke was prominently named in the article where he was described as a close friend of the then Taoiseach (Mr. B. Ahern T.D.). The article continued by claiming:

"Burke is being investigated by Mr. Justice Feargas Flood over his role in discussions he had on behalf of the Taoiseach with property developer, Tom Gilmartin, who is expected to be the star witness as the public hearings."

2 2. Mr. Burke commenced defamation proceedings in May, 2003 and a statement of claim was delivered in July, 2003. Following a number of motions for judgment in default of defence, a defence was finally delivered almost two years later in May, 2005. The defence denied that the words carried the defamatory imputations which the statement of claim had alleged, but instead maintained that if they did so bear that meaning, "then the same were true in substance and in fact in those meanings."

3 3. Given the somewhat laconic nature of the plea in justification contained in the defence, it is not surprising that Mr. Burke's solicitors responded by letter in firm terms in August, 2005 demanding that the defendant newspaper now give particulars of the plea of justification.

4 4. This request was responded to by the newspaper's solicitors in February, 2006. It is probably unnecessary to set out the response in full: suffice it to say that the particulars of justification contended among other things that Mr. Gilmartin had contacted Mr. Ahern in relation to a particular development; that Mr. Ahern had said that Mr. Burke would be in contact with him in relation to this; that Mr. Burke in his capacity as Vice Chairman of the Planning and Development Committee of Dublin Corporation had "seen to it" that a deal would be done with Mr. Gilmartin and that Mr. Burke had subsequently called to see Mr. Gilmartin to advise him of these developments.

5 5. The final particular given was in the following terms:

"In the following year, the plaintiff called to Mr. Gilmartin's office and Mr. Gilmartin complained about further difficulties with Quarryvale. The plaintiff said that Mr. Ahern was on Mr. Gilmartin's side and had managed to get the land deal through. The plaintiff asked Mr. Gilmartin if he would be prepared to pay £500,000 to Mr. Ahern to sort everything out. Mr. Gilmartin said that he would consider it and the plaintiff asked Mr. Gilmartin if he would meet Mr. Ahern. The plaintiff drove Mr. Gilmartin to a number of places where he hoped to meet Mr. Ahern, but did not find Mr. Ahern."

6 6. For reasons which remain unexplained, the next step in the proceedings came more than three years later on 2 ^nd June, 2009, when Mr. Burke's solicitors sought further and better particulars. What in effect was sought here was further details concerning the meetings which the defendant contends that the plaintiff had with Mr. Gilmartin. A flavour of the request may be gauged by para. 4(b) of the notice for particulars which asks the defendant to furnish:

"full and detailed particulars of the plea that the plaintiff drove Mr. Gilmartin to a number of places where he hoped to meet Mr. Ahern, including the location and name of each place to which it is alleged that the parties drove, and the identity of any person(s) that they met in the course of alleged drive."

7 7. The defendants responded by letter...