Meegan v Times Newspapers Ltd t/a The Sunday Times
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 06 November 2015 |
| Neutral Citation | [2015] IEHC 696 |
| Court | High Court |
| Date | 06 November 2015 |
[2015] IEHC 696
THE HIGH COURT
BETWEEN
AND
Damages & Restitution – Defamation – S. 26 of the Defamation Act, 2009 – Discovery of documents – plea of fair and reasonable publication
Facts: Following the initiation of the claim for damages for defamation against the defendant for publishing an article in the newspaper that alleged to have defamed the plaintiff, the plaintiff now sought an order for discovery of certain categories of documents. The defendant alleged that the plaintiff was not identifiable from the words contained in the article.
Mr. Justice Barr granted an order for the discovery of documents from the defendant only on the ground that the defendant had raised a plea under s. 26 of the Defamation Act, 2009 as the Court was of the view that the plaintiff was not entitled to seek discovery of journalistic notes and other documents. The Court held that intention of the defendant in the defamation proceedings as alleged by the plaintiff was immaterial and the test was whether reasonable people understood that the alleged article made reference to the plaintiff. The Court observed that since the defendant had raised the plea of fair and reasonable publication under s. 26 of the said Act, 2009, it became necessary for the plaintiff to have discovered the documents so as to deal with that plea at the trial.
JUDGMENT of Mr. Justice Barr delivered on the 6th day of November, 2015
1. In this action, the plaintiff claims damages for defamation against the defendant, in relation to an article which appeared in the defendant's newspaper, "The Sunday Times", on 14 th September, 2014. The following allegations were contained in the article:-
"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."
2. 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.
3. 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 the defence of fair and reasonable publication on a matter of public interest pursuant to s. 26 of the Defamation Act 2009.
4. In this application, the plaintiff seeks discovery of documents from the defendant. The first and second categories of documents sought in the notice of motion are as follows:-
i "(i) 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 headline 'Convicted Bomb Maker was Recipient of Garda Intelligence' which appeared on 14 th September, 2014 in the defendant's newspaper and as identified at paragraph 6 and 7 of the Statement of Claim, to include all drafts of the said article and sources, notes, memorandum, essays, aide-memoire and other materials used and/or prepared by the defendant, its servants or agents in respect of the said article as published by the defendant on 14 th September, 2014.
(ii) Copies of the defendant's 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 and/or authors, news editors and/or news editor, chief sub-editor and/or subeditor and/or sub-editors and/or other servants and agents of the defendant for the Irish edition of The Sunday Times for publication of the Sunday Times of September 14th, 2014."
5. The plaintiff states that having regard to the plea contained in the defendant's defence to the effect that the plaintiff was not identifiable from the words contained in the article, it is relevant and necessary for the plaintiff to have discovery of documents from the defendant. The plaintiff argues that in circumstances where the defendant claims that the plaintiff is not identifiable from the words complained of and does not deny that the plaintiff is, in fact, the person referred to in the article, the reporters' and/or researchers' notebooks are likely to confirm or otherwise whether the said article referred to the plaintiff. The plaintiff further argues that 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.
6. The plaintiff further argues that 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.
7. In support of her argument that these categories of documents are relevant and necessary, the plaintiff referred to the following extracts from the judgment of Fennelly J. in Ryanair Plc v. Aer Rianta c.p.t. [2003] 4 I.R. 264 at p. 276:-
"In order to establish that discovery of particular categories of documents is 'necessary for disposing fairly of the cause or matter', the applicant does not have to prove that they are, in any sense absolutely necessary. Kelly J. considered the matter in his judgment in Cooper Flynn v. Radio Telefis Éireann [2000] 3 I.R. 344. He derived the useful notion of 'litigious advantage 'from certain English cases. He adopted the following statement of Bingham M.R. in Taylor v. Anderton (C.A.) [1995] 1 W.L.R. 447 at p. 462:-"
'The crucial consideration is, in my judgment, the meaning of the expression 'disposing fairly of the cause or matter'. Those words direct attention to the question whether inspection is necessary for the fair determination of the matter, whether by trial or otherwise. The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think, of no importance that a party is curious about the contents of a document or would like to know the contents of it if he suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it. That, in my judgment, is the test.'
It may not be wise to substitute a new term of art, 'litigious advantage 'for the words of the rule. Nonetheless, the discussion gives guidance as to the context in which the matter has to be considered. Within that context, the court has to reach a conclusion as to the likely effect of the grant or refusal of the discovery on the fair disposal of the litigation.
The change made in to O. 31, r. 12, in 1999, exemplifies, however, growing concern about the dangers of unnecessarily costly and protracted litigation and, in particular, the burdens on parties and the courts arising from excessive resort to automatic blanket discovery. The public interest in the proper administration of justice is not confined to the relentless search for perfect truth. The just and proper conduct of litigation also encompasses the objectives of expedition and economy."
8. In relation to the first two categories of documents sought, the defendant stated that it is a well-established principle of the law of defamation that intention on the part of the person who made the impugned statement is irrelevant to the question as to whether the plaintiff was identified in the defamatory statement. The defendant referred to the following statement of principle in the judgment of Fennelly J. in Bradley v. Independent Star Newspapers Limited [2011 ] 3 I.R. 96 at p. 131:-
"One of the fundamental principles of the law of defamation is that the intention of the publisher is irrelevant to his liability if what he publishes is defamatory. This is most clearly demonstrated by the famous case of E. Hulton & Co. v. Jones [1910] A.C. 20, a case which raised the converse issue, whether a publisher who publishes a libel innocent of all knowledge that it refers to a particular person is, nonetheless, liable to that person. A well known newspaper published an article describing the attendance at a motor race at Dieppe. It described the antics, intending to refer to a fictitious person, of one Artemus Jones, and said of him that he was 'with a woman who is not his wife, who must be, you know - the other thing!'. It added:- 'Really, is it not surprising how certain of our fellow-countrymen behave when they come abroad? Who would suppose, by his goings on, that he was a churchwarden at Peckham?' The real Artemus Jones was not, of course, a churchwarden at Peckham or anywhere else. He was a barrister on the North Wales Circuit. Nonetheless, a majority in the Court of Appeal and the House of Lords unanimously held that the test was not whether the defendant intended to refer to the plaintiff but whether the words published were understood by reasonable people who knew the plaintiff to refer to him."
9. Later, in the course of the same judgment, Fennelly J. stated as follows at p...
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