Burke v Central Independent Television Plc

• Jurisdiction: Ireland
• Judge: O'Flaherty J.,Finlay C.J.
• Judgment Date: 03 March 1994
• Neutral Citation: 1994 WJSC-SC 90
• Court: Supreme Court
• Docket Number: [S.C. No. 356 of 1993]
• Date: 03 March 1994

BURKE v. CENTRAL INDEPENDANT TELEVISION PLC

WILLIAM BURKE AND ORS.

Plaintiffs

and

CENTRAL INDEPENDENT TELEVISION PLC.

Defendant

1994 WJSC-SC 90

FINLAY C.J.

O'FLAHERTY J.

EGAN J.

BLAYNEY J.

DENHAM J.

356/1993

THE SUPREME COURT

Synopsis:

CONSTITUTION

Personal rights

Conflict - Resolution - Courts - Function - Litigants - Documents - Discovery - Production - Third party - Identity - Disclosure - Exposure of third party to personal danger - Inspection of document refused - (356/93 - Supreme Court - 3/3/94) 1994 2 I.R. 75

|Burke v. Central Independent Television Plc.|

PRACTICE

Documents

Discovery - Production - Objection - Privilege - Confidentiality - Libel - Plaintiff represented as associated with illegal organisation - Defendant in possession of relevant notes - Notes revealing source of information - Information received in confidence - Disclosure placing informant in danger - Public interests - Conflicting constitutional rights - Constitution of Ireland, 1937, Article 40 - (356/93 - Supreme Court - 3/3/94)

|Burke v. Central Independent Television Plc.|

PRACTICE

Pleadings

Deletion - Court - Direction - Appeal - Allowance - Terms - Discovery of documents - Production for inspection - Defendant claiming that inspection would endanger life of informant - Conflict of public interests - (356/93 - Supreme Court - 3/3/94) - [1994] 2 I.R. 75 - [1994] 2 ILRM 173

|Burke v. Central Independent Television Plc.|

WORDS AND PHRASES

"Public interests"

Conflict - Litigants - Documents - Discovery - Production - Third party - Identity - Disclosure - Exposure of third party to personal danger - Inspection of document refused - (356/93 - Supreme Court - 3/3/94) - [1994] 2 I.R. 75 - [1994] 2 ILRM 173

|Burke v. Central Independent Television Plc.|

Citations:

MURPHY V DUBLIN CORPORATION 1972 IR 215

AMBIORIX LTD V MIN FOR ENVIRONMENT 1992 ILRM 209

DEFAMATION ACT 1961 S23

MCDONAGH V NEWS GROUP NEWSPAPERS LTD 23.11.93 1993/13/4009

SUTHERLAND V STOPES 1925 AC 47

CAMPBELL V IRISH PRESS LTD 90 ILTR 105

DUFFY V NEWS GROUP NEWSPAPERS LTD 1992 2 IR 369

CONTEMPT OF COURT ACT 1981 UK

O'KELLY, IN RE (1974)108 ILTR 97

DPP, PEOPLE V SHAW 1982 IR 1

DPP, PEOPLE V RYAN 1989 ILRM 333

1 JUDGMENT delivered on the 3rd day of March 1994by Finlay C.J. [BLAYNEY, DENHAM CONC]

2 This is an appeal brought by the Defendant against an order made in the High Court by Murphy J. on the 21st October 1993 rejecting the Defendant's claim by way of objection to an order for discovery that certain documents were privileged and consequently ordering the production of those documents.

3 The action in which that order was made is an action by the Plaintiffs claiming damages for libel against the Defendant alleged to have been published by it by way of a television broadcast called "The Cook Report - Bloodmoney" transmitted by the Defendant.

4 The learned trial judge in the course of a comprehensive and closely reasoned judgment delivered ex-tempore set out three propositions of law as applicable to the Defendant's claim for privilege as made before him in the following terms -

"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.

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

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."

