Darragh Mackin v Denis O'Brien and James Morrissey

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 30 September 2021
• Neutral Citation: [2021] IEHC 660
• Court: High Court
• Docket Number: [2017 No. 9557 P.]

Between

Darragh Mackin

Plaintiff

and

Denis O'Brien and James Morrissey

Defendants

Between

Gavin Booth

Plaintiff

and

Denis O'Brien and James Morrissey

Defendants

[2021] IEHC 660

[2017 No. 9557 P.]

[2017 9558 P]

THE HIGH COURT

Defamation – Damages – Discovery – Parties seeking discovery – Whether the discovery sought was relevant and necessary

Facts: The plaintiff in each action was a solicitor. Both actions were commenced on 25 October, 2017 and the plaintiffs, Mr Mackin and Mr Booth, sought inter alia damages for defamation arising out of a press release which was published by the defendants, Mr O'Brien and Mr Morrissey, on 26 October, 2016. Three motions were before the High Court in respect of each case. Given that both sets of proceedings were identical, it was agreed that the parties and the court would focus on the papers in respect of the proceedings under record no. 2017/9557 P. The first of the three motions concerned an application made by the plaintiff seeking to strike out certain pleas made by the defendants, the second and third motions being applications for discovery brought by the plaintiff and defendants, respectively.

Held by Heslin J that the opinions which the defendants purported to rely on in the context of defences of truth and honest opinion constituted opinions either not defamatory of the plaintiff or not related to matters of which the plaintiff complained and sharing no common ‘sting’. Heslin J was satisfied that the defences of truth and honest opinion should be struck out and that it was appropriate to grant the relief sought at paras. 1 and 2 of the plaintiff’s motion dated 14th January, 2021 in each case. Regarding the defendants’ discovery motion issued on 22nd June, 2020, it did not seem to Heslin J that discovery of categories 1, 2, 3 and 4 could fairly be said to be relevant or necessary and he was satisfied that it would not be appropriate to order the plaintiff to make discovery of those categories. Regarding the plaintiff’s discovery motion issued on 7 December, 2020, Heslin J was satisfied that categories 1 and 2 were relevant to issues raised in the pleadings and that it was necessary, in order to ensure the fair disposal of the matters at issue, that the defendants make discovery of those categories.

Heslin J held that the contents of this judgment applied to both cases.

Plaintiff’s applications granted. Defendants’ application refused.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 30th day of September, 2021

Introduction

1 Identical claims are made in respect of two sets of proceedings. The plaintiff in each action is a solicitor. Both actions were commenced on 25 October 2017 and the plaintiff in each case seeks inter alia damages for defamation arising out of a press release which was published by the defendants on 26 October 2016. The press release was entitled: “STATEMENT ON BEHALF OF MR. DENIS O'BRIEN IN RESPONSE TO REPORT COMMISSIONED BY MS. LYNN BOYLAN MEP (SINN FÉIN)” (hereinafter “the press release”). The press release was issued in response to a report entitled “REPORT ON THE CONCENTRATION OF MEDIA OWNERSHIP IN IRELAND” (hereinafter “the report”). The defendants deny that the plaintiffs were the authors of the Report. The defendants admit that the press release was published by them on 26 October 2016. The press release contained inter alia the following words:- “Sinn Féin/IRA certainly got the report they paid for”. In each case, the plaintiff claims that the press release and the statement contained within it referred to and was understood to refer to them. As is clear from para. 7 in each statement of claim, dated 11 February 2019, the plaintiff in each case claims that the words in their natural and ordinary meaning meant and were understood to mean that the plaintiff:-

• (a) received payment from an organisation, viz. the IRA;

• (b) had acted for an unlawful organisation, viz. the IRA;

• (c) was not acting in line with his professional obligations;

• (d) lacks integrity;

• (e) is unfit to be a solicitor;

• (f) is unprofessional;

• (g) is dishonourable.

