Gallagher v RTE

CourtHigh Court
JudgeMr Justice David Keane
Judgment Date11 April 2017
Neutral Citation[2017] IEHC 237
Docket Number[2013 No.98P]
Date11 April 2017

[2017] IEHC 237


Keane J.

[2013 No.98P]


Practice and Procedures – O. 99 of the Rules of the Superior Courts – Failure to make appropriate discovery – Appointment of independent expert – Striking out the claim – Conduct of plaintiff whether wilful or negligent – Risk of fair trial

Facts: The defendant sought an order for the dismissal of the plaintiff's claim for failure to make discovery as directed. The defendant argued that since the plaintiff in his claim for damages stated that the alleged broadcast had diminished the plaintiff's prospects in the election, the plaintiff was bound to disclose the specified information as it was determinative of the issues between the parties. The defendant, in the alternative, proposed the appointment of an independent expert for supervising the discovery procedure. The plaintiff submitted that he was willing to make the relevant discovery or in the alternative would consent for the appointment of an independent expert.

Mr. Justice David Keane held that an independent expert should be appointed for electronic discovery by agreement between the parties or, by the Court, in case of failure of the parties to do so. The Court held that the costs of such expert would be borne out by the parties jointly and severally with each party paying 50% of such costs and such costs should form a part of the costs for each party under o. 99 of the Rules of the Superior Courts. The Court directed that the said expert would review the discovery made by the plaintiff and provide a report to the solicitors of each party within a prescribed time limit. The Court adjourned the matter for further consideration. The Court observed that the documents disclosed by the plaintiff were deficient. The Court noted that the discretion to strike out the claim should be exercised only where there was wilful default in non-compliance of an order for discovery. The Court found that the non-disclosure of relevant document by the plaintiff was not wilful, but it was a negligent act.

JUDGMENT of Mr Justice David Keane delivered on the 11th April 2017

The defendant (“RTÉ”) moves for an order dismissing the present action for failure to make proper discovery. As an alternative, RTÉ seeks an order staying the proceedings pending the making of proper discovery. As a further alternative, RTÉ seeks an order directing the plaintiff (“Mr Gallagher”) to swear a further supplemental affidavit of discovery in accordance with certain proposed directions. Mr Gallagher opposes the grant of any of those reliefs.


At the hearing of the application, RTÉ's position had evolved in that, without expressly abandoning its claim to any of the reliefs just described, it asked the Court to consider making an Order appointing an independent expert on electronic discovery to oversee the completion of the discovery process by Mr Gallagher and fixing Mr Gallagher with the associated costs and with the costs of the present application. Mr Gallagher's position had also evolved in that, in the course of the hearing, by letter from his solicitors dated 29 April 2016, he made an open offer to resolve the application. Essentially, the offer was that Mr Gallagher would swear an additional affidavit addressing the issues concerning his discovery that have been raised by RTÉ, and exhibiting a report in that regard by his information technology (“IT”) consultants, or that Mr Gallagher would consent to the appointment of an independent IT expert to oversee his discovery process and that he would defray up to €15,000 of the associated cost (or 50% of that cost, if greater than that amount), subject to agreement that such cost would form part of his overall legal costs for the purpose of O. 99 of the Rules of the Superior Courts (“RSC”), “consistent with the provisions of O. 31, r. 12(3)(c)” of those rules.

The underlying claim

A plenary summons issued on 4 January 2013 and Mr Gallagher delivered a statement of claim on the same date.


Mr Gallagher's claim primarily relates to the conduct by RTÉ of a televised debate (“the debate”) in which he participated on 24 October 2011. RTÉ is a statutory corporation and is the national public broadcaster on television, radio and, in more recent years, the internet. The debate occurred in the context of the 2011 Irish Presidential election (“the election”) in which Mr Gallagher was nominated as a candidate on 27 September 2011. Polling in that election took place on 27 October 2011. Mr Gallagher was not elected.


Mr Gallagher expressly pleads that, prior to the debate, in a number of identified opinion polls taken from the middle of October 2011 onwards, he was the clear frontrunner amongst the candidates.


