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Cite as: [2020] IEHC 95
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THE HIGH COURT
[2020] IEHC 95
Record No 2016/6187P
BETWEEN
DERMOT DESMOND
AND
THE IRISH TIMES LIMITED
JUDGMENT of Mr Justice Maurice Collins delivered on 17 February 2020
PLAINTIFF
DEFENDANT
Introduction
1. On 3 April 2016 (a Sunday) a number of newspapers and media outlets globally - all
associated with the Washington-based International Consortium of Investigative
Journalists (“ICIJ”) - began to publish/broadcast stories based on the so-called “Panama
Papers”, described by the Irish Times at the time as a “vast collection of leaked
documents from the Panamanian legal firm Mossack Fonseca.”
2. The Irish Times and/or some of its journalists are members of the ICIJ and the paper had
been given access to the Panama Papers and been involved, along with many others, in
the exercise of reviewing those papers in advance of 3 April 2016. It appears that the
Irish Times’ first coverage relating to the Panama Papers appeared online on 3 April 2016,
and this was followed by a prominent story carried in the print edition of 4 April 2016
under the headline “Global leak reveals secret offshore activities of world leaders and
stars”. A separate story in the same edition disclosed that the Panama Papers revealed
the involvement of an Irish registered company in the international arms trade. Persons
accessing the Irish Times website could see a video which gave further background and
were provided with a link to a special website set up by the ICIJ which, according to Mr
Desmond, carried a banner headline “THE PANAMA PAPERS Politicians, Criminals and the
Rogue Industry that Hides their Cash.”
3. On 7 April 2016 the Irish Times published a further article based on the Panama Papers
under the headline “Mossack Fonsecca’s Irish clients came from all walks of life.” Mr
Desmond is referred to in this article and it also included a photograph of him. After
noting that Mr Desmond and another well-known business person referred to in the article
were“active in international investments and are not tax-resident in this jurisdiction, and
it is not surprising that they might show up in the files of a major law firm that provides
global services”, the article went on to refer to a Panamanian company, Ard International
Inc According to the article, Ard International had issued bearer shares in June 2005.
Bearer shares – so the article explained – were company shares that belong to whoever
has them and were being done away with in most jurisdictions because of concerns over
transparency. The article went on to state that, at the same time as deciding to issue
those bearer shares, the company’s directors (employees of Mossack Fonseca) had
granted a general power of attorney over its affairs to Mr Desmond. The article noted that
the files included a note from Mr Desmond from November 2005 asking the directors to
grant power of attorney to two Swiss lawyers, resigning as attorney and asking the
directors to destroy the documents associated with his appointment and resignation.
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Finally (as regards Mr Desmond) the article noted that it was not known what business –
if any – had ever been conducted by Ard International and stated that a “spokesperson
for Desmond said he did not want to comment.”
4. On the following day, 8 April 2016, a Ms Suzanne McNulty (described in the papers as Mr
Desmond’s General Counsel) wrote to the Irish Times on Mr Desmond’s behalf asserting
that the article breached his rights to privacy and confidentiality and was not justified by
any public interest and also that the publication had caused damage to Mr Desmond’s
reputation. A specific complaint was made about the reference to Mr Desmond’s
spokesperson having said that he did not wish to comment. Ms McNulty indicated that she
was the spokesperson concerned and complained that the statement in the article was
not accurate. A comment had, she said, been provided to Mr (Colm) Keena of the Irish
Times on 29 March 2016, that comment being in the following terms: “Please note that it
is not our policy to comment on enquiries about Mr Desmond’s personal affairs, which are
private and conducted properly in compliance with the law.” Ms McNulty complained that
these words had been twisted to imply that Mr Desmond had something to hide. The
letter concluded by asking for the publication of an “unequivocal apology” to Mr Desmond.
5. The Editor of the Irish Times, Mr. Kevin O’ Sullivan, responded denying that the article
breached any of Mr Desmond’s rights and emphasising the public interest relating to the
international financial services system. According to Mr O’ Sullivan, while identifying the
shortcomings of that system, especially the secrecy it facilitates, the Irish Times had
“made clear at all times that it is legal and can be used for legitimate business purposes”
and the article had made clear that the use of the services of Mossack Fonseca was
“perfectly legal”.
6. There followed further correspondence between solicitors for the parties in which their
respective positions were further rehearsed. That correspondence did not lead to any
resolution and Mr Desmond commenced these proceedings by Plenary Summons issued
on 11 July 2016.
The Proceedings
7. In his Statement of Claim Mr Desmond pleads that the firm had informed clients on 3
April 2016 that “this unprecedented breach of lawyer-client confidence had occurred as a
consequence of a ‘hack’ of the law firm’s email server.” He also pleads that the Irish
Times was aware that any material that it published concerning him was confidential
between the firm and its clients, that such material had been stolen or otherwise
unlawfully obtained and procured illegally in circumstances where it was self-evidently the
property of either or both the firm and its clients. In its Defence, the Irish Times denies
that it was aware that the material complained of by Mr Desmond was obtained unlawfully
and does not admit that the material was in fact so obtained. It denies any involvement in
any unlawful removal of information and documents from the firm’s offices, denies that
the information was confidential and pleads that the published information was originally
supplied to the German newspaper Süddeutsche Zeitung which shared it with other news
outlets, including the Irish Times, through the ICIJ. As will be seen, this issue as to
whether the Irish Times was aware how the material relating to Mr Desmond had been
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obtained, and in particular whether it was aware that (as Mr Desmond asserts) it was
unlawfully obtained from Mossack Fonseca, is reflected in the terms of one of the
categories of discovery sought by Mr Desmond.
8. The Statement of Claim sets out in its entirety that part of the 7 April 2016 article that
concerned Mr Desmond and pleads that, in the context of the Irish Times’ earlier
coverage and the material referenced by it, the article was defamatory of Mr Desmond,
with various meanings being pleaded including that Mr Desmond was involved in
suspicious financial transactions designed to hide some type of serious wrongdoing, that
he was involved in rogue transactions intended to hide money or assets, that there was
something improper or sinister about his financial affairs that Mr Desmond was anxious to
conceal, that right-thinking members of society ought to regard Mr Desmond with
suspicion and disdain as a result of how he conducted his financial affairs and other
meanings to broadly similar effect.
9. The Statement of Claims also pleads that the Irish Times article infringed his right to
privacy in his business and financial affairs and breached a duty of confidence alleged to
be owed by it to Mr Desmond. No public interest justified the publication in circumstances
where (it is said) the Irish Times had asserted that the actions of those using the services
of Mossack Fonseca were “perfectly legal”. It is pleaded that the “gratuitous nature of the
publication” and the way on which Mr Desmond’s name and photograph had been so
prominently published aggravated the hurt, upset and damage caused to him and
damages (including aggravated and/or punitive damages) are sought for defamation,
breach of privacy and breach of confidence, as well as an injunction compelling the
removal of the material complained of and certain declaratory relief.
10. In its Defence (delivered on 20 February 2017), the Irish Times admits publication but
denies that the article was defamatory of Mr Desmond and denies the pleaded meanings.
