Neutral Citation: [2016] IEHC 554
THE HIGH COURT
[2012 No. 5318 P]
BETWEEN
DAVID NORRIS
PLAINTIFF
AND
RADIO TEILIFIS ÉIREANN
HELEN LUCY BURKE
DEFENDANTS
JUDGMENT of Ms. Justice Baker delivered on the 13th day of October, 2016.
1. The plaintiff is a senator and well-known political activist, and at the time of the matters in respect of which these proceedings are brought was a candidate to be President of Ireland. He seeks damages for libel arising out of two “Liveline” radio programmes presented by Joe Duffy on 30th May, 2011 and 21st October, 2011.
2. The first defendant is a public service broadcaster and the second defendant was a journalist, but is now retired and in ill-health. The broadcasts related to the contents of an interview conducted by the second defendant in late 2001, which formed the basis of an article published in Magill magazine in January, 2002. The plaintiff claims that the words spoken during the radio broadcast were defamatory of him, and this judgment is given in a claim by the first defendant seeking discovery of two categories of documents it asserts are relevant to its plea in truth.
3. The first defendant defends the truth of the meanings set out at para. 5 of the statement of claim, that the words spoken during the course of the radio programme, in their ordinary and natural meanings and context, mean and were understood to mean that the plaintiff:
i. Was in favour of incest and endorsed sexual activity between parents and their children;
ii. Believes that parents should be allowed to have incestuous relations with their offspring;
iii. Was in favour of underage sex;
iv. Advocated breaking the law;
v. Had read and endorsed the second defendant’s article prior to publication in January, 2002 and had agreed with its content;
vi. Never challenged the second defendant’s article.
4. The first defendant defends the truth of these meanings. Paragraph 3 of its defence is as follows:
“Insofar as the said words, in the context of the whole of the “Liveline” programmes broadcast 30 May 2011 and 21 October 2011, in their natural and ordinary meaning, bore and were understood to bear the meanings set out at para. 5(e) to (f) and (h) to (k), and paras. 8(a) to (b), and also meant that the second named defendant had produced a tape which was the tape from which she was working that largely vindicated what she had previously said, then they were true in substance and in fact:”
5. The defence then goes on to plead particulars of material facts including the following pleas:
“3.1 That the Plaintiff had said that he favoured people being allowed to make any choice of sexual activity that they liked within very wide limits, guided by the principle of mutual consent with a bar only on intimidation, bullying or bribery.
3.2 That the Plaintiff appeared not to endorse any minimum age of consent for the purpose of sexual activity, and had said that the law in this area should take into account consent rather than age, thereby condoning sex with children.
3.3 That the Plaintiff when asked for his views on incest had said that a case could be made for a ban on incest in the case of girls, because a possible resulting pregnancy might be genetically undesirable, thereby endorsing sexual activity between other members of a family.
3.4 That the Plaintiff had said that there was something to be said for classical paedophilia as practiced by the Greeks, when an older man would introduce a younger man or a boy to adult life.
3.5 That the Plaintiff had said that, when he was younger, he would have relished and enjoyed the prospect of an older attractive mature man taking him under his wing, lovingly introducing him to sexual realities, treating him with affection and teaching him about life.
3.6 That the Plaintiff had endorsed the Second Named Defendant’s article prior to its publication in January, 2002 and had agreed with its content.
3.7 That the Second Named Defendant was in possession of tape recordings of an interview with the Plaintiff on which he based the article which was published in Magill Magazine in January 2002.”
6. By letter dated 10th April, 2014 the first defendant sought that the plaintiff would make discovery of two categories of documents.
7. The first category of documents in respect of which discovery is sought is as follows:
“All documents in the possession, power or procurement of the Plaintiff amounting to or relating to representations made by the Plaintiff to Israeli and/or Irish authorities and/or politicians for and on behalf of the Plaintiff’s former partner, Ezra Yizhak Nawi”.
8. The reason given for this request may be summarised as follows: The first defendant says that it intends to rely on the fact that the plaintiff had stated both to the second defendant and to others that he did not believe in an “arbitrary minimum age of consent” to sexual activity, and that documentary evidence that he holds this belief is contained in a series of letters written in or about the year 1997 to the Israeli courts on the notepaper of Seanad Éireann.
