Michael McDonnell (plaintiff) v Sunday Business Post Limited, Damien Kiberd and Edward Harding (defendants).

Practice and Procedure - Discovery - Appeal from Master's order granting wide ranging discovery - Libel - Defence of fair comment - Principles to be applied - Whether discovery amounting to a fishing expedition - Rules of Superior Courts 1986.

The High Court (Mr Justice O'Sullivan); judgment delivered 2 February 2000.

The defendant's motion for discovery, issued prior to 3 August 1999, brought in the context of a plea of fair comment in a libel action, did not have to be supported by an affidavit setting out the evidence upon which the defendant intended to rely in establishing the facts referred to in the plea of fair comment, provided that the plea did not offend the principles applicable to discovery or amount to a fishing expedition. In this regard, a fishing expedition is one where there is no stated objective by reference to the pleadings. Where any document came into existence after the date of publication, it was discoverable only if a draft or earlier edition thereof, or working papers in relation thereto, existed at the date of publication.

The High Court so held in making the discovery order sought, subject to some exceptions.

Garrett Cooney SC and James Phillips BL for the plaintiff; Adrian Hardiman SC and Seamus O Tuathail BL for the defendants.

Mr Justice O'Sullivan said that this was an appeal from an order of the Master of the High Court granting wide ranging discovery against the plaintiff.

Mr Justice O'Sullivan said that on 29 March 1998, Sunday Business Post Ltd published a hard hitting, broad ranging attack on the plaintiff regarding his appointment as group chief executive of the Coras Iompair Eireann ("CIE") group of companies and his handling of that position to date. Mr Justice O'Sullivan said that these proceedings, claiming damages for libel, were launched within days and a statement of claim was delivered on 13 May 1998 claiming, in relation to the article, that it was written and published falsely and maliciously, that its tone, thrust and purpose was defamatory of the plaintiff and that it contained a number of specific and non-specific factual inaccuracies and false statements about the plaintiff personally and the manner in which he had discharged his duties with CIE.

Mr Justice O'Sullivan said that the statement of claim detailed no less than 24 assertions which the words in the article meant, or were understood to mean, either directly or by way of innuendo, whereby the plaintiff, it was asserted, was exposed to hatred, ridicule and contempt and seriously damaged in his personal and professional reputation. On 2 July 1998, the defendant served a notice for particulars and, on 5 November 1998, the answers thereto pleaded a further thirty three alleged factual inaccuracies and/or false statements.

Mr Justice O'Sullivan said that, in preparing his judgment, he had read the original article on a number of occasions and the pleadings. He said that, in general, the plaintiff's pleadings challenged the veracity of virtually every statement of fact and claimed innuendo of the entire article, which comprised approximately a half a page of newsprint. The defendants' defence, of 7 January 1999, denied all significant allegations and put everything in issue, save the most innocuous of averments relating to the status of the parties and publication itself, and pleaded fair comment using the "rolled-up plea"["].

Mr Justice O'Sullivan said that on 29 March 1999 the defendants sought voluntary discovery from the plaintiff of 26 categories of documents, many of them wide ranging and, upon refusal brought a motion before the Master which produced the order, itself cast in wide ranging terms, from which the plaintiff appealed. Mr Justice O'Sullivan said he was informed that, in response the plaintiff's complaint as to the breadth of discovery sought, the Master invited the plaintiff to curtail his pleading with a view to reducing the number and breadth of issues in the case, but that the plaintiff had declined to do so.

Mr Justice O'Sullivan said that on 20 July 1999 the plaintiff requested particulars of the defence and the defendants' reply thereto set out 60 assertions in the article which they claimed were true in substance and fact and 55 statements which they claimed were made in good faith and honestly and were matters of public interest.

Mr Justice O'Sullivan said that it was obvious from the pleadings that there would be many documents, and categories of documents, "relating to any matter in question" in the case. He noted that the discovery rules were altered subsequent to the order in issue and that counsel on both sides agreed that the old rules applied to the appeal. Mr Justice O'Sullivan said that the plaintiff submitted as follows:

(1) Before a plea of fair comment is included in a defence, the defendant should have reasonable evidence to support such a plea and, where the defendant seeks discovery, the application should be grounded on affidavit verifying the existence of such reasonable evidence which it was intended to prove at the hearing and which would establish the substantial truth of the facts to be relied upon in support of the plea of fair comment. The plaintiff relied on McDonald's Corporation v Steel [1995] 3 All ER 615.