Without prejudice to that denial, paragraph 8 of the Defence pleads that the article was
published on an occasion of qualified privilege under the Constitution, at common law
and/or under statute, including section 18 of the Defamation Act 2009 (“the 2009 Act”)
and/or pursuant to the ECHR. The Defence next pleads section 26 of the 2009 Act. Given
the importance of this defence to the disputed issues of discovery, it may be useful to set
out this plea in full:
“9 Further, and/or in the alternative the Defendant pleads that the article complained
of was published pursuant to the provisions of s.26 of the Defamation Act 2009.
The article was published in good faith and in the course of and for the purpose of,
the discussion of a subject of public interest, the discussion of which was for the
public benefit, namely the growth of offshore tax and regulatory havens. The
Defendant pleads that in all the circumstances of the case, the manner and extent
of publication did not exceed that which was reasonably sufficient and it was fair
and reasonable to publish the statement. The article constituted fair and reasonable
journalism on a matter of public interest, which public interest is particularised at
paragraph (12) below.” (all emphasis supplied).
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11. Paragraph 12 of the Defence sets out detailed particulars of the public interest in the
publication of the material, in the context of a plea that even if the Irish Times owed a
duty of confidence to Mr Desmond (which it denies), his interest was outweighed by the
public interest in publication. Most of those particulars reference the offshore financial
system generally but it is pleaded that Mr Desmond is a public figure with a high public
profile “in part through having given evidence to two tribunals of inquiry about payments
to politicians.” Separately, the Defence denies any breach of privacy, pleading that the
publication of material from the Panama Papers concerning Mr Desmond related to
corporate/commercial activity on the public interest basis particularised previously and
that the publication was proportionate.
12. Mr Desmond sought particulars of certain pleas in the Defence, including the pleas of
qualified privilege, section 26 and the denial that the Irish Times was unaware of the fact
that the Panama Papers had been obtained unlawfully. Replies were provided in May 2018
and it may be necessary to refer further to certain aspects of those Replies in due course.
At this stage it may be noted that in the course of the hearing it was accepted by Mr
Quinn Senior Counsel (for Mr Desmond) that the Irish Times had adequately pleaded its
section 26 defence.
13. No Reply has been delivered by Mr Desmond. Mr Quinn in his submissions referred to the
provisions of the Rules (Order 23, Rule 1) which provides that no reply shall be necessary
where all the material statements of fact in the relevant pleadings (here, the Irish Times
Defence) are merely to be denied and put in issue. The absence of a Reply is something I
shall refer to further below.
Request for Discovery and Response
14. On 10 September 2018 Mr Desmond’s Solicitors wrote seeking voluntary discovery
pursuant to Order 31, Rule 12(4) (as amended). No response was sent to this letter but
the Irish Times did set out its response to the request in an affidavit subsequently sworn
by Ms. Deirdre Veldon, a Deputy Editor, in response to Mr Desmond’s discovery
application.
15. For ease of understanding, I propose to set out in turn each of the categories of discovery
sought and summarise the position of the parties in respect of each category.
Category 1
All documentation supplied to the Defendant, either by the ICIJ, the Süddeutsche Zeitung
or otherwise relating to the Plaintiff and reviewed, relied upon, quoted from or otherwise
considered as part of the series of articles referencing the Plaintiff, as referred to in the
Statement of Claim.
16. The letter seeking voluntary discovery refers to the pleaded position of the parties and
also states that the Plaintiff has been unable to access files relating to his and/or his
companies affairs held by Mossack Fonseca (it appears that the firm is no longer in
existence). It goes on to the state that Mr Desmond requires access to this category of
discovery “to effectively prove his case and in particular, to establish that the documents
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do not disclose any illegality, wrongdoing or other morally reprehensible behaviour that
might legitimately justify publication in the ‘public interest’ as claimed by the Defendant.”
17. The affidavit grounding the application – sworn by Mr Raymond Darcy, a solicitor in the
firm acting for Mr Desmond – does not address the categories separately but, having
referred to the Irish Times’ reliance on section 26 and on a plea of qualified privilege,
states:
“The categories sought are all directly relevant to the question of whether or not it
was fair or reasonable to publish the material in question. Insofar as the Defendant
has pleaded, in its Defence, substantial reliance upon the public interest, the
requested categories are relevant and necessary in that context; and also in the
context of the Plaintiff’s plea (which is denied) that the Defendant elected to publish
the material knowing that it had been unlawfully obtained and that it was
confidential information. More generally, the requested Discovery is relevant and
necessary having regard to what is pleaded at paragraphs 17-21 of the Statement
of Claim (relating to the grounds upon which it is alleged that the Defendant was
aware of the wrongfulness of its actions, and the wrongful circumstances in which
confidential information had been removed from the law firm Mossack Fonsecca.)
The Defendant has denied these matters in its Defence.”
18. As I have mentioned, there is also an affidavit before the Court from Ms Deirdre Veldon of
the Irish Times. In respect of category 1, Ms Veldon objects to the discovery sought on a
number of different bases. She says (i) that no documents were provided to the Irish
Times by the Süddeutsche Zeitung, (ii) that the Irish Times accessed documents from the
ICIJ but copies of any such documents used in the preparation of the article have since
been destroyed; (iii) that documents in the ICIJ archive are not within the power,
possession or procurement of the Irish Times, as it does not have a legal right to them (it
being explained that the access previously given had been solely for the preparation of
the articles published by the Irish Times); (iv) the documents were in any event
“protected by journalistic privilege”. In this context, Mr Veldon asserts that Mr Desmond
clearly intends to use discovery as a means to investigate the original source of the
documents emanating from Mossack Fonsecca and in these circumstances (Ms Veldon
says) it would not be appropriate to order the discovery sought. She also states that even
the listing of documents in an affidavit of discovery would “run the risk of infringing this
privilege”; (v) whereas Mr Desmond had sought to justify the request by stating that he
required the documents to establish that they did not disclose any illegality on his part,
he had not pleaded that the article bore such a meaning and so the request fell outside
the scope of the pleadings; (vi) Mr Desmond’s asserted inability to get documents from
Mossack Fonsecca was not a basis for seeking discovery from the Irish Times; (vii) the
request is a fishing expedition in that Mr Desmond had, without evidence, made a
“speculative allegation in pleadings” that the Irish Times knew that the documents has
been illegally obtained and now was seeking an evidential basis for that allegation.
Category 2
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(a) All documentation concerning all efforts made by the newspaper to contact the
Plaintiff or his representative for comment, to include all notes made of any
discussions had or any communication received prior to publication.; and
(b) All documentation to include notes of or concerning any editorial decisions relating
to the publication of the portion of the article by Colm Keena and Ciaran D’Arcy
concerning the Plaintiff which appeared in the 7th April 2016 edition of the
Defendant’s newspaper to include all earlier drafts.”
