Defamation proceedings brought against Sunday World to be held in private due to witness protection concerns

About this case:

• Judgment:
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The civil proceedings were brought by two private individuals against the Sunday World Newspapers Ltd, but were in connection with a previous case considered by the High Court involving a protected witness.

Due to the security issues at stake, President Ryan held that the exceptional circumstances of allowing a private hearing in civil proceedings were satisfied in the circumstances.

Background

In this “unusual” and “unique” case considered by a three-judge Court of Appeal, two actions for defamation by Isabel Rogers and Patrick Gilchrist had their origins in previous litigation by a protected witness in a Witness Security Scheme operated by An Garda Síochána (Mooney v. Commissioner of An Garda Síochána & Ors. IEHC 155).

In relation to the Mooney proceedings, Ms Rogers and Mr Gilchrist brought defamation actions against the Sunday World Newspapers Ltd, based on newspaper articles concerning those earlier proceedings and the roles allegedly played by Ms Rogers and Mr Gilchrist in the events giving rise to that claim. The defamation actions against the Sunday World therefore relate to matters at issue in the earlier trial – which has led the Commissioner of An Garda Síochána to apply to the High Court to be joined as a notice party in these cases.

The Commissioner submitted that “the same issues of public, national importance and the protection of life and the interests of State security and public safety” arose in both trials and “sought similar orders to the earlier case for hearings otherwise than in public, with the Press being excluded” and therefore no publicity except for the verdict. While the Sunday World requested for the case to be heard in public in the normal way, the plaintiffs, Ms Rogers and Mr Gilchrist, submitted that a private trial, as sought by the Commissioner, would be the most efficacious option.

High Court

In the High Court, Justice Mac Eochaidh stopped “well short of the full relief” sought by the Commissioner – in an endeavour to “balance the rights of the parties by limiting access to the proceedings to persons strictly associated with them” and requiring to be there for the purposes of the litigation; the Commissioner was permitted “to apply to the court to prevent publication of any evidence which would harm or possibly harm the integrity of the State Witness Protection Scheme”.

The Press were permitted to be present, but the Court imposed “a time delay to apply automatically for a period of 24 hours restricting the reporting of any evidence during the course of the proceedings, following the expiration of which there was to be freedom to report and publish”.

In the result, neither the Commissioner nor the Sunday World was satisfied; and both appealed to the Court of Appeal against the orders as made, agreeing that the compromise solution found by the High Court would be unworkable in practice.

Court of Appeal

Article 34.1 of the Constitution was central to the appeal, providing that: “Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”

Furthermore, according to President Ryan, the principal question in the Court of Appeal was the interpretation of the legal principle underlying the decision in Irish Times Ltd & Ors v Ireland & Ors 1 IR 359. Irish Times v Ireland and subsequent cases establish that it is possible to exercise the jurisdiction to depart from public hearings in civil actions and not just in criminal trials but the circumstances must be extreme and rare indeed and the evidence cogent.

President Ryan was satisfied that in the extraordinary circumstances of the case, “the applicant surmounted the very high threshold necessary to justify the order sought” and that on the facts of the case, the Court could “adopt and endorse the contents of the concluding paragraphs of the Mooney judgment”.

On the undisputed facts, the Commissioner established that there was an existential threat generally and in particular to a practically unique catalogue of public and individual Constitutional rights and interests sufficient to outweigh the indisputably important requirements of Article 34.1

President Ryan held that the constitutional rights and interests at issue in the present case were the same as those considered in Mooney, stating that there was “no question of their status in the hierarchy of Constitutional rights and interests, including as they do rights to life, State security, public safety and international cooperation to combat crime of the most serious kind… and the functions of the Commissioner under the Official Secrets Act 1963”. Thus the nature of the interests at stake were “vital to the State”, and the threat to those interests “existential”.

President Ryan concluded that the only way for the interests to be safeguarded in the litigation would be by an order granting the private trial as sought by the Commissioner, similar to that in Mooney.