Ganley v Raidió Telifís Éireann

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 23 January 2019
• Neutral Citation: [2019] IECA 18
• Date: 23 January 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2019] IECA 18 2017/117 2017/118

BETWEEN

DECLAN GANLEY

PLAINTIFF/APPELLANT

AND

RAIDIÓ TELIFÍS ÉIREANN

DEFENDANT/RESPONDENT

[2019] IECA 18

Irvine J.

Birmingham P.

Irvine J.

Baker J.

Neutral Citation Number: [2019] IECA 18

2017/116

2017/117

2017/118

THE COURT OF APPEAL

Defamation – Interlocutory orders – Costs – Appellant seeking to appeal from certain interlocutory orders made in the High Court – How costs ought to be dealt with

Facts: Defamation proceedings arose as a result of an episode of Prime Time, a current affairs programme broadcast by the respondent, RTE, on the 27th November 2008. The broadcast focused upon the life of the appellant, Mr Ganley, a prominent Irish businessman, and in particular his business interests. Mr Ganley maintained that the programme as a whole was defamatory of him with the result that he commenced the proceedings by plenary summons on the 15th December 2011. A number of appeals to the Court of Appeal arose from certain interlocutory orders made by Barrett J in the High Court on the 1st March 2017. Appeal No. 2017/118 was Mr Ganley’s appeal against that part of the High Court judge’s order which granted RTE leave to cross-examine him in respect of his affidavits of discovery sworn on the 27th August 2014 and 10th April 2015. That order was made on foot of RTE’s notice of motion dated 7th May 2015. The first appeal under record number 2017/116 was RTE’s appeal against the High Court judge’s order requiring it to forthwith make discovery in accordance with the order of the High Court of the 4th February 2015. That order was made on foot of Mr Ganley’s motion of the 30th April 2015. The second appeal under record number 2017/116 was RTE’s appeal against the order of the High Court judge which reserved unto the trial judge the costs of Mr Ganley’s motion dated the 30th April 2015. The third appeal under record number 2017/116 was RTE’s appeal against the High Court judge’s refusal to permit it file its affidavit of discovery in the High Court in a sealed format rather than in accordance with the High Court order of the 4th February 2015. That order was made on foot of RTE’s notice of motion dated the 7th May 2015. The fourth appeal under record number 2017/116 was RTE’s appeal against the order of the High Court judge which reserved unto the trial judge the costs of its motion dated the 7th May 2015. Appeal No. 2017/117 was Mr Ganley’s appeal to strike out paras 8-10 inclusive of RTE’s defence.

Held by Irvine J that she would allow the second appeal under record number 2017/116. Irvine J proposed that the Court would hear submissions from the parties as to how those costs ought to be dealt with when it came to consider the costs of the appeals determined by the court.

Irvine J held that she would dismiss the remaining appeals and would propose that the Court would hear submissions from the parties as to how the costs of RTE’s motion dated the 7th May 2015 ought to be dealt with when it came to consider the costs of the appeals determined by the court.

Appeal allowed in part.

JUDGMENT of Ms. Justice Irvine delivered on the 23rd day of January 2019

1 These defamation proceedings arise as a result of an episode of Prime Time, a current affairs programme broadcast by RTE, on the 27th November 2008. The broadcast focused upon the life of Mr. Declan Ganley, a prominent Irish businessman, and in particular his business interests. Mr. Ganley maintains that the programme as a whole was defamatory of him with the result that he commenced the within proceedings by plenary summons on the 15th December 2011. The substantive proceedings have not yet been heard notwithstanding the fact that almost ten years have now passed since the broadcast was aired.

2 This judgment relates to a number of appeals arising from certain interlocutory orders made by Barrett J. in the High Court on the 1st March 2017. The appeals may be summarised as follows:-

(i) RTE's appeal against the refusal of the High Court judge to strike out the plaintiff's claim for want of prosecution and in particular his failure to make proper discovery;

(ii) Mr. Ganley's appeal against an order granting the defendant liberty to cross-examine him in respect of his affidavits of discovery sworn on the 27th August 2014 and the 10th April 2015;

(iii) RTE's appeal against an order requiring that it forthwith comply with an order for discovery made on the 4th February 2015 and refusing its application that it be permitted to file in court its affidavit of discovery in a sealed envelope pending further order of the court;

(iv) Mr. Ganley's appeal against the refusal of the High Court judge to strike out paras. 8, 9 and 10 of RTE's defence delivered on the 15th November 2012; and

(v) RTE's appeal against the order of the High Court judge which provided that the costs of all three interlocutory applications heard by him be reserved to the hearing of the action.