19. The stated reason for this request is that Ms McNulty had provided a particular comment
which had not been published and that the article as published asserted – inaccurately (so
it is said) - that a spokesperson on behalf of Mr Desmond had indicated that he had no
comment to make. A further justification advanced is that the discovery was required to
ascertain whether or not a decision was taken by the Irish Times to edit out “the proper
and full statement” which had been provided to Mr Keena “which confirmed the private
nature of the material and the fact that the Plaintiff’s affairs are conducted lawfully”.
20. As to 2(a), Ms Veldon avers that the Irish Times has no documents relating to this part of
the request other than two emails which, she says, Mr Desmond already has in his
possession and which therefore it is unnecessary to discover. As to 2(b), it is stated that
the Irish Times has no notes of editorial decisions relating to publishing the article and it
is asserted that earlier drafts of the article were covered by legal professional privilege.
Mr McCullough SC, Counsel for the Irish Times, did not seek to maintain that particular
ground as an objection to discovery (whatever the position might be regarding
production/inspection of any such drafts if directed to be discovered) and therefore it will
not be necessary to say any more about it.
21. In the course of argument, I observed to Mr Quinn that the basis advanced for category
2(b) (which is limited to the editorial decision regarding the portion of the article which
suggested that Mr Desmond’s spokesperson had said that he did not wish to comment)
appeared to be narrower in scope than the category as drafted (which refers generally to
the article so far as it concerned Mr Desmond. In his reply, Mr Quinn suggested that
category (b) might be reformulated to refer to editorial decisions relating to the
publication of the portion of the article concerning “the response of the Plaintiff’s
spokesperson.”
Category 3
All documentation relating to, recording or evidencing the knowledge of the Defendant, its
servants or agents as to the origins of the Panama Papers and specifically, the
data/files/documents received by the Defendant and relating to the Plaintiff or his
associated companies.
22. The voluntary discovery letter seeks to justify this category by reference to the Plaintiff’s
claim that the Irish Times was at all times fully aware that the files and documents
referred to in its article had been unlawfully taken from Mossack Fonsecca and to the fact
that this claim was denied.
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23. In her affidavit, Ms Veldon objected to this category, largely on the same basis as her
objection to category 1. However, in the course of his submissions, Mr McCullough SC
indicated that his client would be willing to make discovery of this category, subject to it
being revised so as to read as follows: “All documentation recording the knowledge of the
Defendant, its servants or agents as to the origins of the Panama Papers that relate to the
Plaintiff or his associated companies.” This offer effectively resolves the dispute in respect
of this category though there remains a minor issue as to whether the words “or
evidencing” should remain or not.
Category 4
All documentation relating to any discussions or communications as between the
Defendant and other journalists (including without limitation, other members of the
International Consortium of Investigative Journalists (ICIJ)) and/or with the persons who
supplied to the Defendant the leaked material concerning the Plaintiff, relating to the
identification of material considered to be relevant to Ireland and specifically relating to
the Plaintiff and showing or attempting to show the reasons why that material was
selected for publication and/or considered to be in the public interest.
24. In the voluntary discovery letter, reference is made to the Irish Times’ claim that the
publication was in the public interest and to the article published by the Irish Times on 9
April 2016 from which it appeared (so it was said) that its journalists, and in particular Mr
Keena, had been involved “in a process of sifting through the material and potentially
engaging in real time chat with other journalists and members of the [ICIJ] and with a
view to identifying what material might be ‘in the public interest for your country.” The
discovery sought (so the letter went on) “will assist the parties in establishing what
alleged public interest the Defendant and its contacts within the ICIJ identified in the
course of any such communications or discussion.”
25. The Irish Times objects to this category. On its behalf, Ms Veldon says (i) that the
question of whether the published material was published in the public interest is
fundamentally a question of law, to which discovery is irrelevant.; (ii) that there are no
documents because any communication took the form of “real time chat” on a website
which did not generate documents or records; (iii) that any documents in this category
would be protected by journalistic privilege and (iv) the documents were not relevant or
necessary to deciding the issues between the parties.
____________________________________________________________________________
DISCUSSION
Preliminary Points
26. This is an application for discovery. The principles applicable to such applications were not
in any significant dispute before me. While I was referred to the relatively recent decision
necessary to discuss that decision in detail. The battle lines between the parties were not
at the level of general principle and I did not understand it to be suggested by the Irish
Times that discovery in the terms sought would be disproportionately burdensome in any
Page 8 ⇓
practical sense. Nonetheless, it is perhaps appropriate to note Clarke CJ’s reminder in
Tobin that “it is important not to lose sight of the valuable contribution that discovery can
make. It improves the chances of the court being able to get at the truth in cases where
facts are contested. In that way, it makes a significant contribution to the administration
of justice.”
27. I was also referred to a number of authorities which helpfully consider the application of
the established principles governing discovery in the specific context of defamation claims
and in particular claims involved defences similar to the defences relied on the Irish Times
here, including a number of authorities from England and Wales, Australia, New Zealand
and Canada which were provided to me subsequent to the hearing of the motion in
response to a request from me. Ultimately, because of the significant differences between
the law in those jurisdictions and the law here, those authorities have proven to be of
limited assistance in addressing the application currently before the Court but I
nonetheless very grateful to counsel on both sides for their researches.
28. As I have said, this is an application for discovery. It is not an application for inspection
and/or production. That being so, it appears to me to follow that a number of the
objections to discovery articulated by Ms Veldon in her affidavit do not properly arise at
this stage of the proceedings. Thus, in my opinion, the fact – if fact it be – that the Irish
Times has destroyed all documents used in the preparation of the article on which Mr
Desmond sues does not of itself provide an answer to his application for discovery. If the
Court is persuaded that discovery should be made of some or all of the categories of
documents sought, the obligations of the Irish Times will extend to listing in the second
schedule to its affidavit of discovery any documents coming within such category or
categories which have been (bur are no longer) in its possession, power or procurement.
The long-standing existence of such a requirement on a party making discovery
necessarily reflects a judgment that such a requirement is in the interests of justice and
potentially of benefit to the party getting discovery. I do not see any reason why Mr
Desmond should be deprived of such a potential benefit here simply because the Irish
Times states that it has destroyed some or all of the documents that are being sought by
him. Such an approach would give litigants a unilateral power to foreclose the possibility
of being subject to an order for discovery which would be wholly undesirable.
29. I have not overlooked the distinct point made by Ms Verling, in the context of asserting
that the documents sought (or at least the majority of categories of documents sought)
“are protected by journalistic privilege”, that the listing of such documents in an affidavit
of discovery would run the risk of infringing that privilege. I address that point below
when I discuss the issue of journalistic privilege.
30. Equally, in my view, the further objection made by Ms Verling to the effect that
documents in the ICIJ archive are not within the power, possession or procurement of the
Irish Times, is not relevant at this stage. If an order for discovery is made, the obligation
on the Irish Times extends, and only extends, to making discovery of relevant documents
(by which I mean documents coming within the scope of the order) which are or have
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been, in its possession, power or procurement: Order 31, Rules 12(1). If, when discovery
is made, any dispute arises as to whether documents held by the ICIJ are or are not
within the Irish Times’ power, possession or procurement (and it may be that no such
issue will arise), that issue can be addressed at that stage, in accordance with the
principles set out by the Supreme Court in Johnson v Church of Scientology [2001] 1 IR
682 and Thema International Trust Services (Ireland) Ltd v HSBC International Trust
Services (Ireland) Ltd [2013] IESC 3, [2013] 1 IR 274.
