WALSH v NEWS GROUP NEWSPAPERS Ltd

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 10 August 2012
• Neutral Citation: [2012] IEHC 353
• Court: High Court
• Docket Number: [2011 No. 5977 P]
• Date: 10 August 2012

[2012] IEHC 353

THE HIGH COURT

[No. 5977 P/2011]

Walsh v News Group Newspapers Ltd

BETWEEN

LOUIS WALSH

PLAINTIFF

AND

THE NEWS GROUP NEWSPAPERS LIMITED

DEFENDANTS

GARDA SIOCHANA ACT 2005 S62

DEFAMATION ACT 2009 S26

CONSTITUTION ART 40.3

CONSTITUTION ART 40.6.1

DEFAMATION ACT 2009 S17

DEFAMATION ACT 2009 S18

DEFAMATION ACT 2009 S25

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

JUDGE MAHON & ORS v KEENA & KENNEDY 2010 1 IR 336

GOODWIN v UNITED KINGDOM 1996 22 EHRR 123 1 BHRC 81

FRESSOZ & ROIRE v FRANCE 2001 31 EHRR 2 5 BHRC 654

GARDA SIOCHANA ACT 2005 S62(2)(G)(ii)

GARDA SIOCHANA ACT 2005 S62(2)(G)(i)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10(2)

DEFAMATION

Discovery

Journalistic privilege - Source - Object of privilege - False story about plaintiff published by defendants - Plaintiff seeking discovery of documents - Defendants claiming journalistic privilege - Whether documents privileged - Whether plaintiff entitled to discovery - Garda Síochána Act 2005 (No 20), s 62 - Defamation Act 2009 (No 31), ss 25 & 26 - European Convention on Human Rights and Fundamental Freedoms, article 10 - Discovery ordered (2011/5977P - O'Neill J - 10/8/2012) [2012] IEHC 353

Walsh v News Group Newspapers Ltd

Facts: The defendant had published an article in 2011 alleging the plaintiff, well-known in the media, was the subject of an inquiry by An Garda Síochána into what was described as a "sex attack" on a man in a toilet. The plaintiff alleged the defendant had paid the complainant in the matter to make the complaint, which later was found to be entirely without foundation.

The plaintiff had begun proceedings for defamation in the matter, and now sought discovery of a number of documents in order to better plead his case.

Held by O'Neill J, that the defendants claimed inter alia in defence that to grant discovery would infringe journalistic privilege. This privilege was protected by art 10 of the European Convention on Human Rights and sought to ensure the proper functioning of journalism. In this case, the complainant was not named as a source, and his identity was now a matter of public record. As such, privilege could only reasonably be said to apply to his communications with the defendant if the communications themselves identified other sources.

The plaintiff alleged that the defendant had misrepresented to the plaintiff that they had obtained details of the story from An Garda Síochána. In the view of the Court, any documents relating to communications between Gardaí and the defendant were relevant to the determination of the plaintiff's claim. Communications between the defendant and persons other than the complainant and Gardaí were not relevant, and were protected by privilege.

The Court therefore ordered discovery of a number of different category of documents, and stipulated the Court would inspect any documents to which the defendant would claim privilege upon.

1 1. In this motion, the plaintiff seeks discovery of documents from the defendants. The defendants, in opposing the entirety of the discovery sought, rely upon the journalistic privilege of non-disclosure of sources of information. Because the defendants' opposition was in respect of all of the discovery sought on this particular ground, the hearing of this motion was treated as also the hearing of the defendants' claim to privilege in respect of all of the documents sought to be discovered.

2 2. In the action, the plaintiff sues the defendants for damages, including aggravated and exemplary damages for defamation arising out of an article published in the 'Sun' newspaper on 23 ^rd June 2011, and also the same material published by the defendants on their website, www.thesun.co.uk on the same date.

3 3. The article in question was headlined "LOUIS PROBED OVER 'SEX ATTACK ON MAN IN LOO'" The article in the newspaper and the information published on the website were to the effect that the plaintiff was being investigated by the police in respect of a claim by a 24-year old man that the plaintiff had indecently or sexually assaulted him in the toilet of a Dublin nightclub. In the article in the newspaper and in the information published on the website, there was included a denial by the plaintiff of these claims and an assertion that the plaintiff would fully cooperate with any police investigation.

