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McDonnell v. Sunday Business Post Ltd. [2000] IEHC 19 (20th February, 2000)

THE HIGH COURT

No. 1998/4216p

BETWEEN

MICHAEL McDONNELL

PLAINTIFF

AND

SUNDAY BUSINESS POST LIMITED, DAMIEN KIBERD AND

EDWARD HARDING

DEFENDANTS

JUDGMENT of O’Sullivan J., delivered the 2nd day of February 2000

1. This is an appeal from an Order of the Master granting wide ranging discovery against the Plaintiff.

INTRODUCTION

2. On the 29th March 1998 Sunday Business Post Limited (“the First Defendant”) published a hard hitting, broad ranging attack on the Plaintiff in regard to his appointment to the position as Group Chief Executive of the Coras Iompair Eireann (“C.I.E.”) group of companies and his handling of that position to date.

3. Within days, these proceedings claiming damages for libel were launched and on the 13th May 1998 a statement of claim was delivered claiming that the article was written and published falsely and maliciously, that the tone, thrust and purpose of the entire was defamatory of the Plaintiff and claiming that it contained a number of specific and non specific factual inaccuracies and false statements about the Plaintiff personally and the manner in which he had discharged his duties with C.I.E. The statement of claim went on to detail no fewer than twenty four assertions which the words in the article meant or were understood to mean, either directly or by way of innuendo, whereby the Plaintiff, it was asserted, had been exposed to hatred, ridicule and contempt and had been seriously damaged in his personal and professional reputation.

4. On the 2nd July, the Defendant served a notice for particulars which was answered on the 5th November. In the course of this answer, a further thirty three alleged factual inaccuracies and/or false statements were pleaded.

5. In preparing this judgment, I have carefully read the original article on a number of occasions and also the pleadings. It is fair to say, in general, that the assertions made by the Plaintiff in his pleadings challenge the veracity of virtually every statement of fact and every claimed innuendo of the entire article, which itself occupies approximately a half a full page of newsprint (excluding headlines, cartoon and inserts).

6. It is also fair to say from the nature of this wide ranging pleading that, unless the Defendant was about to cave in with it’s hands in the air, the issues between the parties were going to be multitudinous and comprehensive.

7. So far from caving in, by their defence of the 7th January 1999, the Defendants denied all significant allegations and put everything in issue save the most innocuous of averments relating to the status of the parties and publication itself.

8. In addition, the Defendants pleaded fair comment using the “rolled-up plea”.

9. On the 29th March 1999, the Defendants’ Solicitors wrote to the Plaintiff’s Solicitors requesting voluntary discovery of twenty six categories of documents, many of them wide ranging and, upon refusal brought a motion to the Master which produced the Order, itself cast in wide ranging terms, from which the Plaintiff now appeals.

10. I am informed that at the hearing before the Master, in response to the Plaintiff’s complaint that the discovery was wide ranging, he was invited to curtail his pleading with a view to reducing the number and breadth of the issues in the case, but declined so to do. Accordingly, the Master by Order of the 22nd June 1999 directed discovery as described.

11. On the 20th July, the Plaintiff requested particulars of the defence and in their reply the Defendants set out assertions in the article which they claim are true in substance and in fact. These assertions comprise sixty in number. In addition they set out no fewer than fifty five statements which they claim were made in good faith and honestly and which were matters of public interest.

12. Again I do not intend to burden this judgment with a tedious recital of the substantial array of issues which emerge from all this pleading. It must be obvious at a glance, however, that there will be many documents and many categories of document “relating to any matter in question” in this case.

SUBMISSIONS

13. The rules relating to discovery were altered on the 3rd August 1999, that is after the Master’s Order. Counsel on both sides were agreed that the old rules apply to this appeal and the matter proceeded on this basis.

PLAINTIFF’S SUBMISSIONS

1. Mr. Cooney S.C. for the Plaintiff submitted that given that the principal defence consisted of the “rolled up plea” of fair comment, the Defendant should have supported the application for discovery by an affidavit indicating the existence of evidence available to the Defendant which it is intended to prove at the hearing and which would establish the substantial truth of the facts to be relied upon in support of the plea of fair comment. He submitted that before a plea of fair comment is included in a defence, the Defendant should have reasonable evidence to support such a plea and that where the Defendant seeks discovery, the application should be grounded on an affidavit verifying the existence of such reasonable evidence. He relied in particular on McDonald’s Corporation and Another -v- Steel and Another (1995: 3: A.E.R: 615).

2. Mr. Cooney also submitted that the discovery sought in the present case clearly amounted to a “fishing expedition” - something to which the Defendant was not entitled.

3. He further submitted that the discovery granted was excessively wide and onerous and thereby unfair to the Plaintiff and should, on that account, be refused.