9. It is said that in or around the year 1992 the plaintiff’s then partner, Ezra Yizhak Nawi, was convicted of the statutory rape of a fifteen-year old boy in Israel. It is common case that in or around the year 1997, the plaintiff wrote to the Israeli courts on behalf of Mr. Nawi urging clemency. Some controversy had arisen with regard to this correspondence during the course of the Presidential election campaign in 2011, and the plaintiff at that stage publicly revealed some, but not all, of the correspondence with the Israeli authorities and others in which he had pleaded on behalf of Mr. Nawi. In a letter that was made public, the plaintiff stated the proposition that in the case of statutory rape the sentence of a court should take into account the fact of consent by the victim to the sexual activity and that “where a victim not only consents but could be considered to be the instigator or at least a willing participant, a sentence towards the lower end of the range will be appropriate”. The letter further refers to the inferences that ought to be drawn from the lack of a victim impact assessment.
10. The first defendant maintains that other correspondence which the plaintiff has had with both the Israeli and Irish authorities and/or politicians on behalf of Mr. Nawi will support its contention that the plaintiff at all material times had a “particular attitude towards the question of underage sex between men and boys and sexual relations generally, in particular to the extent outlined by the Plaintiff to the Second Named Defendant when she interviewed the plaintiff for the purposes of the Magill magazine feature.”
11. The second category of documents in respect of which discovery is sought is as follows:
“All documents in the possession, power or procurement of the Plaintiff relating to the Plaintiff’s support for the poet, Cathal O’ Searcaigh, after Mr. O’ Searcaigh had been the subject of a television documentary detailing his relationship with Nepalese teenage boys.”
12. The matter in question relates to an RTE programme concerning the poet Cathal Ó Searcaigh entitled “Fairytale of Kathmandu” in respect of which the plaintiff had publicly called for an investigation by a cross-party Oireachtas committee, and had urged that the broadcast be halted as Mr. Ó Searcaigh was being subjected to “trial by media”. The first defendant seeks copies of correspondence sent by the plaintiff to newspapers, media and others in which he sought “to protect Mr. O’ Searcaigh from exposure to criticism” of what was described as “sex tourism by Mr. O’ Searcaigh involving Nepalese teenagers”.
13. It is said by the first defendant that none of this correspondence is in the public domain, and that the actions of the plaintiff in regard to this television programme “demonstrate conduct on the part of the Plaintiff in keeping with the comments made by him when he was interviewed for Magill magazine by the Second Named Defendant in or around January, 2002”. The first defendant argues that the plaintiff’s “efforts on behalf of Mr. O’ Searcaigh” will support its pleas of truth and honest opinion.
Correspondence
14. The solicitor for the plaintiff replied to the request for discovery by letter of 4th June, 2014 and refused to make discovery of the documents sought, on the grounds that the taped conversation between the second defendant and the plaintiff did not contain any statement of the plaintiff “that he did not believe in an arbitrary age of consent but instead he believed in the principle of consent”. It was suggested in those circumstances that the request for discovery should be withdrawn.
15. The plaintiff in his replying affidavit exhibits a transcript of the interview between himself and Ms. Burke and it is true to say that the transcript does not contain the statement alleged to have been made by him.
16. By reply of 13th June, 2014 the solicitors for the first defendant said that the words used in the request for voluntary discovery “were not taken verbatim from the transcript of the tape recording”, but that the defendant relies upon the article in Magill magazine in which the writer stated the following:
“The right of unfettered sexual activity guided by the principle of mutual consent would be Norris’s perception of the way things should be, with a bar only on intimidation, bullying or bribery. He did not appear to endorse any minimum age, or endorse my protest that a child was not capable of informed consent. ‘The law in this sphere should take into account consent rather than age’. When I asked about incest, he hesitated, and conceded that in the case of girls a case could be made for a ban, as a possible resulting pregnancy might be genetically undesirable.”
The request for discovery was repeated.
17. The solicitors for the plaintiff continued to object to making discovery and said that the request for discovery appears to rely on a “written account by the second named defendant of her impression of the plaintiff’s views”, a matter not pleaded. The defendant was invited to amend the defence in the circumstances, although the plaintiff reserved his position as to whether such an application would be opposed.
Delay
18. The plaintiff makes a preliminary argument that the defendant has delayed in bringing this application. The proceedings were commenced by plenary summons on 29th May, 2012. The request for discovery was made on 10th April, 2014 and this motion issued on 9th March, 2016, almost two years later. Correspondence that occurred between the request for discovery and the final letter in that chain, of 28th October, 2014, has been outlined above. The delay in respect of which complaint was made was the eighteen months between that letter and the threat of a motion on 12th February, 2016.
