Burke v Central Independent Television Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice Francis D. Murphy
• Judgment Date: 21 October 1993
• Neutral Citation: 1994 WJSC-HC 133
• Court: High Court
• Docket Number: 1989 No. 11744P
• Date: 21 October 1993

1994 WJSC-HC 133

THE HIGH COURT

1989 No. 11744P

BURKE v. CENTRAL INDEPENDANT TELEVISION PLC

BETWEEN

WILLIAM BURKE AND OTHERS

PLAINTIFFS

AND

CENTRAL INDEPENDENT TELEVISION PLC

DEFENDANTS

Citations:

D V NATIONAL SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN 1978 AC171

ALFRED CROMPTON AMUSEMENT MACHINES LTD V CUSTOMS & EXCISE COMMISSIONERS NO 2 1979 AC 405

O KELLY, IN RE 108 ILTR 97

CONSTITUTION ART 40.6

DIRECTOR OF CONSUMER AFFAIRS V SUGAR DISTRIBUTORS LTD 1991 1 IR 225

MURPHY V DUBLIN CORPORATION 1972 IR 215

MARKS V BEYFUS (1890) 25 QBD 494

MCGUINNESS V AG OF VICTORIA 63 CLR 73

WIGMORE, TREATISE ON EVIDENCE 2ED V5 SEC 2286 N7

GORMLEY V IRELAND UNREP MURPHY 7.3.91 1991/3/610

WONG V MIN FOR JUSTICE UNREP DENHAM 16.3.93 1993/9/2815

LYLE-SAMUEL V OLDHAMS LTD 1920 1 KB 135

SOUTH SUBURBAN CO OPERATIVE SOCIETY V ORUM 1937 2 KB 690

Synopsis:

DEFAMATION

Libel

Organisation - Illegality - Plaintiff - Connection - Allegation - Informant - Identity - Disclosure creating danger to informant - Whether relevant documents privileged from production - (1989/11744 P - Murphy J. - 21/10/93)1994 2 I.R. 61 1994 2 ILRM 161

|Burke v. Central Independent Television Plc.|

PRACTICE

Documents

Discovery - Production - Objection - Privilege - Confidentiality - Libel - Plaintiff represented as associated with illegal organisation - Relevant notes in possession of defendant - Notes revealing source of information - Information received in confidence - Disclosure placing informant in danger - (1989/11744 P - Murphy J. - 21/10/93) - [1994] 2 I.R. 61 - [1994] 2 ILRM 161

|Burke v. Central Independent Television Plc.|

1 Judgment of Mr. Justice Francis D. Murphydeliveredthe 21st day of October 1993.

2 Having regard to the helpful manner in which the argument was presented to the Court I have not found it necessary to reserve my judgment.

3 The Plaintiffs, all of whom reside in Northern Ireland, claim that they were libelled in a television programme entitled "The Cook Report - Blood Money" which, they allege, was published on the 12th June1991.

4 In their Statement of Claim the Plaintiffs assert that they are closely associated with an organisation known as "Conway Mill" and they claim that in the television programme the Defendants falsely and maliciously stated that the financial nerve centre of the IRA lay inside Conway Street Mill and furthermore that the programme purported to give details of criminal activities by that company. In the Statement of Claim it is further asserted that the entire programme was devoted to and purported to be an expose of the brutal criminal and murderous activities of the IRA which it was falsely suggested in the programme were financed from within the Conway Mills. Again, it is claimed, that in theprogramme it was suggested that the thirdly named Defendant was one of an IRA quartet of financial controllers and that he was their financial link between the north and the south. Various innuendos were pleaded and it was contended that the publication of the programme was a foul and malicious libel of the Plaintiffs and that it seriously damaged their reputation and also placed their lives at risk.

5 These serious allegations were denied by the Defendants in their Defence and in particular paragraph 6 of the Defence claimed that the words complained of in the Statement of Claim were, insofar as they consisted of words allegations of fact true in substance and in fact and insofar they consisted of expressions of opinion were fair comment made in good faith and without malice upon the said facts and were matters of publicinterest.

6 On the 14th June 1990 an Order for Discovery was made on consent by the Master of the High Court. The Defendants' Affidavit of Discovery was sworn by Mr. Paul Calverly and is dated the 29th October 1991.

