Gilchrist & Rogers v Sunday Newspapers Ltd

• Jurisdiction: Ireland
• Judge: the President
• Judgment Date: 21 October 2016
• Neutral Citation: [2016] IECA 296
• Date: 21 October 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [20106] IECA 296 [2016 No. 310] [2013 No. 11583 P] [2016 No. 309] [2013 No. 11544 P]

[2016] IECA 296

THE COURT OF APPEAL

Ryan P.

The President

Birmingham J.

Sheehan J.

Neutral Citation Number: [20106] IECA 296

[2016 No. 310]

[2013 No. 11583 P]

[2016 No. 309]

[2013 No. 11544 P]

BETWEEN

ISABEL ROGERS

PLAINTIFF

AND

SUNDAY WORLD NEWSPAPERS LIMITED, COLM MCGINTY

AND

NICOLA TALLANT

DEFENDANTS

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

NON-PARTY/INTERVENERAND

AND

BETWEEN

PATRICK BENEDICT GILCHRIST

PLAINTIFF

AND

SUNDAY WORLD NEWSPAPERS LIMITED, COLM MCGINTY

AND

NICOLA TALLANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

NON-PARTY/INTERVENER

Defamation – Notice party – Private trial – Non-litigant seeking a private trial – Whether the rights of the defendants are superior to any non-litigant interests

Facts: The High Court made certain restrictive orders that were the subject of appeal to the Court of Appeal by the Commissioner of An Garda Síochána and by the defendant newspaper, the Sunday World, on an application by the Commissioner in which she sought to be joined as a notice party in defamation proceedings and also that the hearings be conducted behind closed doors, with no publicity except for the verdict. The two actions for defamation by the plaintiffs, Ms Rogers and Mr Gilchrist, had their origins in previous litigation by a protected witness in the Witness Security Scheme operated by An Garda Síochána. He claimed, in High Court proceedings in which he was the plaintiff, that the relevant agencies had breached agreements and undertakings to provide him with facilities and arrangements, including relocation that he alleged he was promised. His action was ultimately dismissed after a hearing behind closed doors which was ordered as a result of an application by An Garda Síochána and other defendants (Mooney v Commissioner of An Garda Síochána & Ors [2014] IEHC 155) for the judgment on the procedural issue. The newspaper articles on which the plaintiffs’ claims in these cases were based concerned those earlier proceedings and the roles allegedly played by the plaintiffs in the events giving rise to that claim. The Commissioner applied to the High Court to be joined as a notice party in these cases. She submitted that the same issues of public, national importance and the protection of life and the interests of State security and public safety arose in these trials and she also sought similar orders to the earlier case for hearings otherwise than in public, with the Press being excluded as well. The defendants wanted to have the case heard in public in the normal way. The plaintiffs wanted the case to proceed as scheduled and submitted that a private trial, as sought by the Commissioner, was the most efficacious way to achieve that. In the High Court, MacEochaidh J went some way with the Commissioner’s requests, but stopped well short of the full relief she sought. The judge endeavoured to balance the rights of the parties by limiting access to the proceedings to persons strictly associated with them and required to be there for the purposes of the litigation, such persons to include the Garda Commissioner; permitting the Commissioner to apply to the court to prevent publication of any evidence which would harm or possibly harm the integrity of the State Witness Protection Scheme; permitting the Press to be present, but imposing a time delay to apply automatically for a period of 24 hours restricting the reporting of any evidence during the course of the proceedings, following the expiration of which there was to be freedom to report and publish. In the result, neither contending party was satisfied and both the Commissioner and the Sunday World defendants appealed to the Court of Appeal against the orders as made. They were in agreement that the compromise solution found by the High Court was unworkable in practice. The Sunday Word defendants submitted that the rights and interests invoked by the Commissioner were irrelevant to the mode or procedure to be adopted at the trial, that it was not legitimate to take into account the interests or entitlements of non-litigants as the trial judge did in this case and that the rights of the defendants are superior to any such interests.

