McDonagh v Sunday Newspapers Limited trading as Sunday World, [2005] IEHC 183 (2005)

Docket Number:2000 486P
Judge:Macken J.




JUDGMENT of Mrs. Justice Macken delivered on the 10th day of May 2005

This is an appeal by the plaintiff from an order of the Master dated 14th March, 2004 by which he ordered the plaintiff to make discovery of a range of documents. The appeal is resisted by the defendant.

The Facts:

The defendants are well known publishers of a weekly newspaper known as the Sunday World which is widely distributed throughout the entire of the State. In an edition of 5th September, 1999 there was published in that newspaper a headline story which occupied most of the front page as well as pages 2 and 3. It is fair to say that the story was hard hitting and the portion of the story which was on the front page was accompanied by a large photograph, in part obliterated. It described the person depicted as "The Shark", as an emerging drug baron, involved in a number of unsavoury matters, including violence, money lending, being a loan shark, having amassed a series of convictions for larceny, burglary, malicious damage and receiving stolen goods and having served time for criminal offences, together with detailed comment thereon. Part of the story also concentrated on a recent find of a substantial quantity of drugs in the West of Ireland, in which it was alleged the person depicted had been involved.

The plaintiff issued proceedings shortly after the publication of the story, and pleaded at paras. 7 and 8 of his statement of claim, inter alia, that the article, including the photograph, was intended to and did identify him, that the words used were intended to be understood and were understood as referring to him, and in particular that they meant and were intended to mean, or that in their ordinary and natural meaning inferred, and were intended to infer, directly or by innuendo that the plaintiff:

(a) is a criminal

(b) is a drug dealer

(c) is a thug

(d) has a history of being a violent money lender

(e) engages in large scale drug dealing

(f) is a notorious criminal

(g) is a cheat

(h) is a tax evader

(i) is a drugs baron

(j) is a loan shark

(k) is a person of a ruthless disposition prone to serious violence

(l) is a person who is a wholly disreputable, dishonest and untrustworthy person with whom no fit person should associate

(m) derives his living from drug dealing

(n) has knowingly derived significant earnings from drug dealing for the purpose of financing the high lifestyle

(o) is now one of Ireland's top drug dealers;

(p) is a violent, ruthless, disreputable person who is a parasite on the community.

There were requests for particulars issued by the defendant and responded to or ordered to be responded to, and motions for judgment in default of defence which I do not need to consider further.

The Defence was delivered on 2nd April, 2002. Paragraphs 4, 5 and 6 read as follows:"4. Save that [it] is admitted that the words complained of refer to and were understood to refer to the plaintiff,….

5. Paragraphs 7 and 8 of the statement of claim are admitted.

6. The words complained of are true in substance and in fact."In essence, therefore, in so far as the issues before me are concerned, the defendant admits, inter alia, that the article was published, that the article referred to and was understood to refer to the plaintiff, and that the article had the meanings contended for by the plaintiff in paras. 7 and 8 of the statement of claim, which are those I have synopsised above. The defendant having pleaded, however, that the words complained of were true in substance and in fact, also pleaded that the words complained of were published on an occasion of qualified privilege or were the result of the exercise by the defendant of its rights under article 40 of the Constitution.

With the delivery of the defence, the defendants also delivered a letter, dated the same day, requesting discovery of certain documents. This letter was divided into two parts. Firstly, it sought pursuant to order 31, rule 15 of the Rules of the Superior Court, certain documents, including revenue returns, a copy of the plaintiff's VAT number, a copy of the leasehold interest in a pub in Sligo, the "books of the plaintiff", the books of account of the plaintiff, social welfare receipts of the plaintiff, material nominating the plaintiff an enemy of society, and public comments about the plaintiff. These latter documents do not form part of this appeal, but rather certain of them were the subject of a consent order on the same original motion.

Secondly, the defendant sought voluntary discovery of a wide range of categories of documents. These are the subject of this appeal. The documents were not furnished, and a notice of motion to compel the plaintiff to discover them issued on 22nd July, 2002.