(2) The discovery sought amounted to a "fishing expedition".

(3) The discovery granted was excessively wide and onerous and thereby unfair to the plaintiff and should, on that account, be refused. (4) There should be a "cut-off date" as of the date of publication.

Mr Justice O'Sullivan said that the defendants' submissions were: (1) The English procedure differed significantly from the Irish procedure, specifically the procedure regarding the exchange of witness statements (whereby the evidence supporting claims made in a defamation case can be identified at an interlocutory stage) does not apply here. The defendants further contended that, an analysis of the McDonald case, making allowances for the difference of procedure, actually demonstrated that a defendant is entitled to rely, inter alia, on evidence discovered by the plaintiff so that, if anything, it supported his entitlement to discovery rather than the reverse.

(2) Once issues have been knit with particularity, as here, then no question of a "fishing expedition" could arise, no matter how multitudinous and comprehensive the issues might be and, in any event, the issues were wide because the plaintiff cast the pleadings widely and declined to narrow them in the discovery application.

(3) The discovery sought was not so onerous as to merit refusal on that account. The defendant cited AIB v Ernst and Whinney [1993] 1 IR 375 wherein, in dealing with a discovery application against a third party, the Supreme Court demonstrated a resolute determination to grant a discovery order in the face of arguments that compliance would be oppressive. The defendants submitted that the court should be all the more wary of the "oppression" argument when it was made by a party to the action.

(4) There should be no "cut-off date" at the date of publication of the article itself, for the reason that documents coming into existence after that date might well help him establish the veracity of the assertions made in the article itself. The defendants also submitted a detailed schedule setting out the paragraphs in the plaintiff's pleadings to which the several categories of documents sought related.

Mr Justice O'Sullivan said that the Court of Appeal in McDonald rejected what was claimed to be the long established rule that a defendant to a defamation action who pleads justification (or fair comment) must give full and precise particulars of the facts and matters on which he relies in support of the plea. He noted, however, that Lord Justice Neill, who delivered the court's judgment, had accepted " . . . that a pleader must not put a plea of justification (or indeed a plea of fraud) on the record lightly or without careful consideration of the evidence available or likely to become available".

Mr Justice O'Sullivan said that, in so doing, the court acknowledged that there would be cases where, provided a plea of justification is properly particularised, a defendant would be entitled to seek support for his case from documents revealed in the course of discovery or from answers to interrogatories. Mr Justice O'Sullivan further noted that Lord Justice Neill subsequently said that he was satisfied that, before a plea of justification is included in a defence, the defendant should have reasonable evidence to support that plea or reasonable grounds for supposing that sufficient evidence to prove the allegations will be available at the trial and that a similar approach should be adopted towards facts which are relied upon in support of a plea of fair comment.

Mr Justice O'Sullivan said that, the decision of the trial judge in McDonald to strike out portions of the defence before dealing with an application for discovery was reversed by the Court of Appeal, which held that the defendant was entitled to rely, inter alia, on evidence contained in documents disclosed by the plaintiff on discovery and, for which reason, it was premature to strike out the defence before the documents were available. Mr Justice O'Sullivan said that the test was whether a particular allegation is incapable of being proved so that Lord Justice Neill was able to say: "I anticipate, therefore, that it will only be in a few cases where it will be possible to say at an interlocutory stage and before full discovery, that a particular allegation is incapable of being proved."

Mr Justice O'Sullivan said that, even taking into account the English procedure, McDonald went no further than saying that before a plea of justification (or fair comment) is included in a defence, the defendant should have reasonable grounds for supposing that sufficient evidence to prove the allegations will be available at the trial, including evidence contained in documents disclosed by the plaintiff on discovery.

