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High Court: Independent expert must oversee discovery in dispute over 2011 Irish Presidential election

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In the ongoing dispute between former Presidential candidate Mr Sean Gallagher and Raidió Teilifís Éireann, the High Court has granted RTÉ an order for an independent expert to oversee the discovery process, after Mr Gallagher failed to comply with the discovery order made in his action against RTÉ.

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About this case:

The High Court

RTÉ applied for Mr Justice David Keane to make an order either:

  • Dismissing the present action for failure to make proper discovery; or

  • Staying the proceedings pending the making of proper discovery; or

  • Directing Mr Gallagher to swear a further supplemental affidavit of discovery in accordance with certain proposed directions.

    • RTÉ’s position was that it asked the Court to consider making an Order appointing an independent expert on electronic discovery to oversee the completion of the discovery process by Mr Gallagher and fixing Mr Gallagher with the associated costs and with the costs of the present application.

    Mr Gallagher’s position was that, by letter from his solicitors dated 29 April 2016, he made an open offer to resolve the application in that he would swear an additional affidavit addressing the issues concerning his discovery raised by RTÉ, and exhibiting a report in that regard by his IT consultants; or that Mr Gallagher would consent to the appointment of an independent IT expert to oversee his discovery process.

    The underlying claim

    Mr Gallagher’s claim primarily relates to the conduct by RTÉ of a televised debate in which he participated in as a candidate in the 2011 Irish Presidential election.

    Mr Gallagher submits that, prior to the debate, in a number of identified opinion polls taken from the middle of October 2011 onwards, he was the clear frontrunner amongst the candidates.

    In the course of the debate, the presenter questioned Mr Gallagher about a statement; which he argues was put to him with the express purpose of undermining his credibility and that, in publishing it in that way, RTÉ acted wrongfully or negligently.

    Further, Mr Gallagher seeks to contend that RTÉ aggravated its wrongful or negligent conduct by rebroadcasting extracts from the debate in the course of a radio programme the following morning.

    In the underlying claim Mr Gallagher seeks:

    1. A declaration that the broadcast of the debate was neither objective nor impartial nor fair to his interests;

    2. A declaration that the said broadcast was deliberately and unfairly edited, presented and directed by RTÉ in order to damage his prospects in the election.

    3. Damages (aggravated and/or exemplary) against RTÉ for negligence and breach of duty (including breach of statutory duty), and for misfeasance in public office.

      4. The discovery ordered

      In an Order of the Court made on 2 May 2014, Mr Gallagher was directed to make discovery of six separate categories of documentation related to:

      1. Polls and/or research concerning the prospects of his election as President of Ireland or issues that could reduce those prospects; and the possible reasons why he was not elected President of Ireland.

      2. Controversies in respect of which questions were put to him during his election campaign; and all communications made on his behalf in respect of those controversies.

      3. Statements made by Mr Gallagher during the election campaign to include those concerning Fianna Fáil including those touching on the assertion that Mr Gallagher:

        4. • Arranged for individuals to meet the Taoiseach in exchange for payment, and

        • Called to the house of one such person to deliver a photograph, or to collect money, or to collect a cheque for €5,000, or any combination of those things.

      4. The preparation that Mr Gallagher undertook for: the style of questioning expected in the debate, and the issues likely to be raised in the debate, including that of payments made or a cheque delivered in exchange for a meeting or dinner with the Taoiseach.

      5. The targeted malice of RTÉ towards Mr Gallagher; the intention of RTÉ to injure or damage him; the ulterior motive of RTÉ to alter the course of the election, or damage the chances of Mr Gallagher or promote those of another candidate in that election; and the acts and omissions of RTÉ that were outside its statutory powers and duties.

      6. The social media statement the subject of Mr Gallagher’s claim; and the misattribution of that statement.

        7. Counsel for RTÉ identified 17 deficiencies in the discovery made by Mr Gallagher, which Mr Justice David Keane summarised as:

        1. Failure to make discovery in the appropriate form;

        2. Failure to make proper discovery of the electronically stored information that Mr Gallagher now acknowledges he holds (or has held);

        3. Failure to make proper discovery by reference to a number of specific criticisms or admissions.

          4. Conclusion

          Justice Keane made orders for:

          1. An independent expert on electronic discovery to be appointed by agreement between the parties or by the Court.

          2. The expert to conduct a comprehensive review of the discovery to be made by Mr Gallagher in accordance with the Order of 2 May 2014 and the guidelines set out in The Good Practice Discovery Guide

          3. Mr Gallagher to identify, and to provide the expert with access to, a list of custodians who may hold data covered by the Order of 2 May 2014 and of the devices on which such data may be held, together with any other information reasonably requested by the expert.

          4. The expert to provide a report in writing to the parties within four weeks from the date of his or her appointment setting out the results of the review

          5. All communications between the expert and Mr Gallagher in connection with the review and report to be copied to RTE.

          6. Mr Gallagher to swear a further consolidated or comprehensive affidavit of discovery following receipt of the report, having regard to its contents and to the requirements of O. 31 and Form 10 in Appendix C of the RSC.

          7. Each party to pay 50% of fees and expenses, to form part of the costs of each party for the purposes of O. 99.

          8. The motion to be adjourned for 12 weeks.

            • by Seosamh Gráinséir for Irish Legal News

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