Desmond v The Irish Times Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 17 February 2020
• Neutral Citation: [2020] IEHC 95
• Docket Number: Record No 2016/6187P
• Court: High Court
• Date: 17 February 2020

BETWEEN

DERMOT DESMOND

PLAINTIFF

AND

THE IRISH TIMES LIMITED

DEFENDANT

[2020] IEHC 95

Maurice Collins J.

Record No 2016/6187P

THE HIGH COURT

Discovery – Damages – Defamation – Plaintiff seeking discovery – Whether discovery was relevant and necessary

Facts: The plaintiff, Mr Desmond, sought damages (including aggravated and/or punitive damages) for defamation, breach of privacy and breach of confidence, as well as an injunction compelling the removal of the material complained of and certain declaratory relief. He applied to the High Court seeking discovery of the following categories: (1) all documentation supplied to the defendant, The Irish Times Ltd, either by the International Consortium of Investigative Journalists (ICIJ), the Süddeutsche Zeitung or otherwise relating to the plaintiff and reviewed, relied upon, quoted from or otherwise considered as part of the series of articles referencing the plaintiff, as referred to in the statement of claim; (2)(a) all documentation concerning all efforts made by the newspaper to contact the plaintiff or his representative for comment, to include all notes made of any discussions had or any communication received prior to publication; (2)(b) all documentation to include notes of or concerning any editorial decisions relating to the publication of the portion of the article by Mr Keena and Mr D’Arcy concerning the plaintiff which appeared in the 7th April 2016 edition of the defendant’s newspaper to include all earlier drafts; (3) all documentation relating to, recording or evidencing the knowledge of the defendant, its servants or agents as to the origins of the Panama Papers and specifically, the data/files/documents received by the defendant and relating to the plaintiff or his associated companies; and (4) all documentation relating to any discussions or communications as between the defendant and other journalists (including without limitation, other members of the ICIJ) and/or with the persons who supplied to the defendant the leaked material concerning the plaintiff, relating to the identification of material considered to be relevant to Ireland and specifically relating to the plaintiff and showing or attempting to show the reasons why that material was selected for publication and/or considered to be in the public interest.

Held by Collins J that: (1) discovery of this category was relevant and necessary because a key issue in the proceedings was whether it was fair and reasonable to publish the article complained of by Mr Desmond; (2)(a) there appeared to be no suggestion that the Irish Times made contact, or attempted to make contact, with Mr Desmond or Ms McNulty (or any other representative of Mr Desmond) other than by means of the two emails to which Ms Veldon referred in her affidavit and the only issue appeared to be whether the Irish Times fairly reported what was said by Ms McNulty on Mr Desmond’s behalf; (2)(b) this was relevant to the issue just mentioned, namely whether Ms McNulty’s statement was fairly reported, and it was appropriate to direct discovery of this category in the more limited form suggested by Mr Quinn (all documentation to include notes of or concerning any editorial decisions relating to the publication of that portion of the article by Mr Keena and Mr D’Arcy (which appeared in the 7th April 2016 edition of the defendant’s newspaper) that referred to the response of the plaintiff’s spokesperson, to include all earlier drafts of that portion of the article); (3) this category was substantially agreed and discovery would be directed of all documentation recording or evidencing the knowledge of the defendant, its servants or agents as to the origins of the Panama Papers that relate to the plaintiff or his associated companies; and (4) this category was not relevant to any of the issues arising in these proceedings and discovery of this category of documents was unnecessary for the fair disposal of the proceedings or for the purpose of saving costs.

Collins J held that the plaintiff’s application was successful to the extent that discovery would be directed of category 1, category 2(b) (in modified terms) and – effectively by consent – category 3 (again in modified terms). Collins J refused discovery of category 2(a) and category 4.

Application granted.

JUDGMENT of Mr Justice Maurice Collins delivered on 17 February 2020

Introduction

1 On 3 April 2016 (a Sunday) a number of newspapers and media outlets globally - all associated with the Washington-based International Consortium of Investigative Journalists (“ ICIJ“) - began to publish/broadcast stories based on the so-called “Panama Papers”, described by the Irish Times at the time as a “vast collection of leaked documents from the Panamanian legal firm Mossack Fonseca.”