19. The delay in bringing the matter on for hearing arises primarily because of the delay in processing the appeal of the second defendant from the refusal of Kearns P. to grant discovery to her, and the circumstances giving rise to the order making that defendant a ward of court on 15th February, 2016.
20. I do not consider that there has been any culpable delay. I also consider that the plaintiff was aware that the appeal to the Supreme Court, now the Court of Appeal, was likely to delay the proceedings and in a letter of 14th April, 2014, the first letter in reply to the request for voluntary discovery, his solicitor pointed to the fact that, as the order of the President of the High Court had been appealed, “it is not appropriate” that a motion for discovery would issue.
21. I consider that if the delay was culpable, it is excused by matters outside the control of the parties, and the plaintiff was aware of this and through his solicitors pointed this out two years before the motion issued. Delay does not prevent the making of an order in this case.
The concession made by the plaintiff
22. An important concession was made by the plaintiff in the open letter of 7th July, 2014, that he was content to approach the matter on a particular basis, to reduce the costs of the proceedings and avoid any further delay. The proposal is as follows:
“With reference to the passage from an article in Magill Magazine it is not accepted that the plaintiff uttered any statement capable, on any objective and reasonable interpretation, of leading to the impression encapsulated in the passage quoted in your letter.
However, while not accepting that the plaintiff made any of statements contained in or suggested by the passage quoted, and while not accepting that the plaintiff made any similar statement in any other context to the second named defendant it is the plaintiff’s view that he does not believe in an arbitrary minimum age of consent, as the sole criterion governing the law in this area; it is his view that the principle of consent should also play a part, in appropriate circumstances, and he has publicly stated as much. Acknowledging that his views are not yet the law, and may never be the law, our client’s concern is with the state of the law in this area, as his public statements in this matter have made clear.
In light of this statement of our client’s views, your client will not therefore require access to any documents to prove the truth of any allegation that the plaintiff does in fact hold these views.”
23. This concession did not result in a withdrawal of the application for discovery, and by letter of 8th September, 2014 the solicitor for the first defendant said that the plea in defence was of the “net meaning” of what the plaintiff said, as opposed to “the precise words” used by him, and amply meets the obligation to plead material facts. The request for discovery was repeated. The solicitor for the first defendant did not accept that the concession made by the plaintiff, that he accepted that there could be cases where the consent of a minor might validate sexual intercourse, was sufficient as it was “not the same as saying that there is no case in which a minimum age of consent is valid”. The first defendant contends that the plaintiff expressed the latter, more wide-ranging, view.
24. The letter of 28th October, 2014 from the solicitor for the plaintiff repeats the assertion of the plaintiff that he neither said nor believes that he “does not favour the imposition of a minimum age of consent in all cases”, but that his position is that “he does not believe in an arbitrary minimum age of consent as the sole criterion governing the law in this area”.
Arguments
25. The first defendant says that its defence of truth concerns the question of whether the plaintiff does in fact hold the view that there should be no arbitrarily selected minimum age of consent to sexual activity, and seeks discovery in order to establish that the plaintiff does hold these views, and has expressed them in the letters and material identified in the request for discovery, which it says are relevant and necessary, and not otherwise available.
26. The plaintiff asserts that the transcript of the tape recording does not show that he expressed the view for which the first defendant contends. It is argued that that as it is not pleaded in the defence that the plaintiff stated to the second defendant that he did not believe in an arbitrary minimum age of consent, or that he expressed those views previously in writing, the material facts that may be relied on by the first defendant are limited to the contents of the taped interview with Ms Burke. Because it is accepted by all parties that the second defendant is not in a position to give evidence inter alia in relation to the article that she wrote in Magill magazine in 2002, it is further argued that as the comment was not made in the tape recording, and as the writer of the article is not available to give evidence, the first defendant is fishing for evidence.
27. The first defendant says that certain meanings are true and that the material facts relied on are not limited to the contents of the tape.
28. The arguments will more fully appear in the course of the judgment.
Relevance
29. That a document be relevant to the proceedings is the primary test a court will apply in considering a request for discovery. Fennelly J. in Ryanair p.l.c. v. Aer Rianta c.p.t. [2003] 4 IR 264 said:
“The definition by Brett L.J. in Compagnie Financière du Pacifique v. Peruvian Guano Co. [1882] 11 QBD 55 at p. 63, remains the universally accepted test of what is the primary requirement for discovery, namely the relevance of the documents sought:-” (P. 275)
30. The proposition was further endorsed by Hardiman J. in O’Callaghan & Ors. v. Mahon & Ors. [2007] IESC 17, [2008] 2 IR 514 at para. 368 as follows:
“In one sense, it is unnecessary in the exposition of this topic to go beyond that classic passage. It emphasises that it is the reasonable possibility, and not the certainty, of usefulness which is the criterion; and that the usefulness in question may be either the advancement of one's own case or the damaging of the case of an adversary. It also extends to a potential to lead a party to a train of inquiry, as opposed to direct or immediate utility.”
