Ganley v RTE

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 15 February 2017
• Neutral Citation: [2017] IEHC 78
• Court: High Court
• Docket Number: [2011 No. 11617P]
• Date: 15 February 2017

[2017] IEHC 78

THE HIGH COURT

Barrett J.

[2011 No. 11617P]

BETWEEN

DECLAN GANLEY

PLAINTIFF

AND

RADIO TELIFÍS ÉIREANN

DEFENDANT

Defamation – Practice & Procedures – Non-compliance with discovery obligations – O. 31, r. 21 of the Rules of the Superior Courts – Striking out defence – Non-disclosure of relevant information – Damage to reputation

Facts: The plaintiff had filed a claim for damages against the defendant for publishing the alleged defamatory words in a broadcasted programme. Following the issuance of plenary hearing and voluntary discovery, both the parties had now come to the Court seeking a range of reliefs. The plaintiff had filed two motions for striking out the defendant's defence for its non-compliance with the High Court order for discovery. The defendant, too, had filed an application seeking permission to cross-examine the plaintiff on affidavit and an order for further and better discovery in lieu of the earlier deficiencies in the documents provided by the plaintiff by way of voluntary discovery.

Mr. Justice Max Barrett declined the plaintiff's motions for striking out the defence and directed the defendant to comply with the earlier High Court order forthwith. The Court refused to permit the defendant to file the affidavit of discovery of the named person but allowed the defendant to cross-examine the plaintiff on the affidavits of discovery. The Court further directed the plaintiff to provide further and better discovery with the direction to identify all the relevant documents in his possession along with an explanation as to how and when he had parted with those documents. The Court held that where the claimant had complained that certain words were capable of being defamatory, he was required to justify the meanings of those words in that sense and the defendant should be allowed to plead an alternative meaning. The Court observed that the plaintiff demonstrated gross violation of his discovery obligation, thereby justifying an order for the dismissal of his claim; however, given the loss of goodwill and reputation that was caused to the plaintiff, the Court would abstain from making such an order as it would lead to the deprivation of fair trial. The Court held that the power of the Court to secure compliance with the discovery obligations should not be used to penalize the opposite party. The Court, in conformity with the decision of the Court of Appeal in Lucas Box v Associated Newspapers Group plc and ors [1985] EWCA Civ J1030-7, opined that the defendant was entitled to justify a common string derived from the parts of a publication, of which the claimant had no complain to the extent that those parts were relevant to the meaning of the words complained of. The Court further held that the claimant was not entitled to highlight the words in isolation so as to change its meaning when taken as a whole.

JUDGMENT of Mr Justice Max Barrett delivered on 15th February, 2017.

I. Background

1 Mr Ganley is a prominent businessman. RTÉ is Ireland's national broadcaster and, at all material times, the maker of a successful current affairs television programme known as "Prime Time". RTÉ maintains an online presence at www.rte.ie. Mr Ganley maintains that in an edition of "Prime Time" aired on 27th November, 2008, RTÉ published words that were defamatory of Mr Ganley, and that it allowed on-line access to the impugned programme thereafter. In these proceedings, Mr Ganley seeks, inter alia, damages, including aggravated and/or exemplary damages, for the alleged defamation.

II. The Proceedings to Date

(i) Statement of Claim delivered on 17th April 2012.

