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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Craddock v Raidio Teilifís Eireann and Kavanagh v Raidio Teilifís Eireann [2014] IESC 32 (07 February 2014)
URL: http://www.bailii.org/ie/cases/IESC/2014/S32.html
Cite as: [2014] 1 IR 591, [2014] IESC 32
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Judgment Title: Craddock v Raidio Teilifís Eireann and Kavanagh v Raidio Teilifís Eireann Neutral Citation: [2014] IESC 32 Supreme Court Record Number: 463/13, 464/13 High Court Record Number: 2013 7362 P, 2013 7363 P Date of Delivery: 07/02/2014 Court: Supreme Court Composition of Court: Fennelly J., McKechnie J., Laffoy J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT Fennelly J. McKechnie J. Laffoy J [Appeal No. 462/2013]
Lisa Craddock Plaintiff/Respondent AND
Defendant/Appellant [Appeal No. 463/2013]
Sandra Kavanagh Plaintiff/Respondent AND
Defendant/Appellant JUDGMENT of Mr. Justice Fennelly delivered the 7th day of February 2014. 1. The plaintiffs in these two actions have obtained orders in the High Court for discovery against Raidio Teilifís Eireann (hereinafter “RTE”) in defamation actions. Each plaintiff issued a plenary summons on 16th July 2013 claiming damages for defamation against RTE. They claim that they were defamed in a television programme broadcast to the public on 28th May 2013. Each order, made by Cross J, required discovery to be made in advance of delivery of the statement of claim. 2. The plaintiffs were each employed at the Links Crèche at Abbington, Malahide, County Dublin. The RTE broadcast was called “A Breach of Trust.” It concerned, to use RTE’s description, the standards of care and regulation of crèches. The plaintiffs claim that the programme depicted them as being responsible for mistreatment of children under their care. 4. An appearance was entered in each case but no statement of claim has yet been delivered. The plaintiffs claim that they are unable to prepare a statement of claim without discovery of copies of recordings shown prior to broadcast to parents of children at the crèche. The High Court (Cross J) on 21st October 2013 ordered discovery in each case of:
b) The Recording of the programme that was in fact broadcast and any transcript of what was broadcast. 6. RTE has appealed against the orders of Cross J. It says that an order of this type has potentially serious implications for RTE generally in litigation which frequently arises from the carrying out of its broadcasting function. 7. The matter was brought before this Court pursuant to motions for a stay of execution of each of the orders pending the hearing of the appeal. However, the parties are agreed that the hearing of the motions can be treated as the hearing of the appeals. This judgment, therefore, disposes of the appeals. Furthermore, the parties have reached agreement for the provision of copies of recordings of the programmes as broadcast. This judgment does not, therefore, need to deal with paragraph b) of the High Court orders. Nothing said in this judgment should be taken as expressing any view as to the correctness of that part of the order. 8. It is, of course, unusual for a court to grant an order for discovery prior to delivery of a statement of claim. The normal rule is that discovery may not be sought until after the pleadings have been closed. The rationale for that rule is that the purpose of discovery is to enable a party to have access to documents in the possession of the opposing party which are relevant to the issues in the case, but that the issues in contention between the parties will not have been identified until the pleadings have been closed. It is, therefore, necessary to explain the context in which the matter arises in this case. 9. There was considerable correspondence and interaction prior to the broadcast on 28th May 2013 between the plaintiffs and their solicitors, on the one hand, and RTE and its solicitor on the other. The factual circumstances of the two plaintiffs are similar but not identical. Ms. Kavanagh was shown in the recording shown to parents but, unlike Ms. Craddock, did not appear in the programme as broadcast to the public. 10. RTE prepared the broadcast based on the work of an under-cover journalist. On 20th May 2013, a journalist in the RTE Investigations Unit wrote separately and directly to each of the plaintiffs at the address of the Links Crèche. These letters were received on the evening of 21st May. The journalist said that she was working on a programme about standards of care and education in pre-schools and crèches in Ireland. She said that the programme was due to be broadcast in the week beginning Monday, 27th May. The letter accused each plaintiff, in identical terms, of acts of mistreatment of children at the crèche. In fairness to both parties, as the litigation is pending, I do not here give any details of those allegations. 11. From 22nd May, Robert Dore & Company commenced correspondence with RTE on behalf the plaintiffs and there was an extensive exchange of letters with the RTE solicitor’s office. It appears from the letter of 22nd May that the plaintiffs were personally shown part of the footage and that they asked for a copy of that footage so that they could consult their legal advisers but were refused. I will limit references the correspondence to matters which bear on the question of discovery and will not refer to the other issues in the contentious correspondence, such as complaints of the defamatory character of the broadcast, requests for deletion of material, demands for apology, all potentially relevant to the main action. It emerges expressly or implicitly from the exchange of correspondence that on more than one occasion parts of the material it was intended to broadcast were shown to groups of parents of children at the crèche. 