31. The test of relevance in the present case is whether the documents sought are useful or potentially useful to the advancement of the defence of truth. If what is relied on is the truth of a pleaded defamatory meaning, no difficult question would arise but the plaintiff says that the plea of truth relied on with regard to the plaintiff’s attitude to consensual sex is not a defence to a pleaded defamatory meaning.
Evidence of justification at the time it is pleaded
32. The defence of truth is one in respect of which a defendant must exercise caution. The law does not permit a defendant to plead truth in general, and a defendant must have, at the time of the pleading, some factual basis on which the plea may be made. It is not proper for a defendant to plead justification and then hope that documents or other information will come to light thereafter to shore up that defence. To an extent this approach to the plea of truth is one that finds its origin in the right of a person to a good name.
33. The leading judgment is that of the Supreme Court in McDonagh v. Sunday Newspapers Limited trading as Sunday World [2005] IEHC 183, [2005] 4 IR 528 where Macken J., having considered the question of relevance, litigious disadvantage and necessity, accepted that “a defendant may not plead justification in his defence to a libel action, unless he has, at the time the defence is filed, sufficient evidence to support his plea” (para. 26). Once the defendant does have such evidence he is entitled to discovery of all documents that might aid those pleas, either by advancing the plea of justification or undermining the case of the other party.
34. Dunne J. in Quinn Insurance Limited & Ors. v. Tribune Newspapers p.l.c. & Ors. [2009] IEHC 299, after referring to the judgment of Kelly J. in Cooper Flynn v. RTE & Ors. [2003] I.R. 344 stated that certain principles could be derived from the authorities:
“However, a party is only entitled to know the broad outline of the case that he/she will have to meet. A party is not entitled to know the evidence that will be given against them in advance of the hearing.”
35. In Keating v. RTE & Ors. [2013] IESC 22, McKechnie J. considered that a defendant pleading truth must disclose in the pleadings some information on which the plea is based and that “generalised non-specific details will not suffice”. However, once a defendant gets over that hurdle, the court will not evaluate a privilege or truth claim, as to do so would be to “conflate distinct steps in a two-tier process”, the trial, at which proof must be adduced, and the application for discovery, when the enquiry is of a different nature (para. 46). He went on to say at para. 63:
“Provided the court is satisfied that some such evidence exists, that will be sufficient. The court does not and should not evaluate its strength as a defence plea. This is not its role on such an application. Nor is it necessary for a defendant to disclose the full extent of what information he may have. He does not have to compromise his defence in this regard. Once it is shown that the plea can be supported, the discovery application cannot be regarded as a fishing exercise or as one whose sole purpose is to establish a justification plea: rather, its proper characterisation in such circumstance, is one of aiding and supporting the material which already exists. This of course is the essence of what discovery is.”
36. The first defendant admits that it has set itself a very high bar in the pleaded justification. The plaintiff says that the bar was made higher by the express link between the meanings pleaded and the transcript of the tape recording.
37. Paragraph 3 of the defence sets out a logical proposition, that insofar as certain meanings correctly understood by the plaintiff, and the tape of the second named defendant largely vindicated this, then they were true in substance and in fact. The express pleaded link is between the meanings for which the plaintiff contended, the contents of the tape and the substantial and factual truth of those meanings. The documents sought must be relevant to the plea, whether directly or indirectly, and in the case of a plea of truth, that plea itself must be a direct plea that a certain defamatory meaning or meanings are true.
Discussion
38. The authorities contain two propositions relevant to my considerations. The first defendant did have some factual basis on which it could plead truth, and (subject only to arguments at trial as to the admissibility of the taped interview) there is no real contest on this point. The other consideration is that a defendant must show the relevance of the documentation sought to the defence as pleaded.
