Gerry Adams v British Broadcasting Corporation
| Jurisdiction | Ireland |
| Judge | Ms. Justice Emily Egan |
| Judgment Date | 11 March 2022 |
| Neutral Citation | [2022] IEHC 135 |
| Court | High Court |
| Docket Number | [Record No. 2017/4816 P] |
[2022] IEHC 135
[Record No. 2017/4816 P]
THE HIGH COURT
Defamation – Fair and reasonable publication – Discovery – Plaintiff seeking to strike out a portion of the defendant’s defence – Whether the defence of fair and reasonable publication should be struck out
Facts: The defendant, British Broadcasting Corporation, in September, 2016, broadcast an episode of the “Spotlight” television programme entitled “Spy in the IRA”. The following day, the defendant published an article on its website with the headline “Gerry Adams ‘sanctioned Denis Donaldson killing’”. The plaintiff, Mr Adams, commenced proceedings by plenary summons dated 26th May, 2017 claiming that the programme and article were defamatory. The plaintiff applied to the High Court seeking an order pursuant to O. 19, r. 27 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court striking out the defence under s. 26 of the Defamation Act 2009. The plaintiff’s argument was that from the date of delivery of the defence (at the latest), the continued unamended publication by the defendant of the article on its website was not “fair and reasonable publication”, and that the defence, under s. 26 of the 2009 Act should be struck out as bound to fail. By letter dated 29th January, 2020, the defendant sought voluntary discovery of two categories of discovery as follows: “Category 1. All documents evidencing, recording or relating to the plaintiff’s relationship and association with the IRA. Category 2. All documents evidencing, recording or relating to the plaintiff’s knowledge of the treatment of informers or agents by the IRA and/or relating to the basis for his statement at a press conference in 1987 that “anyone else living in West Belfast knows that the consequence for informing is death. Timeframe for categories 1 and 2 - during the plaintiff’s lifetime.” The defendant contended that the discovery was sought in support of the defence of fair and reasonable publication under s. 26 of the 2009 Act and in support of the defendant’s pleas regarding the plaintiff’s reputation. The defendant argued that the documents sought at categories 1 and 2 met the established tests of relevance and necessity set out by the Supreme Court in Tobin v Minister for Defence, Ireland and the Attorney General [2019] IESC 57.
Held by Egan J that the application to strike out the s. 26 defence was confined to the defence of the article and not the programme; if the case, as pleaded, were to go to trial, all of the legal issues would fall to be argued and determined and the jury would be required to consider all evidence relevant to the s. 26 defence in the context of the defence of the programme. It was difficult for Egan J to see how there would be any significant saving of court time and costs merely by confining those arguments to the defence of the programme, as opposed to the article; therefore it was difficult to conclude that striking out the s. 26 defence, insofar as concerns the article only, would necessarily achieve any increased efficiency in the trial.
Egan J held that she was not persuaded that the plaintiff’s grounds for resisting discovery of the documents in category 1 were well founded. However, she was not convinced that the category 2 documents were relevant. She noted that, in terms of necessity, Tobin makes it clear that once relevance is established, it remains the default position that discovery of the documents sought is regarded as necessary. With a view to limiting proportionately the burden of compliance, which may be placed on the plaintiff, the court ordered discovery of the following documents: Category 1. (a) The earliest document evidencing the plaintiff’s membership of the IRA and the latest document evidencing the plaintiff’s membership of the IRA. (b) The earliest document evidencing the plaintiff’s membership of the IRA army council and the latest document evidencing the plaintiff’s membership of the IRA army council.
Plaintiff’s application refused. Defendant’s application granted in part.
JUDGMENT of Ms. Justice Emily Egan delivered on the 11 th day of March 2022
| Factual Background | 2 |
| Summons and statement of claim | 4 |
| Defence | 4 |
| Pleas relevant to both application to strike out and to discovery application | 4 |
| Pleas relevant to discovery application | 5 |
| Judgment in respect of previous applications | 7 |
| First motion: plaintiff's motion to strike out parts of the defendant's defence | 7 |
| Structure | 7 |
| Factual basis for the application | 7 |
| Test to be applied in application to strike out defence | 8 |
| Plaintiff's key line of authority; Loutchansky v. Times Independent Newspapers [2008] QB 783 | 10 |
| The single publication rule | 14 |
| Conclusion on application to strike out | 18 |
| Second motion: defendant's application for discovery | 18 |
| Relevance | 22 |
| Necessity | 25 |
| Proportionality | 25 |
| Conclusion on discovery application | 26 |
. In the above defamation proceedings, two motions are brought before the court. First, the plaintiff seeks to strike out part of the defence. Second, the defendant seeks discovery. I will deal separately with each but, before doing so, I will consider the factual background and the pleadings in this case.