31. Finally, it does not appear to me that what is referred to by Ms Verling as “journalistic
privilege” properly provides a shield against the making of an order for discovery in the
circumstances presented here. In this context, Mr Quinn brought the Court’s attention to
the judgment of McKechnie J (Clarke and McMenamin JJ agreeing) in Keating v RTE
[2013] IESC 22, [2013] 2 ILRM 145. While that was a claim for defamation, what was
actually before the Supreme Court was an appeal from the High Court granting an
application for non-party discovery brought by RTE against the Garda Commissioner and
the Revenue Commissioners. One of the arguments advanced on appeal was that the
material directed to be discovered was privileged from production on the basis of public
interest privilege and that no useful purpose would be served by directing its discovery.
This argument was rejected, for the reasons set out in the judgment of McKechnie J.
Having noted the arguments of the parties and stated that the normal position was that
issues of privilege were dealt with subsequent to discovery, McKechnie J continued:
“46. That being said however, there is also no doubt but that on a discovery motion the
court has an inherent jurisdiction to refuse the application on the basis that its
entire purpose, namely access to relevant evidence capable of aiding or defeating a
particular claim, can never be achieved in the face of a privilege plea which
inevitably must succeed. Before holding however that the normal process can be
abridged in this way and that privilege can ground a refusal for a discovery order as
distinct from an inspection order, the court will have to be satisfied that such plea
permits of no other possible result. For if it should or might, the court will not
refuse to grant a discovery order on such grounds. To view the situation otherwise
would be to conflate distinct steps in a two-tier process which involve addressing
different questions and determining different issues. Accordingly, when the matter
is raised at this stage of the process, the first enquiry must be to determine
whether success on the plea is unavoidable. It is only if it is, that an affidavit as to
documents will not be required.” (emphasis added)
On the material before him, McKechnie J concluded that he was far from satisfied at that
stage of the procedure that any privilege that might be asserted would “inevitably
succeed” and thus the objection failed.
32. Even if (as Hogan J suggested in Cornec v Morrice [2012] IEHC 376; [2012] 1 IR 804, at
para [42]) there is in strictness no such thing as “journalistic privilege”, that term is a
useful shorthand (one which I am happy to use) for the bundle of protection that the law
recognises as appropriate to afford to journalists in respect of confidential
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sources/disclosures. It has been considered in this jurisdiction in a number of decisions,
notably In re Kevin O’ Kelly (1974) 108 ILTR 97 (a decision of the Court of Criminal
Court) and in a series of decisions of this Court addressing questions of
v Independent Star Limited [2018] IEHC 206, as well as Cornec v Morrice (which
concerned an application under the Foreign Tribunals Evidence Act 1856). As is evident
from these authorities, and in particular the Supreme Court’s decision in Mahon v Keena,
the Article 10 jurisprudence of the European Court of Human Rights has been a significant
contributory factor in the development of Irish law on this issue.
33. The precise parameters of journalistic privilege, including the issue of whether and/or to
what extent and/or on what basis its protection extends beyond information liable to lead
to the disclosure of the identity of a confidential source (and thus covers the substantive
content of information supplied on a confidential basis even where the disclosure of such
information would not disclose the source), while very interesting and important issues,
are not ones which this Court needs to determine, or could properly determine, on this
application.
34. What is clear – and there was no dispute between the parties on this point – is that
journalistic privilege is not absolute: see again Cornec v Morrice at [44] and [45] and the
authorities referred to in those paragraphs. In that regard, it differs from legal
professional privilege (which, within its proper confines, is absolute i.e. is not subject to
any general balancing test) and more closely resembles the kind of public interest
privilege at issue in Keating v RTE. Again, it is neither necessary nor appropriate to seek
to identify the circumstances in which and/or the interests by which journalistic privilege
may be overridden. Those difficult issues do not arise at this stage.
35. Posing the test articulated by McKechnie J in Keating, it appears to me that the material
before the Court on this application does not demonstrate that, in the event that an order
for discovery is made in relation to one of more of the categories of documents at issue,
an objection to production on the basis of journalistic privilege would “inevitably succeed.”
Of course, any such claim may well succeed if and when made in due course. I express no
view on that. The point I am making is that the exceptional circumstances that might
arguably justify the Court in refusing discovery on the basis that any order would be futile
because Mr Desmond would end up empty-handed in any event do not in my opinion
apply here.
36. In reaching that conclusion, I am mindful of the fact that in Walsh v News Group
Newspapers this Court (O’ Neill J) addressed the issue of journalistic privilege at the same
time as discovery. The issues and evidence in Walsh appear to me to have been different
to the case before me and, having regard to Keating v RTE, I have reached a clear
conclusion that issues of journalistic privilege should be addressed in the ordinary way i.e.
by way of an appropriate affidavit of discovery following which any extant dispute can be
Page 11 ⇓
addressed in the context of inspection/production. I do not believe that I could properly or
fairly reach any view on whether (and if so to what extent) the documents sought here
ought to be protected from disclosure on the basis of the contents of Ms Veldon’s
affidavit. I am also influenced in my conclusion by the fact that the interaction of
journalistic privilege and the statutory fair and reasonable publication defence does not
appear to have been considered to any significant extent by any Irish court to date. That
issue warrants more detailed consideration than was practicable in the context of the
discovery application here and it would be inappropriate to express any view on it in the
absence of full argument. Unsurprisingly, the balance to be struck between protection and
disclosure appears to be calibrated differently in different jurisdictions and it remains to
be seen where the balance falls to be struck here.
37. I do however accept that, in swearing affidavits of discovery in defamation actions such
as this, issues may arise as to how documents are described and, in particular, there may
be a difficulty as to the level of detail required to be given in identifying documents in
respect of which journalistic privilege is asserted. Here, as already noted, Ms Veldon has
stated that even the listing of documents in an affidavit of discovery would run the risk of
infringing journalistic privilege by which, I understand, she means a risk that the identity
of the source might thereby be disclosed. Given the elaborate precautions that appear to
have been taken regarding the manner in which information was shared by the ICIJ (as
explained by the Irish Times to its readers in articles opened in the course of the
hearing), that rather bald assertion might be thought to warrant a degree of scepticism.
In any event, however, in Ryanair Limited v Channel 4 Television Corporation, this Court
(Meenan J) recognised that the listing of documents the subject of a claim of journalistic
privilege potentially gave rise to particular difficulty that did not arise - at least to the
same extent - in respect of claims of legal professional privilege: para [39]. Accordingly,
in Meenan J’s view, it may be that a “more general description of documentation over
which journalistic privilege is being claimed” will be acceptable. I agree. The law does not
require a party to undermine a privilege in order to claim it. At the same time, however, I
would observe that where a claim of privilege – of whatever kind – is made over
documents in the context of discovery, the onus ultimately lies on the party claiming it to
establish by evidence that it is applicable to those documents. The reconciliation of those
competing considerations may present difficulties in practice but, fortunately, such
difficulties do not present themselves at this stage.