3 I will deal with each of the appeals in turn but before doing so I will endeavour to summarise the pleadings exchanged between the parties and the history of the discovery process.

The Pleadings

4 In his statement of claim delivered on the 17th April 2012, Mr. Ganley claims that the words broadcast by RTE in the course of the programme, in their ordinary and natural meaning, and/or by way of innuendo, had the meanings ascribed to them at para. 6 of his statement of claim, namely that:-

‘6(a) the Plaintiff had links to organised crime;

(b) the Plaintiff falsely claimed to be a paid advisor to the government of Latvia;

(c) the Plaintiff had a direct business relationship with a Kosta Tribecka who worked for him at a company called Anglo Adriatric;

(d) the Plaintiff had a close friendship with Kosta Tribecka and had accompanied him on a trip;

(e) the Plaintiff was somehow involved in the death of said Kosta Tribecka, and using the juxtaposition of pictures of the man's dead body, deliberately and shockingly shown; alongside words linking his death to the Anglo Adriatic Fund which it was alleged the plaintiff was behind, raised obvious suspicions the Plaintiff was responsible for or involved in that person's death;

(f) the Plaintiff falsely and misleadingly claimed to have done a deal to bundle six television stations together in Central America;

(g) the Plaintiff's actions caused the Anglo Adriatic Fund to lose the life savings of thousands of Albanian pensioners their life savings (sic);

(h) the Plaintiff was covertly working for the United States” Central Intelligence Agency and/or an ill-defined group known as the “Neocons”.’

5 Prior to receiving Mr. Ganley's reply to its notice for particulars dated the 4th July 2012, RTE filed its defence on the 15th November 2012. The defence may be described as a full defence in which RTE complains that Mr. Ganley, in his statement of claim, failed to identify any specific words in its programme defamatory of him. Further, it pleads that the words broadcast in their ordinary or natural meaning or by way of innuendo do not bear the meanings alleged at para. 6 of the statement of claim save for the meaning pleaded at para. 6(f). RTE further pleads that the sting of the words in the programme, when taken as a whole, mean that Mr. Ganley has a tendency to make exaggerated claims in respect of business and other matters, and seeks to justify this meaning. In that regard it sets out at para. 10(a)-(g) of its defence the facts upon which it intends to rely to support this contention in addition to the matters already pleaded in the defence. In the further alternative, RTE maintains that the words complained of were published on an occasion of qualified privilege.

6 Because of the controversy concerning paras. 8, 9 and 10 of the defendant's defence, it is convenient at this point to set out the full text of those paragraphs:

‘8. If, which is denied, the words broadcast bore the meanings pleaded at paragraphs 6(c) and (d) of the Statement of Claim, and if, which is denied, the said meanings or either of them are defamatory, the same are true in substance and in fact to the extent that the Plaintiff and Mr. Kosta Tribecka both worked in connection with the Anglo Adriatic Investment Fund (and were among a small number of persons engaged in doing so). The Fund itself accepted vouchers, many of which were bought on an unofficial market, but it was never allowed to invest them in privatised enterprises. People who had deposited vouchers in the Fund felt aggrieved that the Fund ceased trading with little or no explanation to depositors.

9. If, which is denied, the broadcast bore the meaning pleaded at paragraph 6(b) of the Statement of Claim, the same was true in substance and in fact to the extent that the plaintiff frequently exaggerated his role, vis-à-vis the Latvian Government in the early stages of Latvian independence.

10. Without prejudice to the foregoing, if, which is denied, the broadcast is defamatory of the Plaintiff, the Defendant pleads that the sting of the words in the programme, taken as a whole, was that the Plaintiff had a tendency to make false or exaggerated claims in respect of business or other matters. In this respect, in addition to the matters already pleaded, the plaintiff will rely on, inter alia, the following:-

(a) At a meeting between the Plaintiff and Michael Bourke, an IMF adviser, in Riga the Plaintiff represented to Michael Bourke that he, the Plaintiff, was in the process of setting up a bank called Ganley International Bank and that he was getting a licence from the Ministry of Finance in Latvia. Michael Bourke checked the following day to find that there was no application for a licence for this bank pending.

(b) The Plaintiff has previously made an exaggerated claim to hold a controlling interest in one of Europe's largest on-shore gas fields located in the Balkans.

(c) The Plaintiff has previously made an exaggerated claim that he was an adviser on technology and terrorism...