2 The Irish Times and/or some of its journalists are members of the ICIJ and the paper had been given access to the Panama Papers and been involved, along with many others, in the exercise of reviewing those papers in advance of 3 April 2016. It appears that the Irish Times' first coverage relating to the Panama Papers appeared online on 3 April 2016, and this was followed by a prominent story carried in the print edition of 4 April 2016 under the headline “Global leak reveals secret offshore activities of world leaders and stars”. A separate story in the same edition disclosed that the Panama Papers revealed the involvement of an Irish registered company in the international arms trade. Persons accessing the Irish Times website could see a video which gave further background and were provided with a link to a special website set up by the ICIJ which, according to Mr Desmond, carried a banner headline “THE PANAMA PAPERS Politicians, Criminals and the Rogue Industry that Hides their Cash.”

3 On 7 April 2016 the Irish Times published a further article based on the Panama Papers under the headline “Mossack Fonsecca's Irish clients came from all walks of life.” Mr Desmond is referred to in this article and it also included a photograph of him. After noting that Mr Desmond and another well-known business person referred to in the article were “active in international investments and are not tax-resident in this jurisdiction, and it is not surprising that they might show up in the files of a major law firm that provides global services”, the article went on to refer to a Panamanian company, Ard International Inc According to the article, Ard International had issued bearer shares in June 2005. Bearer shares – so the article explained – were company shares that belong to whoever has them and were being done away with in most jurisdictions because of concerns over transparency. The article went on to state that, at the same time as deciding to issue those bearer shares, the company's directors (employees of Mossack Fonseca) had granted a general power of attorney over its affairs to Mr Desmond. The article noted that the files included a note from Mr Desmond from November 2005 asking the directors to grant power of attorney to two Swiss lawyers, resigning as attorney and asking the directors to destroy the documents associated with his appointment and resignation. Finally (as regards Mr Desmond) the article noted that it was not known what business – if any – had ever been conducted by Ard International and stated that a “spokesperson for Desmond said he did not want to comment.”

4 On the following day, 8 April 2016, a Ms Suzanne McNulty (described in the papers as Mr Desmond's General Counsel) wrote to the Irish Times on Mr Desmond's behalf asserting that the article breached his rights to privacy and confidentiality and was not justified by any public interest and also that the publication had caused damage to Mr Desmond's reputation. A specific complaint was made about the reference to Mr Desmond's spokesperson having said that he did not wish to comment. Ms McNulty indicated that she was the spokesperson concerned and complained that the statement in the article was not accurate. A comment had, she said, been provided to Mr (Colm) Keena of the Irish Times on 29 March 2016, that comment being in the following terms: “Please note that it is not our policy to comment on enquiries about Mr Desmond's personal affairs, which are private and conducted properly in compliance with the law.” Ms McNulty complained that these words had been twisted to imply that Mr Desmond had something to hide. The letter concluded by asking for the publication of an “unequivocal apology” to Mr Desmond.

5 The Editor of the Irish Times, Mr. Kevin O' Sullivan, responded denying that the article breached any of Mr Desmond's rights and emphasising the public interest relating to the international financial services system. According to Mr O' Sullivan, while identifying the shortcomings of that system, especially the secrecy it facilitates, the Irish Times had “made clear at all times that it is legal and can be used for legitimate business purposes” and the article had made clear that the use of the services of Mossack Fonseca was “perfectly legal”.

6 There followed further correspondence between solicitors for the parties in which their respective positions were further rehearsed. That correspondence did not lead to any resolution and Mr Desmond commenced these proceedings by Plenary Summons issued on 11 July 2016.

The Proceedings

7 In his Statement of Claim Mr Desmond pleads that the firm had informed clients on 3 April 2016 that “this unprecedented breach of lawyer-client confidence had occurred as a consequence of a ‘hack’ of the law firm's email server.” He also pleads that the Irish Times was aware that any material that it published concerning him was confidential between the firm and its clients, that such material had been stolen or otherwise unlawfully obtained and procured illegally in circumstances where it was self-evidently the property of either or both the firm and...