. In September, 2016, the defendant broadcast an episode of the “Spotlight” television programme entitled “Spy in the IRA” ( “the programme”). The following day, the defendant published an article on its website with the headline “Gerry Adams ‘sanctioned Denis Donaldson killing’” ( “the article”). The article is not lengthy and it is important to set out its full text:
“ A man who says he was a former IRA and Sinn Féin member turned British agent has claimed Sinn Féin leader Gerry Adams sanctioned the killing of Denis Donaldson.
He made the allegation to the BBC NI's Spotlight programme on Tuesday.
Mr Donaldson was shot dead months after admitting in 2005 that he had been an MI5 agent for more than 20 years.
Three years later, the Real IRA said it was responsible. Mr Adams has denied any involvement in the killing.
Life and death of secret agent
“I specifically and categorically refute these unsubstantiated allegations”, said Mr Adams.
The Spotlight allegations were “part of the British security agencies ongoing attempts to smear republicans and cover-up their own actions”, he added.
“There is a need for all these agencies to fully co-operate with the Ombudsman's investigation into the role of the police in the events that led to the killing of Denis Donaldson and for the Gardaí to expedite their investigation to bring those responsible to justice.”
The Sinn Féin leader said he would “continue to support the family of Mr Donaldson to achieve truth and justice”.
Ulster Unionist MLA Doug Beattie said Mr Adams should take legal action against the BBC if the allegations were untrue.
“If not, he needs to explain why not,” said Mr Beattie. “All we have heard so far is a weak denial.”
Murder sanctioned?
Mr Donaldson had worked for Sinn Féin as an administrator at Stormont. He was killed at a remote Donegal cottage in 2006.
A man who says he worked as an informer for the intelligence branch of the police told Spotlight that Mr Adams sanctioned the murder.
The former spy was in the IRA and Sinn Féin. He cannot be identified because of fears about his safety.
What Spotlight was told
Agent: I know from my experience in the IRA that murders have to be approved by the leadership. They have to be given approval by the leadership of the IRA and the military leadership of the IRA.
Presenter: Who are you specifically referring to?
Agent: Gerry Adams, he gives the final say.
The informer told Spotlight that murders had to be approved by the political and military leadership of the IRA.
In a statement, Mr Adams' solicitor said the Sinn Féin leader “has no knowledge of and had no involvement whatsoever in the killing of Denis Donaldson”.
He added that Mr Adams “categorically denied the unsubstantiated allegation that he was consulted about an alleged IRA army council decision or that he had the final say on what had been sanctioned”.
Days after the murder, the IRA said it was not involved in Mr Donaldson's death.
But security sources have told Spotlight that intelligence received following the killing contradicted the IRA's denial.”
. The plaintiff commenced proceedings by plenary summons dated 26 th May, 2017 claiming that the programme and article were defamatory in that the words contained therein meant, and were understood to mean, in their natural and ordinary meaning and/or by way of innuendo, that he had sanctioned and approved the murder of Denis Donaldson.
. On 15 th June, 2018, the defendant delivered its defence. Different paragraphs of the defence are of relevance to each of the two applications before the court.
. At paragraphs 14 to 20 of the defence, the defendant invokes the defence of qualified privilege pursuant to s. 18 of the Defamation Act 2009 (“the 2009 Act”) and upon the defence of fair and reasonable publication on a matter of public interest pursuant to s. 26 of the 2009 Act. The basis of each defence is then pleaded and particularised.
. It is pleaded that the programme and the article were published in good faith and in the course of, and for the purposes of, the discussion of subjects of public interest, the discussion of which was for the public's benefit; that the issues discussed in the programme and article were of vital importance and interest to the people of Ireland; that the manner and extent of...
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