Ryanair Lmited v Irish Municipal

• Jurisdiction: Ireland
• Judge: Ms Justice Ní Raifeartaigh
• Judgment Date: 20 February 2017
• Neutral Citation: [2017] IEHC 425
• Docket Number: RECORD NO: 2012/10160P
• Court: High Court
• Date: 20 February 2017

Ryanair Ltd.

Plaintiff

AND

Irish Municipal, Public and Civil Trade Union (IMPACT), Irish Airline Pilots Association (IALPA)

and

Evan Cullen

Defendant

[2017] IEHC 425

RECORD NO: 2012/10160P

THE HIGH COURT

Practice & Procedures – O.31, r. 21 of the Rules of the Superior Courts – Striking off – Defamation – Non-compliance with discovery obligation – Necessity and Relevance

Facts: The applicant originally sought an order for striking out the defence of the three defendants for the failure to make adequate discovery or in the alternative an order requiring that the defendants would search and identify the relevant documents in their electronic database or reconstitute the deleted data. The aforesaid reliefs being refused by the Master of the High Court, the applicant now sought an order for setting aside the impugned order of the Master of the High Court.

Ms. Justice Ni Raifeartaigh refused to grant the desired reliefs to the applicant. The Court held that the power to strike out the defence of the defendant, who failed to comply with the discovery order, must be exercised cautiously in cases where there was intentional non-compliance. The Court held that in the present case, the defendants had made bona fide attempts to locate the requisite documents. The Court found that there was a policy of maintaining little information for data protection reasons and that there was no need to store the type of data the third defendant maintained, which pertained to individual plot holders. The Court observed that the information that was asked by the plaintiff in the electronic form was neither relevant nor necessary for the fair disposal of the issues between the parties.

JUDGMENT of Ms Justice Ní Raifeartaigh delivered on 20th February, 2017

The nature of the case

1 These proceedings involve a motion in which the applicant Ryanair, who is the plaintiff in the substantive defamation proceedings to which this application relates, seeks (1) an order pursuant to Order 31, Rule 21 of the Rules of the Superior Courts striking out the defence of the three defendants for failure to make adequate discovery; or, in the alternative, (2) an order ‘requiring the defendants to search for and identify electronic documents and other electronically stored information falling under the categories of discovery that have been deleted by the defendants and which may be reconstituted together with an order directing that the defendants reconstitute and make discovery of such electronically-stored information’. The orders sought were refused by the Master of the High Court and the applicant seeks an order pursuant to Order 63, Rule 9 of the Rules of the Superior Courts setting aside the order of the Master, together with orders for the reliefs identified above.

Relevant Background

2 The Statement of Claim alleges that the three defendants were responsible for defamatory statements made during a radio interview on the 16th August, 2012, on the “News at One” programme on RTE Radio One and in a subsequent article in the Irish edition of the Sunday Times. The third defendant, Mr. Cullen, is an airline pilot and President of the second defendant union, which is a member of the first defendant. The statements complained of were made by Mr. Cullen during the radio interview in question, which were subsequently reported in the Sunday Times. Numerous defamatory meanings have been pleaded in the Statement of Claim, but for present purposes it probably suffices to say, in broad terms, that the interview related to Ryanair's policy in relation to certain safety issues, and in particular, the amount of reserve fuel that should be or is carried by aircraft operated by the company. The defendants have pleaded, inter alia, the defences of truth and honest opinion.

3 On the 12th December, 2011, the High Court (O'Malley J.) delivered judgment on a discovery motion, in which a large number of categories of discovery were sought. The parties were to agree the wording of the order of discovery and, following an exchange of correspondence in March, 2015, this was done. This agreement post-dated the 12-week period within which discovery was to have been completed according to the judgment of O'Malley J. (which period expired on the 6th March, 2015). Subsequently, a total of four affidavits of discovery were sworn by the third defendant, Mr. Cullen. These were dated, respectively: the 19th March, 2015; 1st April 2015; 22nd June, 2015; and the 28th October, 2015. The present motion issued before the fourth affidavit was sworn.

