High Court of Ireland Decisions

Irish Press Publications Ltd. v. Minister for Enterprise and Employment [2002] IEHC 104 (15 October 2002)

THE HIGH COURT

RECORD NO. 96/9761P

BETWEEN

IRISH PRESS PUBLICATIONS LIMITED, EAMON DE VALERA, NIALL

CONNOLLY, JOAN HYLAND AND VINCENT JENNINGS

PLAINTIFFS

AND

THE MINISTER FOR ENTERPRISE AND EMPLOYMENT, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

Judgment delivered by the Honourable Miss Justice Carroll on the 15^th day of October 2002.

1.      The Plaintiffs have sued the Defendants for damages for libel, negligence and wrongful interference with the Plaintiffs' constitutional right to their good name allegedly arising from a statement made by the then Minister for Enterprise and Employment ("the Minister") on 24^th October, 1996.

2.      An order for discovery was made by the Master on 8^th October, 1998 in respect of documents relating to the matters in issue including:-

(a) All documentation relating to the contention by the Defendants that

(i) the first named Defendant supported a successful examinership process for Irish Press Newspapers Limited

(ii) the Defendants wished to preserve the jobs at Burgh Quay.

(iii) the said examinership process was not a success.

(iv) the first named Defendant had the objective set out in the written statements set out at paragraph 12 of the Statement of Claim herein.

(v) The first named Defendant and the other Defendants hoped that a buyer could be found for the "Irish Press", "Evening Press" and "Sunday Press" newspaper titles.

(b) All documentation relating to the contention by the Defendants that the

matters set out in paragraph 2 of their replies to Particulars dated 14^th November, 1997 are expressions of opinion which constitute fair comment.

3.      An affidavit of discovery was sworn by Brian Whitney on behalf of the Defendants on 13^th April, 1999. Following a Notice of Motion for further and better discovery dated the 26^th October, 1999 a further affidavit was sworn by Mr. Whitney on 9^th December, 1999 acknowledging that further documents had to be discovered. A supplemental affidavit of discovery by William Coventry discovering further documents was sworn on 19^th January, 2000 and also dealing with the Plaintiffs' Solicitors' queries. Further queries were raised by the Plaintiffs and a further affidavit of discovery was sworn by Mr. Coventry on 7^th July, 2000 dealing with these queries and also discovering a number of additional documents.

4.      This motion was issued on 19^th October, 2001 claiming an order permitting inspection by the Plaintiffs of the documents listed in the schedule thereto and also requiring the Defendants to list individually in a supplemental affidavit of discovery all documents coming into existence following the publication of the statement by the Minister on 24^th October, 1996.

5.      The documents in schedule 1 are identified as follows

(A45) Note for the Minister dated 19^th July, 1995.

(A100) Interim Report of the Competition Authority on the newspaper industry.

(B13) Letter with Memorandum from the Secretary to the Government to the Private Secretary of the Minister dated 20^th June, 1995.

(B14) Draft of proposed Government Decision.

(B17 and B18) Memorandum for Government prepared by officials of the Department of the Minister.

(F116 and F117) Memorandum for Government on the subject of the Competition Authority's Interim Report on the newspaper industry, with a copy.

6.      The documents identified in schedule 2 are D1 to D6 being documents coming into existence between the 8^th February, 1996 and the 24^th October, 1996 being the date of the publication of the Minister's statement.

7.      The documents in contention fall into different groups with different reasons given by the Defendants for refusing discovery. All the documents have been produced to the Court for perusal.

(I) Document A45 is headed "Note for the Minister's information Re: Hugh Cooney's question to the Department on 19/7/95."

8.      The Defendants claim that this was prepared in contemplation of proceedings then contemplated by the Minister under the Competition Act, 1991 following the Competition Authority's report of 30^th March, 1995.

9.      In Mr. Coventry's affidavit (19^th January, 2000) he averred legal professional privilege was being claimed and claimed privilege from production to inspection. He says the document was prepared by an officer of the Minister and summarises the options open to him. In an earlier affidavit of Mr. Whitney (13^th April, 1999) he claimed that the document came into being in contemplation of "these and other actual threatened legal proceedings."