5 The learned trial Judge then continued to deal with the first of these two propositions of law developing them and setting them out in a manner which I am satisfied was correct. On those two issues he rejected the claim for privilege made pursuant to an assertedground of promise of confidentiality or a journalist special privilege. The learned trial Judge then dealt with the third proposition as follows at Page 11 of his judgment -

"However serious the risk to life may be as a result of the production of the documents in question and however desirable it may be that such production should be avoided I think it must be recognised that the recognition of such a ground of privilege from production would be in no sense an extension or extrapolation of any existing known ground of privilege but the creation of an entirely new ground. Desirable thought it may be, I do not think that this Court has the right or duty to create such a new category. In these circumstances, I would reject the Defendant's claim based upon a ground of privilege consisting of the possible danger of life due to the production of the discovereddocuments."

6 No submission was made to this Court seeking to overturn the learned trial Judge's view concerning the claim for the privilege of confidentiality or for a journalist's privilege which had been asserted in the court below.

7 The submissions on this appeal were confined to the issue as to whether there was a right of privilege attached to documents the discovery of which might endanger human life and to the subsidiary question as to whether it was proper to seek to avoid that danger by discovering the documents on terms that they be made available to the lawyers representing the Plaintiffs and not to the Plaintiffs.

8 I have had the benefit of reading the judgment which is about to be delivered by O'Flaherty J. in this case and I am satisfied that he has with accuracy and completeness set out the main features and contents of the television programme of which complaint is made by the Plaintiffs and accurately delineated what would appear to be the main issues likely to arise in the action. He has also set out in considerable accurate detail the nature and general type of the documents in respect of which privilege has been claimed and the specific grounds on which that claim is made. I adoptall those matters and it is unnecessary for me to repeat them in thisjudgment.

9 Having considered these facts and documents and the submissions made to this Court on this Appeal I have come to the following conclusions.

10 Having regard to the principles laid down by this Court in Murphy.v. Dublin Corporation 1972 I.R. 215 and Ambiorix Ltd. .v. The Minister for the Environment 1992 ILRM 209 the function of this Court in deciding the issues that have been raised on the facts and submissions put before it on this appeal is to resolve a conflict between two aspects of the public interest so as to perform the judicial function of deciding upon what evidence in the interests of justice the Court should act in this case for the purpose of reaching adecision.

11 The two conflicting public interests are identified as follows.

12 That asserted by the Defendant is stated to be apublic interest in protecting citizens of Ireland from the risk of death or bodily injury at the hands of terrorists.

13 The public interest asserted on behalf of the Plaintiffs on the other hand is the public interest in the administration of justice which requires that the Plaintiffs should be entitled to the discovery they are seeking if this is necessary for the protection and vindication of their good names which is one of the constitutional rights owed to them by the State through its organs including the judiciary.

14 The risk of death and bodily injury to individuals as the result of the activities of terrorists is based on the affidavit and submissions of the Defendant upon an assertion that the Plaintiffs or some of them are members of the provisional IRA or are closely associated with members of the provisional IRA and would be likely to transmit to the members of that body information contained in the documents which could lead toattacksupon the persons identified in them. The risk to those persons depends of course on the truth or validity of not only the assertion that they can be identified from the documents but in addition the assertion that the Plaintiffs are members of or associated with members of the provisional IRA.

15 On the other hand the Plaintiffs constitutional right to the protection and vindication of their good name in effect depends upon their being in a position to establish that the television programme was defamatory of them but also to rebut any defence, which may be advanced by theDefendant.

16 It is neither permissible nor possible for the Court at this stage and upon the hearing of this application to reach any conclusion as to the truth of these two necessary assertions in regard to the issues whicharise.

17 I am satisfied that the decision of the Court must be based upon an assumption that there may be a risk tothe citizens who are identified in these documents arising from the communication of the documents to the Plaintiffs. The decision must also be based upon an assumption that the Plaintiffs are in a position to establish that some or all of the accusations against them are false and that their capacity so to do and thus to protect and vindicate their good name in these proceedings may be imperilled by the exclusion from discovery and where appropriate from proof in evidence of the documents in respect of which the Defendant claims immunity.

18 Proceeding on these two assumptions I am firstly satisfied that the issue before the Court can not be decided by seeking to fit the documents in respect of which this immunity is being claimed into some particular category of privileged document such as documents the subject matter of an executive privilege which has been classified and identified by the Courts.

19 I would accept the view expressed by Murphy J. onthe hearing in the High Court in this case that the particular form of immunity and the reason upon which it is based arising in this case is new to the decisions...