Ryanair Ltd v Van Zwol
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 26 May 2016 |
| Neutral Citation | [2016] IEHC 264 |
| Date | 26 May 2016 |
| Docket Number | Record No.2013/11363P |
AND
AND
[2016] IEHC 264
Record No.2013/11363P
THE HIGH COURT
Tort – Defamation – Discovery of documents – Practice & Procedures – O.40, r. 1 of the Rules of the Superior Courts 1986 – Cross-examination of witness – Conflict of facts
Facts: Following the institution of defamation proceedings by the plaintiffs against the defendants and an order for discovery of documentation thereof, the plaintiffs now sought an order for cross-examination of the deponents to the defendants' affidavit of discovery. The plaintiffs objected to the manner in which the discovery of documents had been dealt by the defendants. The defendants argued that the present application was premature and that the defendants were able to rectify the defects indentified in the discovery process.
Mr. Justice Max Barrett declined to grant the desired reliefs to the plaintiffs. The Court held that an order allowing cross-examination on an affidavit discovery should be made rarely and under exceptional circumstances consisting of conflict of facts. The Court found that it was not appropriate to order the attendance of the concerned deponents pending the determination of the application filed by the plaintiff for striking off the defence of the defendants and for further discovery, which would be decisive to resolve the issue in questions in the present proceedings. The Court held that redaction of the names of the informants by the defendants were on the basis of assurances of confidentiality given to those persons and did not represent any non-disclosure of material information per se.
It is claimed that in a document entitled ‘Pilot Update’, dated 12th September, 2013, and published on the headed notepaper of the Ryanair Pilot Group under the heading ‘What the markets are saying about Ryanair’, the defendants and each of them published or caused to be published the following text concerning Ryanair and Ryanair Holdings:
‘The company's share price fell sharply last week (down 11.54%) as markets reacted to a negative statement issued by the company management. It has been indicated that profit targets for 2013-2014 may need to be revised downwards as the autumn-winter outlook remains weak. This is in spite of positive indications to investors in June which encouraged a share price increase and a sell off of shares by managers in late June, ahead of the winter period.’
The plaintiffs claim that (a) this text was defamatory of them, and (b) in its natural and ordinary meaning and/or by way of innuendo can be construed as meaning that (i) Ryanair is guilty of market manipulation, (ii) Ryanair misled investors, (iii) Ryanair knowingly facilitated insider dealing, and (iv) Ryanair conspired with its managers to abuse the market for its shares.
Whether the plaintiffs are correct or wrong in their various claims is for another court on another day to decide. This Court is concerned solely with a strike-out and discovery-related application that has taken an unexpected turn.
By letter dated 3rd June, 2014, the defendants agreed to make discovery in the terms sought in the plaintiffs' request for voluntary discovery dated 9th May, 2014. Table 1 below summarises the sequence of affidavits that issued thereafter:
Table 1: Sequence of Affidavits.
| Party | Document | Date | Deponent |
| Defendant | Affidavit of Discovery | 21.08.14 | Mr Van Zwol |
| Plaintiff | Affidavit (grounding motion) | 05.11.14 | Ms Moynihan |
| Defendant | Supplemental Affidavit of Discovery | 16.04.15 | Mr Van Zwol |
| Defendant | Replying Affidavit | 16.04.15 | Mr Van Zwol |
| Plaintiff | Second Affidavit | 14.05.15 | Ms Moynihan |
| Defendant | Replying Affidavit | 18.05.15 | Mr Goss |
| Plaintiff | Third Affidavit | 01.07.15 | Ms Moynihan |
| Defendant | Replying Affidavit | 23.07.15 | Mr Goss |
| Defendant | Second Supplemental Affidavit of Discovery | 26.02.16 | Mr Murphy |
As can be seen from Table 1, the defendants have made three attempts through two different deponents, Mr Van Zwol and Mr Murphy to comply with their discovery obligations. In each supplemental affidavit the relevant deponent has admitted errors and omissions in previous discovery and made discovery of new documents to the plaintiffs.
