Ryanair denied request to cross-examine deponents of affidavits in defamation case

About this case:

• Judgment:
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The case concerned an ongoing dispute between Ryanair and Evert Van Zwol, John Goss, Ted Murphy, Carl Kuwitzky and Samuel Giezendanner, concerning a statement published by the defendants which Ryanair claimed was defamatory, as it implied 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.

The present proceedings concerned a strike-out and discovery-related application.

It was noted that the defendants made three attempts to comply with their discovery obligations, with each supplemental affidavit admitting errors and omissions in previous discovery and making discovery of new documents to the plaintiffs.

In November 2015, Ryanair 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.

At the strike-out hearing, the plaintiffs identified certain references within documents already discovered which, it was contended, suggested that there might be further documentation not discovered by the defendants.

The plaintiff’s expressed concern that the defendants were of the view that documents viewed online were not discoverable. However, the court agreed with the defendant, noting that it was doubtful whether a document viewed online but never printed or downloaded can properly be described as a document in the possession, power or procurement of the viewer.

Ryanair also complained that the plaintiff was seeking to rely on the fact that documents were publicly available to avoid discovery. The court found that the defendants could not do this, if the documents otherwise satisfied the rules for discovery.

Ryanair further complained that the third affidavit has yielded the discovery of documentation which the defendants admit ought to have been discovered in the first affidavit. The court dismissed this, noting that “such is life”.

Ryanair also complained the defendants had been trying to put blame on Ryanair for slow discovery. To this, the court noted that it was for the defendants to make proper discovery, not for the plaintiffs to prompt them as to what is required.

Finally, Ryanair argued that 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.

A central concern was the redaction of names, which the defendants maintained was crucial as commitments of confidentiality had been made to the persons who had volunteered information.

The present application therefore centered round the plaintiff’s wish to cross-examine the deponents to the defendants’ affidavits, which the defendants claimed was premature and unjustified.

The court identified relevant principles relating to the cross-examination on affidavit of discovery, noting that “The court may exercise a judicial discretion as to whether there may be cross-examination on an affidavit, including an affidavit of discovery” but that such circumstances were rare due to the existence of other remedies.

In the present case, it was found that further and better discovery might be available to the plaintiffs, and that in such a situation cross-examination should not be permitted.

The court also observed that the present application was not truly helpful, and that the application for strike-out and further discovery should proceed.

Justice Barrett observed that “New procedures that are not of assistance should not be allowed to spring up whereby the courts’ resources are used to split up trials unnecessarily or to impose burdens that do not help litigation.”

In a similar vein, a process like cross-examination, which “has hitherto been expressly contemplated as exceptional and rare must not be allowed to become regular or common, thereby giving rise (in effect) to a new standard stage in the process of discovery.”

On the issue of confidentiality, it was observed that:

“The consistent, non-conflicting testimony of the deponents is that firm commitments of confidentiality have been given to the individuals whose names were redacted from the documents. It is true, as the plaintiffs claim, that they have not been told where these assurances were given but that seems an irrelevance to the fact that they were given. The mere fact that the plaintiffs may not believe the deponents offers no basis for acceding to the present application in light of all the circumstances arising and the factors considered above.”

Thus, the court declined to (1) to grant leave to the plaintiffs to serve the notices to cross-examine previously served; and (2) to order the attendance for cross-examination of the deponents who have sworn the affidavits of discovery to this time.