McDonagh v Sunday Newspapers Ltd

• Jurisdiction: Ireland
• Judge: Mrs. Justice Macken
• Judgment Date: 10 May 2005
• Neutral Citation: [2005] IEHC 183
• Docket Number: [2000 No. 486P],No. 486P/2000
• Court: High Court
• Date: 10 May 2005

MCDONAGH v SUNDAY NEWSPAPERS LTD T/A SUNDAY WORLD

BETWEEN

MARTIN McDONAGH

APPLICANT

AND

SUNDAY NEWSPAPERS LIMITED TRADING AS SUNDAY WORLD

RESPONDENT

[2005] IEHC 183

No. 486P/2000

THE HIGH COURT

PRACTICE AND PROCEDURE

Discovery

Defamation - Defence of justification - Necessity for discovery - Relevance of documents - Whether defendant must particularise plea of justification in libel action before discovery can be granted in its favour - Whether defendant entitled to discovery of documents where he had evidence to support plea of justification and documents would aid plea - Whether plaintiff who did not seek particulars had abandoned or waived right to seek them - Whether plaintiff could raise insufficiency of defence or absence of particulars of plea of justification when defending motion for discovery - Whether affidavit grounding motion for discovery should contain details of plea of justification - Rules of the Superior Courts 1986 (SI 15/1986), O 31, r 12 - Rules of the Superior Courts (No 2) (Discovery) 1999 (SI 233/1999) - Appeal against order for discovery allowed (2000/486P - Macken - 10/5/2005) [2005] IEHC 183

MCDONAGH v SUNDAY NEWSPAPERS LTD T/A SUNDAY WORLD

Facts: the plaintiff alleged that he had been defamed by the defendant in an article published by it which was to the effect that the plaintiff was a notorious criminal and loan shark who derived his income from unlawful activities. The defendant included a plea of justification in its defence and sought discovery of twelve categories of documents from the plaintiff. The Master granted an order for discovery of the documents sought. The plaintiff appealed that decision to the High Court, arguing that discovery should not be granted in the absence of any indication of the facts and matters upon which the defendant would rely to support its plea of justification.

Held by Ms Justice Macken in setting aside the decision of the Master that in a libel action in which a defendant pleaded justification simpliciter, there had to be before the court, at least at the time discovery was sought, sufficient information, particulars or material facts, upon which the court could (i) conclude that the application for discovery was intended to advance the plea of justification, and not merely make such a case for the defendant; (ii) establish that the documents sought were relevant to the issues arising between the parties and (iii) establish that they were necessary for the purposes of disposing of the action.

Reporter: P.C.

CONSTITUTION ART 40

RSC O.31 r15

COOPER FLYNN v RTE 2000 3 IR 252

RYANAIR v AER RIANTA 2003 4 IR 264 2004 1 ILRM 241

GATLEY LIBEL & SLANDER 10ED

COONEY v BROWNE 1985 IR 185 1985 ILRM 673

COMPAGNIE FINANCIERE DU PACIFIQUE v PERUVIAN GUANO 1882 11 QBD 55

MCDONNELL v SUNDAY BUSINESS POST LTD UNREP O'SULLIVAN 2.2.2000 1999/17/5206

RSC O.19 r3

ASSOC LEISURE v ASSOC NEWSPAPERS 1970 2 QB 450

WOOTON v SIEVIER 1912 3 KB 499

ARNOLD & ANOR v BOOTOMLEY & ORS 1908 2 KB 151

1 JUDGMENT of Mrs. Justice Mackendelivered on the 10th day of May 2005

2 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:

3 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.

4 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:

5 (a) is a criminal

6 (b) is a drug dealer

7 (c) is a thug

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

9 (e) engages in large scale drug dealing

10 (f) is a notorious criminal

11 (g) is a cheat

12 (h) is a tax evader

13 (i) is a drugs baron

14 (j) is a loan shark

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

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

17 (m) derives his living from drug dealing

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

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

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

21 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.

22 The Defence was delivered on 2nd April, 2002. Paragraphs 4, 5 and 6 read as follows:

23 a "4. Save that [it] is admitted that the words complained of refer to and were understood to refer to the plaintiff,....

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

25 c 6. The words complained of are true in substance and in fact."

26 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.

27 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.

28 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.

29 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:

30 (i) The plaintiff's Tax Number and his accounts for his business for the last five years;

31 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.

32 (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;

33 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...