In the course of the debate, the presenter questioned Mr Gallagher about a statement that had just been made concerning him on a social media account purporting to be that of the official campaign of another candidate (“the statement”).


Mr Gallagher claims that the statement concerned was put to him with the express purpose of undermining his credibility and that, in publishing it in that way, RTÉ acted wrongfully or negligently.


Mr Gallagher contends that RTÉ aggravated its wrongful or negligent conduct towards him by rebroadcasting extracts from the debate in the course of a radio programme the following morning.


Mr Gallagher pleads, among other particulars of the wrongful conduct he alleges, that RTÉ directed and edited the debate with the improper aim of altering the course of the election to promote the electoral chances of another candidate and to damage those of Mr Gallagher. Mr Gallagher also pleads that the alleged wrongful conduct of RTÉ constituted targeted malice that was specifically intended to injure and damage him.


Mr Gallagher further pleads that the marked decline between his projected share of the first preference votes in the various opinion polls upon which he relies and his actual share of the first preference votes cast in the election was significantly caused, or contributed to, by RTÉ's wrongful or negligent conduct towards him.


Mr Gallagher asserts that he made a complaint to the Broadcasting Compliance Committee (“the Committee”) of the Broadcasting Authority of Ireland (“BAI”), which was upheld in a decision dated 7 March 2012, in that the said Committee deemed the broadcast of the statement and its re-broadcast on radio the following day without clarification to be unfair to him.


Mr Gallagher seeks two declarations: first, one that the broadcast of the debate was neither objective nor impartial nor fair to his interests; and second, one that the said broadcast was deliberately and unfairly edited, presented and directed by RTÉ in order to damage his prospects in the election. Mr Gallagher also claims damages, including aggravated or exemplary damages, or both, against RTÉ for negligence and breach of duty (including breach of statutory duty), and for misfeasance in public office.


RTÉ delivered a defence on 27 June 2013.


It admits the broadcast of the debate and, in the course of it, the attribution of the statement to the social media account concerned. It denies that it acted wrongfully or negligently, or that it is guilty of misfeasance in public office.


RTÉ specifically denies that the decline in Mr Gallagher's share of first preference votes, between the carrying out of the relevant opinion polls prior to the election and the conduct of the election poll itself, was caused by any wrongdoing or negligence on its part.


RTÉ admits that the BAI Committee gave its decision on 7 March 2012 on a complaint made by Mr Gallagher but disputes that his pleas concerning that decision are accurate or complete. RTÉ further admits that, prior to the commencement of the present action, it acknowledged the findings of the Committee and apologised to Mr Gallagher for the mistakes it had made; in particular, for its failure to verify the origin of the statement or to broadcast the fact that the provenance of the statement was in issue and, in those respects, for its failure to comply with its obligation of fairness towards Mr Gallagher.


RTÉ denies the occurrence of the consequential loss or damage claimed by Mr Gallagher or that it bears any responsibility for any such loss or damage as may have occurred. RTÉ pleads, alternatively, that any loss of opportunity, loss of electoral prospects or reputational damage that Mr Gallagher did suffer was caused by his own conduct in respect of the underlying controversy or controversies to which the statement at issue was alleged to be germane, or by his own conduct during the campaign, including his performance during the debate, or through some combination of those factors.

Procedural background

Through their respective solicitors, RTÉ wrote to Mr Gallagher on 28 November 2013 requesting that he make voluntary discovery of various identified categories of documentation. Agreement could not be reached on that request and RTÉ issued a motion seeking an order directing Mr Gallagher to make discovery. The parties later did reach agreement and, on 2 May 2014, an Order was made on consent directing the discovery of six identified categories of documentation by Mr Gallagher.


Mr Gallagher swore an affidavit of discovery on 21 November 2014. RTÉ wrote to Mr Gallagher on 1 April 2015 expressing dissatisfaction with the form and content of that affidavit and requiring Mr Gallagher to swear a supplemental affidavit in order to make what RTÉ considered to be full and proper discovery. On 15 June 2015, RTÉ wrote again, threatening a further application to the court in the absence of a satisfactory response. On 3 July 2015, Mr Gallagher served a notice of trial. The present motion issued on 12...

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