Held by Ryan P that the Irish Times Ltd & Ors v Ireland & Ors [1998] 1 IR 359 jurisprudence and subsequent cases established that it is possible to exercise the jurisdiction to depart from public hearings in civil actions and not just in criminal trials but the circumstances must be extreme and rare indeed and the evidence cogent. Ryan P held that in the circumstances that obtain in these cases, the applicant had surmounted the very high threshold necessary to justify the order sought. Ryan P held that on the undisputed facts, the Commissioner had established that there was an existential threat generally and in particular to a practically unique catalogue of public and individual Constitutional rights and interests which was sufficient to outweigh the indisputably important requirements of Article 34.1 of the Constitution.

Ryan P held that the appeal should be allowed

Appeal allowed

JUDGMENT of the President delivered on 21st October 2016

Introduction

1 In this unusual, even unique case, the High Court made certain restrictive orders that are the subject of appeal by the Commissioner of An Garda Síochána and by the defendant newspaper, the Sunday World, on an application by the Commissioner in which she sought to be joined as a notice party in defamation proceedings and also that the hearings be conducted behind closed doors, with no publicity except for the verdict. The matter is urgent because the case is specially fixed for hearing on 3rd November 2016.

2 The two actions for defamation by Ms. Rogers and Mr. Gilchrist have their origins in previous litigation by a protected witness in the Witness Security Scheme operated by An Garda Síochána. He claimed, in High Court proceedings in which he was the plaintiff, that the relevant agencies had breached agreements and undertakings to provide him with facilities and arrangements, including relocation that he alleged he was promised. His action was ultimately dismissed after a hearing behind closed doors which was ordered as a result of an application by An Garda Síochána and other defendants: see Mooney v. Commissioner of An Garda Síochána & Ors. [2014] IEHC 155 for the judgment on the procedural issue.

3 The newspaper articles on which the plaintiffs' claims in these cases are based concerned those earlier proceedings and the roles allegedly played by the plaintiffs in the events giving rise to that claim. The instant defamation actions by the plaintiffs against the Sunday World therefore relate to some, at least, of the matters at issue in the earlier trial but An Garda Síochána is not a party. The Commissioner applied to the High Court to be joined as a notice party in these cases. She submitted that the same issues of public, national importance and the protection of life and the interests of State security and public safety arise in these trials and she also sought similar orders to the earlier case for hearings otherwise than in public, with the Press being excluded as well. The defendants want to have the case heard in public in the normal way. The plaintiffs, above all else, wishe the case to proceed as scheduled and submit that a private trial, as sought by the Commissioner, is the most efficacious way to achieve that.

4 In the High Court, Mac Eochaidh J. went some way with the Commissioner's requests, but stopped well short of the full relief she sought. The judge endeavoured to balance the rights of the parties by limiting access to the proceedings to persons strictly associated with them and required to be there for the purposes of the litigation, such persons to include the Garda Commissioner; permitting the Commissioner to apply to the court to prevent publication of any evidence which would harm or possibly harm the integrity of the State Witness Protection Scheme; permitting the Press to be present, but imposing a time delay to apply automatically for a period of 24 hours restricting the reporting of any evidence during the course of the proceedings, following the expiration of which there was to be freedom to report and publish. In the result, neither contending party was satisfied and both the Commissioner and the Sunday World defendants have appealed to this Court against the orders as made. They are in agreement that the compromise solution found by the High Court is unworkable in practice.

5 Article 34.1 of the Constitution is central to the appeal, providing as follows:

‘Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and, save in such special and limited cases as may be prescribed by law, shall be administered in public.’

In his judgment for the majority of the Supreme Court in In In Re R Ltd. [1989] I.R. 126, Walsh J. said that the exception phrase in the section ‘is to be construed as a law enacted, or re-enacted, or applied by a law enacted by the Oireachtas subsequent to the coming into force of the Constitution’. However, the parties to this appeal accept, following the decision of the Supreme Court in Irish Times Ltd & Ors v Ireland & Ors [1998] 1 IR 359 that the courts do have jurisdiction in some exceptional circumstances, even in the absence of legislative provision, to direct that a criminal trial may be heard otherwise than in public. The Sunday World defendants submit that there is no jurisdiction to make any such orders in the context of civil proceedings and particularly civil defamation proceedings. They argue that the relevant cases, when properly interpreted and understood, express this principle but if, however, there is a jurisdiction in principle in a civil case to restrict contemporaneous reporting or otherwise interfere with the public hearing as...