Independent Newspapers (Ireland) Ltd v Joseph Murphy Junior

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 28 July 2006
• Neutral Citation: [2006] IEHC 276
• Docket Number: [2003 No. 7197 P]
• Court: High Court
• Date: 28 July 2006

INDEPENDENT NEWSPAPERS (IRELAND) LTD v MURPHY

BETWEEN

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED

PLAINTIFF

and

JOSEPH MURPHY JUNIOR

DEFENDANT

[2006] IEHC 276

[No. 7197 P/2003]

THE HIGH COURT

PRACTICE AND PROCEDURE:

Discovery

Setting aside settlement - Abuse of process - Defence of estoppel - Necesssity for discovery - Confidential documents - Test of proportionality applied in making order for discovery of confidential documents - Whether court can order discovery where documents might become relevant and necessary at trial of action - Whether court may order preservation of documents pending trial - Whether court may order list of documents to be prepared pending trial of action - Rules of the Superior Courts 1986(SI 15/1986), O 31, r 18 - Appeal from Master's order for discovery allowed(2003/7197P - Clarke J - 28/7/2006) [2006] IEHC 276, [2006] 3 IR 566 Independent Newspapers (Ireland) Ltd v Murphy

the plaintiff had previously settled defamation proceedings brought by the defendant for a sum of money and a printed apology and the proceedings were struck out on that basis. It then brought proceedings alleging that the said settlement had been procured by a false representation made by the defendant and that they were malicious and an abuse of process and sought orders rescinding the said settlement agreement and damages. In his defence, the defendant claimed that at the date of the settlement all evidence had been publicly available. The defendant then sought discovery of documents from the plaintiff which would tend to show the plaintiff's state of knowledge at the time of the settlement, including from confidential sources. The Master of the High Court ordered that the plaintiff make discovery of certain documents. The plaintiff appealed against that order to the High Court contending that discovery would breach confidentiality of its journalistic sources.

Held by Mr Justice Clarke in ordering that the documents in question not be discovered at present but be preserved by the plaintiff pending the trial of the action that a defendant may have a cause of action against a plaintiff where the plaintiff's success in concluded proceedings had been procured by a fraud on the court. Leave was likely to be an issue in a case which had been settled as to whether the plea of estoppel should succeed unless it could be shown that there was subsequently available to the defendant additional materials which would not result in the court being invited to re-run the case that had been compromised. The precise nature of the materials which would suffice, the circumstances surrounding whether such materials were or could have been available at the time of the compromise and how they were subsequently available were matters which the trial court would have to address. The state of knowledge of the defendant at the time when the settlement was entered into would be relevant for the purposes of ascertaining whether any of the materials which were to be put before the trial court were or could have been available to the defendant at the time of the compromise.

The court should only order discovery of confidential documents in circumstances where the interest of justice in bringing about a fair result of the proceedings required such an order. confidential information (which was not privileged) had to be revealed if not to do so would produce a risk of an unfair result of proceedings. The requirements of justice would outweigh any duty of confidence. That the balancing of the rights involved also required the application of the doctrine of proportionality. To that extent the right of confidence of a journalistic source should be interfered with to the minimum extent necessary consistent with securing that there be no risk of impairment of a fair hearing. Such a balance was between possible relevance and a high probability of breach of confidence.

Reporter: P.C.

DORENE LTD v SUEDES (IRL) LTD 1981 IR 312

HOUSE OF SPRING GARDENS LTD v WAITE 1991 1 QB 240

YAP v TEMPLE STREET HOUSE (TRANSCRIPT UNAVAILABLE)

1. Introduction

2 2 1.1 On the 2nd May, 2006, the Master of the High Court ordered that the plaintiff ("Independent") make discovery of a category of documents described in the order of the Master in the following terms:-

"All articles prepared and/or published by journalists writing for the plaintiff prior to the 20th July, 2001, on the issue of the defendant's alleged attendance at Ray Burke's house in May/June 1989, together with memoranda or notes of any unpublished information irrespective of the reliability of its source contained in the instructions of the plaintiff to its lawyers prior to the 20th July, 2001."

3 3 1.2 The category which had been sought by the defendant ("Mr. Murphy") differed in some respects from the category directed to be discovered by the Master.

4 4 1.3 Independent has appealed against the order of the Master and this judgment is concerned with that appeal.

5 5 1.4 As in all cases of discovery an important starting point has to be a consideration of the issues which arise in the proceedings to which discovery is directed. As these proceedings are somewhat unusual in nature it is necessary to turn, firstly, to those proceedings and the issues which may or are likely to arise in them.

2. The Substantive Proceedings

2 2 2.1 On the 17th May, 1998, Independent published an article which referred to a Michael Bailey as being famous for being "the man in Ray Burke's house when a brown paper bag with IR£50,000 in cash was handed over to the former Minister by Joseph Murphy of J.M.S.E. as a campaign contribution".

3 3 2.2 On the 29th May, 1998, Mr. Murphy commenced proceedings in this court (record No. 1998/64/89P) in which he claimed damages for alleged defamation arising out of that article ("the defamation proceedings").

4 4 2.3 It would appear that the defamation proceedings were compromised on the 20th July, 2001, as a result of an agreement reached between the respective solicitors for both parties on terms that Independent would pay to Mr. Murphy a sum of IR£53,000 inclusive of costs and would publish an agreed apology.

5 5 2.4 It would also appear that the terms of that compromise were implemented, with the sum of money being paid and the apology appearing in the agreed form in the Sunday Independent on the 22nd July, 2001. Resulting from those two matters, the defamation proceedings were struck out by consent with no further order on the 16th October, 2001.

6 6 2.5 It is clear that Mr. Murphy's case, as made in the defamation proceedings, was to the effect that he was never present in Mr. Burke's house on the occasion in question and never paid any sum of money to Mr. Burke. It also needs to be added that that question, together with related issues, formed the central focus of the earlier considerations of the Flood Tribunal.

7 7 2.6 In these proceedings Independent maintains that the defamation proceedings were based upon a false representation by Mr. Murphy to the effect that he had not been present in Mr. Burke's house on the occasion in question and had not handed any sum of money to Mr. Burke. It is contended, therefore, that the proceedings were a malicious abuse of the process of the Court and were based upon fraudulent misrepresentation. In those circumstances, it is contended that Independent is entitled to have appropriate declarations or orders which would set aside or rescind the settlement agreement. Damages are also claimed. In his defence, Mr. Murphy claims that, as of the date of the settlement of the defamation proceedings, all evidence, whether oral or documentary, and all submissions, relating to the relevant events in Mr. Burke's house had been heard by the Flood Tribunal and were publicly available. Mr. Murphy also states that by the time the settlement had been reached, Independent had obtained discovery from Mr. Murphy in the defamation proceedings and had also obtained third party discovery from Mr. Dermot Ahern. In...