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Cite as: [1999] IESC 21

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Harris v. Fagan [1999] IESC 21 (22nd January, 1999)

Hamilton C.J.

Lynch J.

Barron J.

162/96

THE SUPREME COURT

BETWEEN/

ANTHONY HARRIS

Plaintiff/Respondent

and

STEPHEN FAGAN

First Defendant/Appellant

and

RORY BURGESS

Second Defendant

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JUDGMENT delivered on the 22nd day of January 1999 by LYNCH J. [Nem. Diss.]

1. This is an appeal by the first defendant against an order of the High Court (Morris J.) made on the 13th of May 1996 whereby he set aside an order of the Master of the High Court of the 18th of January 1996 made on the application of the appellant whereby the Master had ordered the plaintiff/respondent to make discovery

“of the documents which are or have been in his possession or power relating to the matters in question in this action and in particular the documents referred to at paragraph 5 of the said affidavit of Stephen Fagan filed on the 6th day of December 1995 - the affidavit on behalf of the plaintiff to be made personally.”

2. The respondent’s action is for damages for slander alleged to have been committed by the defendants on the 22nd September 1992 in the Village Inn, Crumlin at the public inaugural meeting of the Crumlin

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3. Development Group. A number of different slanders are alleged by the respondent to have been uttered in the course of and following the conclusion of the said meeting. In paragraph 8 of the statement of claim the respondent alleges that the various slanders meant in short that he was an incompetent and negligent solicitor. The appellant denies that he uttered any of the said slanders save for one namely:

“Mr. Harris, you know who I am. What I want to know is what you are doing here and why you are showing such a newfound interest in the environment of Crumlin when you are only just moving into the village. I also want to know whether the people of Crumlin know your motives for being on this committee and your history. I grew up in Crumlin and lived here all my life.”

4. The appellant then denies that the said words bore or were understood to bear or were capable of bearing or being understood to bear

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any of the meanings set out in paragraph 8 of the statement of claim or any meaning defamatory of the plaintiff as alleged or at all. He also goes on to plead:

“Further, or in the alternative, the said words were true in substance and in fact.”

5. In support of his motion for discovery the appellant swore an affidavit on the 16th August 1995, paragraphs 3 and 4 of which are as follows:

“3. I say that the plaintiff claims at paragraph 13 of the statement of claim delivered herein on the 3rd August 1993 that he has suffered and continues to suffer loss and damage. I say that I am advised by my solicitors Messrs L.K. Shields and Partners of 31 Merrion Square, Dublin 2 that it is essential to the proper defence of the plaintiff’s claim that I obtain sight of all records of the plaintiff’s alleged loss and damage.

4. I say that I am further advised by my solicitors that it is particularly essential to the proper defence of the plaintiff’s

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claim that I obtain sight of all records of the plaintiff in respect of all his dealings with your deponent, my wife, May Fagan (nee Malone) the second-named defendant and all or any companies of which your deponent was a director or shareholder and sought legal advice or legal service from the plaintiff.”

6. Before the application for discovery was heard by the Master the appellant swore a further affidavit on the 6th December 1995 paragraphs 3 and 5 of which are as follows:

“3. The plaintiff acted as solicitor for the first and second-named defendants herein in both a personal capacity and in their capacity as directors of Greendale Developments Limited. The plaintiff also acted in a personal capacity on behalf of my wife, May Fagan (nee Malone) and also advised on matters relating to Greendale Developments Limited of which she was a one third shareholder.

5. On the 28th March 1995 my present solicitors Messrs L.K. Shields and Partners received the file and papers from Rosemary Ryan and Company and advised that for the purposes of

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defending the plaintiff’s claim on the basis of the defence already delivered on my behalf steps urgently be taken to obtain sight of all documents, memoranda, instructions, advices and attendances in the possession, power or procurement of the plaintiff in relation to the activities of the plaintiff in his capacity as solicitor for the defendants, May Fagan (nee Malone) and Greendale Developments Limited in particular (but without prejudice to the generality of the foregoing) the activities of the plaintiff in relation to:

(a) proposed acquisition (in trust) by me and May Malone of premises known as Bridgewater House from Greendale Developments Limited:

(b) All activities of the plaintiff while acting as solicitor to Greendale Developments Limited a company of which I was the Chairman and Managing Director and in which I and May Malone each owned one third of the issued shared capital:

(c) All activities of the plaintiff in relation to the allegation made by the plaintiff in Circuit Court proceedings entitled ‘May Malone, plaintiff and Anthony Harris, defendant Circuit Court Record No. 800 7/1993 that a fire which

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occurred on or about the 18th day of October 1991 was caused by the deliberate acts of May Malone or of her servants or agents or other persons acting in consort with her, their servants or agents and constituted a trespass against the property of the plaintiff herein.”