38. In taking the view that issues of journalistic privilege do not fall to be determined at this
stage, I do not mean to imply that the fact that the discovery here is sought against a
newspaper is irrelevant. The Court can have – and I have had –regard to the fact that the
discovery sought by Mr Desmond, if directed, would likely require the Irish Times to
discover at least some material that, at least prima facie, would be protected from
inspection/production by journalistic privilege. In these circumstances, it is incumbent on
the Court to apply the established elements of the test for discovery – relevance,
necessity and proportionality – with particular care.
The Defences pleaded by the Irish Times
Page 12 ⇓
39. As I have noted, a number of different defences are pleaded in the Irish Times’ Defence.
The defamatory meanings relied on by Mr Desmond are denied in paragraph 6. Mr
McCullough submitted to me that the meaning of the article is a matter for the jury (or
the judge in the event of trial by judge alone) and that no discovery can arise by
reference to this defence. In my view that is correct and I note that Mr Quinn did not seek
to justify any part of the discovery application by reference to any issue on meaning.
40. Paragraph 8 pleads an extended form of qualified privilege, including - but not, it appears,
limited to - qualified privilege under section 18 of the 2009 Act. Section 18(1) of the Act
expressly preserves the common law defence of qualified privilege. Section 18(2)
effectively restates that defence in statutory form and subsections (3) and (4) give
protection to particular categories of statement. As noted in Cox & McCullough,
Defamation Law and Practice (2014) (“Cox & McCullough”) “an occasion of privilege will
generally arise (both at common law and under the 2009 Act) where the publisher has a
legal, social or moral duty to publish the offending material and the recipient has a
reciprocal interest in receiving it, and it becomes a question of fact as to whether or not,
in a particular case, such a mutuality of duties or interests exists.” (Para 8-01)
41. Paragraph 8 of the Defence also invokes the Constitution, the common law and the
Convention and it appears reasonable to suppose that this pleading is intended to allow
the Irish Times to argue at trial that some form of public interest speech defence arises
such as was recognised by the House of Lords in its landmark decision in Reynolds v
Times Newspapers [1999] UKHL 45; [2001] 2 AC 127 and further developed by it in
Jameel v Wall Street Journal [2006] UKHL 44; [2007] 1 AC 359. Whether the so-called
Reynolds defence is part of Irish law is uncertain. The issue is discussed with enviable
lucidity in Cox & McCullough, at chapter 9. As is there explained, even if the Reynolds
defence was part of Irish law prior to the commencement of the 2009 Act on 1 January
Leech v Independent Newspapers [2007] IEHC 223 suggest that it was), there is
significant uncertainty as to whether it survived the coming into force of section 15 of the
2009 Act. Section 15 abolished all pre-existing defences in defamation though saving
(inter alia) the common law defence of qualified privilege. Whether the Reynolds defence
(assuming it was part of Irish law prior to the 2009 Act) survived the enactment of
section 15 therefore depends on whether or not that defence is properly characterised as
a species of qualified privilege. As Cox & McCullough explain, there is (as yet) no clear
answer to that question: paras 9-70 – 9-77. The position is further complicated by the
fact that the Reynolds defence has been statutorily abolished in England and Wales by
section 4 of the Defamation Act 2013, which creates a new statutory defence of
publication on a matter of public interest. That defence has some similarity to, but also
many significant differences from, the defence of fair and reasonable publication created
by section 26 of the 2009 Act.
42. In any event, as to the section 18 qualified privilege plea, Cox & McCullough note that
where such a plea is made “the defendant may be required to discover documents that
support or undermine his or her case that s/he was under a duty to communicate, or had
Page 13 ⇓
an interest in communicating, the statement concerned.” (at para 14-109). A similar
statement is made in Gatley on Libel and Slander (12th ed; 2013) at para 31.7.
Interestingly, the editors of that edition (which predated the enactment of the Defamation
Act 2013) go on to state that “[i]n the case of a plea of Reynolds privilege, that is liable to
include disclosure of journalists’ notes and other material relied on as giving rise to the
existence of a duty to publish and as supporting a case of responsible journalism.”
43. Before turning to section 26 of the 2009 Act, one further aspect of the Irish Times’
qualified privilege defence should be mentioned. Section 19(1) of the 2009 Act provides
that a defence of qualified privilege shall fail if the plaintiff shows that the defendant acted
with malice. It is a matter for the plaintiff to plead and prove malice. Typically, malice is
pleaded by way of Reply. The Plaintiff has not delivered a Reply in these proceedings and,
in my view, it follows that there is no issue of malice in the case. Whatever the effect of
Order 23, Rule 1, I do not consider that it can be read as giving rise to an implied or
deemed plea of malice.
44. Section 26 of the 2009 Act provides a new statutory defence of “fair and reasonable
publication” and that defence is pleaded at paragraph 9 of the Irish Times’ defence in
terms already set out above. For ease of reference, section 26 is set out in full in a
Schedule to this judgment.
45. Particulars of this section 26 defence have been sought and provided and, as I have
noted, Mr Quinn accepts that the defence has been properly particularised at this stage.
46. As with the qualified privilege plea in paragraph 8 of the Irish Times’ Defence, the section
26 defence pleaded in paragraph 9 brings into focus the fact that no Reply has been
delivered by Mr Desmond in these proceedings. While the burden is on the Irish Times to
establish the necessary elements of that defence (discussed further below), it is
nonetheless surprising that a Reply has not been delivered joining issue with the pleas
made by the Irish Times on this issue and/or identifying the particular facts and
circumstances by reference to which (on Mr Desmond’s case) it was not fair and
reasonable to publish the article in suit.
47. In any event, Mr Desmond, through the affidavit of his solicitor Mr Darcy, asserts that the
categories of discovery sought by him “are all directly relevant to the question of whether
or not it was fair or reasonable to publish the material in question” and a significant part
of the submissions made by Mr Quinn was directed to showing how the documents being
sought were relevant to the ingredients of the statutory defence. The material available to
the Irish Times and the communications it may have had with other members of the ICIJ
were, he said, relevant to the editorial decision it had made to publish the article about
his client and that was at the heart of the issue of whether the section 26 defence was
available to the Irish Times here. Mr McCullough in response argued that section 26 was
not concerned with the subjective state of mind of the publisher but rather was focused
on the statement published. Thus, Mr McCullough contended, the editorial process was
not relevant and the documents sought were not properly discoverable.
