Cooper-Flynn v RTE

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Kelly
Judgment Date19 May 2000
Neutral Citation2000 WJSC-HC 1394
Docket Number[1998 No. 8110P],No. 8110P/1998
Date19 May 2000

2000 WJSC-HC 1394

THE HIGH COURT

No. 8110P/1998
COOPER FLYNN v. RADIO TELEFIS EIRE EIREANN (RTE) & ORS

BETWEEN

BEVERLY COOPER FLYNN
PLAINTIFF

AND

RADIO TELEFIS EIREANN CHARLIE BIRD AND JAMES HOWARD
DEFENDANTS

Citations:

RSC O.31 r18

RSC O.18 r2

NATIONAL IRISH BANK LTD V RADIO TELEFIS EIREANN (RTE) 1998 2 IR 465

WALLACE SMITH TRUST CO LTD V DELOITTE HASKINS & SELLS (A FIRM) 1996 4 AER 403

AIR CANADA V SECRETARY OF STATE FOR TRADE (NO 2) 1983 1 AER 910, 1983 2 AC 394

COMPAGNIE FINANCIERE ET COMMERCIALE DU PACIFIQUE V PERUVIAN GUANO CO 1882 11 QBD 55

SCIENCE RESEARCH COUNCIL V NASSE; BL CARS LTD (FORMERLY LEYLAND CARS) V VYAS 1979 3 AER 673, 1980 AC 1028 & 1978 3 WLR 754

TAYLOR V ANDERTON (POLICE COMPLAINTS AUTHORITY INTERVENING) 1995 2 AER 420, 1995 1 WLR 447

DOLLING-BAKER V MERRETT 1991 2 AER 890, 1990 1 WLR 1205

ASSOCIATED LEISURE LTD V ASSOCIATED NEWSPAPERS LTD 1970 2 AER 754

MCDONALDS CORPORATION V STEEL 1995 3 AER 615

MARRIOTT V CHAMBERLAIN 1886 17 QBD 154

AMBIORIX LTD V MIN FOR ENVIRONMENT (NO 1) 1992 1 IR 277

RULES OF SUPERIOR COURTS (NO 2) (DISCOVERY) 1999 SI 233/1999

Synopsis

Practice and Procedure

Discovery; libel action; defendants made allegations that plaintiff, while working for a bank, advised or encouraged investors to participate in an investment scheme for the purpose of evading tax liabilities in the State; defendants pleading justification; non-party discovery ordered against the bank revealed the existence and contents of 65 clients" files in the possession of the bank relevant to the issues to be tried; High Court ordered that the names and addresses of the clients be expunged from the files prior to discovery; defendants seeking order requiring bank to make available in unredacted form the files previously disclosed; whether making of order necessary for the fair disposal of the action; whether making of order would confer litigious advantage on defendants; steps to mitigate loss of confidentiality; whether defendants entitled to seek support for plea of justification from documents revealed in course of discovery; whether revelation of names of potential witnesses a reason for refusing the order; whether order oppressive or unfair having regard to plaintiff's rights; whether necessary for the fair disposal of the action or for the saving of costs that additional discovery be ordered; O.31, r.8, Rules of the Superior Courts.

Held: Order granted directing bank to permit specified persons to inspect the files in unredacted form; application for additional discovery refused.

Cooper Flynn v. Radio Telefís Éireann - High Court: Kelly J. - 19/05/2000 - [2000] 3 IR 344 - [2001] 1 ILRM 208

The case concerned a libel action taken by the plaintiff with regard to allegations made by the defendants that the plaintiff had encouraged and advised investors to participate in a scheme which facilitated the evasion of tax. As part of the proceedings orders of non-party discovery had been made against National Irish Bank who had employed the plaintiff. The documents in question contained the names of investors who had allegedly participated in the scheme in question. Although the relevant documents could be inspected they were however subject to certain restrictions. In this application discovery was sought so that the documents in question would be made available in unredacted form. This would reveal the names and identities of the investors in question. The defendants argued that the disclosure of the names of investors was necessary for the proper prosecution of the proceedings. Both the plaintiff and the bank opposed the application and contended, inter alia, that the application was in effect a fishing expedition. In addition it was argued that the bank had a duty of confidentiality towards its clients which would be breached by the proposed order. Kelly J held that the disclosure of the information sought would not jeopardise the plaintiff's right to a fair trial. The substantive application would be allowed. To disallow the application would not be conducive to a fair disposition of the case. An additional claim seeking documents relating to litigation between the bank and its customers was not allowed.