2 A range of defences are pleaded on behalf of the defendants in each case, who admit the publication of the press release but not the extent of publication. The defences include the following:-

• (a) A denial that the statement referred to and was understood to refer to the plaintiff;

• (b) A denial that the statement meant or was understood to mean in its natural and ordinary meaning or by way of innuendo the meanings pleaded by the plaintiff;

• (c) The defences of truth, honest opinion, qualified privilege, fair and reasonable publication in a matter of public interest are pleaded;

• (d) A denial that the plaintiff's personal and professional reputation has been gravely damaged or that the plaintiff has been brought into public scandal, odium and contempt, and that he has suffered considerable hurt, distress, embarrassment and loss;

• (e) A denial that the statement posed a serious risk to the personal safety of the plaintiff and his family;

• (f) The defendant pleads that they have no reason to doubt that the plaintiff is a solicitor who values his integrity, independence and impartiality and who has acted for all members and sections in the community in Northern Ireland, Ireland and internationally;

• (g) A plea that the publication of the statement did not in any way seek to impugn or attack the plaintiff and that it is an essential part of the functions of a solicitor that he or she acts on behalf of persons who may be unpopular or controversial or subject to public criticism and that there is no basis for the plaintiff to believe that his reputation has been damaged because of submissions made in the report;

• (h) A denial that the plaintiff is entitled to the relief claimed or to any relief;

3 At the outset of the hearing, which took place over two days, commencing on 06 July 2021, Mr. Hogan SC for the plaintiffs explained that there were three motions before the court in respect of each case. Given that both sets of proceedings are identical, it was agreed that the parties and the court would focus on the papers in respect of the proceedings under record no. 2017/9557 P. Given that both claims are identical, the contents of this judgment apply to both cases. The first of the three motions concerned an application made by the plaintiff seeking to strike out certain pleas made by the defendants, the second and third motions being applications for discovery brought by the plaintiff and defendants, respectively. In advance of the hearing, Mr. Hogan SC had spoken with Mr. Lehane SC, representing the defendants, as a result of which it was agreed that the plaintiff's motion would be dealt with first.

The plaintiff's application pursuant to O. 19, r. 29 and/or the court's inherent jurisdiction

4 On 14 January 2021, the plaintiff's solicitors issued a motion, returnable for 06 July 2021 seeking the following relief:-

• “(1) An order pursuant to O. 19, r. 27 of the Rules of the Superior Courts and/or the inherent jurisdiction of this Honourable Court, striking out the defence of truth under s. 16 of the Defamation Act, 2009, and/or striking out such imputation(s) pleaded by the Defendants as are not reasonably capable of being borne by the statement in respect of which the action is brought and or which are not reasonably capable of bearing a defamatory meaning;

• (2) Further and in addition or in the alternative, an Order pursuant to O. 19 r. 27 of the Rules of the Superior Courts and/or the inherent jurisdiction of this Honourable Court striking out the defence of honest opinion under s. 20 of the Defamation Act, 2009, and/or striking out such imputation(s) pleaded by the defendants as are not reasonably capable of being borne by the statement in respect of which the action in brought and/or which are not reasonably capable of bearing a defamatory meaning;

• (3) Such further or consequential directions as may be necessary;

• (4) Such further or other Order as is (sic) Honourable Court shall deem proper; and;

• (5) An Order providing for the costs of the within application”.

5 For the sake of convenience, I will refer to the application brought in respect of proceedings under record no. 2017 / 9557 P but an identical application was brought, at the same time, in respect of the proceedings under record no. 2017 / 9558 P. The grounding affidavit was sworn by Ms. Audrey Colleran, solicitor for the plaintiff. At para. 1, she identifies herself and at para. 2 she avers that her affidavit is sworn in support of the relevant application. At para. 3 she avers that the plaintiff is a solicitor and at all material times was a partner in the firm of KRW Law LLP, Belfast. At para. 4 Ms. Colleran avers that the plaintiff's claim is for damages arising out of the publication of the press release which included the words “ Sinn Féin/IRA certainly got the report they paid for”, which words are alleged to be defamatory of the plaintiff.

The press release

6 At para. 5, she exhibits a copy of the press release. That document states the following:-

“STATEMENT ON BEHALF OF MR. DENIS O'BRIEN IN RESPONSE TO REPORT COMMISIONED BY MS. LYNN BOYLAN MEP (SINN FÉIN)

Wednesday, October 26, 2016

The Report on the Concentration of Media Ownership in Ireland makes for very interesting reading.

At the outset it is worth noting that it is self – described as “An Independent Study Commissioned by Lynn Boylan MEP on behalf of the European United Left / Nordic Green Left (GUE/NGL) Group of the European Parliament”

An “independent study” commissioned by a leading member of Sinn Féin? Hardly.

“The two most important controlling entities in the Irish media landscape are the national State broadcaster, RTE, and an individual businessman, Denis O'Brien” this report states.

Yet there is no focus on RTE in the context of:-

— The largest media...