Page 14 ⇓
48. There does not appear to be any significant guidance available from the authorities as to
the scope and effect of the new section 26 defence of fair and reasonable publication. In
broad terms, that defence is similar to the Reynolds defence but there are undoubtedly
Hogan J (with whose judgment Finlay Geoghegan and Peart JJ agreed) observed that
the section is
“… a novel provision which, as we were informed at the hearing of the appeal, has
yet to be successfully invoked in any reported defamation case. The section is
clearly designed to provide a defence for publishers who show that they acted bona
fide and that the publication was fair and reasonable having regard, in particular, to
the matters set out in s. 26(2) of the 2009 Act. Section 26 may be regarded as an
endeavour by the Oireachtas to move away in some respects from the strict liability
nature of the common law tort of libel and to introduce – in, admittedly, some
specific and limited respects – a negligence based standard in actions for
defamation under the 2009 Act. This is reflected, in particular, in s. 26(2)(i) which
requires the court to have regard to the endeavours made by the publisher to verify
the contents of the article in assessing the defence of fair and reasonable
publication.”
Hogan J’s judgment in Meegan emphasises the need to ensure that where section 26 is
pleaded by way of defence, such plea is adequately particularised. It is accepted here that
the section 26 plea has been adequately particularised by the Irish Times.
49. Again, I remind myself that this is a discovery application. It is neither necessary nor
would it be appropriate for the Court to reach any definitive view as to the precise nature
and scope of the fair and reasonable publication defence. On the other hand, it is
necessary to form some view at least as to the general contours of that defence, given
that the parties’ respective positions on the disputed categories of discovery in turn
reflect different views on the scope and effect of section 26.
50. In the first place, it is clear that an essential element of the new defence is that the
defendant must prove that “in all of the circumstances of the case, it was fair and
reasonable to publish the statement”: section 26(1)(c). While section 26(2) structures
how the court (which in relation to a defamation action in the High Court means the jury,
if the court is sitting with a jury) should determine whether it was fair and reasonable to
publish, it is important to note that section 26(2) does not limit the matters that the court
is to take into account. To the contrary, section 26(2) very clearly provides that the court
“shall .. take into account such matters as the court considers relevant”. I would add that
it is not open to a defendant, by its pleading, to circumscribe what it is required to
establish by section 26. In all cases, what must be shown by a defendant is that “in all of
the circumstances of the case, it was fair and reasonable to publish the statement”
(emphasis added)
51. The matters to be taken into account include the matters specified at section 26(2)(a) to
(j). These cover a wide variety of matters, some directed to the substantive content of
Page 15 ⇓
the statement/publication at issue ((a), (b), (c) (at least in part), (d) and (h)) but others
appear to be directed to the circumstances in which the statement is published ((c)
(insofar as it refers to the context of the statement) (e), (i)) and/or the background to
publication ((f), (g) and (j)). Some of these matters are more open-ended than others.
Thus, for instance (f) and (g) prima facie involve a potentially broad inquiry as to the
extent to which the publication of the statement complained of adhered to the Press
Council’s standards, which cover matters such as fair procedures and honesty, respect for
rights such as the right to one’s good name and privacy.
52. I accept that, as Mr McCullough submits, many of the matters set out in section 26(2) are
directed to the statement itself. I am not, however, persuaded that the assessment of
whether it was fair and reasonable to publish is confined to a consideration of the
statement. Any such contention would, in my opinion, be inconsistent with the language
of section 26(1)(c) itself as well as being impossible to reconcile with the range of matters
identified (on a non-exclusive basis) in section 26(2).
53. I do not think it can plausibly be said that editorial decisions - in terms of deciding
whether to publish or not and decisions as to when and what to publish – are a priori
excluded from the assessment of whether it was fair and reasonable to publish a
particular statement. Subsection 26(2)(e) specifically addresses the timing of publication
and clearly involves an editorial judgment. The context of the publication, which is
expressly referred to in section 26(2)(c), also potentially involves consideration of
editorial judgment. Section 26(2)(h) also potentially involves consideration of editorial
judgment in terms of decisions as to how to report the plaintiff’s version of events.
Equally – so it appears to me - the actions taken by the journalists involved in the
publication may be relevant to any assessment of the fair and reasonable publication
issue. Section 26(2)(f), (g), (i) and (j) all focus on aspects of the preparation of the
statement in respect of which a defamation action is brought.
54. At the level of general principle, it appears to me that the steps taken by a newspaper in
the preparation of a story for publication and the editorial decisions that determine
whether, when and in what form it is published are potentially relevant – and in many
cases may potentially be of considerable significance - in determining whether it was fair
and reasonable to publish. As Cox & McCullough note (at 14-217)“[e]vidence will almost
certainly be required to establish that it was fair and reasonable to publish the statement,
with particular reference to the list of matters set out to be considered for those purposes
in section 26(2) of the Act” and, where such evidence is given, it seems to me that
editorial decision-making must, in principle, be a legitimate area of inquiry in examination
and/or cross-examination
55. Separately, section 26(1)(a)(i) requires the publisher to prove that the statement at issue
was published in “good faith.” As Maher notes (at para 9-63) it appears that “defendants
may be expected to go into evidence in order to demonstrate their ‘good faith’ and stand
over not just the pre-publication procedures followed, but their state of mind at the time
of the publication.” The same point is made in Cox & McCullough (at 14-217).
Page 16 ⇓
Interestingly, in this context Maher also notes that pleading a section 26 defence “can
‘open the door’ to discovery by which the plaintiff may have access to the notes, emails
and other material of the defendant relating to the period prior to publication” which
observation is consistent only with a view that the section 26 defence may involve
scrutiny of the pre-publication/editorial process to scrutiny.
56. Maher makes this explicit in its discussion of discovery and journalistic privilege:
“A defendant pleading a section 26 defence may be required to give detailed
particulars of how the offending statement was prepared and published, and may
be directed to make discovery of documents and relevant material generated during
that process. In addition to the normal privilege claims available to defendants
facing discovery orders, media publishers may wish to claim journalistic privilege
over reporter’s notes and other preparatory material, such as memos created when
journalists were first assigned their tasks, or early drafts of the impugned
publication created in the editing process.”
57. Cox and McCullough is to the same effect, with the authors noting that “[w]here there is a
plea of s 26 of fair and reasonable publication on a matter of public interest, there may be
a requirement to discover journalists’ notes and other material relating to the issue of
whether or not it was fair and reasonable to publish the statement concerned.” While in
his judgment in Meegan v Times Newspapers Ltd Hogan J noted that no authority is cited
for that statement, it appears to me that, as a matter of principle, it is plainly correct,
having regard to the terms of section 26 which I have already discussed.
58. I should say that I agree with Mr McCullough that those elements of section 26 that
require consideration of the public interest and/or public benefit – and I am here referring
specifically to section 26(1)(a)(ii) - involve an objective assessment by the court (or,
where relevant, a jury). Without going so far as to suggest that documents in the
possession of the publisher may be never be relevant to such issues, documents directed
to the publisher’s assessment of and/or subjective views on those issues are unlikely to
be relevant to the resolution of any issue under section 26(1)(a)(ii) – though such
documents may be relevant to other elements of the section 26 defence.
