Fitzpatrick v Independent Newspapers Plc

• Jurisdiction: Ireland
• Judge: MR JUSTICE DECLANCOSTELLO
• Judgment Date: 19 May 1988
• Neutral Citation: 1988 WJSC-HC 2203
• Date: 19 May 1988
• Docket Number: [1985 No. 5367P]
• Court: High Court

FITZPATRICK v. INDEPENDENT NEWSPAPERS

BETWEEN

JOSEPH M FITZPATRICK

Plaintiff

and

INDEPENDENT NEWSPAPERS plc AND JOHN MARTIN

Defendants

1988 WJSC-HC 2203

No.5367P/1985

THE HIGH COURT

Synopsis:

PRACTICE

Documents

Discovery - Stranger - Possession - Rules Committee - Whether order 31, r. 29, made ~ultra vires~ Rules Committee - Defendant in libel action - Defendant's motion for discovery of documents in possession of stranger to the action - Some documents obtainable by defendant from plaintiff through discovery procedure - Discovery resisted by stranger on ground of privilege - Bord na gCon was established by a statute which provided that the Irish Coursing Club should be the controlling authority within the State for the breeding and coursing of greyhounds - The statute provided that the Club should act subject to the general control and direction of Bord na gCon and that the Club was obliged to furnish to the Board such information relating to the Club's affairs as the Board should require - The Board instructed an accountant to investigate the affairs of the Club and to report to the Board the results of his investigations - The accountant completed three reports about the affairs of the Club - In January, 1985, the defendant journalist, who was on the staff of the defendant newspaper, received an anonymous telephone message informing him where he could find an envelope containing interesting material - The defendant journalist then searched for and found an envelope which contained the three reports which had been written by the accountant - The defendant journalist wrote two articles which contained extensive extracts from the reports and summaries of the irregularities alleged in them, and those articles were published by the defendant newspaper - The plaintiff, who was the secretary of the Club, issued a plenary summons in the High Court claiming from the defendants damages for libel - The defendants applied for an order directing the Board to make discovery, and to permit inspection, of (a) books, records, vouchers etc. obtained by the accountant from the Club in connection with the preparation of his reports; (b) documents submitted to the Board by the plaintiff when responding to matters appearing in those reports and (c) minutes of the meetings of the Board and its committees at which those reports were considered - The Board opposed the defendants" motion and submitted (a) that order 31, r. 29, in so far as it extended the discovery procedure to discovery by strangers to an action, was made ~ultra vires~ the Rules Committee of the High Court; (b) that the Board was entitled to claim privilege in respect of the documents since the Board performed its functions in the public interest; (c) that the court should not exercise its discretion in favour of the defendants since (i) the defendants could obtain copies of the documents by seeking discovery of documents by the plaintiff and (ii) the defendants claimed the right to refuse to disclose their sources and the Board should be allowed to claim the same right - Held, in granting the defendants" application, that the impugned provisions of order 31, r. 29, were not made ~ultra vires~ the High Court Rules Committee since they fell within the field of "practice and procedure" and, therefore, were authorised by s. 36 of the Act of 1924 - Held that the Board had not established that its discovery of relevant documents would be contrary to the public interest or would injure the discharge of its statutory functions - Held that the fact that the plaintiff had filed an affidavit of discovery which might reveal many of the documents in which the defendants were interested was not a factor which should preclude the court from exercising its discretion in favour of the defendants - Held that the order of the court would (a) direct the Board to make discovery of relevant documents in its power or possession; (b) restrict inspection of the documents revealed in the Board's affidavit to a single representative of the defendants" solicitors; (c) authorise that representative to take copies of the documents he inspected; (d) direct that the copied documents be retained by the defendants" solicitors and returned to the Board at the conclusion of the proceedings; (e) prohibit copies, excerpts or summaries of the copied documents being made by the defendant's solicitors except for the purpose of briefing counsel; prohibit the use of the information obtained from the documents and the copies thereof except for the purposes of the defence to the plaintiff's action and (f) authorise the defendants to inspect the copied documents only by leave of the trial judge or by leave of a judge at the re-entry of the defendants motion - Rules of the Superior Courts, 1986, order 31, r. 29 - Courts of Justice Act, 1924, s. 36 - (1985/5367 P - Costello J. - 19/5/88)

|Fitzpatrick v. Independent Newspapers|

WORDS AND PHRASES

"Practice and procedure"

Rules of court - Rules committee - Authority - Discovery of documents - Discovery procedure originally confined to parties to action - Rules of courts extended to authorise party to an action to apply for an order compelling stranger to discover documents in his possession and relevant to issue in the action - Extension not made ~ultra vires~ High Court Rules Committee - ~See~ Practice, documents - (1985/5367 P - Costello J. - 19/5/88)

|Fitzpatrick v. Independent Newspapers|

Citations:

RSC O.31 r29

COURTS OF JUSTICE ACT 1936 S67

COURTS OF JUSTICE ACT 1924 S36

GROSVENOR HOTEL (NO 2), IN RE 1962 3 WLR 992

REPORT OF THE COMMITTEE ON PERSONAL INJURIES LITIGATION CMND 3691

MURPHY V DUBLIN CORPORATION 1972 IR 215, 107 ILTR 65

BURMAH OIL CO LTD V BANK OF ENGLAND 1980 AC 1090, 1979 3 WLR 722

1 JUDGMENT DELIVERED BY THE HONOURABLE MR JUSTICE DECLANCOSTELLOON 19TH MAY 1988

APPEARANCES

Mr Fennelly, SC

Mr Feeney, BL

for Independent Newspapers plc

Instructed by

McCann Fitzgerald Sutton Sudley

Michael McMahon, BL

for Bord na gCon

2 Some time in January 1985 Mr. John Martin, a journalist on the staff of the Irish Independent, was told of an anonymous telephone call to his office informing him that he would find an envelope of interest to him in the car park of Harold's Cross Greyhound Stadium. The envelope which Mr Martin duly obtained contained three reports written by Mr Cyril Downes, an accountant on the staff of Bord na gCon, which he had written following a detailed investigation he had made into the affairs of the Irish Coursing Club and its two subsidiaries at his Board's request. These reports were highly critical of the manner in which the affairs of the Club and its subsidiaries had been conducted.

3 Subsequently Mr Martin wrote two articles for the Irish Independent on February 1, 1985, which contained extensive extracts from these reports, summaries of the findings of irregularities detailed in them and Mr Martin's comments on them. Later, these proceedings for damages for libel were instituted by Mr Fitzpatrick, the secretary of the Club during the period the reports covered, the defendants being the proprietors of the Irish Independent and Mr Martin. Their...