Pat Carey v Independent News & Media Plc, Independent Newspapers (Ireland) Ltd, The Commissioner of an Garda Síochána, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 26 March 2021
• Neutral Citation: [2021] IEHC 229
• Docket Number: [2016 No. 4450 P.]
• Court: High Court
• Date: 26 March 2021

Between

Pat Carey

Plaintiff

and

Independent News & Media Plc, Independent Newspapers (Ireland) Limited, The Commissioner of an Garda Síochána, Ireland and The Attorney General

Defendants

[2021] IEHC 229

[2016 No. 4450 P.]

THE HIGH COURT

Discovery – Relevance – Privilege – Plaintiff seeking discovery – Whether the claim to journalistic privilege should be ruled on

Facts: The plaintiff, Mr Carey, applied to the High Court for discovery in the context of proceedings seeking damages for breach of privacy and confidentiality. The proceedings were brought against a number of defendants, the first two of whom were Independent News & Media plc and Independent Newspapers (Ireland) Ltd (the media defendants). The second defendant was the publisher of the Irish Independent and Sunday Independent newspapers which, in November, 2016, published a series of articles concerning an investigation by An Garda Síochána into allegations of child sexual abuse. The defence filed on behalf of the media defendants acknowledged publication by the second defendant but not the first defendant. The media defendants opposed the discovery sought by the plaintiff both in terms of its relevance and necessity to the issues in the case and, in the event discovery was found to be relevant and necessary, on the grounds of journalistic privilege. There was a dispute between the parties as to whether the claim to journalistic privilege should be ruled on in the context of this application or, if discovery was ordered, at the time when the plaintiff sought to inspect the documents so discovered. The media defendants contended that any affidavit of discovery to be sworn by them could potentially identify their sources and, thus, breach the privilege which they sought to assert.

Held by Butler J that the real “burden” in issue was the potential for discovery to impinge upon the confidentiality which the media defendants not only wished to, but regarded themselves as ethically bound to, afford to their sources. In considering the issues of relevance, necessity and proportionality Butler J took into account the fact that a claim of confidentiality of a type to which the law attaches great significance had been made; however, the claim made by the plaintiff alleging a breach of his fundamental rights was also one to which the law attaches great significance. Butler J held that the media defendants had not identified any other mechanism through which the plaintiff could reasonably expect to obtain the information sought by him other than by way of discovery and they had not made any material concession as regards the plaintiff’s claim which might make some or all of the discovery sought unnecessary. Consequently, Butler J held that, in principle, the interests of justice in bringing about a fair result to the proceedings required that an order for discovery be made, subject to the claim of privilege that the media defendants made in respect of the discovery sought.

Butler J held that in circumstances where she had found that the plaintiff was entitled to discovery of both of the categories of documents remaining in dispute between the parties and that the claim of privilege raised by the media defendants was not one which must inevitably succeed, it followed that the determination of the claim of privilege itself was not one on which the court should offer any view at this stage.

Application granted.

JUDGMENT of Ms. Justice Butler delivered on the 26th day of March, 2021

1 This judgment relates to an application for discovery made by the plaintiff in the context of proceedings seeking damages for breach of privacy and confidentiality. The proceedings are brought against a number of defendants, the first two of whom I shall refer to in this judgment as the media defendants. The second defendant is the publisher of the Irish Independent and Sunday Independent newspapers which, in November, 2016, published a series of articles concerning an investigation by An Garda Síochána into allegations of child sexual abuse. It is noted that the defence filed on behalf of the media defendants acknowledges publication by the second defendant but not the first defendant. As both media defendants have the same legal representation, have filed a single defence and the affidavit replying to this motion for discovery is sworn on behalf of both, it is not proposed to address the potential consequences of that plea in this motion.

