Leech v Independent Newspapers (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: O Neill J.
• Judgment Date: 28 May 2009
• Neutral Citation: [2009] IEHC 259
• Date: 28 May 2009
• Court: High Court
• Docket Number: [2004 No. 19853

Leech v Independent Newspapers (Ireland) Ltd

Monica Leech

Plaintiff

And

Independent Newspapers (Ireland) Limited

Defendant

And

Department of An Taoiseach

Non-Party

[2009] IEHC 259

[No. 19853 P/2004]

THE HIGH COURT

RSC O.31 r29

SKEFFINGTON v ROONEY 1997 1 IR 22 1997 2 ILRM 56 1997/12/3669

AMBIORIX LTD v MIN FOR ENVIRONMENT 1992 1 IR 277 1992 ILRM 209 1991/7/1580

D v NATIONAL SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN 1978 AC 171 1977 2 WLR 201 1977 1 AER 589

GOODMAN INTERNATIONAL v HAMILTON (NO 3) 1993 3 IR 320 1993/7/2034

1 JUDGMENT of O Neill J. delivered the 28th day of May 2009

1. Background

2 2 1.1 The plaintiff is a director and shareholder of Monica Leech Communications Limited. That company and the plaintiff on her own account were the recipients of public relations consultancy contracts from the Office of Public Works and the Department of the Environment, Heritage and Local Government. The plaintiff seeks damages for libel, including aggravated and/or exemplary damages against the defendant in relation to some twenty articles and material published in one of its newspapers, which addressed the manner in which these contracts were awarded and the costs involved. In its defence the defendant pleads, inter alia, justification, qualified privilege and fair comment, to the effect that the award of the contracts was influenced by the plaintiff's connections with the then Minister for the Environment, Heritage and Local Government, Mr. Martin Cullen; that the award of the contracts did not comply with best standards and that the rates of payment were excessive.

3 3 1.2 The former Taoiseach, Mr. Bertie Ahern, on the 21 ^st December 2004, appointed the former chairman of the Revenue Commissioners, Mr. Dermot Quigley to conduct an inquiry into the awarding of the contracts to the plaintiff and her company and to report his findings to the Dáil. This arose from public concern about issues raised by the media relating to the circumstances surrounding the award of these contracts and the amounts paid to the plaintiff and her company under the contracts. The terms of reference of the inquiry were as follows:-

4 · - "To establish the circumstances in which arrangements were entered into for the engagement of Ms. Monica Leech and/or Monica Leech Communications to provide services to the Office of Public Works and the Department of the Environment, Heritage and Local Government since July, 1997.

5 · - To examine the procedures adopted by reference to the norms and practice in respect both of public procurement and the division of the functions and responsibilities between Ministers and civil servant Departmental heads.

6 · - To ascertain whether the services contracted for differed in any material respect from those provided.

7 · - To make a report of findings and conclusions in relation to these matters and, arising from them, to make recommendations, if appropriate, in relation to any changes in practice which may be desirable."

8 Assurances of confidentiality were given to those who participated in the inquiry. The Quigley Report was presented to the Dáil in January, 2005.

9 4 1.3 A notice of trial in these proceedings was served on the 7 ^th April, 2006. Inter partes discovery has concluded. Third party discovery has been made to date by the Office of Public Works and the Department of the Environment.

2. The discovery sought

10 2 2.1 These proceedings arise by way of a notice of motion for third party discovery in which the defendants seek discovery by the Department of An Taoiseach ("the Department") of a variety of documents generated by or in the course of the Quigley Inquiry, and in response the Department claims public interest privilege over the contested documents. An order is sought by the defendant pursuant to O.31 r.29 of the Rules of the Superior Court that the Department make discovery on oath of the following:-

11 (a) All documentation submitted by the plaintiff to Mr. Dermot Quigley as part of his inquiry in relation to matters arising out of the award of contracts to the plaintiff and her company.

12 (b) All documents held by the Department in relation to Mr. Quigley's inquiry and report including notes of interviews conducted by Mr. Quigley and any other material gathered by Mr. Quigley during the course of investigating the matters which are dealt with in his report.

13 3 2.2 The documentation at issue includes correspondence between Mr. Quigley and departmental officials, notes and memoranda in respect of the workings of the inquiry and notes of interviews conducted by Mr. Quigley and observations of interviewees on the draft version of the report.

3. The defendant's submissions

14 2 3.1 Mr. Ferriter B.L., for the defendant, submitted that his client's ability to defend itself in the action would be restricted by reason of the non-availability of the contested documentation. The defendant required access, in his submission, to the said documentation for the purpose of ascertaining the facts surrounding the award of contracts to the plaintiff and the work carried out by her so as to enable it to fully cross-examine the plaintiff at trial and to call witnesses, if necessary, in relation to these facts. He submitted that his client could be seriously prejudiced if the material was not disclosed in circumstances where its defence of justification had a public interest basis. In essence, he submitted that the public interest in the proper administration of justice was at stake and this interest would be damaged if the defendant was deprived of relevant material which would assist the defendant in making out its defence.

15 3 3.2 He also argued that confidentiality cannot act as a bar to discovery or a basis for the invocation of public interest privilege. In this regard he relied on the case of Skeffington v. Rooney [1997] 1 I.R. 22. He noted that there is no statute prohibiting the disclosure of the material at issue and also contended that there...