Meegan v Times Newspapers Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 09 November 2016
• Neutral Citation: [2016] IECA 327
• Date: 09 November 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2016] IECA 327 2015 No. 562

BETWEEN/

LYNDA MEEGAN

PLAINTIFF/RESPONDENT

- AND –

TIMES NEWSPAPERS LTD.

DEFENDANT/APPELLANT

[2016] IECA 327

Neutral Citation Number: [2016] IECA 327

2015 No. 562

THE COURT OF APPEAL

Defamation – Discovery – Fair and reasonable publication – Respondent seeking discovery of certain categories of documents from the appellant – Whether respondent was entitled to the discovery sought as relevant and necessary to her defence of fair and reasonable publication on a matter of public interest

Facts: The plaintiff/respondent, Ms Meegan, stated that she was the former member of An Garda Síochána referred to in an article which appeared on 14th September 2014 in "The Sunday Times", the newspaper of the defendant/appellant, Times Newspapers Ltd. She pleaded that the article's allegations against her were false and defamatory. It was not disputed by the defendant that the plaintiff was indeed the person referred to in the article although it contended that she had not been identified in the piece in question. The defendant also pleaded the defence of fair and reasonable publication on a matter of public interest pursuant to s. 26 of the Defamation Act 2009. The plaintiff sought discovery of certain categories of documents from the defendant. On 6th November 2015, the plaintiff succeeded in obtaining an order from the High Court (Barr J) for discovery on the ground that having regard to the fact that the defendant had pleaded the defence of fair and reasonable publication on a matter of public interest, she was entitled to the discovery sought as relevant and necessary to this defence ([2015] IEHC 696). The defendant appealed to the Court of Appeal against that decision contending that it was incorrect.

Held by Hogan J that it was premature to assess whether the discovery sought was genuinely necessary for the proper conduct of the litigation, at least until the scope and extent of the s. 26 defence was clarified and particulars of the facts proposed to be relied upon by the defendant in support of that defence were duly ascertained, whether by further pleading or by particulars.

Hogan J held that the defendant's appeal must accordingly be allowed.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 9th day of November 2016

1 Where a defendant in a defamation action pleads in general terms the defence of fair and reasonable publication pursuant to s. 26 of the Defamation Act 2009 ('the 2009 Act'), is a plaintiff entitled in principle as a consequence of this plea to discovery of the journalist's notes and other background material relevant to the publication in the article, subject only to questions of journalistic privilege and legal professional privilege? In his judgment of the High Court delivered on 6th November 2015, Barr J. answered that question in the affirmative: see Meegan v. Times Newspapers Ltd. [2015] IEHC 696. The defendant newspaper contends that this decision was incorrect and it now appeals to this court.

2 The present proceedings arise following the publication which appeared in the defendant's newspaper, 'The Sunday Times', on 14th September 2014. The publication was in the following terms:

'A senior figure in the Continuity IRA (CIRA) has been identified by Special Branch as the person who received sensitive information from a former Garda about operations against dissident republications.

Joe Fee, a convicted bomb maker who lives in Monaghan is the focus of an investigation into the disclosure of information likely to be of use to terrorists.

The female officer is said to have sent texts to Fee and alerted him to the identities of dissidents arrested by Gardaí. The texts were intercepted by Crime and Security, the Garda agency responsible for spying on dissidents.

The officer, who cannot be named, resigned after being confronted. She is the subject of a continuing criminal investigation.'

3 The plaintiff states that she is the former member of An Garda Síochána referred to in the article. She has pleaded that these allegations are false and defamatory of her. It is not disputed by the defendant that the plaintiff is indeed the person referred to in the article although it contends that she has not been identified in the piece in question.

4 In its defence, the defendant has pleaded, inter alia, that the plaintiff was not identifiable from the content of the article. The defendant has also pleaded – albeit in the most general terms - the defence of fair and reasonable publication on a matter of public interest pursuant to s. 26 of the 2009 Act. Thus, para. 11 of the defence provides that if the words were indeed defamatory of the plaintiff, then:

'....the same constituted fair and reasonable publication on a matter of public interest. In this regard, the defendant will rely upon the provisions of section 26 of the Defamation Act 2009.'

5 The plaintiff sought discovery of certain categories of documents from the defendant and the request was in the following terms:

'Category 1

The notebooks used by the reporter and or reporters/researchers involved in researching and writing the article identified at paragraph 3 of the defence and published under the header 'Convicted bomb maker was recipient of Garda intelligence' which appeared on September 14th 2014 in the defendant's newspaper and as identified in paragraph 6 and 7 of the statement of claim. To include all drafts of the said article and sources, notes, memorandum, essays, aide-memoire, or any other material used and or prepared by the defendants its servants or agents in respect of the said article as published by the defendant on September 14th 2014.

Reasons

This category of discovery is required in light of the pleas contained in the defence delivered on June 8th 2015 to the effect that the plaintiff is not identifiable from the words contained in the said article of which she complains such claims contained at paragraphs 4 and 5 of the defence. In circumstances were the defendant claims the plaintiff is not 'identifiable' from the words complained of and does not deny that the plaintiff is in fact the person identified in the article the reporters and / or researchers notebooks are likely to confirm or otherwise whether the said article referred to the plaintiff.

Category 2

Copies of the defendants' news list, news conference schedules and minutes thereof containing reference to the publication of the article described in the within proceedings maintained by the author an/or authors, news editor and/or editor, chief sub-editor and/or sub-editors and/or other servant of agent of the defendant for the Irish edition of the Sunday Times for the publication of the Sunday Times of September 14th 2014.

Reasons

The said news schedules, news lists and editorial materials maintained by the defendant's servants or agents will contain reference to the intention and decision of the defendant to publish the defamatory article concerning the plaintiff. Given that the defendant claims that the plaintiff is not identifiable from the words complained of in the said article and has not denied the fact that the words complained of relate to the plaintiff and has put the plaintiff on full proof of her claim the said documentation will tend to provide proof of the issues surrounding the identification of the plaintiff as the subject of the article wherein she is accused of criminal offences while a member of An Garda Síochána.

Category 3

Copies of all references and advices made and sought and received by the author and or authors of the article with respect to the decision not to publish the plaintiff's name.

Reasons

The materials sought under this category of discovery are relevant to the defendants claim that the plaintiff is not identifiable from the words published in that it would appear from the defence that an active decision was made by defendant to attempt to conceal the identify of the plaintiff in the knowledge that the accusations made against her in the impugned article were defamatory of her and in spite of such knowledge the defendant wilfully, recklessly and maliciously proceeded to publish the defamatory words of and concerning the plaintiff. The said materials are further relevant to the defendant's requirement...