4. He also submitted that there should be a “cut-off date” as of the date of publication.

DEFENDANTS’ SUBMISSIONS

14. Mr. Hardiman S.C. for the Defendant submitted

1. The procedure in England differs significantly from ours. Specifically, the English procedure includes the exchange of witness statements whereby, at an interlocutory stage, the evidence supporting claims made in a defamation case can be identified which does not apply here. Furthermore, an analysis of the McDonald case, making allowances for the difference of procedure, actually demonstrates that a Defendant is entitled to rely, inter alia , on evidence discovered by the Plaintiff so that, if anything, it supports his entitlement to discovery rather than the reverse.

2. Once issues have been knit with particularity, as here, then no question of a “fishing expedition” can arise, no matter how multitudinous and comprehensive the issues may be: in any event, the issues in this case are wide because the Plaintiff has chosen to cast the pleadings widely and has chosen not to narrow them subsequently in the context of the discovery application.

3. The discovery sought is not so onerous, in the context of an inter partes discovery, as to merit refusal on that account. In A.I.B. And Another -v- Ernst and Whinney and Another (1993: 1: I.R: 375) the Supreme Court, when dealing with a discovery sought against a third party (albeit a State authority) demonstrated a resolute determination to grant discovery in the face of arguments that compliance with the Order would be oppressive. The Court should be all the more wary of the “oppression” argument when it is made by one of the parties to the action.

4. Mr. Hardiman submitted a detailed schedule setting out the paragraphs in the Plaintiff’s pleadings (both statement of claim and replies to particulars) to which the several categories of documents sought refer.

5. Finally, he submitted that there should be no “cut-off date” being the date of publication of the article itself, upon the basis that documents coming into existence after that date might well help him to establish the veracity of the assertions made in the article itself. He gave, as an example, the subsequent publication of C.I.E. accounts.

CONCLUSIONS

(1) In the McDonald case, the Court of Appeal rejected what was claimed to be the long established rule that a Defendant to a defamation action who pleads justification (or fair comment) must give full and precise particulars of the facts and matters on which he relies in support of the plea. It did, however, (per Neill L.J., who delivered the judgment of the Court) accept:-

“...that a pleader must not put a plea of justification (or indeed a plea of fraud) on the record lightly or without careful consideration of the evidence available or likely to become available.”

15. In doing so, however, it acknowledged that:-

“...there will be cases where, provided a plea of justification is properly particularised, a Defendant will be entitled to seek support for his case from documents revealed in the course of discovery or from answers to interrogatories.”

16. Later on Neill L.J., said:-

“Nevertheless, I am satisfied that before a plea of justification is included in a defence...the Defendant should have reasonable evidence to support the plea or reasonable grounds for supposing that sufficient evidence to prove the allegations will be available at the trial.

A similar approach should be adopted towards facts which are relied upon in support of a plea of fair comment.”

In McDonald, the Court of Appeal reversed the decision of the trial judge, who had struck out portions of the defence before dealing with an application for discovery, their view being that the Defendant was entitled to rely, inter alia , on evidence contained in documents disclosed by the Plaintiff on discovery and, therefore, it was premature to strike out a defence before such documents were available . Furthermore, the test was whether a particular allegation is incapable of being proved so that Neil L.J., was able to say:-

“I anticipate, therefore, that it will only be in a few cases where it will be possible to say at an interlocutory stage and before full discovery, that a particular allegation is incapable of being proved.”

17. It seems to me, that even on its own terms (that is, taking into account the English procedure, which allows for the furnishing of witness statements in these cases) McDonald goes no further than saying that before a plea of justification (or fair comment) is included in a defence, the Defendant should have reasonable grounds for supposing that sufficient evidence to prove the allegations will be available at the trial - including evidence contained in documents disclosed by the Plaintiff on discovery.

18. In this country, under the old rules, which both parties agree apply to this appeal, there is an explicit provision that a party seeking discovery may do so without filing an affidavit. The affidavit filed in the present case was sworn merely to demonstrate that the Plaintiff had been requested to furnish discovery before the motion was brought.

19. In dealing with a notice for particulars in a similar case, the Supreme Court in Cooney -v- Browne and Others (1985: I.R:185) (per Henchy J., at 192) said:-

“It would, of course, be unfair to require the Defendants to make a detailed disclosure of their evidence in advance, but all they are asked to do is to identify the matters in the article which they claim to be matters of fact and to state the facts which they intend to prove at the trial for the purpose of supporting those factual statements in the article. Such disclosure is, in my view, not unfair and indeed is highly desirable, if not necessary, in the interests of a fair trial.”