4 4. Not long after these publications, it emerged that the allegations made in respect of the plaintiff were false and the person who made these allegations, a Mr. Leonard Watters, was prosecuted in respect of making these false allegations. The defendants unreservedly accept that the allegations against the plaintiff were false and that the plaintiff has been completely exonerated in this respect.

5 5. In the particulars supporting the plaintiff's claim for aggravated and/or exemplary damages, as set out in the plaintiff's statement of claim, the plaintiff alleges that on 15 ^th June 2000, a journalist employed by the defendants, Joanne McElgunn, met Mr. Watters in the Newbridge Hotel, Navan, bought him dinner, offered him a sum of money on behalf of the 'Sun', if he agreed to make a complaint to An Garda Síochána about being assaulted by Mr. Watters in the toilet of a Dublin nightclub. Thereafter on the same day, it is alleged that Joanne McElgunn travelled with Mr. Watters to Pearse Street garda station so that he could make the agreed complaint against the plaintiff, which he did. Subsequently, on 20 ^th June 2011, Mr. Watters provided a written statement of complaint to An Garda Síochána setting out the alleged sexual assault. Having made this written statement, the plaintiff alleges that Mr. Watters again met Joanne McElgunn and was encouraged or enticed by her to repeat the false statements to her for publication in the 'Sun'. The plaintiff further alleges that Joanne McElgunn paid Mr. Watters the sum of €700 and promised to make further payments after the story was printed. It is alleged by the plaintiff that on a later date, Mr. Watters was booked into a Dublin hotel in order to secure further false statements from him concerning the plaintiff and to ensure that he did not take his false story to rival publications. The plaintiff says that full and detailed particulars of further payments by the defendants to Mr. Watters could not be pleaded with certainty without discovery of documents and interrogatories.

6 6. The plaintiff also pleads that the defendants falsely misrepresented to the plaintiff that it had received information from An Garda Síochána pertaining to the complaint made by Mr. Watters, and specifically, that on 22 ^nd June 2011, Gordon Smart of the defendants informed Sarah Lee, a representative of the plaintiff, that the defendant had received from An Garda Síochána information concerning the allegation made against the plaintiff, and on the same date, that Dominic Mohan, Editor of the 'Sun' newspaper, had informed Sarah Lee that the defendants had received "guidance from the police throughout the story". Further, that on 23 ^rd June 2011, Gordon Smart had informed Sarah Lee that the information in the defendants' article had come from the police via the 'Sun's crime correspondent. The plaintiff says that these representations were made by the defendants deliberately so as to misrepresent to the plaintiff that the source of the information was a member or members of An Garda Síochána, thereby suggesting that members of An Garda Síochána had breached s. 62 of the Garda Síochána Act 2005, and had thereby committed a criminal offence.

7 7. In their defence delivered on 24 ^th January 2012, the defendants admit publication of the article in question in the newspaper and on the defendants' website. They deny that the article in its ordinary natural meaning, had the meaning contended for by the plaintiff or the innuendo suggested by the plaintiff, and they say that true meaning of the words used was that a person had made an allegation against the plaintiff, which was sufficiently serious to warrant an investigation by An Garda Síochána or, alternatively, that they were reasonable grounds to investigate the allegations that the alleged victim had made, under circumstances where the same were the subject matter of an investigation by An Garda Síochána. The defendants plead the article was a fair and reasonable publication on a matter of public interest for the purposes of s. 26 of the Defamation Act 2009, as interpreted in the light of the provisions of the European Convention of Human Rights Act 2003. The particulars in support of this plea are to the effect that given the seriousness of the nature of the complaint against the plaintiff, and the plaintiff's standing as a public figure, the subject matter of the article was one of public interest; that the defendants published the article in good faith in circumstances where a serious allegation of a criminal nature had been made against the plaintiff; that the allegation of assault was one which was alleged to have occurred in a place to which members of the public had access; that the Garda Síochána did investigate the complaint which subsequently transpired to be false, a fact which was wholly and unreservedly accepted by the defendants. They say that the defendants contacted the plaintiff prior to publication to inform him of the allegation and that the plaintiff was made fully aware of the nature of the allegation; that the plaintiff commented on the allegation through his personal representative and that the plaintiff's rejection of the allegation was prominently and repeatedly set out in the article. They say that the article itself was balanced in tone, contained the plaintiff's denials and that the article made a clear distinction between suspicions, allegations, and facts and that...