7 In fact two further Affidavits were sworn by Mr. Calverly one sworn on the 4th March 1992 and the other on the 4th June 1993. In the first of his Affidavits Mr. Calverly objected to the production of certain documents in terms which were set out at Part 2 to the First Schedule to that Affidavit in the following terms:-

"Notebook and other documents/papers in the possession of Paul Calverly. The Defendant objected to disclose these documents on the grounds that they would or would be likely to lead to the identification of thesource of information contained in the publication complained of, such information having been supplied by those sources on the understanding that their identity would not be disclosed".

8 In the body of the Affidavit and in particular in sub-clauses 1, 2 and 4 of paragraph 3 Mr. Calverly asserts the claim to privilege on the following grounds:-

9 i "(i) That the programme was made and could only have been made with the assistance of many people in the north of Ireland. If the information supplied, the names of the people who supplied the information, the names of the people or enterprises referred to in the documents are revealed or if the documents of the Defendant were made available through Discovery - then the safety of either the persons who provided the information or the persons who are referred to in the papers may be put at risk.

10 (ii) The information contained in the document and the documents themselves were supplied to researchers engaged by the Defendant (including this deponent) in confidence on the understanding that they would not be available to any third party - particularly any party which might be associated with the Provisional Republican Movement".

11 In his Affidavit Mr. Calverly goes on to assert:-

"All of the Plaintiffs are known to be associated with or sympathetic to the Republican Movement".

"(iv) The contents of current affairs programmes provide valuable information to the public and ..... such current affairs reports would not occur if the safety of contributors is thereby put atrisk".

12 In relation to the Defendants' claim for privilege there are three propositions of law which can be stated with some confidence asfollows:-

13 First, that the Courts in this jurisdiction and, I believe, the Courts in the United Kingdom, do not accept the concept of privilege from the production of documents based solely on a promise ofconfidentiality.

14 Secondly, that in this jurisdiction journalists do not enjoy any special rights or privileges to protect their informants from disclosure.

15 Thirdly, that the alleged or claimed privilege from production based on the possibility or even the probability that human life may be in danger has never been recognised in any reported decision of our Courts.

16 Authority for the first of these propositions can be found in a number of decided cases and perhaps most conveniently in the decision of the House of Lords in D. -v-the National Society for the Prevention of Cruelty to Children 1978A.C. 171. The proposition that a promise of confidentiality is not a ground of privilege appears frequently throughout the report but I would refer in particular to a passage from the speech of Lord Hailsham at page 230 where he expresses his view on the matter in the followingterms:-

"Lord Denning M.R., in his dissenting judgment, places his own reasoning on the pledge of confidentiality given by the Society, and seeks to found the immunity upon this pledge. I do not think that confidentiality by itself gives any ground for immunity.... Confidentiality is not a separate head of immunity (see Alfred Crompton Amusement Machines Limited -v- Customs and Excise Commissioners No. 2 1979 A. C. 405-433). Confidentiality is not a separate head of immunity".

17 A decision to the same effect and of greater authority in this jurisdiction is the decision of the Court of Criminal Appeal In re. Kevin O'Kelly 108 ILTR at page 97 where Mr. Justice Brian Walsh delivering the judgment of the Court stated that:-

"The fact that a communication was made under terms of expressed confidence or implied confidence does not create a privilege against disclosure. So far as the administration of justice is concerned the public has a right to every man's evidence except for thosepersons protected by a constitutional or other established and recognised privilege".

18 The decision in the O'Kelly case is even more pertinent inasmuch as it was there decided that journalists enjoyed no special privilege in relation to their sources or informants. Walsh J. dealt with that aspect of the matter (at page 101 of the Report) in the following terms:-

"The Constitution, Article 40 Section 6, states that the State shall endeavour to ensure that the organs of public opinion, such as the radio and the press, while preserving their right of liberty of expression, including criticism of government policy, shall not be used to undermine public order or morality or the authority of the State. Subject to these restrictions a journalist has the right to publish news and that right carries with it, of course, at a corollary the right to gather news. No official or governmental approval or consent is required for the gathering of news or the publishing of news. It is also understandable that newsmen may require informants to gather news. It is also obvious that not every news gathering relationship from the journalists' point of view requires confidentiality. But even where it does journalists or reporters are not any more constitutionally or legally immune than any other citizens from disclosing information received in confidence".

19 As to the third of the propositions adumbrated above Counsel on behalf of the Defendants necessarily and properly conceded that there is no reported authority for the proposition that a privilege from production exists where such production might endanger human life.

20 What Counsel on behalf of the Defendants argued is that the existing categories of privilege can and should be extended. He points to the decision in D. -v- The National Society...