39. That documents sought must be relevant to the pleaded defence is clear from the judgment of Macken J. in McDonagh v. Sunday Newspapers Limited trading as Sunday World at para. 65, where, having considered the interplay between the test of relevance and that of necessity, and having accepted that the primary test, as was stated by Fennelly J. in Ryanair p.l.c. v. Aer Rianta c.p.t., is one of relevance, went on to say the following:
“In the foregoing circumstances, I hold that in a libel action in which a defendant pleads justification simpliciter, there must be before the court, at least at the time discovery is sought, sufficient information, particulars or material facts, however phrased, upon which the court can conclude that the application for discovery is firstly, intended to advance the plea of justification and not merely make such a case for the defendant, secondly, to establish that the documents sought are relevant to the issues arising between the parties and thirdly, to establish that they are necessary for the purposes of disposing of the action.”
40. In Hannon v. Commissioner of Public Works & Ors. [2001] IEHC 59 McCracken J. made it clear that:
“Relevance must be determined in relation to the pleadings in this specific case. Relevance is not to be determined by reason of submissions as to alleged facts put forward in Affidavits in relation to the application for further and better discovery unless such submissions relate back to the pleadings of two already discovered documents. It should be noted that O. 31, R. 12 of the Superior Court Rules specifically relates to the discovery of documents ‘relating to any matter in question therein’”. (p. 4)
41. The plea at para. 3 of the defence is formulated such that the truth in substance and in fact is expressly linked to the conjunctive that the tape “largely vindicated” what the second defendant said in the course of the programme. The tape recording is pleaded as being the central factor upon which truth is to be established. It is the tape that gives the first defendant the knowledge on which it was to establish truth, and because of this focused and somewhat narrow plea of justification, I consider that the attempt by this defendant to obtain evidence in support of a matter not apparent from the tape, is a classic fishing expedition because of the particularly focused and narrow pleading of truth. I consider that the contents of the tape are essential to the defence that the defendant has set up in its plea of justification or truth.
42. Truth is pleaded with regard to the defamatory meanings claimed to arise from the broadcast, and the issues are thus defined by the link between the defamatory meanings pleaded and the truth in substance or in fact of those meanings. I do not consider that the pleadings contain any allegation that the consent question was a defamatory meaning pleaded by the plaintiff giving rise to the action.
The importance of the taped interview
43. Ms. Burke recorded some 26 minutes of taped conversation with the plaintiff from which she drew the material for her article in Magill magazine in 2002. The exhibited transcript formed the basis on which Ms. Burke came to be interviewed on the radio programme in 2011.
44. The first defendant pleads that insofar as the words complained of bore the meaning that “the plaintiff was in favour of underage sex”, that the truth of this statement exists independently of anything on the tape, and that the plea of truth arises independently of the interview, and can be derived from the notes of Ms. Burke when she wrote the article. The only evidence which might be available of the interview is the tape recording, as Ms. Burke is not likely to be in a position to give evidence of matters other than those recorded in the tape and transcribed from it.
45. In her replying affidavit, Ms. Igoe, solicitor for the first defendant, makes the following averment with regard to the importance of the tape recording:
“12. With respect, I say that this is a deliberate misunderstanding of what the tape recording is. It is clear from listening to the tape recording, that it does not purport to be a recording of every word spoken between the Plaintiff and the Second Named Defendant on that occasion, but rather is a recording of extracts of their conversation, with the tape recorder being turned on and off during the conversation.”
46. It is wholly unclear what evidence bears out that proposition, and even if it is the case that the tape shows that it was turned on and off, no evidence is available that would suggest that in the course of an unrecorded part of the conversation the plaintiff made a statement that he did not believe in an arbitrary age of consent or that he endorsed sexual activity between parents and their children.
47. I consider that the defendant has sought discovery of documents that might establish material facts relied on when those material facts justify a meaning not pleaded to be defamatory. I agree with the plaintiff that there is no connection between the pleas of material fact, particularly those contained at 3.1 and 3.2 in the defence, with the pleaded defamatory meanings. In those circumstances, I consider that the request for discovery of material that might support the plea that the plaintiff does not endorse any minimum age of consent to sexual activity is an attempt by the first defendant to obtain discovery in respect of a matter not claimed to be defamatory.
48. In that regard I consider the dicta of Binchy J. in Ryanair Ltd. v. Ray Quigley [2015] IEHC 776 to be helpful and directly on point:
“The applicant/defendant has not put forward any facts relied upon by the defendant in relation to the allegation in the statement that there have been “very many close calls” by which I infer that the defendant is referring to near misses. Nor is there anything pleaded by the defendant in this regard and nor are there any facts or information in the affidavit grounding discovery to support the application for discovery of this category of documentation. It appears to me that the sole purpose of the defendant in seeking discovery of this category of documentation is to establish facts in support of an allegation in the statement made by the defendant as distinct from supporting a plea, not to mention a plea in respect of which facts relied upon have been given. In short, I consider the request for this category of documentation to be in the nature of a fishing exercise and I decline to make any order in respect of the same.”