59. It does not follow - and I do not intend to suggest – that, whenever a section 26 defence
is pleaded by a publisher, journalists’ notes and other such material relating to the pre-
publication/editorial process will be ipso facto be discoverable. As Hogan J emphasised in
Meegan, for such material to be discoverable, the plaintiff must satisfy the court that it is
both relevant and necessary having regard to the particular defence being pursued: para
12. In other words, as in any discovery application, the party seeking discovery has the
burden of establishing that the documents sought are relevant and necessary by
reference to the issues actually in dispute in the proceedings. Where a section 26
defence is pleaded, it may be that journalist’s notes and such will be relevant and
necessary and thus discoverable but that will not necessarily be the case.
Page 17 ⇓
60. I note in passing that in Walsh v News Group Newspapers the defendant newspaper
accepted that a variety of categories of document – including documents relating to the
preparation and publication of the article at issue and the inquiries and investigation
undertaken by the defendant – were accepted to be discoverable by the defendant and O’
Neill J was satisfied that such documents could be of considerable advantage to the
plaintiff in advancing his case, inter alia, in attacking the section 26 defence relied on by
the defendant: para 11. The Judge also considered that the documents were relevant to
the claim made by the plaintiff in those proceedings for aggravated and/or exemplary
damages. Similar discovery was ordered by this Court in Meegan v Times Newspapers
Limited (though that order was overturned by the Court of Appeal effectively on the basis
that it was premature in the absence of adequate particulars of the defendant’s section 26
defence), in Ryanair Limited v Channel 4 Television Corporation and in Kean v
Independent Newspapers. In all of these proceedings, the defendant relied (inter alia)
on the section 26 defence.
61. Finally, there are, of course, other issues arising from the pleadings in addition to those
arising from the Plaintiff’s claim in defamation. Mr Desmond sues for breach of his rights
to privacy and breach of confidence, to which the Irish Times responds by denying that
the information published was either confidential or private but also pleading that, in any
event, the public interest in disclosure outweighed any private interests of Mr Desmond. I
agree with Mr McCullough that any issue of whether publication of the material was
justified in the public interest is an objective one and accordingly that documents directed
solely to the publisher’s assessment and/or belief as to where the public interest lay in a
given case are unlikely to be discoverable. I did raise the question whether, given that Mr
Desmond asserts that the material provided to the Irish Times is confidential to him, he
might be entitled to be told precisely what information the Irish Times was provided with
and/or had access to which related to him. In response, Mr McCullough pointed out that
no relief directed to the identification or return of that information was included in the
Statement of Claim and that the pleadings were confined to what had been published by
the Irish Times. On that basis, he submitted, the discovery sought (and in particular
category 1) could not be supported by reference to the breach of confidence claim made
by Mr Desmond. I accept that submission, though I would add that the asserted
confidential nature of the information provided to the Irish Times appears in any event to
be potentially relevant to the section 26 defence pleaded by it.
The Disputed Categories
Category 1
All documentation supplied to the Defendant, either by the ICIJ, the Süddeutsche Zeitung
or otherwise relating to the Plaintiff and reviewed, relied upon, quoted from or otherwise
considered as part of the series of articles referencing the Plaintiff, as referred to in the
Statement of Claim.
62. I have already summarised the parties’ respective positions regarding this category.
There is no doubt that the rationale advanced for the discovery of this category of
documents has shifted somewhat as between the initial letter of request, the grounding
Page 18 ⇓
affidavit and the submissions made at hearing though perhaps not to a greater extent
than is common in applications of this kind. It has been evident to the Irish Times at least
since it received the Affidavit of Mr Darcy in or about March 2019 that in relation to this
and the other categories being sought, the major emphasis was on its relevance to the
qualified privilege defence and, particularly, the fair and reasonable publication defence
being relied on by the Irish Times, as well as the claim for aggravated and/or exemplary
damages.
63. I am, however, more concerned by the absence of a Reply. I have considered whether it
might be appropriate to decline to rule on the application for discovery until a Reply is
delivered. Something like that approach was taken by the Court of Appeal in Meegan,
though the issue there was the failure of the plaintiff to seek appropriate particulars of the
section 26 plea made by the defendant, rather than any failure to deliver a Reply.
Ultimately, however, I have concluded that the parameters of the central issues between
the parties, and in particular the issues arising in connection with the section 26 defence,
are sufficiently clear to enable me to determine whether the categories being sought are
relevant and necessary and to avoid any risk that any order for discovery made here
would have the flavour of an order for general discovery. That being so, and having
regard to the fact that the application for discovery was fully argued before me over a full
hearing day, I do not think that it would be in the interests of either party not to
adjudicate on the application now.
64. In my opinion, discovery of this category is relevant and necessary. I have reached that
conclusion because a key issue in the proceedings is whether it was fair and reasonable to
publish the article complained of by Mr Desmond. While no Reply has been delivered on
his behalf, it is clear from Mr Desmond’s Statement of Claim that he is contesting the
decision to publish an article based on (confidential) information relating to him, which
information (he says) did not disclose any wrongdoing on his part and which article (he
says) was defamatory of him by effectively connecting him in the public mind to the
unlawful activities disclosed by the Panama Papers. Mr Desmond also relies on these facts
(as he says they are) for the purposes of seeking aggravated and/or exemplary damages.
The Irish Times has pleaded that it was fair and reasonable to publish the statements of
which Mr Desmond complains and that they were published in good faith. Even in the
absence of a Reply, it is clear from the Statement of Claim that these pleas are the
subject of intense dispute.
65. In these circumstances, the decision to publish the statements complained of by Mr
Desmond is clearly going to be the subject of significant debate at trial. That being so, it
seems to me that it is relevant for Mr Desmond to know what material relating to him was
provided to the Irish Times. What material was available, what material was selected for
inclusion in the article the subject of the proceedings and what material it was decided to
omit are all matters which potentially bear on the fairness and reasonableness of the
publication and thus on the Irish Times’ section 26 defence in these proceedings, as well
as being relevant to the issue of aggravated and exemplary damages.
Page 19 ⇓
66. As regards the question of whether such discovery is necessary, Tobin v Minister for
Defence makes it clear that once relevance is established, it remains the default position
that discovery of the document(s) concerned should be regarded as necessary: per Clarke
CJ at para 7.16. That default position can, of course, be displaced. But no argument has
been made here to the effect that, even if I were to take the view that this category was
relevant, I should nonetheless refuse to direct its discovery on the basis that such
discovery is not necessary. It has not been suggested that Mr Desmond has any other
means of ascertaining what information relating to him was provided to the Irish Times
and, absent discovery of category 1, he will remain unaware of what information was
provided and the extent to which the published information reflected editorial selection.
67. Accordingly, I will direct discovery of category 1. As I have already made clear, that is
without prejudice to any objection to inspection/production which the Irish Times
considers it appropriate to make.
Category 2
(a) All documentation concerning all efforts made by the newspaper to contact the
Plaintiff or his representative for comment, to include all notes made of any
discussions had or any communication received prior to publication.; and
(b) All documentation to include notes of or concerning any editorial decisions relating
to the publication of the portion of the article by Colm Keena and Ciaran D’Arcy
concerning the Plaintiff which appeared in the 7th April 2016 edition of the
Defendant’s newspaper to include all earlier drafts.