10.      Having read the document, it does not meet the tests mentioned in the judgment of O'Hanlon J. in Silverhill Duckling and Others v. The Minster for Agriculture and Others (1987 ILRM 516) dealing with legal professional privilege. O'Hanlon J. says at page 519

"Having considered the relevant authorities I am of opinion that once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case whether by means of communication passing between him and his legal advisors or by means of communications passing between him and third parties and to do so under the cloak of privilege."

11.      He goes on to say (referring to the English case of Crompton v. Customs and Excise Commissioners (1973 2 AER 1169))

"I would have been more inclined to the view taken in the Court of Appeal that once it was apparent to both sides that they were not going to reach agreement and that the ultimate recourse to arbitration was well now inevitable, then a situation had arisen where litigation between the parties could fairly be regarded as apprehended or threatened."

12.      O'Hanlon J. also says at page 520

"that the dominant purpose for the document coming into existence in the first place should have been for the purpose of preparing for litigation then apprehended or threatened."

13.      The document in my opinion fails both tests. Litigation was mentioned only in the context of a possible option for the Minister and the document was not prepared with the dominant purpose of preparing for litigation. In my opinion the claim of professional legal privilege fails. This document should be produced for inspection.

Document A100 is headed Competition Authority Interim Report of study on the newspaper industry."

14.      The Defendants have produced the report with portions deleted. The deletions fall into two broad categories: commercial information giving figures for profits or market shares and submissions made to the Competition Authority by interested parties.

15.      The Defendants claim that the deleted text is not relevant to the Plaintiffs' claim and that disclosure gives no litigious advantage and is not necessary in the interest of justice.

16.      The case of GE Capital Corporate Finance Group Limited –v- Bankers Trust Company and Others (1995 1 WLR 172) held that a party giving discovery was not obliged to disclose any part which is irrelevant to issues in the case. Hoffman L.J. said at page 175

"In my view the test for whether on discovery part of a document can be withheld on grounds of irrelevance is simply whether that part is irrelevant. The test for whether a part can be withheld on grounds of privilege is simply whether that part is privileged. There is no additional requirement that the part must deal with an entirely different subject matter from the rest. ---- Relevant and irrelevant information may as in this case be contained in the same sentence. Provided that the irrelevant part can be covered without destroying the sense of the rest or making it misleading, a party is permitted to do so".

17.      The test would appear to be whether the information contained in the part which is withheld is relevant rather than that the information was confidential.

18.      In Flynn –v- RTE and Others (2000 3 IR 344) Kelly J. held that where a discovery could confer a litigious advantage on one party it should be made not withstanding the fact that the documents were of a confidential nature.

19.      Confidentiality may be a motive for blanking out portions of the document but the real test is whether the blanked out portion is relevant.

20.      Dillon L.J. in GE Capital Corporate Finance Group Limited –v- Bankers Trust Company and Others (already cited) (at p. 177) said

"The history over the last 100 years of the practice of sealing up or covering over parts of documents which are disclosed on discovery on the ground that those parts are irrelevant is strongly against the other party having any automatic right to see the whole of the document in order to determine for himself whether the parts covered up are indeed irrelevant to the issues in the action."

21.      Having read the document, in my view the blanked out portions are not relevant to the issues in this trial. The commercial information, some historic background and the opinions of interested parties who made submissions do not appear to me to be relevant to the issues which arise. This document does not have to be produced without deletions.

(II) B13 is a letter to the Private Secretary of the Minister dated 20^th June, 1995 setting out the Government decision made 20^th June, 1995.

22.      The Defendants claim that this document among others (B14/B17/B18 and F116/F117) is privileged from production on the grounds of public interest privilege, specifically, the public interest in preserving the confidentiality of cabinet discussions. The Defendants acknowledge that the cabinet confidentiality is not absolute.

23.      However in AG –v- Hamilton (1993 2 IR 250) which is the case which upheld absolute cabinet confidentiality and which precipitated the 17^th constitutional amendment qualifying the extent of confidentiality, Chief Justice Finlay says at page 272

"I would therefore conclude that the claim for confidentiality of the contents and details of discussion at meetings of the Government made by the Attorney General in relation to the inquiry of this Tribunal is a valid claim. It extends to discussions and to their contents but it does not of course extend to the decisions made and the documentary evidence of them whether they are classified as formal or informal decisions."

24.      In my view the letter setting out the Government decision of 20^th June, 1995 is not protected from inspection by the umbrella of cabinet confidentiality relating to discussions. No other ground is put forward. This document should be produced for inspection.

