Holloway v Belenos Publications Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 03 April 1987
• Neutral Citation: 1987 WJSC-HC 790
• Docket Number: [1985 No. 9002P],No. 9002p/1985
• Court: High Court
• Date: 03 April 1987

1987 WJSC-HC 790

THE HIGH COURT

No. 9002p/1985

HOLLOWAY v. BELENOS PUBLICATIONS LTD & ORS

BETWEEN

JOSEPH HOLLOWAY

PLAINTIFF

AND

BELENOS PUBLICATIONS LTD. AND OTHERS

DEFENDANTS

AND

THE MINISTER FOR INDUSTRY AND COMMERCE AND THE MINISTER FORENERGY

NOTICE PARTIES

Citations:

RSC 1986 O.31 r29

DAVIDSON V LLOYD AIRCRAFT SERVICE LTD 1974 1 WLR 1042

ADMINISTRATION OF JUSTICE ACT 1970 S32(1)

SUPREME COURT ACT 1981 S34(2)

RULES OF SUPREME COURT O.24 r7(a)

REPORT OF THE COMMITTEE ON PERSONAL INJURIES LITIGATION CMND 3691

Synopsis:

PRACTICE

Documents

Discovery - Stranger - Possession - Likelihood - Onus of proof - Defendant's motion - Order 31, r.29, states that, if it appears to the court that a stranger to the action is likely to have, or to have had, in his possession or power any documents which are relevant to an issue arising, or likely to arise, in the action, the court may direct the stranger to make discovery of such documents - Held that this new rule does not give the court power to make an order which permits a party to search the files of a stranger to the action for the purpose of finding relevant documents - Held that the defendant had not satisfied the court that the notice party had in his power or possession documents of a particular category which were sought by the defendant - Motion dismissed - Held that a party who sought an order pursuant to r.29 must serve notice of his motion on all other parties to the action - Rules of the Superior Courts, 1986, order 31, r.29 - (1985/9002 P - Costello J. - 3/4/87) - [1987] ILRM 790 [1987] IR 405

|Holloway v. Belenos Publications|

PRACTICE

Motion

Service - Documents - Discovery - Stranger - Possession - Held that a party to an action who seeks an order pursuant to order 31, r.29, directing a stranger to the action to make discovery of relevant documents, must serve notice of his motion on all other parties to the action - Rules of the Superior Courts, 1986, order 31, r.29 - (1985/9002 P - Costello J. - 3/4/87) - [1987] ILRM 790 [1987] IR 405

Holloway v. Belenos Publications|

1 Judgment of Mr. Justice Costellodelivered the 3rd day of April, 1987.

2 The Plaintiff is the Secretary of the Department of Energy. He claims that he was libelled in two articles in the issue of the 17th October 1985 of "Business and Finance" and has sued the first - named defendant as its publishers, the second named defendant as the author of one of the articles and as the magazine's assistant editor, and the third named and fourth named defendants as the magazine's managing editor and editor respectively. The first article is headed "Bula Link with 3rd Round Delay". It deals with delay in the official announcement concerning what is referred to as the "Third Round" of licensing for offshore mineral exploration. It suggests that the delay is "not unconnected" with what is referred to in this article and the second as the "Bula affair" (that is the role of Bula Ltd. in the development of mineral resources in the Navan area of County Meath). It refers to a company called Bula Resources which is said to be connected with Bula Mines, and then states that "the word in the exploration industry was that companies looking for blocks through the Department of Energy's Open Door policy have been offered the possibility of juicier blocks by Holloway and his merry men if they will take Bula on board their particularconsortia".

3 The second article has a much broader canvass and is also critical of the plaintiff. It is headed "Why Tara pulled out of the Bula deal" and deals in the main, but not exclusively, with governmental and ministerial policy and decisions taken in relation to the role in mining operations in the Navan area of Bula Ltd. It refers explicitly and at some length to the role the plaintiff in his capacity as a civil servant played in those decisions from the earlyseventies to the present day. It referred to him as an "important mandarin in the affair", it animadverted on the advice which he gave to successive Ministers, (and purported to state what that advice had been) and it described him as "consistently pulling strings" for the major part of the fifteen years of the Bula affair. It also dealt with the plaintiff's attitude to Tara Mines Ltd. and stated that "Holloway is well known to dislike Tara intensely and regards attempts by the same company to protect its position as close to treason it seems". And finally, it referred to the Plaintiff's attitude on the subject of the foreign ownership of Irish resources, claiming that at the time of the original round of offshore exploration licence he had helped the then Minister (Mr. Justin Keating) to shape "tough" licensing terms, that is terms which contained stringent tax and royalty terms.

4 The Plaintiff claims that the words used in both articles were in their ordinary meaning defamatory of him and the defendants whilst denying this plea claim that in so far as the words complained of consisted of statements of fact they were true and accurate and as far as they consisted of comment they were fair comment on a matter of public interest.

5 Orders of discovery have been made in the action against the plaintiff and the defendants, but the defendants have now applied under Order 31 Rule 29 of the 1986 Rules of the Superior Courts for an order for discovery against two notice parties who are not parties to the action, the Minister for Industry and Commerce and the Minister for Energy. This Rule for the first time gave the court jurisdiction to order discovery by a non-party. It reads as follows:

"Any person not a party to the cause or matter before the Court who appears to the Court to be likely to have or to have had in his possession or power any documents which are relevant to an issue arising or likely to arise out of the cause or matter or is or is likely to be in a position to give evidence relevant to any such issue may by leave of the Court upon the application of any party to the said cause or matter be directed by order of the Court to answer such interrogatories or to make discovery of such documents or to permit inspection of such documents. The provision of this Order shall apply mutatis mutandis as if the said order of the Court had been directed to a party to the said cause or matter provided always that the party seeking the order shall indemnify such person in respect of all costs thereby reasonably incurred by such person and such costs borne by the said party shall be deemed to be costs of that party for the purposes of Order99".

6 I draw particular attention to the following aspects of the new Rule. Firstly, before the Court can make an order under it it must be satisfied that "it is likely" that the notice party has or had in its possession power or procurement documents which are relevant to an issue that is likely to arise in the action. I will call these "relevant documents" and if the moving party does not satisfy the Court that the notice party is likely to have relevant documents it has no jurisdiction to make an order. Secondly, the Court has a discretion as to whether to make an order or not. Thirdly, the Rules relating to inter-party discovery contained in Order 31 are to apply to discovery under Rule 29. And fourthly, the costs of the discovery by the notice party are to be borne by the moving party but if the moving party is successful in the action they may be recoverable from the unsuccessful party.

7 The motion against the two Ministers (dated 21st January. 1986) seeks an order that "they do make discovery on oath of all documents which are or have...