12. On 23rd May an early version of part of the programme was shown to the plaintiffs together with their solicitor and counsel at the RTE studios at Montrose. Their solicitors demanded a copy of the entire of the film footage recorded by the undercover reporter. On the same day RTE responded to say that a request to view the entire footage was excessive and offered to show the solicitors only the footage concerning the plaintiffs. The solicitors rejected this offer and twice demanded a DVD of the entire programme. It appears that, on 24th May, groups of parents were to be invited to RTE at Montrose to view the programme. By a letter of that day, the plaintiffs’ solicitors reiterated their demand for a DVD of the entire programme it was intended to broadcast. 13. On 24th May, RTE’s solicitor told Dore & Company that it was intended to pixelate /blur the images of the plaintiffs. Dore & Company replied and demanded that they be given notice of when it was intended to broadcast the programme. RTE replied that the broadcast would take place on Tuesday 28th May at 9:30 pm, which indeed it did. 14. Writing on 31st May, Dore & Company said that there had been changes in the programme as broadcast as compared with what had been “shown to our client and their legal advisers on Thursday last 23rd May in Montrose.” That letter noted that the images of Ms Craddock had been pixelated but that the footage relating to Ms. Kavanagh had not been shown in the broadcast. In the same letter, Dore & Company demanded, inter alia, the following material:
• A disk of what had been shown to parents in Malahide; • A disk of what had actually been broadcast.
b) The Recording of the programme that was in fact broadcast and any transcript of what was broadcast.
A version of the portion of the programme concerning the Plaintiff intended to be broadcast nationally was shown to the Plaintiff and her legal advisors in Montrose on 23 May 2013. What was shown to the Plaintiff on that occasion differed significantly from that programme that was broadcast. The Plaintiff has repeatedly requested of the Defendant sight of the programme shown to the parents, which requests have been refused. The Defendant has refused to confirm or deny whether or not the programme shown to the Plaintiff and her advisers was what was shown to the parents of the children attending Links Abbington, Malahide.” 16. The solicitor fro RTE, by letter of 25th July 2013, characterised the request for voluntary discovery as “premature and inappropriate.” The letter continued: “My client must respect the rights of parents and children and Discovery, if appropriate, can only follow in the ordinary way and by Order of the Court.” 17. Each of the plaintiffs applied to the High Court for an order for discovery pursuant to Order of 31, Rule 12 (1) of the Rules of the Superior Courts or to the inherent jurisdiction of the courts. 18. The grounding affidavit was sworn on behalf of each plaintiff by Mr Robert Dore. In the case of Ms. Kavanagh, he said that the plaintiff had been “defamed in what was shown to parents and possibly others prior to the national broadcast of the “Breach of Trust” programme.” He also contended that, although that plaintiff was not shown in the actual broadcast, it was, nonetheless, defamatory of her in relation to persons to whom the material had been shown earlier. In the case of Ms Craddock, Mr Dore said that the defamation had been both in what was shown to the parents in advance of the broadcast and in the actual broadcast. He said that the plaintiff and her advisers had no way of knowing what had been shown to the parents. In each case, Mr. Dore said that he had been advised by counsel that “access to and sight of the material shown to the parents, as well as what was broadcast nationally is necessary to enable the plaintiff's legal advisors properly to draft a statement of claim…” 19. RTE did not file any affidavit in the High Court in reply to Mr Dore’s affidavit in either case. 20. The Court does not have the benefit of a written judgment from Cross J and must work from an agreed note of counsel approved by the learned judge. Insofar as it is possible to discern, the principal focus of the arguments for the plaintiffs was that they did not know what had been shown to parents. It was submitted that this showing to parents was “almost even more important” than what was broadcast. It was submitted that it was possible to prepare a rudimentary statement of claim which would be wholly undesirable, since it would have to be amended later. For RTE, it was submitted that the case was one of general importance in view of the frequency of defamation claims. A discovery order before statement of claim could only be justified by extraordinary circumstances. It was contended that the plaintiffs’ legal advisers were already clear about the basis of the claim for defamation. Reference was made to the undertaking given to the parents that the broadcast would not be available on RTE Player and the interest of the Gardai and the HSE. 21. Cross J said that it was well settled law that very exceptional circumstances would be required before the court would depart from the generally accepted rule. He referred to the fact that the film had been shown, not merely to the public, but also to the parents. He said that this was an exceptional case, apparently on the basis that the plaintiffs would almost certainly have to come back and redraft the statement of claim. 