4 The reliefs sought in the present motion, which are outlined above, were refused by the Master and the matter came on for hearing in this Court on the 4th October, 2016. While counsel on behalf of the plaintiff opened the correspondence which flowed between the parties during the entirety of the period March -October 2015, which contained numerous complaints by the plaintiff about the defendant's discovery both as regards electronic and non-electronic documents, it is fair to say that counsel directed his complaints at the hearing primarily towards the discovery of electronic material which, he argued, was inadequate.

5 On the 26th October, 2016, the Court delivered an interim ruling requesting further details to be set out on affidavit on behalf of the defendants, concerning the electronic searches that had been carried out to date, including any searches for “deleted” electronic material in particular. In response to the interim ruling, a number of additional affidavits were sworn, which are detailed below. As a result, the Court has a much clearer picture of the facts and is now in a position rule on the motion as a whole.

The history of discovery as disclosed by the affidavits

6 In order to contextualise the relief sought in respect of electronic material, and the deleted material in particular, it is unfortunately necessary to have regard to the affidavits sworn on behalf of the defendants and the correspondence between the parties in some detail. The first affidavit of discovery was sworn by Mr. Evan Cullen, the third name defendant, on the 19th March, 2015. The Second Schedule to that affidavit contained the following description of documents no longer in the defendants' possession power or procurement:

All documents given by Ryanair Pilots from time to time to IALPA for the purpose of receiving advice and/or assistance from IALPA in cases where there have been issues or disputes with their employer Ryanair and as agreed and desired by such pilots IALPA have destroyed such documents or returned them to the relevant pilots. The time frame of receipt and return to pilots or destruction of such documents varies in respect of the categories of documents.’

7 On the 23rd March, 2015, the solicitors on behalf of the defendants wrote to the solicitors on behalf of the plaintiff, enclosing two further documents; a memo dated the 4th January, 2012, from a base captain, and a portion of a Ryanair operations manual, both of which, it was said, had been omitted in error from the affidavit of discovery.

8 This was responded to by the solicitors on behalf of the plaintiff by letter dated the 24th March, 2015, complaining that the enclosure of additional documents was “highly irregular and unsatisfactory”, and calling for a new affidavit of discovery to be sworn.

9 Another letter from solicitors on behalf of the plaintiff, dated the 25th March, 2015, stated: ‘ In relation to the documents listed under the Second Schedule….we ask that you confirm now by return that you shall reconstitute the documents (including emails) listed under this Schedule.’ This request obviously presupposed that the “deleted” material had existed in electronic form.

10 An amended affidavit of discovery was duly sworn by Mr. Cullen on the 1st April, 2015, accounting for the two additional documents referred to above. However, before this was furnished to the plaintiff, solicitors for the plaintiff wrote to the solicitors for the defendants by letter dated 9th April, 2015. They raised a number of concerns with regard to the Second Schedule. Among the concerns raised were (1) that there had been no attempt to list the missing documents; (2) that there had been no indication as to when the documents had been destroyed or returned and whether this had taken place before or after the proceedings had been instituted; (3) that there was no indication whether any emails or other electronic documents were or were not still available through “reconstitution”. They continued as follows:

We have now identified other serious deficiencies with the discovery purportedly made by Mr. Cullen in his Affidavit, including that Mr. Cullen has failed to discover documents which Ryanair knows to exist and/or which credibly must exist, and which fall within the relevant categories of discovery. The extent of the deficiencies is such that it casts doubt on the veracity of the Affidavit as a whole. We set out further details below, by reference to the categories of discovery and by reference to the schedules to Mr. Cullen's Affidavit.’

They then outlined details of same, stating that ‘we require a full explanation as to why the above-identified documents have not been discovered, and production of same.’ They went on to raise issues in relation to ‘deleted/destroyed’ documents, stating, ‘The description of missing, ‘returned’, destroyed or deleted documents given by Mr. Cullen in the Second Schedule to his Affidavit is unacceptable’ and requesting that the defendants ‘have Mr. Cullen specifically identify all documents that he asserts fall within this Second Schedule’; ‘identify precisely when the documents allegedly falling within this Second Schedule have been ‘returned’ or destroyed as averred’; ‘respond to our letter dated 25 March 2015 regarding reconstitution and/or recovery of...