The reply to defence
49. The first defendant claims that consent has been put in issue because at para. 6 of the reply to defence delivered on 1st August, 2013 the plaintiff denies that he did not endorse a minimum age of consent to sexual activity.
50. It is convenient to quote the entire of para. 6 of the reply to defence:
“It is denied that it could be construed that if it was the opinion of the second named defendant that the plaintiff did not appear to indorse a minimum age of consent and had stated that the law in this area should take into account consent rather than age, which is denied, that this could reasonably be construed to mean that the plaintiff condoned sex with children.
51. A denial of a material fact pleaded does not convert that material fact into a pleading by the plaintiff that he was defamed. I do not therefore accept the argument that the “consent issue” is an issue in the proceedings.
The judgment of Kearns P. in the related discovery application
52. The plaintiff resists the application, in part in reliance on a judgment given by Kearns P. in an application by the second defendant for discovery, delivered on 28th February, 2014, Norris v. Radio Teilifís Éireann & Anor. [2014] IEHC 84. Kearns P. was hearing an application by the second defendant for discovery of precisely the same two categories of documents sought in this application, and refused to make an order in respect of either of them on the grounds that the documents sought were not relevant to the particulars of material fact relied on by the second defendant in her plea of justification. The request for discovery was grounded on a letter in which the second defendant contended that the plaintiff “has held ambivalent views in relation to paedophilia, incest and underage sex”. Kearns P. considered that no plea to this effect had been contained in the defence and therefore regarded discovery as not necessary.
53. He also considered there was no “shortfall of information” which would necessitate discovery, as the plaintiff had already made public some of his correspondence with the Israeli and Irish courts with regard to Ezra Yizhak Nawi, and that correspondence sent by the plaintiff to newspapers and media on the topic of the television programme relating to Mr. Ó Searcaigh “must be assumed to be in the public domain already”, and the plaintiff’s behaviour could be “fully explored in cross-examination”.
54. The first defendant had made a request for discovery of the plaintiff in terms identical to those the subject matter of the application before Kearns P., and that request for discovery was withdrawn and replaced by the letter seeking discovery the subject matter of this application, in which different justifying grounds are given as a basis for the request.
55. To that extent, the judgment of Kearns P. in the related application is not directly on point and he found that the ground on which discovery was requested, namely that the plaintiff held “ambivalent views in relation to paedophilia” was peripheral and not pleaded, and therefore that an order for discovery ought not to be made.
56. Further, the first defendant has averred that the documentation now sought is not in the public domain. The first defendant clearly mended its hand in withdrawing that request and has reformulated the request based on different grounds. For these reasons, the judgment of Kearns P. is not directly on point.
Litigation disadvantage
57. There may well be circumstances when the unavailability of evidence is a reason why discovery ought to be granted, and could be one way in which the court would give a degree of equality of arms, and advance what Fennelly J. called in Ryanair p.l.c. v. Aer Rianta c.p.t. “the fair disposal of the litigation”. However, in the present case the making of an order for discovery to support a plea of justification on the grounds that the second defendant, in conversation, was told by the plaintiff certain matters might now the basis of the defence of justification, would not bridge any evidential deficit, as the second defendant is not, and will not, be in a position to give evidence of any exchange between herself and plaintiff which was not recorded. Thus, I consider that discovery cannot be granted on this basis, because the order would serve no useful purpose, fails the test of necessity for that reason, and cannot be said to be necessary for the fair disposal of the litigation.
Conclusion
58. The request for discovery is not in my view brought for a legitimate purpose, and is in reality precisely the type of fishing exhibition referred to by Binchy J. in Ryanair Ltd. v. Ray Quigley, as the first defendant is looking for evidence to make a case which was not pleaded. It is undoubtedly the law that a defendant relying on the defence of truth can rely on facts that come into existence after publication, provided there were sufficient grounds on which the plea of justification could be made in the first place. However, the defendant in this case cannot rely on facts, whether they came into existence before or after publication, to prove the truth of meanings not claimed by the plaintiff to be defamatory.
59. I propose to refuse the application for discovery.