As to these documents, they consist of the following categories, together with the reasons for seeking them, which reasons had been included in the letter of demand seeking them, and were also set forth in substantially the same format in an affidavit grounding the notice of motion, sworn by Mr. Colm McGinty on behalf of the defendant on the 22nd July, 2002. I need to set these out, as their content and the reasons put forward for seeking them form the nub of the arguments in this appeal. They read as follows:

(i) The plaintiff's Tax Number and his accounts for his business for the last five years;Reasons: I say that the plaintiff's tax number and his accounts for his alleged business activities are a matter in relation to which the plaintiff has put his character in issue. I say that at all times, the plaintiff alleges that he is a lawful businessman engaged in lawful activities. I say and believe that this is not the case, and that this issue has been put in issue in the defence of the defendant herein. I say that these matters will avoid delay and save costs, in that they go to the heart of the issue as to whether or not the plaintiff was engaged in business, and as to whether those activities were in fact, lawful. (ii) All benefits, receipts, emolument receipts, money receipts, documents and materials relating to State benefits received by and on behalf of the plaintiff and the members of his family within the last five years;Reasons: "…I believe the plaintiff has been in receipt of substantial benefits over the last number of years, during which he alleges he has been engaged in lawful business activities, which to go the heart of the issue as to how he has come to be in receipt of large sums of money. I say that these alleged large benefit receipts go to the heart of the issues as to the amount of money received by the plaintiff over the last number of years. I say that it is necessary for the purpose of saving costs and avoiding delay, that they go to the heart of the matter as to whether the plaintiff has lived on the basis of lawfully earned income, or income from activities outside the law."

"…The matters sought therein go to the heart of the issue as to whether or not the Plaintiff has obtained income and has been involved in criminal activities which is the gist of the alleged libel. I say that those records will define the issues between the parties, save costs and avoid delay…"(iii) All conviction records, charge sheets, probation records, remand records, and other documentation relating to any dealings which the plaintiff might have had with An Garda Siochana, the Metropolitan Police in London, the Police in the United Kingdom or in any other jurisdiction;Reasons: "… I say that once again, those matters to the hear of the issue as to whether or not the plaintiff is a well known criminal engaged in criminal activities, including drug dealing, which is the gist of the alleged libel."(iv) All records, notes, interview notes and other documents relating to any interview of the plaintiff by An Garda Siochana, the Metropolitan Police and/or the United Kingdom Police and/or the Police in any other jurisdiction relating to any and every criminal matter in respect of which the plaintiff was interviewed;Reasons: " … I say that those documents, which relate to dealings with money, go to the heart of the issue as to whether or not the plaintiff is a moneylender and a loan shark, which is one of the particular of the alleged libel. I say that the plaintiff has put on record in the course of interviews, that he has made loans to members of the public. I say that there is no source for the alleged monies which the plaintiff has been lending to third parties. I say that any of the matters requested are necessary for the purposes of saving costs and avoiding delay, for they define the issues between the parties and go to the heart of the alleged libel."(v) All interviews and/or memoranda and/or records of interviews between the plaintiff and any members of the Press;Reasons: "I say that the Plaintiff has commented on his activities and made admissions as to his activities in respect of which the libellous action has been taken, to members of the Press. I say that this goes to the heart of the issue and is necessary for the purposes of avoiding delay and saving costs. The range is slightly different and wider than the letter.(vi) All reference notes, memoranda, letters or correspondence and documents generated between the plaintiff and the Criminal Assets Bureau within the last five years;Reasons: "I say and believe that the Plaintiff has come to the attention of the Criminal Assets Bureau during the period of the last five years, in respect of his alleged business activities. I say that the sole function of the said Bureau is to seek those engaged in criminal activity to disgorge the fruits of their unlawful activities. I say that any documents generated therein are necessary for the purposes of saving costs and avoiding delay, for they go to the crucial issue as to the origin of the funds upon which the plaintiff has financed his lifestyle within the last five years,...

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