1

JUDGMENT of Mr. Justice Kelly delivered the 19th day of May 2000.

INTRODUCTION
2

Since 1989 the plaintiff has been an employee of the National Irish Bank. At present she is on leave of absence. During this leave of absence she has been serving as a member of the National Parliament.

3

The first defendant (R.T.E) is the national broadcasting organisation and the second defendant (Mr. Bird) is an employee of that body. The third defendant (Mr. Howard) is a retired farmer.

4

In these proceedings the plaintiff alleges that between the 19th of June, 1998 and the 1st of July, 1998 the defendants libelled her. It is alleged that they did so in a series of broadcasts the transcripts of which are scheduled to the statement of claim.

5

The thrust of the allegations made against the plaintiff is that she advised or encouraged Mr. Howard and other unnamed investors to participate in an investment scheme which had as its purpose the evasion of tax liabilities in this State. In the course of so doing it is alleged that she advised them inter alia that there was no need to avail themselves of the tax amnesty which was then available and that the Revenue Commissioners would never find out about their money if they invested in the scheme.

6

In its reportage of these matters R.T.E recounted the categoric denial of the plaintiff that she had at any time in her seven years working with the bank ever encouraged anyone to invest in a financial product as a means of evading his or her obligations to pay tax.

7

These proceedings began on the 15th of July, 1998. R.T.E and Mr. Bird delivered their defence on the 11th of November of that year. Mr. Howard delivered his defence on the 3rd of December, 1998.

8

All of the defendants have pleaded justification. On this application I am concerned with the defence of R.T.E and Mr. Bird. They say that insofar as the words complained of either in their natural or ordinary meaning or by innuendo meant or were understood to mean any of the following meanings they are true in substance and in fact. The meanings are:-

9

1. That the plaintiff had advised and encouraged Mr. Howard to invest in certain offshore financial products being marketed by the Bank in Clerical Medical International personal portfolio investments.

10

2. That the plaintiff was aware that the monies available for investment by Mr. Howard (which were on deposit in an account with the bank) had not been declared to the Revenue Commissioners.

11

3. That the plaintiff had advised and encouraged other persons to invest in the same personal portfolio investments.

12

4. That in relation to the said investments the plaintiff had assured such investors and in particular Mr. Howard that their investment would remain confidential and that the "taxman" would never find out about such investments because they would be held under a number rather than under the name of the investor in the Isle of Man.

13

5. That the plaintiff had advised Mr. Howard that it was unnecessary to avail himself of the tax amnesty and had asked in this regard "why give the Government 15%?".

14

6. That the plaintiff had promoted and marketed an investment scheme, namely the Clerical Medical International personal portfolio investment scheme to Mr. Howard and to others which, to the knowledge of the plaintiff, facilitated the evasion of tax by those investing in it.

15

7. That in promoting and marketing the scheme the plaintiff emphasised to prospective investors those features of the scheme which would facilitate the evasion of tax by them.

16

8. That R.T.E and Charlie Bird had, prior to the broadcast on the 19th of June, 1998 made a number of attempts to contact the plaintiff for the purpose of putting to her the issues raised in the said broadcast.

17

9. That the plaintiff had refused to accept any communication from those defendants prior to that broadcast.

18

The onus of proof in respect of this plea of justification lies upon R.T.E and Mr. Bird.

19

Although the defence was the subject of a notice for particulars, no application has ever been made to the Court with a view to requiring R.T.E or Mr. Bird to identify persons other than Mr. Howard to whom such representations were allegedly made by the plaintiff.

20

The Action is listed for trial on the 4th of July, 2000

DISCOVERY
21

Non-party discovery was sought against the bank and has been the subject of two orders made by Johnson J. The discovery has disclosed the existence and contents of sixty-five clients files in the possession of the bank relevant to the issues to be tried. In his order of the 6th of December, 1999 Johnson J. restricted access to these clients files in two important ways.

22

First, they may only be inspected or examined by the Solicitors on record for R.T.E and Mr. Bird and the Counsel retained on behalf of those defendants. They may also be inspected or examined by three named members of the legal department of R.T.E. Secondly, in recognition of the relationship of confidentiality between a bank and it's customers the documents have been discovered in a redacted form. There has been expunged from the files the names and addresses of the clients involved. This latter restriction applies in relation to what is described in the order of Johnson J. as the "initial inspection" of such documents. That inspection has now taken place. The first part of the motion before me seeks an order requiring the bank to make available for inspection in an unredacted form the documents disclosed in the non-party discovery affidavit. Thus the names, personal data or identifying reference numbers of the customers in question will become known to the legal...

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