High Court of Ireland Decisions

1. This matter comes before the court on two applications. The first is an application brought by the plaintiff seeking to have the defendants make further and better discovery. The second is an appeal by the plaintiff against the order of the Master of the High Court dated 9 January 1998/17 February 1998.

The primary facts which give rise to these applications can be summarised as follows.

In his statement of claim the plaintiff says that he is a farmer and a businessman and he resides at Cornonagh, Crossmaglen, Co Armagh. The first named defendant is a limited liability company and is the publisher of the Sunday Times Newspaper. The other defendants are respectively the editor of the newspaper and journalists who together wrote an article in the newspaper published on 30 June 1985.

In that article the plaintiff says that under the title "Portrait of a Check-in Terrorist", the defendants published grossly defamatory matter of and concerning him by alleging, inter alia, that the plaintiff, otherwise known as "Slab" Murphy, was the operations commander of the IRA's Army Council for the whole of Northern Ireland and that he had sanctioned key Provisionals to travel to Britain to take part in that summer's bombing campaign.

The defendants delivered an amended defence on 23 February 1990 in which they pleaded, inter alia, that "If the description Slab Murphy is applied to the plaintiff, which is denied, the words complained of are true in substance and in fact in so far as they assert that the plaintiff was a prominent member of the Provisional IRA".

The action proceeded to trial before Lynch, J sitting with a jury from 20 to the 28 March 1990 and the plaintiff was awarded damages in the sum of £15,000 and costs. This award was appealed to the Supreme Court and on 15 May 1996 the Supreme Court set aside the judgment and directed a new trial of the action.

As long ago as 14 March 1989 the Master of the High Court made an order that the plaintiff and the first, third, fourth, fifth and sixth named defendants respectively do within ten weeks from that date make discovery on oath of all documents relating to the matters set out in the order. This order was complied with.

Counsel for the plaintiff has now informed the court that the present application for further and better discovery is brought to require the defendants to, in effect, bring their discovery up to date. It has been indicated to the court that so much time has passed since the defendants have made discovery, which occurred in August of 1989, that it is probable that additional documentation has come to the defendants hands which is material to the issues to be tried by the court and which may not have been discovered.

In these circumstances I am satisfied that this application falls to be dealt with in accordance with the principles enunciated by Kenny, J in Sterling-Winthrop Group Limited v Farbenfabriken Bayer Aktiengestellschaft [1967] IR 97. In his judgment in that case Kenny, J having reviewed the authorities said at page 105;

"the authorities which I have mentioned established that the court should not order a further affidavit of discovery unless it has been shown that there are other relevant documents in the possession of the defendants or that the person making the affidavits has misunderstood the issues in the action or that in his view that the documents are not relevant is wrong. None of these matters has been established and I must therefore refuse to make the order sought".

On this authority I am satisfied that it is not appropriate that the court merely make an order for further and better discovery in order to bring the discovery up to date. To make such an order the court must be satisfied that documents which should have been discovered were not, for one of the reasons enumerated by Kenny, J in fact discovered and that in reality this type of order should only be made for the purpose of clarifying an ambiguity or remedying a problem which might exist in the interpretation of the original order.

It seems to me to follow that if documents have, between the date of the swearing of the original affidavit and the present time, come into the hands of the defendants which should be discovered then, without the necessity of any additional order, they are governed by the provisions of the order of the Master made herein on 14 March 1989 and should be discovered.

With regard to the second motion it arises in the following circumstances.

During the course of the plaintiffs cross-examination at the hearing on 20 March 1990 (page 102 at sec) the plaintiff in his evidence and through his counsel denied that he had any interest in an oil business which it was alleged was run by his wife.

In the Grounding Affidavit basing the defendants application for third party discovery brought pursuant to order 31 Rule 21 of the Superior Court Rules, the defendants say that a representative of the defendants has ascertained that a series of bank accounts are held in the name of the plaintiff (or in the names of relatives or third parties including companies as his nominees) at the branch of Allied Irish Banks Plc at 73, Clanbrassil Street, Dundalk in the County of Louth and in particular one account namely account 43056048 in the name of the plaintiff is held there. He says that he believes that substantial sums have passed through the said account on a monthly basis.

The defendants pray for an order directing Allied Irish Banks Plc of 73, Clanbrassil Street, Dundalk in County Louth to make discovery upon oath of all bank statements from January, 1985 to date.

It is submitted on behalf of the plaintiff that the court should not make the order on two grounds. First of all it is submitted that since this case is especially fixed for the 28 of April, 1998 that it is now too late for such an order to be made and if made it may lead to the postponement of the hearing which in the circumstances of the case is undesirable. Secondly it is submitted that the accounts are of no relevance in the circumstances of the present case since the only evidence is of accounts existing at the present time. It is submitted that even if it is established that these accounts exist and that they do show a significant through put of funds which would establish that the plaintiff is in fact a member of the IRA (which is not admitted) then this would go nowhere near proving that at the time when the words complained of were published in 1985 that the plaintiff was at that time a member of the IRA. Accordingly these accounts do not assist in the plea of justification upon which the defendants now seek to rely.

With regard to the first of these points I am of the view that while it is unfortunate that this matter comes on so late however providing that provisions are put in place which will ensure that the case proceed to a trial on the date fixed for hearing and is not postponed only because of the making of this order then no injustice can result and accordingly would not constitute a ground for refusing the defendants the relief sought. It appears that the bank is prepared to abide by any order the court may make and so there should be no delay in complying with the order.

With regard to the second point it would appear that the only information available to the defendants is that the accounts in question exist at the present time.

The relief which they seek is that the accounts in question should be discovered in full. It may well be that these accounts do stretch back to 1985 and if they do it may well be that the defendants will find them of assistance in establishing their claim of justification. This of itself would not justify the making of the order sought however it seems to me that if these accounts do exist they are of relevance to the case for reasons other than assisting in establishing the truth of the allegations contained in the article. They would potentially be of relevance in going to the credit of the plaintiff if these accounts go to show that the answers which he made to counsel at the hearing of this action in March of 1990 were false. They would also be of relevance if, as alleged by the defendants, they go to establish that the plaintiff is now involved in a profitable oil and fuel smuggling business in the border area with the acquiescence knowledge and support of the Provisional IRA. In these circumstances the character and accordingly the quantive of damages to which the plaintiff would be entitled if successful in the action, would be at least part dependant on the existence of these accounts.

In the course of submission counsel for the plaintiff has drawn to my attention correspondence which has passed between the parties in which the plaintiff has repeatedly sought particulars in letters commencing on the 11 February 1998. Counsel on behalf of the defendants acknowledge that the defendants were in default in failing to furnish the particulars sought and have now undertaken to reply in full to these queries. Accordingly I do not see that there is any necessity for the court to make any order in relation to this order.

Accordingly I propose to make the following orders.

I refuse the plaintiffs application for further and better discovery which, I am informed by counsel, has not been determined by the Master but has been by consent of the parties, remitted to my list from the Master's list to be heard contemporaneously with the appeal in the second motion.

With regard to the plaintiffs appeal from the order of the Master made herein on 17 February 1998 I dismiss the appeal and affirm the order of the Master.