Court of Appeal: Former Garda not entitled to discovery of all journalist’s notes in Sunday Times defamation case

About this case:

• Judgment:
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The discovery request made by Ms Lynda Meegan had been granted in the High Court as a result of Times Newspapers Ltd defending the Times publication pursuant to s. 26 of the Defamation Act 2009; however Mr Justice Gerard Hogan stated that this defence was so general that it was premature to assess whether the discovery sought was genuinely necessary for the proper conduct of litigation.

Background

The proceedings arose following a publication in The Sunday Times on 14th September 2014, which stated:

“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.”

Ms Meegan identified herself as the former member of An Garda Síochána referred to in the article, and pleaded that the allegations were false and defamatory of her.

In addition to the contention that Ms Meegan was not identified in the piece in question; Times Newspapers pleaded, inter alia, the defence of fair and reasonable publication on a matter of public interest pursuant to s. 26 of the Defamation Act 2009.

Ms Meegan sought discovery of certain categories of documents from Times Newspapers, and in High Court, Justice Barr held that where a defendant in a defamation action pleads in general terms the defence of fair and reasonable publication pursuant to s. 26 of the Defamation Act 2009, a plaintiff is entitled in principle as a consequence of this plea to discovery of the journalist’s notes and other background material relevant to the publication in the article, subject only to questions of journalistic privilege and legal professional privilege.

Times Newspapers contended that this was incorrect and appealed the decision to the Court of Appeal.

The High Court

Justice Barr took the view that in making the plea under s. 26 of the Defamation Act 2009, Times Newspapers had opened itself to an application for discovery of documents, stating that there was some support for this proposition in Cox and McCullough, Defamation, Law and Practice (Dublin, 2014).

Thus, Justice Barr was satisfied that Ms Meegan would need discovery of documents in order to deal with the issues raised.

Times Newspapers Ltd was directed to make discovery in the terms of the notice of motion, with Justice Barr adding that the issue as to whether any or all of the documents may be covered by either journalistic privilege or legal professional privilege, can be raised in the affidavit of discovery and adjudicated by the Court.

Court of Appeal

Justice Hogan identified section 26 of the Defamation Act 2009 as a novel provision yet to be successfully invoked in any reported defamation case, and was “designed to provide a defence for publishers who show that they acted bona fide and that the publication was fair and reasonable”.

Further, Justice Hogan stated that “Section 26 may be regarded as an endeavour by the Oireachtas to move away in some respects from the strict liability nature of the common law tort of libel and to introduce …a negligence based standard in actions for defamation under the Defamation Act 2009”.

Relevance and necessity

Justice Hogan emphasised that in discovery, the material sought must be both relevant and necessary – and was of the opinion that Ms Meegan had not yet established that such discovery was either.

The grounds on which Times Newspapers asserted that it was fair and reasonable to publish the article in question for the purposes of s. 26 were so general and imprecise that Ms Meegan could not know the nature of the actual s. 26 defence she would have to meet at trial, nor the facts which may be relevant in the context of any such defence.

Consequently, Justice Hogan disagreed with the finding of the High Court and opined that “…modern thinking on discovery suggests that discovery requests should be specific and focussed, so that the courts should be willing to confine categories of documents to what is genuinely necessary for the fairness of the litigation” (as per Ryanair Ltd. v. Aer Rianta cpt. IESC 62).

Conclusions

Allowing Times Newspapers’ appeal, Justice Hogan held that it was premature to assess whether discovery sought was genuinely necessary for the proper conduct of litigation, “at least until the scope and extent of the s. 26 defence is clarified and particulars of the facts proposed to be relied upon by in support of that defence are duly ascertained, whether by further pleading or by particulars”.