(VI) Documents B14, B17/B18 and F116/F117 can conveniently be grouped together as they are documents which either were before the Government for consideration at the cabinet meeting of 20^th June, 1995, or in the case of F116/F117 were first drafts.

B14 is a draft Government decision prepared by the Minister with hand written notations.

B17 is a memo for Government dated 15^th June, 1995.

B18 is a summary of that memo.

F116/F117 is a first draft dated 1^st June, 1995 of the memo of 15^th June, 1995. The memo of 15^th June, 1995 is slightly expanded by additional information.

25.      The Defendants claim public interest privilege in respect of these documents, namely cabinet privilege.

26.      The memo of 15^th June, the summary and the first draft of 1^st June are effectively the same and the same principles must apply to all. If the claim of privilege is upheld in respect of the memo of 15^th June, 1995 it must also be upheld in respect of the summary of the same date and also the memo of 1^st June, 1995 circulated to Government departments in advance of the Government meeting and which is practically identical to the memo of 15^th June.

27.      The production of the draft Government decision submitted by the Minister with notations when compared with the actual Government decision would disclose elements of cabinet discussion. The memo and summary undoubtedly formed the basis for such discussion.

28.      The cases of Murphy –v- Dublin Corporation (1972 IR 215) and Ambiorex Limited –v- Minister for Environment (1992 1 IR 277) were concerned with the exercise by the judiciary of judicial power to decide

"whether the production of any particular document for which a privilege derived from the public interest was claimed was more likely to do greater damage to the public interest consisting of the interest of the executive by its production or to the public interest consisting of the administration of justice by its concealment (see Finlay C.J. at page 269 AG –v- Hamilton)."

29.      In my view the administration of justice would not be compromised in any way by upholding the Defendants' claim to privilege on the ground of cabinet confidentiality. I am satisfied the Plaintiffs would not be unjustly disadvantaged by allowing this claim of privilege.

(V) The documents identified as D1 to D6 are documents which came into existence between 28^th February, 1996 and 24^th October, 1996 being the date of publication of the Minister's statement. The Defendants claim they are not relevant to any issue in the proceedings and therefore do not fall to be discovered.

I have read the documents and they do not have anything to do with the issues in this action. I only wonder why they were included in the affidavit of discovery. Since I have read them and decided they are not relevant, no useful purpose would be served by listing them individually.

(VI) The relief sought at paragraph 2 of the Notice of Motion of 19^th October, 2001 was for an Order directing the Defendants to individually list in a supplemental affidavit of discovery all documents relating to the matters in issue coming into existence following the publication of the statement by the Minister on 24^th October, 1996.

30.      The Plaintiffs rely on the decision of the Supreme Court in Bula Limited –v- Tara Mines Limited (No. 4 1991 1 IR 217) requiring a party making discovery to list individually all documents in the affidavit of discovery so that the plaintiff may form a view as to whether a claim of privilege is being properly maintained.

31.      The Defendants claim is that post publication documents are not relevant to any issue in the proceedings and therefore do not fall to be discovered at all and the issue of listing these documents individually does not arise. They submit the defence of fair comment can only be made out by reference to facts which were in existence and known to the Defendants at the time of publication. Therefore documents coming into existence after the statement complained of, cannot be relevant to the defence of fair comment. Also such documents are not relevant to the meaning of the statement complained of which is a matter for the jury or judge to determine solely by reference to the words used.

32.      In my view, the obligation on the Defendants to discover documents is, as stated in the Order for Discovery, an obligation to discover documents "relating to the matters in issue". They are not obliged to discover documents which are irrelevant. This is different to claiming privilege for a document which does relate to the matters in issue even though it may postdate the date of publication. For example, if a document existed which admitted that the Minister knew relevant facts at the time of the Statement but which post-dated the date of publication, it should be listed.

33.      The principle laid down by the Supreme Court in Bula –v Tara Mines relates to documents in respect of which a claim for privilege is made. It does not relate to irrelevant documents.

34.      I accept the Defendants' argument that the defence of fair comment depends on facts known to the Defendants on the date of publication. But it does not follow automatically that every document which postdates the date of publication relates to facts not known at that date.

35.      The responsibility lies on the Defendants to list every document "relating to the matters in issue" and to make a specific claim for privilege if appropriate. If a document is not relevant it does not have to be listed.