Lynch v The Irish Times Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 22 November 2018 |
| Neutral Citation | [2018] IEHC 607 |
| Court | High Court |
| Docket Number | [2016 No. 9362 P] |
| Date | 22 November 2018 |
[2018] IEHC 607
THE HIGH COURT
MacGrath J.
[2016 No. 9362 P]
AND
Defamation – Discovery – Adjournment – Defendant seeking an order for discovery – Whether the defendant was entitled to discovery of documents
Facts: The plaintiffs, Messrs Lynch and The Swan Bar Ltd, sought damages against the defendant, The Irish Times Ltd, together with further and other ancillary reliefs including an order pursuant to s. 30 of the Defamation Act 2009 in respect of an article which appeared in the defendant's nationally circulating newspaper on 7th September, 2016. The defendant applied to the High Court for an order for discovery pursuant to the provisions of O. 31 of the Rules of the Superior Courts. The defendant sought an order requiring the plaintiffs to make discovery of notes, correspondence, memoranda, records and accounts evidencing a turnover and/or business of The Swan Bar Ltd for a period of three years prior to September, 2016, when the publication alleged to be defamatory took place, and for a further period thereafter up to the date of the motion. The application was resisted by the plaintiffs.
Held by MacGrath J that on the basis of the pleadings as they stood, and on the law relating to discovery in defamation actions as heretofore developed, the defendant was not entitled to discovery of documents on an issue of loss which was neither pleaded nor particularised.
MacGrath J held that, given the barest of allegations made by the plaintiffs to which the defendant had not, before the bringing of the motion, sought any particulars, and in the light of the submissions by the parties, in the exercise of the Court's discretion under O. 31, r. 12(2)(a), and in the interests of justice, he proposed to adjourn the motion to allow for the taking of such further steps as the parties might wish to clarify the extent of the claim being made, and thereafter to re-enter the motion if necessary.
Motion adjourned.
This is the defendant's application for an order for discovery pursuant to the provisions of O. 31 of the Rules of the Superior Courts. The defendant seeks an order requiring the plaintiffs to make discovery of notes, correspondence, memoranda, records and accounts evidencing a turnover and/or business of the third named plaintiff, for a period of three years prior to September, 2016, when a publication alleged to be defamatory took place, and for a further period thereafter up to the date of the motion. The application is resisted by the plaintiffs.
This is an action for defamation in which the plaintiffs and each of them seek damages against the defendant together with further and other ancillary reliefs including an order pursuant to s. 30 of the Defamation Act 2009 (' the Act of 2009') in respect of an article which appeared in the defendant's nationally circulating newspaper on 7th September, 2016. In the statement of claim it is pleaded that in the commercial property section of that paper, an article appeared under the heading ' Former Swan Bar at Aungier Street corner for €700,000'. It is pleaded that the effect of the article and the accompanying photograph was to convey the impression to the reader that the business was run down and closed down, and that this was the reason for the sale. It is also pleaded that the words and the photograph were meant and understood to mean that the Swan Bar premises were shabby and/or dilapidated, had broken or boarded up windows, and that alcohol could not be legally sold or consumed on those premises as the appropriate intoxicating liquor licence was no longer attached and therefore the plaintiffs were trading illegally in serving alcohol to customers.
The first and second named plaintiffs own the Swan Bar and the third named plaintiff holds the intoxicating liquor licence for the premises. It also conducts and operates the business thereon. The first and second named plaintiffs own the share capital and are the directors of the third named plaintiff company.
The article, as outlined in the pleadings, states as follows:-
'FORMER SWAN BAR AT AUNGIER STREET CORNER FOR €700,000
Dublin City Council is to seek a buyer for the rundown former Swan bar at Aungier Street and Digges Lane Upper in Dublin 2.
Lisney is seeking offers in excess of €700,000 for the prominently located building which extends to 350 sq m (3,767 sq ft) and is need of major refurbishment.
Ross Shorten of Lisney, who is handling the sale, said the council wanted to see the high profile building brought back to life "with a vibrant proposal which will contribute positively to the streetscape and public realm of the Camden District."
The council is to offer developers the opportunity to purchase and refurbish the block under licence subject to planning permission. The Swan's seven-day licence is no longer attached to the premises.'
It is pleaded that alongside and above the words, the defendant published a photograph of a shabby, dilapidated premises which was not owned by the plaintiffs.
The plaintiffs plead that the words and the photograph ' have injured the personal and business reputations of the Plaintiffs (and each of them) in the eyes of reasonable members of society'. No special damages are claimed.
In its defence of 31st October, 2017, while the defendant admits the publication of the article, it pleads that a mistake was made. It is denied that the words were published falsely and maliciously or that the words and photograph have injured the personal and/or business reputations of the plaintiffs. Further, in addition to denying that reasonable members of society could in any way associate or identify the plaintiffs with the words or the photograph published, it is positively pleaded that the Swan Bar continued to trade and operate, ' a matter known again to reasonable members of society acquainted with the Plaintiffs, and further evidence of the mistake made by the Defendant'.
Notice of trial was served on 10th April, 2018.
By letter of 9th May, 2018, the defendant sought discovery of the documents which are the subject matter of this application. The notice of motion issued on 14th June, 2018 and is grounded on the affidavit of Mr. Harry Fehily, a partner in the firm of Holmes O'Malley Sexton Solicitors who represent the interests of the defendant in these proceedings.
The reason outlined in the letter of 9th May, 2018 for discovery is that such documentation is relevant and necessary in circumstances where the company seeks damages as a consequence of the article, and:-
'Hence, to ascertain what, if any, financial damage was suffered by the Third named Plaintiff, sight of the said financial records is required and whereby same will lead to a saving of time, cost and witness testimony at the hearing of the action.'
At the time of the swearing of the affidavit by Mr. Fehily on 12th June, 2018, the letter had not been responded to.
When the matter came before the Court, the Court invited the parties to submit written observations on the relevant legal principles.
In the submissions, reference is made to a reply of 19th July, 2018, in which the plaintiffs asserted that they were seeking general damages for damage to reputation and that no claim was being made in respect of special damages. Therefore, it is stated that the category of discovery sought is neither relevant nor necessary for the determination of the issues.
Mr. Walker B.L. who represents the interests of the defendant, relies on the provisions of the Act of 2009. Section 12 provides:-
'The provisions of this Act apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act in respect of a statement concerning it that it claims is defamatory whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.'
Counsel also relies on a number of authorities, including the decision of Macken J. in McDonagh v. Sunday Newspapers Ltd [2005] 4 I.R. 528, where she stated at p. 540:-
'...the real question remains at all times, as is clear from the judgment of Fennelly J. in Ryanair p.l.c. v. Air Rianta c.p.t [2003] 4 I.R. 264, one of relevance. I agree with counsel for the defendant's submission that an analysis of the jurisprudence makes clear that the long established principle that discovery is permitted and will be granted, in respect of such documents as will or may advance the plea or the case of one party and/or which will or may undermine the plea or the case of the other party, or which may lead to further inquiry in relation to the same, is fully applicable in the present case.'
Further, Macken J. stated that it was clear from the jurisprudence concerning the Rules of the Superior Courts relating to discovery, that an applicant seeking discovery should link the request for discovery, or the extent of the discovery sought, with the particular pleas in the case and must also indicate in what regard discovery is necessary. Those reasons must be sufficiently closely related to the complaints and to the pleas in the action as to make it obvious why a particular category of document is sought.
Mr. Walker B.L....
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