Edward Keating v Radio Telefís Éireann and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 09 May 2013
• Neutral Citation: [2013] IESC 22
• Date: 09 May 2013

Keating v Radio Telefis Eireann (RTE)

Between

EDWARD KEATING

Plaintiff

AND

RADIO TELEFÍS ÉIREANN

Defendant/Respondent

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

(Non Party)

Keating v Radio Telefis Eireann (RTE)

AND

THE REVENUE COMMISSIONERS

(Non Party)/Appellant

[2013] IESC 22

MCKECHNIE J.

CLARKE J.

MACMENAMIN J.

Appeal No. 381/2008

THE SUPREME COURT

PRACTICE AND PROCEDURE

Discovery

Application for non-party discovery - Defamation - Justification - Privilege - Security - Witness protection - Judicial discretion - Role of court in administration of justice - Requirement that claim of privilege be sufficiently particularised - Inherent jurisdiction to refuse application where purpose could never be achieved - Whether document fell within class of documents which should be withheld on public interest grounds - Whether disclosure should be denied as contrary to public policy - Whether success on plea of privilege unavoidable - Whether relevant and necessary - Whether moving party disclosed some information upon which plea of justification based - Whether application oppressive - Director of Consumer Affairs and Fair Trade v Sugar Distributors Ltd [1991] 1 IR 225; Foley v Bowden & Anor [2003] 2 IR 607; McLaughlin v Aviva Insurance (Europe) & Anor [2011] IESC 42, [2012] 1 ILRM 487; Corscadden v BJN Construction Ltd & Anor [2007] IEHC 42, (Unrep, Master of the High Court, 9/2/2007); Hannon v The Commissioner of Public Works & Ors, (Unrep, McCracken J, 4/4/2001); McDonagh v Sunday Newspapers Ltd [2005] IEHC 183, [2005] 4 IR 528; Haughey & Ors v Moriarty & Ors (Unrep, Geoghegan J, 20/1/1998); Ambiorix & Ors v Minister for the Environment & Ors (No 1) [1992] 1 IR 277; Breathnach v Ireland & Ors (No 3) [1993] 2 IR 458; Livingstone & Ors v Minister for Justice & Ors (Unrep, Murphy J, 2/4/2004); Allied Irish Banks plc & Anor v Ernst & Whinney & Anor [1993] 1 IR 375; Murphy v Dublin Corporation and The Minister for Local Government [1972] IR 215; Fitzpatrick v Independent Newspapers and Anor [1988] IR 132; Skeffington v Rooney & Anor [1997] 1 IR 22; O'Brien v Minister for Defence & Ors [1998] 2 ILRM 156; In re Kevin O'Kelly [1974] 108 ILT 97; Burke & Ors v Central Independent Television plc [1994] 2 IR.61; Stafford v Revenue Commissioners (Unrep, Supreme Court, 27/3/1996); Compagnie Financiere et Commerciale du Pacificque v Peruvian Guano Company (1882) 11 QBD 55; Sterling-Winthrop Group Ltd v Farbenfabriken Bayer AG [1967] IR 97; Ryanair plc v Aer Rianta cpt [2003] 4 IR 264; Taylor v Clonmel Healthcare Ltd [2004] 1 IR 169; Framus Ltd. & Ors. v CRH plc & Ors [2004] 2 IR 20; Galvin v Graham-Twomey [1994] 2 ILRM 315; Bula Limited (In Receivership) & Or v Crowley & Ors [1991] 1 IR 220; Aquatechnologie Ltd v National Standards Authority of Ireland & Ors (Unrep, SC, 10/7/2000); Megaleasing UK Ltd & Ors v Barrett & Ors [1993] ILRM 497 and Doyle v Garda Commissioner [1999] 1 IR 249 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 31, rr 12 and 29 - Appeal dismissed (381/2008 - SC - 9/5/2013) [2013] IESC 22

Keating v Radio Telefís Éireann

Facts: The defendant broadcaster RTÉ applied for third party discovery to support the plea of justification it had lodged defending a claim made by a criminal informant whose identity had been exposed during a documentary on drugs. The application considered in these proceedings was made by the third party Revenue Commissioners appealing against the grant of discovery on the basis that the judges erred in both law and fact.

The court held that the contention that disclosure would be detrimental to public policy and the public interest was a matter for the judiciary to evaluate - only they alone could weigh up the tension which may arise between the public interest in the administration of justice and any other competing public interests. Murphy v Dublin Corporation and The Minister for Local Government [1972] IR 215 considered.

The argument for non-disclosure based futility as the motion for privilege was bound to succeed was rejected. The court was not convinced that such an argument would inevitably succeed.

The court went on to consider whether the disclosure was both relevant and necessary. The documents were held to meet the relevance criteria as outlined in Compagnie Financière et Commerciale du Pacificque v. Peruvian Guano Company (1882) 11 QBD 55, and as the defendant did not have access to the documents of the third party who performed a frontline role in drug enforcement, it could be deemed necessary.

The purpose of discovery was held not to be abusive, the defendant applied in order to aid his defence; it was not an attempt to find grounds upon which it could be established. There was full awareness of what the plea related to, Galvin v Graham-Twomey [1994] 2 ILRM 315 considered.

The disclosure granted was not oppressive, the appeal was dismissed and any issues of privilege were to be dealt with under the usual procedure.