By 11th November last, the plaintiffs were sufficiently vexed by how matters were progressing discovery-wise that they issued a notice of motion seeking (i) an order striking out the defendants' defence for want of discovery, (ii) an order directing the defendants to make further discovery, and (iii) an order requiring inspection of certain documents of which discovery had been made in redacted form.
That strike-out, etc. motion came on for hearing before this Court on 9th February last. Problems soon emerged at the hearing. The plaintiffs, through their counsel, and for the first time in the proceedings, identified certain references within documents already discovered which, it was contended, suggested that there might be further documentation not discovered by the defendants. The contention aforesaid not having previously been raised by way of inter partes correspondence or on affidavit, the balance of the motion was adjourned on consent to facilitate the swearing of a further affidavit by the defendants. This further affidavit was sworn on 26th February.
The plaintiffs come to court claiming that the third affidavit presents some general concerns. These general concerns are five-fold:
that the defendants appear to be of the view that documents which are viewed online but never printed or downloaded are not documents in their power, possession or procurement and thus are not discoverable;
that the defendants appear to rely on the fact that certain documents are publicly available to suggest that they are not obliged to discover it;
that the third affidavit has yielded the discovery of documentation which the defendants admit ought to have been discovered in the first affidavit;
that, convinced it seems that “attack is the best form of defence”, the defendants contend that the plaintiffs bear some responsibility for lapses in the defendants' discovery to this point;
that, by way of catch-all contention, the manner in which the defendants have dealt with discovery to this point, including the fact that three affidavits of discovery have to this point been sworn, suggests that the defendants do not understand their discovery obligations and that they cannot therefore be believed to have made adequate discovery to this time.
As to [1], the court entertains considerable doubt as to whether a document viewed online but never printed or downloaded can properly be describedas a documentin the possession, power or procurement of the viewer. The mere act of having viewed the document does not mean that the viewer hasthe documentor has an enforceable legal right to obtain it. Even if one gets over this hurdle, proportionality is an unfailingly relevant consideration when the court has to determine the way in which a party is to comply with its discovery obligations. It is perhaps conceivable that circumstances might arise in which discovery of what was seen online might be available and proportionate; those circumstances do not present here. Nor has any case-law been identified to the court that would suggest that some contrary proposition ought to apply.
As to [2], the fact that certain documents are publicly available does not mean that a person can escape discovery of same, provided they otherwise satisfy the pre-requisites for discovery.
As to [3], such is life. In any human endeavour, error is to be expected. Even the most scrupulous of discovery processes – and no little scruple is required[a] in the discovery process –likely involve some element of inbuilt error. Discovery is a means to an end, not an exercise in perfection.
[a]As Charleton J. notes in IBB Internet Services Limited v. Motorola Limited [2013] IEHC 541, para.2, ‘[T]he parties [to a case] are under a duty to the court to prepare a case for hearing through cooperating with each other in aid of the fundamental obligation of identifying the issues to be tried and making the case ready for hearing.’ Cooperation, not coyness, is the watchword of discovery.
As to [4], it is for the defendants to make proper discovery, not for the plaintiffs to prompt them as to what is required.
As to [5], this is the mainstay of the within application and the court returns to this aspect of matters below.
It would be fair to say that a central concern of the plaintiffs revolves around the fact that, in the documentation of which discovery has thus far been made by the defendants, the names of people who have provided information to the Ryanair Pilot Group Interim Council (of which the defendants are member) have been redacted. This, the defendants maintain, is because:
(a) each redacted person has been given firm commitments of confidentiality,
(b) the Pilot Group could not function if it did not give assurances of confidentiality to persons who volunteer information to it, and
(c) any obligation to hand over such details would have a severe chilling effect on such information as is made available to the Pilot Group.
Ryanair has invoked various arguments in correspondence with the defendants as to why the defendants should provide the redacted names, the principal contention being that it may assist them in proving malice. But the defendants are not for turning: they maintain that they...
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