22. In dealing with this appeal it is important to start from a restatement of the ordinary rule. That is that discovery will not be granted prior to the close of pleadings. That is because it is not possible for the parties to know until that point what the issues are. The plaintiffs justify their application on the basis that, without access to the actual recording of the alleged defamatory material, it is not possible to draft the statement of claim. At least, that is the implicit underlying justification. Certainly, the point is made repeatedly and forcefully and, to my mind, justifiably that a version or versions of the “Breach of Trust” programme was shown on one or more occasions to a group or groups of parents and that neither the plaintiffs nor their advisers were in a position to know what part or parts of what was ultimately broadcast to the general public was shown on those occasions. RTE, for its part, has been less than forthcoming in its response to requests for information made by Dore & Company seeking detail on this point. 23. In the light of these comments, I turn to consider the authorities. 24. It is common case that, in the absence of exceptional circumstances, discovery will not be ordered until the pleadings are closed. Each of the recent Irish cases which the parties have cited adopt with approval the principle as it is stated in Gayle v. Denman Picture Houses Limited [1930] K.B. 588. In that case, at p. 590, Scrutton L.J. said:
28. The parties also cited this Court’s decision in L(A) v N(M) (Supreme Court, unreported, 4th March 2002). In that case, in which the leading judgment was delivered by Murphy J, the Court set aside an order for discovery before statement of claim which had been made by the Master and affirmed, on appeal, by Smith J in the High Court. The claim was for damages for alleged sexual assault by a priest in the confessional. The High Court judge had noted that the named defendants, who did not include the accused priest, were being sued in their representative capacity as representing the priests of the diocese in question, although, as Murphy J pointed out, that fact could not be identified from the plenary summons. The apparent object of seeking discovery was to identify the culprit (the priest in the confessional). Murphy J was sceptical as to whether this could be done on the basis of the material placed before the court. He reiterated the principle that “an order for discovery should not be made until pleadings are closed save in exceptional circumstances.” 29. I turn to apply these principles to the facts of the present case. I will begin with RTE. It cannot make any difference that RTE, as the national broadcaster is regularly and frequently faced with defamation actions. That is, of course, true of any media outlet whether producing written or broadcast material. The question before the Court is whether the plaintiffs have established exceptional circumstances. I am also unimpressed by the reasons provided in writing originally by RTE. The fact that either the Gardaí or the HSE wished to conduct enquiries cannot affect the rights of the plaintiffs, if they have rights, to have copies, which is all they were seeking, of the relevant recordings. Equally, I fail to see how RTE’s undoubted and entirely proper respect for the parents of the children could enter into the matter. 30. On the other side, I accept that the plaintiffs had made a clear and consistent argument that they should be entitled to access to what was variously described as footage, a DVD or a recording of what was shown to the parents. Assuming the material to have been defamatory (upon which, of course, I express no view), they are entitled to claim damages for defamation. RTE has sought to argue that there is no difference between the broadcast programme and what was shown to the parents. There do, nonetheless, appear to have been some differences between the different versions. For example, Ms Kavanagh does not appear in the broadcast programme at all. In an affidavit sworn for the purpose of the appeal, RTE has sought to maintain that “there had at all times been only one version of the programme, which version was subject to editing on an ongoing basis.” However, in a letter of 31st October to the plaintiffs’ solicitors it was stated that an additional 30 seconds of footage featuring Ms Craddock speaking I the staff room, was shown to a wider group of parents in the weekend prior to transmission.” In any event, the plaintiffs are not obliged to accept the assurances of the defendant on the point. RTE placed no affidavit before the High Court. It has relied upon the general importance of the matter for RTE, the interests of the Gardaí, the HSE and the parents. 31. I have come to the conclusion that this case qualifies as being sufficiently exceptional to justify the making of an order for discovery of the recordings shown to the parents prior to the delivery of the statement of claim. I reach that conclusion for two principal reasons. Firstly, there is uncontradicted evidence on behalf of the plaintiffs that they have no means of knowing what version of the programme was shown to the parents on any of the occasions on which RTE showed it to them. In the case of Ms Kavanagh, in particular, the showings to the parents may be the only, or at least the principal, occasion on which the alleged defamatory material concerning was disseminated. Secondly, and crucially there is a sharp and obvious distinction between written and broadcast material when it comes to drafting a statement of claim. It is unrealistic to expect a solicitor to be able to instruct counsel with sufficient accuracy to enable a clear and cogent pleading to be prepared where the alleged defamation takes the form of a visual and audio recording and the solicitor is not in possession of any recording of what was transmitted. This situation is quite different from the case of written defamation, as in a newspaper. There the solicitor places the text before counsel and instructs him to draft the statement of claim. It is true that, in the present case, the solicitors for both plaintiffs had the benefit of watching the programme as broadcast. However, the crucial fact is that they had no sight of what was shown to the parents. 32. For these reasons, I would uphold the decision of the High Court and dismiss both appeals.
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