68. As to (a), there appears to be no suggestion that the Irish Times made contact, or
attempted to make contact, with Mr Desmond or Ms McNulty (or any other representative
of Mr Desmond) other than by means of the two emails to which Ms Veldon refers in her
affidavit. The only issue appears to be whether the Irish Times fairly reported what was
said by Ms McNulty on Mr Desmond’s behalf. Accordingly, in my opinion there is no basis
for directing discovery of category 2(a).
69. As regards 2(b), this appears to me to be relevant to the issue just mentioned, namely
whether Ms McNulty’s statement was fairly reported. It will be recalled in this context that
section 26(2)(h) of the 2009 Act specifies as one of the matters that a court should take
into account in deciding whether or not a section 26 defence is made out is “the extent to
which the plaintiff’s version of events was represented in the publication concerned and
given the same or similar prominence as was given to the statement concerned.” It would
have course be open to Mr Desmond and his legal team at trial to conduct an exercise of
comparing the relevant part of the article with the statement provided by Ms McNulty.
However, it appears to me that the editorial decision that resulted in Mr Desmond’s
position being recorded as it was is in itself relevant to the issue of whether it was fair
and reasonable to publish the article in the form in which it was published and, given that
discovery is the only means by which information regarding that decision can be obtained
by Mr Desmond, I consider it appropriate to direct discovery of category 2(b), in the more
Page 20 ⇓
limited form suggested by Mr Quinn which (with some additional changes I have made for
the sake of clarity) is set out below:
“All documentation to include notes of or concerning any editorial decisions relating
to the publication of that portion of the article by Colm Keena and Ciaran D’Arcy
(which appeared in the 7th April 2016 edition of the Defendant’s newspaper) that
referred to the response of the Plaintiff’s spokesperson, to include all earlier drafts
of that portion of the article.”
Again, this order is without prejudice to any objection to inspection/production which the
Irish Times considers it appropriate to make.
Category 3
All documentation relating to, recording or evidencing the knowledge of the Defendant, its
servants or agents as to the origins of the Panama Papers and specifically, the
data/files/documents received by the Defendant and relating to the Plaintiff or his
associated companies.
70. This category was substantially agreed. Mr McCullough very sensibly indicated his client’s
willingness to discover “all documentation recording the knowledge of the Defendant, its
servants or agents as to the origins of the Panama Papers that relate to the Plaintiff or his
associated companies.” Mr Quinn submitted that this was perhaps too narrow and
suggested the retention of the reference to “or evidencing”. That seems reasonable.
Accordingly, I shall direct discovery of the following category:
“All documentation recording or evidencing the knowledge of the Defendant, its
servants or agents as to the origins of the Panama Papers that relate to the Plaintiff
or his associated companies.”
For the avoidance of doubt, this order is without prejudice to any objection to
inspection/production which the Irish Times considers it appropriate to make.
Category 4
All documentation relating to any discussions or communications as between the
Defendant and other journalists (including without limitation, other members of the
International Consortium of Investigative Journalists (ICIJ)) and/or with the persons who
supplied to the Defendant the leaked material concerning the Plaintiff, relating to the
identification of material considered to be relevant to Ireland and specifically relating to
the Plaintiff and showing or attempting to show the reasons why that material was
selected for publication and/or considered to be in the public interest.
71. I am not satisfied that this category is relevant to any of the issues arising in these
proceedings nor am I satisfied that discovery of this category of documents is necessary
for the fair disposal of the proceedings or for the purpose of saving costs.
72. In the first place, I agree with Mr McCullough that the issue of whether publication of the
disputed article was (as the Irish Times asserts) in the public interest, is a matter for
Page 21 ⇓
assessment by the court. The subjective views of the Irish Times itself, and/or of other
members of the ICIJ involved in the Panama Papers exercise, do not appear to me to be
relevant to that assessment. Secondly, and in any event, this aspect of the application
must fail because it is wholly speculative. I am effectively asked to infer that other
members of the ICIJ had an input into the decision of the Irish Times to publish the article
the subject of these proceedings. There is no basis for any such inference in the material
that has been put before me. Equally, there is no basis for any inference that other
members of the ICIJ might have communicated a view to the Irish Times that the
material relating to Mr Desmond was not such as to warrant public disclosure. It may be
that the documents relating to Mr Desmond were brought to the attention of the Irish
Times by others involved in the analysis of the Panama Papers but that falls far short of
providing a basis for directing the discovery of this category of documents in my view.
73. Accordingly, the Plaintiff’s application is successful to the extent that I am directing
discovery of category 1, category 2(b) (in modified terms) and – effectively by consent –
category 3 (again in modified terms). I refuse discovery of category 2(a) and category 4.
I will hear the parties as to any consequential matters.
SCHEDULE – SECTION 26
26(1) It shall be a defence (to be known, and in this section referred to, as the “defence of fair
and reasonable publication”) to a defamation action for the defendant to prove that
(a) the statement in respect of which the action was brought was published
(i) in good faith, and
(ii) in the course of, or for the purpose of, the discussion of a subject of public
interest, the discussion of which was for the public benefit,
(b) in all of the circumstances of the case, the manner and extent of publication of the
statement did not exceed that which was reasonably sufficient, and
(c) in all of the circumstances of the case, it was fair and reasonable to publish the
statement.
(2) For the purposes of this section, the court shall, in determining whether it was fair and
reasonable to publish the statement concerned, take into account such matters as the
court considers relevant including any or all of the following:
(a) the extent to which the statement concerned refers to the performance by the
person of his or her public functions;
(b) the seriousness of any allegations made in the statement;
(c) the context and content (including the language used) of the statement;
Page 22 ⇓
(d) the extent to which the statement drew a distinction between suspicions,
allegations and facts;
(e) the extent to which there were exceptional circumstances that necessitated the
publication of the statement on the date of publication;
(f) in the case of a statement published in a periodical by a person who, at the time of
publication, was a member of the Press Council, the extent to which the person
adhered to the code of standards of the Press Council and abided by determinations
of the Press Ombudsman and determinations of the Press Council;
(g) in the case of a statement published in a periodical by a person who, at the time of
publication, was not a member of the Press Council, the extent to which the
publisher of the periodical adhered to standards equivalent to the standards
specified in paragraph (f);
(h) the extent to which the plaintiff’s version of events was represented in the
publication concerned and given the same or similar prominence as was given to
the statement concerned;
(i) if the plaintiff’s version of events was not so represented, the extent to which a
reasonable attempt was made by the publisher to obtain and publish a response
from that person; and
(j) the attempts made, and the means used, by the defendant to verify the assertions
and allegations concerning the plaintiff in the statement.
(3) The failure or refusal of a plaintiff to respond to attempts by or on behalf of the
defendant, to elicit the plaintiff’s version of events, shall not—
(a) constitute or imply consent to the publication of the statement, or
(b) entitle the court to draw any inference therefrom.
(4) In this section
“court” means, in relation to a defamation action brought in the High Court, the
jury, if the High Court is sitting with a jury;
“defamation action” does not include an application for a declaratory order.”