2 The media defendants oppose the discovery sought by the plaintiff both in terms of its relevance and necessity to the issues in the case and, in the event discovery is found to relevant and necessary, on the grounds of journalistic privilege. There is a serious dispute between the parties as to whether the claim to journalistic privilege should be ruled on in the context of this application or, if discovery is ordered, at the time when the plaintiff seeks to inspect the documents so discovered. Although this is ostensibly a procedural issue, it has significant substantive implications in circumstances where the media defendants contend that any affidavit of discovery to be sworn by them could potentially identify their sources and, thus, breach the privilege which they seek to assert.

Background to the Plaintiff's Claim

3 The plaintiff is a retired politician, having served as a TD between 1997 and 2011 and as a Government Minister between 2010 and 2011 before losing his seat in the 2011 general election. Prior to becoming a full time politician, he was a teacher and community activist. Despite having retired from representative politics in 2011, the plaintiff retained a public profile and remained actively involved in the political party of which he was a member. At the time the articles the subject of the proceedings were published, he was the national director of elections for that party. He was also actively involved in a number of charitable and not-for-profit organisations.

4 The media defendants published a series of articles in the Irish Independent newspaper and its online editions on the 11th and 12th November, 2015. Those articles reported that a Garda investigation was taking place into allegations of child sexual abuse made by a number of complainants against a former Government Minister. The plaintiff contends that it is evident from the detail relating to the investigation set out in the articles that the “ sources” referred to in the articles could only be Garda sources. Further, although the former Government Minister the subject of the investigation was not named, the plaintiff contends that he was identifiable as the person concerned from the contents of the articles taken in their entirety and consequently that he became the subject of speculation, both in political circles and more generally, as to who the former Government Minister might be. The plaintiff contends that, as a result, he was placed “in the invidious position of having to address public speculation surrounding his involvement by issuing a statement dealing with those allegations about which he had no knowledge”. Given the level of “ rumour and innuendo”, the plaintiff felt obligated to, and did, step down from the various positions he held while any investigation was underway. Naturally, the issuing of that statement by the plaintiff meant that his name was now indisputably in the public domain as the subject of the investigation referred to in the articles.

5 The media defendants deny that the plaintiff was either identified in or identifiable from the articles published prior to his making his statement on the evening of 12th November, 2015. Consequently, they contend that it was this statement which publicly identified the plaintiff, a plea with obvious significance in the context of a claim for breach of privacy. Subsequent to the plaintiff's statement, the media defendants published a further series of articles on the allegations in which the plaintiff was named. Those articles included reports of the plaintiff's denial of the allegations. An editorial published by the media defendants on 14th November, 2015 stated the publication was “ manifestly in the public interest” and was critical of attempts within An Garda Síochána to investigate the leak which was allegedly the source of the information used in the articles.

6 Finally, although not strictly relevant to this discovery application and, perhaps not even relevant to the underlying proceedings, the court was informed that the Garda investigation has concluded and the Director of Public Prosecutions has informed the plaintiff that no charges are to be brought against him arising out of these allegations.

Proceedings

7 Against this factual background, the plaintiff issued proceedings on 19th May, 2016. In addition to the media defendants, the plaintiff has sued the Commissioner of An Garda Síochána, Ireland and the Attorney General (“the State defendants”). The plaintiff's statement of claim is lengthy and complex and includes extensive quotations from the articles complained of. Essentially, the plaintiff's claim is for a breach of his right to privacy and confidentiality as protected under the Irish Constitution and the European Convention on Human Rights. It is a central plank of this claim that the plaintiff was identifiable from the articles published prior to his statement on the evening of 12th November, 2015 and that he had, in fact, been identified by people reasonably familiar with Irish politics as the former Minister who was allegedly under investigation. Thus, it is contended that the plaintiff's identification was an entirely foreseeable consequence of publication of this confidential material and also foreseeable that irreparable harm would be caused to his reputation. It is also central to the plaintiff's case that, given the level of detail regarding the investigation contained in the article, the “ sources”...