7. The Master of the High Court made the order already quoted on the 18th January 1996. The respondent then brought a motion dated the 30th January 1996 pursuant to 0. 63, r. 9 of the Rules of the Superior Courts to discharge the order of the Master of the High Court and in support of this application the respondent swore an affidavit on the 30th January 1996 in which at paragraphs 2,3 and 4 he says:

“2. I say and believe that I have made it clear to the first defendant herein and to his then solicitors that I make no claim for special damages in the action herein including specifically no claim for loss of any earnings arising out of the matters herein complained of

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3. I say and believe that the first-named defendant herein does not plead justification in respect of any of the matters complained of and set forth in the statement of claim herein save those words which the defendant rephrases and sets forth at paragraph 3 of his defence herein.

4. I say and believe that in the circumstances where the first defendant does not plead justification and in fact denies that he spoke the said words that it is not open to him to bring discovery herein in order to peruse and trawl through documentation in my possession in order to ascertain whether or not he ought to have pleaded justification in respect of same or for any other reason.

The learned High Court judge in a short ex tempore judgment on the 13th May 1996 said:

“The order made by the learned Master of the High Court on the 18th January 1996 should be reversed. None of the documents which are sought bear on the issues of the case. I acknowledge the Shell v. Dan Ryan case referred to by counsel for the first

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defendant but that principle must be construed within the issues of the case. In relation to justification, I hold that the justification which is pleaded in this case, is not wide enough to allow the discovery sought.”

THE SUBMISSIONS

8. Counsel for the appellant submitted that the appellant was entitled to an order for discovery in relation to the matters pleaded as true. He laid emphasis on the fact that the words “and your history” were included in the plea of justification. The appellant was a former client of the respondent. He was not seeking to trawl through all the respondent’s files relating to the business of the appellant, his wife and Greendale: he sought discovery only of the three files mentioned in his affidavit. Counsel referred to B. v. B. [1975] IR 54 at p. 65; Irish Shell Limited v. Dan Ryan Ltd. and Esso Ireland PLC ,(unreported, Costello P. 22nd April

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1996); Sterling Wenthrop Group Limited v. Farbenfabriken Bayer [1967] IR 97; Galvin v. Graham Twomey [1994] 2 ILRM 315 at 318 .

9. Counsel for the respondents submitted that the main purpose of the application for discovery in this case was to delay the trial of the plaintiff’s action. The application was first brought in November 1995 when the case was already in the list to fix a date for the trial and since the notice of appeal of the 28th May 1996 was served the respondent has had to bring two motions to dismiss for want of prosecution in order to compel the appellant to lodge the necessary books of appeal.

10. The issue is whether the words are defamatory or not. The admitted words are denied to have any defamatory meaning such as pleaded in paragraph 8 of the statement of claim relating to the competence of the respondent as a solicitor. The decided cases do not

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contemplate that discovery should be ordered solely for the purposes of cross-examination as to credit.

11. Counsel referred to Matthews and Malek on Discovery at paragraphs 4.26 and 4.27.

CONCLUSIONS

12. The plea of justification in this case is as to words which without the meanings attributed to them by the respondent in paragraph 8 of the statement of claim are not defamatory in themselves. It is clear for example that the respondent did know who the appellant was. Counsel for the appellant however emphasises the inclusion in the passage quoted above of the words “and your history”. He seems to be suggesting that the plea of justification so far as it relates to those words amounts to a justification of the meanings set out in paragraph 8 of the statement of claim. If that was the intention of the appellant it should have been

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plainly pleaded that the respondent was an incompetent and negligent solicitor. That could have been quite simply done by pleading that the said words including the meanings attributed to them in paragraph 8 of the statement of claim (or such of those meanings as the appellant chose to stand over) were true in substance and in fact. No such clear and specific plea is included in the defence.

13. It is not acceptable that such a serious plea as a justification of the meaning set out in paragraph 8 of the statement of claim should be sought to be introduced by reliance on such vague words as “and your history” in the passage quoted above. I agree with the learned High Court judge that the justification which is pleaded in this case is not wide enough to allow the discovery sought and I would dismiss this appeal.