Irish Press Publications Ltd v Minister for Enterprise
| Jurisdiction | Ireland |
| Judge | Honourable Miss Justice Carroll |
| Judgment Date | 15 October 2002 |
| Neutral Citation | [2002] IEHC 104 |
| Date | 15 October 2002 |
| Docket Number | [1996 No. 9761P] |
| Court | High Court |
[2002] IEHC 104
THE HIGH COURT
BETWEEN
AND
AND
Citations:
SILVERHILL DUCKLING & ORS V MIN AGRICULTURE & ORS 1987 ILRM 516
CROMPTON V CUSTOMS & EXCISE COMRS 1973 2 AER 1169
GE CAPITAL CORPORATE FINANCE GROUP LTD V BANKERS TRUST CO & ORS 1995 1 WLR 172
FLYNN V RTE & ORS 2000 3 IR 344
AG V HAMILTON 1993 2 IR 250
MURPHY V DUBLIN CORP 1972 IR 215
AMBIOREX LTD V MIN FOR ENVIRONMENT 1992 1 IR 277
BULA LTD V TARA MINES LTD NO4 1991 1 IR 217
Synopsis:
PRACTICE AND PROCEDURE
Discovery
Litigation - Legal professional privilege - Public interest privilege - Cabinet confidentiality - Whether documents should be discovered - Whether documents prepared in contemplation of proceedings (1996/9761P - Carroll J - 15/10/02)
Irish Press v Minister for Enterprise and Employment - [2002] 4 IR 110
Facts: The plaintiffs had sued the defendants for damages for libel, negligence and alleged interference with their constitutional right to their good name. The action arose out of a statement issued by the Minister for Enterprise and Employment ("the Minister") concerning the survival of the Irish Press newspaper titles. An order of discovery had been made by the Master of the High Court regarding documents in the possession of the Minister. The Minister resisted discovery of certain documents on the basis of legal professional privilege. It was claimed that the documents in question had come into existence in contemplation of legal proceedings and should not be discovered. In addition public interest privilege was claimed over other documents.
Held by Carroll J in making the following order. Some of the documents in question had not been prepared in contemplation of litigation and should be produced for inspection. Certain documents were protected by cabinet confidentiality while others were not and should be produced for inspection. The defendants were however obliged to list all documents individually including post publication documents.
Honourable Miss Justice Carroll on the 15th day of October 2002.
The Plaintiffs have sued the Defendants for damages for libel, negligence and wrongful interference with the Plaintiffs" constitutional right to their good name allegedly arising from a statement made by the then Minister for Enterprise and Employment ("the Minister") on 24 th October, 1996.
An order for discovery was made by the Master on 8 th October, 1998 in respect of documents relating to the matters in issue including:-
a (a)All documentation relating to the contention by the Defendants that
(i) the first named Defendant supported a successful examinership process for Irish Press Newspapers Limited
(ii) the Defendants wished to preserve the jobs at Burgh Quay.
(iii) the said examinership process was not a success.
(iv) the first named Defendant had the objective set out in the written statements set out at paragraph 12 of the Statement of Claim herein.
(v) The first named Defendant and the other Defendants hoped that a buyer could be found for the "Irish Press", "Evening Press" and "Sunday Press" newspaper titles.
(b) All documentation relating to the contention by the Defendants that the matters set out in paragraph 2 of their replies to Particulars dated 14 th November, 1997 are expressions of opinion which constitute fair comment.
An affidavit of discovery was sworn by Brian Whitney on behalf of the Defendants on 13 th April, 1999. Following a Notice of Motion for further and better discovery dated the 26 th October, 1999 a further affidavit was sworn by Mr. Whitney on 9 th December, 1999 acknowledging that further documents had to be discovered. A supplemental affidavit of discovery by William Coventry discovering further documents was sworn on 19 th January, 2000 and also dealing with the Plaintiffs" Solicitors" queries. Further queries were raised by the Plaintiffs and a further affidavit of discovery was sworn by Mr. Coventry on 7 th July, 2000 dealing with these queries and also discovering a number of additional documents.
This motion was issued on 19 th October, 2001 claiming an order permitting inspection by the Plaintiffs of the documents listed in the schedule thereto and also requiring the Defendants to list individually in a supplemental affidavit of discovery all documents coming into existence following the publication of the statement by the Minister on 24 th October, 1996.
The documents in schedule 1 are identified as follows
| (A45) | Note for the Minister dated 19 th July, 1995. |
| (A100) | Interim Report of the Competition Authority on the newspaper industry. |
| (B13) | Letter with Memorandum from the Secretary to the Government to the |
| Private Secretary of the Minister dated 20 th June, 1995. | |
| (B14) | Draft of proposed Government Decision. |
| (B17 and B18) | Memorandum for Government prepared by officials of the Department of |
| the Minister. | |
| (F116 and F117) | Memorandum for Government on the subject of the Competition |
| Authority's Interim Report on the newspaper industry, with a copy |
The documents identified in schedule 2 are D1 to D6 being documents coming into existence between the 8 th February, 1996 and the 24 th October, 1996 being the date of the publication of the Minister's statement.
The documents in contention fall into different groups with different reasons given by the Defendants for refusing discovery. All the documents have been produced to the Court for perusal.
(I) Document A45 is headed "Note for the Minister's information Re: Hugh Cooney's question to the Department on 19/7/95."
The Defendants claim that this was prepared in contemplation of proceedings then contemplated by the Minister under the Competition Act, 1991following the Competition Authority's report of 30th March, 1995.
In Mr. Coventry's affidavit (19 th January, 2000) he averred legal professional privilege was being claimed and claimed privilege from production to inspection. He says the document was prepared by an officer of the Minister and summarises the options open to him. In an earlier affidavit of Mr. Whitney (13 th April, 1999), he claimed that the document came into being in contemplation of "these and other actual threatened legal proceedings."
Having read the document, it does not meet the tests mentioned in the judgment of O'Hanlon J. in Silverhill Duckling and Others v. The Minster for Agriculture and Others ( 1987 ILRM 516)dealing with legal professional privilege. O'Hanlon J. says at page 519
"Having considered the relevant authorities I am of opinion that once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case whether by means of communication passing between him and his legal advisors or by means of communications passing between him and third parties and to do so under the cloak of privilege."
He goes on to say (referring to the English case of Crompton v. Customs and Excise Commissioners (197.3 2 AER 1169))
"I would have been more inclined to the view taken in the Court of Appeal that once it was apparent to both sides that they were not going to reach agreement and that the ultimate recourse to arbitration was well now inevitable, then a situation had arisen where litigation between the parties could fairly be regarded as apprehended or threatened."
O'Hanlon J. also says at page 520
"that the dominant purpose for the document coming into existence in the first place should have been for the purpose of preparing for litigation then apprehended or threatened."
The document in my opinion fails both tests. Litigation was mentioned only in the context of a possible option for the Minister and the document was not prepared with the dominant purpose of preparing for litigation. In my opinion the claim of professional legal privilege fails. This document should be produced for inspection.
(II) Document A100 is headed Competition Authority Interim Report of study on the newspaper industry."
The Defendants have produced the report with portions deleted. The deletions fall into two broad categories: commercial information giving figures for profits or market shares and submissions made to the Competition Authority by interested parties.
The Defendants claim that the deleted text is not relevant to the Plaintiffs" claim and that disclosure gives no litigious advantage and is not necessary in the interest of justice.
The case of GE Capital Corporate Finance Group Limited -v- Bankers Trust Company and Others ( 1995 1 WLR 172) held that a party giving discovery was not obliged to disclose any part which is irrelevant to...
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