2 Mr Ganley's plenary summons issued on 15th December 2011. The statement of claim was delivered on the following 17th April. Mr Ganley alleges at para. 6 of his statement of claim that in their natural and ordinary meaning and/or by way of innuendo the words broadcast by RTÉ in the programme and on its website ' were meant and were understood to mean' that Mr Ganley '(a)...had links to organized crime; (b)...falsely claimed to be a paid advisor to the government of Latvia; (c)...had a direct business relationship with a [Mr] Kostas Tribecka who worked for him at a company called Anglo Adriatic; (d)...had a close friendship with [Mr] Kostas Tribecka and had associated him on a trip; (e)...was somehow involved in the death of...[Mr] Kosta Tribecka and, using the juxtaposition of pictures of the dead man's body, deliberately and shockingly shown; alongside words linking his death to the Anglo Adriatic Fund which it was alleged...[Mr Ganley] was behind, raised obvious suspicions [Mr Ganley]... was responsible for or involved in...[Mr Tribecka's] death; (f) [Mr Ganley] falsely and misleadingly claimed to have done a deal to bundle six television stations together in Central America; (g)...[Mr Ganley's] actions caused the Anglo Adriatic Fund to lose the life savings of thousands of Albanian pensioners [1]...(h) [Mr Ganley]... was covertly working for the United States' Central Intelligence Agency and/or an ill-defined group known as the "Neocons"'. Mr Ganley further claims that: by reason of the broadcast of the words he has been gravely damaged in his character and reputation and has suffered considerable distress and embarrassment; and RTÉ, its servants or agents, were malicious in, the allegedly highly partisan tone of the programme.

1 At the hearing of the within applications, counsel for Mr Ganley suggested (Day 1, p.16) that, inter alia, item (g) claims that Mr Ganley 'ripped off thousands of Albanian pensioners by his actions'. It appears to the court that this is not strictly correct and that while it is claimed that '[Mr Ganley's] actions caused the Anglo Adriatic Fund to lose the life savings of thousands of Albanian pensioners', it is not expressly claimed in item (g) that this occurred pursuant to some form of fraud or "rip-off".

(ii) Defence of 15th November, 2012.

3 RTÉ delivered its Defence on 15th November, 2012. It is necessary to quote elements of that Defence in some detail. At paras. 4–12, the Defence states as follows:

'4....[Mr Ganley] fails to identify any specific words contained in the programme which are alleged to be defamatory of [Mr Ganley]....[Mr Ganley ] has also failed to identify or particularise any specific words which are alleged to bear each or indeed any of the alleged meanings pleaded at paragraph 6 of the Statement of Claim. Accordingly...[RTÉ] reserves the right to amend its defence, where appropriate, to plead justification, fair comment and/or qualified privilege as the case may be, if and when [Mr Ganley]... provides the necessary particulars of the specific words complained of....[RTÉ] further reserves the right to apply for an order striking out [Mr Ganley's]... claim, in whole or in part, including the meanings pleaded by [Mr Ganley]....

5. Without prejudice to the foregoing, it is denied that the words broadcast, in their natural and ordinary meaning or by way of innuendo bore or were understood to bear any of the several meanings alleged at paragraph 6 of the Statement of Claim save for the meaning pleaded at paragraph 6(f).[1]

[[1] This is an unambiguous claim of innuendo as it existed before the coming into force of the Defamation Act 2009. And it will be recalled that Mr Ganley, at para. 6 of his Statement of Claim alleges that the words used in the impugned RTÉ broadcast, whether in their natural and ordinary meaning and/or by way of innuendo bore or were understood to bear certain meanings. In essence, innuendo arises, to borrow from McMahon and Binchy's Law of Torts (4th ed.), para. 34-105, where ' a seemingly innocent remark may be shown to be defamatory because of a hidden significance which the uttered words bear'. The learned authors then go on to distinguish between popular innuendo (where the defamatory meaning can be construed from the words themselves) and legal innuendo (where extrinsic or additional information must be produced). In the present case, notwithstanding the pleas made, it does not appear that any innuendo is truly being claimed.]

6. Insofar as the words broadcast bore the meaning pleaded at paragraph 6(f), the same were true in substance and in fact.

7. If, which is denied, the words broadcast bore the meanings pleaded at paragraph 6(c) and 6(d) of the Statement of Claim...[RTÉ] denies that the said meanings are defamatory meanings as alleged or at all.

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 [Mr Ganley]... and Mr Kosta Trebicka 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 [Mr Ganley]...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 [Mr Ganley]...[RTÉ] pleads that the sting of the words in the programme, taken as a whole, was that [Mr Ganley]... 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 [presumably this means to refer to the Defendant, i.e. RTÉ] will rely on,...