RSC O.31 r29

DIRECTOR OF CONSUMER AFFAIRS v SUGAR DISTRIBUTORS LTD 1991 1 IR 225 1991 ILRM 395 1991/2/365

FOLEY v BOWDEN & CMSR OF AN GARDA SIOCHANA 2003 2 IR 607 2004 1 ILRM 22

MCLAUGHLIN v AVIVA INSURANCE (EUROPE) & ANOR 2012 ILRM 487 2012/32/9442 2011 IESC 42

CORSCADDEN v BJN CONSTRUCTION LTD & ALLENWAY LTD UNREP HONOHAN 9.2.2007 2007/11/2130 2007 IEHC 42

HANNON v CMRS OF PUBLIC WORKS & ORS UNREP MCCRACKEN 4.4.2001 2001/11/3168

MCDONAGH v SUNDAY NEWSPAPERS 2005 4 IR 528 2005/42/8666 2005 IEHC 183

HAUGHEY & ORS v MORIARTY & ORS UNREP 20.1.1998 1998/7/2075 1998 IEHC 6

AMBIORIX LTD & ORS v MIN FOR ENVIRONMENT & ORS (NO 1) 1992 1 IR 277 1992 ILRM 209 1991/7/1580

BREATHNACH v IRELAND (NO 3) 1993 2 IR 458 1992 ILRM 755 1993/1/123

LIVINGSTONE & ORS v MIN JUSTICE & AG UNREP MURPHY 2.4.2004 2004/28/6494 2004 IEHC 58

ALLIED IRISH BANKS v ERNST & WHINNEY 1993 1 IR 375

MURPHY v DUBLIN CORP 1972 IR 215

HOUSING ACT 19661966 SCHED 3 ART 5(2)

FITZPATRICK v INDEPENDENT NEWSPAPERS 1988 IR 132 1988 ILRM 707 1988/8/2203

SKEFFINGTON v ROONEY & ANOR 1997 1 IR 22 1997 2 ILRM 56 1997/12/3669

O'BRIEN v MIN DEFENCE & ORS 1998 2 ILRM 156 1998/27/11041

O'KELLY, IN RE 1974 108 ILTR 97

BURKE v CENTRAL INDEPENDENT TELEVISION PLC 1994 2 IR 61 1994 2 ILRM 161 1994/1/133

STAFFORD v REVENUE CMSRS UNREP SUPREME 27.3.1996 1998/31/12408

COMPAGNIE FINANCIERE ET COMMERCIALE DU PACIFIQUE v PERUVIAN GUANO CO 1882-83 11 QBD 55

STERLING-WINTHROP GROUP LTD v FARBENFABRIKEN BAYER AG 1967 IR 97

RYANAIR v AER RIANTA 2003 4 IR 264 2004 1 ILRM 241

RSC O.31 r12(3)

TAYLOR v CLONMEL HEALTHCARE LTD 2004 1 IR 169 2004 2 ILRM 133 2004/48/11095

FRAMUS LTD & ORS v CRH PLC & ORS 2004 2 IR 20 2004 2 ILRM 439 2004/18/4116 2004 IESC 25

GALVIN v GRAHAM-TWOMEY 1994 2 ILRM 315 1995/2/773

BULA LTD (IN RECEIVERSHIP) & ORS v CROWLEY & ORS 1991 1 IR 220 1990 ILRM 756 1990/1/150

AQUATECHNOLOGIE LTD v NATIONAL STANDARDS AUTHORITY OF IRELAND (NSAI) & ORS UNREP SUPREME 10.7.2000 2000/1/209

MEGALEASING (UK) LTD v BARRETT & ORS 1992 1 IR 219 1991/9/2142

DOYLE v CMSR OF AN GARDA SIOCHANA 1999 1 IR 249 1998 1 ILRM 229 1998/5/1386

1 Judgment of Mr. Justice William M. McKechnie delivered on the 9th day of May, 2013.

2 Judgment delivered by McKechnie J. [nem diss]

Introduction:

3 1. Arising out of a television broadcast transmitted on the 19 ^th July, 2001, which had as its inquiry, an investigation into the alleged importation of drugs into this State and their subsequent possession for sale or supply, the plaintiff instituted High Court proceedings in which damages were sought for defamation, negligence, breach of duty and for breach of both Constitution and Convention rights. It was claimed on his behalf that he had been libelled in a variety of ways; this occurred notwithstanding the fact that the defendant (or "R.T.É.") had express knowledge that his participation in such activity had been at all times under the control, direction and guidance of An Garda Síochána, for which he was acting as an informer. In the defence as filed, the defendant raised several pleas including one of justification. In support of this plea, the national broadcaster applied for third party discovery against both the Commissioner of An Garda Síochána (or "the gardaí" or "An Garda Síochána") and the Revenue Commissioners, the latter by reference to their Customs and Excise branch. That application failed before the Master but was successful in the High Court on a fresh notice of motion which issued on the 20 ^th December, 2007. The Revenue Commissioners ("the Revenue" or "Customs & Excise") have now appealed to this Court against the resulting order of McCarthy J. which was made on the 23 ^rd July, 2008.

General Background

4 2. On the due date, namely the 19 ^th July, 2001, the defendant broadcasted an episode of the well known current affairs programme, "Prime Time", in which the activities of a number of persons allegedly involved in the illegal importation of controlled drugs and in their unlawful possession for sale or supply, were investigated. This broadcast, which covered inter alia, the years 1995 and 1996 was given intense pre-delivery publicity by way of repeat promotional "trailers", from which the plaintiff's identity could clearly be ascertained. Being concerned over this, An Garda Síochána intervened and as a result the broadcaster, immediately prior to the commencement of the programme itself, made the following announcement:

"[f]or reasons of security it has been deemed necessary to remove at late notice images and references to the name of one of the key individuals named in tonight's programme".

5 It is not in dispute but that the individual in question was the plaintiff and that the purpose of such contact was to protect the safety of his...