While Cooney -v- Browne was, of course, not a case dealing with discovery, it is noteworthy, that Henchy J., was of the view that it would not be fair to a Defendant to require it to make a detailed disclosure of its evidence in advance. No authority has been opened to me which establishes that in seeking discovery in the context of, inter alia , a plea of fair comment a Defendant must support its application with an affidavit setting out the evidence upon which it intends to rely in establishing the facts referred to in such a plea.

20. Subject, of course, to such a plea not amounting to a “fishing expedition” or otherwise offending the principles applicable to discovery, I cannot agree that the absence of such an affidavit disentitles the Defendant to an Order for discovery.

(2) Does a discovery sought in this application amount to a “fishing expedition”?

In Bula Limited (in receivership) -v- Crowley (1991:1:I.R.:220) Finlay C.J., (page 223) acknowledged that:-

“...before making any order for further discovery (a court) should not, in particular, permit the opposing party to indulge in an exploratory or fishing operation.”

21. The fact that a discovery may be comprehensive and wide ranging does not, of course, mean that ipso facto it is an exploratory or fishing operation. I would consider a fishing or exploratory operation to be one where there was no stated objective or delimitation by reference to the pleadings. In the present case, however, in general the list of categories of documents sought are capable of being, and in all but one case have been, specifically related to paragraphs in the Plaintiff’s pleadings. I have gone through this list carefully and I cannot agree that it bears the hallmarks of an exploration or fishing expedition. On the contrary, in the vast majority of instances, specific documents are identified with a reasonable degree of precision.

(3) Nor am I persuaded that compliance by the Plaintiff with any order made along these lines would not be so onerous as to be unfair in the circumstances of this case. In this context I am bearing in mind particularly that it is the Plaintiff who has cast the proceedings broadly and who has not been able to accept the Master’s invitation to narrow them in order to limit the scope of discovery. I cannot at this stage and do not prejudge whether the Plaintiff is correct in the several averments he makes in his pleadings - that is a matter for the trial. Given, however, that the pleadings are cast in very wide terms it is inevitable, as I indicated at an earlier point, that there must be very many categories of documents which relate to matters in question in the Plaintiff’s case, once his wide ranging averments are challenged by the Defendant.

(4) Mr. Cooney has submitted that any discovery order should relate to documents in existence at or prior to the date of publication, namely, the 29th March 1998. Mr. Hardiman submits that documents which may have come into existence subsequently could well relate to a matter in question in these proceedings and would be clearly relevant.

22. It seems to me that there should be some reasonable limit on the categories of documents which are ordered to be discovered and which came into existence after the date of publication. I consider that any such document is discoverable only if a draft or earlier edition thereof or working papers in relation thereto was or were in existence at the date of publication. Thus, the annual accounts of the group or of any of the companies in the group would be discoverable if, on or before the 29th March 1998, there was in existence an earlier draft or working papers in relation thereto. Subject to this qualification, I would direct that all categories of document which are discoverable should apply for a period of six months before the Plaintiff’s appointment and cease on the 29th March 1998.

ORDER

23. My intention is to make an Order generally along the lines sought, but with some exceptions. For this purpose, I refer to the annotated version of the notice of motion comprising references prepared by the Defendants’ lawyers to the corresponding paragraphs in the Plaintiff’s statement of claim and replies to particulars. I intend to make Orders in relation to paragraphs 1(i)(ii)(iii)(iv)(v)(vi)(vii)(viii)(ix)(x)(xi)(xii)(xiii), and (xiv) (a)(b)(c)(d) (e)(f) (only insofar as this subcategory relates to the C.I.E. Group), (g)(h); (xv) and (xvi). With regard to paragraphs (xvii)(xviii) and (xix), I make no Order at this time but give the Defendant liberty to provide affidavits identifying the relevance of these individually named persons to the issues. In the course of his submissions to me, Mr. Hardiman S.C., indicated that, in addition to the six persons alluded to (but not named) in the article, there were on his instructions three further individuals referred to at paragraph (xviii). I consider in the circumstances that in order to support this part of the application, an affidavit should be filed by the Defendant. In regard to this part of the application, accordingly, I will adjourn the matter giving the Defendants liberty if they so choose, to file such an affidavit and re-enter the matter on notice to the Plaintiff. I am also prepared to make Orders for discovery in regard to the following further sub-paragraphs, namely, (xx)(xxi)(xxii)(xxiii)(xxiv)(xxv) and (xxvi).

24. In each case discovery will be for all documents in the relevant categories between a date commencing six months prior to the appointment of the Plaintiff as Group Chief Executive of C.I.E. and ending on the 29th March 1998 subject to the additional proviso that further documents coming into existence in the relevant categories after the latter date shall also be discoverable where drafts, earlier editions or subsidiary documentation in relation thereto was or were in existence on or before the latter date.

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