Mr Justice O'Sullivan said that the old discovery rules, which applied in the case, explicitly provided that a party could apply for discovery without filing an affidavit and that the affidavit filed in the present case was sworn merely to demonstrate that the plaintiff was requested to furnish discovery before the motion was brought. Mr Justice O'Sullivan cited the Supreme Court decision in Cooney v Browne [1985] IR 185, which concerned a notice for particulars in a similar case, and wherein Henchy J, at page 192, said: "It would, of course, be unfair to require the defendants to make a detailed disclosure of their evidence in advance, but all they are asked to do is to identify the matters in the article which they claim to be matters of fact and to state the facts which they intend to prove at the trial for the purpose of supporting those factual statements in the article. Such disclosure is, in my view, not unfair and indeed is highly desirable, if not necessary, in the interests of a fair trial."

Mr Justice O'Sullivan noted that, while Cooney was not concerned with discovery, Henchy J considered that it would not be fair to a defendant to require it to make a detailed disclosure of its evidence in advance. Mr Justice O'Sullivan said that no authority was opened to him which established that a defendant, in seeking discovery in the context of, inter alia, a plea of fair comment, must support its application with an affidavit setting out the evidence upon which it intends to rely in establishing the facts referred to in such a plea. He said that, subject to such a plea not amounting to a "fishing expedition" or otherwise offending the principles applicable to discovery, he did not agree that the absence of such an affidavit disentitled the defendant to an order for discovery.

As regards the issue of whether the discovery sought amounted to a "fishing expedition", Mr. Justice O'Sullivan cited Bula Limited (in receivership) v Crowley [1991] 1 IR 220 wherein the then Chief Justice, Mr Justice Finlay, acknowledged, at page 223, that before making an order for further discovery, a court should not in particular, permit the opposing party to indulge in an exploratory or fishing operation.

Mr Justice O'Sullivan said that the fact that a discovery may be comprehensive and wide ranging does not mean that ipso facto it is an exploratory or fishing operation. Mr Justice O'Sullivan considered that a fishing or exploratory operation is one where there is no stated objective or delimitation by reference to the pleadings and considered that, generally in the present case, the list of categories of documents sought were capable of being, and in all but one case had been, specifically related to paragraphs in the plaintiff's pleadings. Mr Justice O'Sullivan said that he had gone through this list carefully and could not agree that it bore the hallmarks of an exploration or fishing expedition and that, on the contrary, in the vast majority of instances, specific documents were identified with a reasonable degree of precision.

Mr Justice O'Sullivan was not satisfied that compliance with any order made along these lines would be so onerous as to be unfair to the plaintiff. In this regard, he noted that it was the plaintiff who cast the proceedings broadly and declined the invitation to narrow them in order to limit the scope of discovery. Having acknowledged that the correctness of the averments in the plaintiff's pleadings was a matter for trial, Mr Justice O'Sullivan said that, given the width of the pleadings, it was inevitable that there would be many categories of documents which related to matters in question in the plaintiff's case, once his wide ranging averments were challenged by the defendant.

Mr Justice O'Sullivan said that there should be some reasonable limit on the categories of documents to which discovery would be ordered and which came into existence after the date of publication. Mr Justice O'Sullivan held that any such document was discoverable only if a draft or earlier edition thereof, or working papers in relation thereto, existed at the date of publication and, subject to this, directed that all categories of documents which were discoverable should apply for a period of six months prior to the plaintiff's appointment and cease on 29 March 1998.

Mr Justice O'Sullivan made an order, generally along the lines sought, but with some exceptions. In terms of the annotated version of the notice of motion (comprising references prepared by the defendants to the corresponding paragraphs in the plaintiff's statement of claim and replies to particulars), Mr Justice O'Sullivan made an order in terms of paragraph 1 (i)-(xiii), (xv)- (xvi) and (xx)- (xxvi); 1 (xiv) (a)- (f) (insofar as same related to the CIE Group); and 1 (xiv) (g)-(h). He declined to make an order in terms of paragraphs (xvii)-(xix) but granted the defendants liberty to file affidavits identifying the relevance to the issues of the six persons individually named therein. Mr Justice O'Sullivan noted that the defendants indicated that, in addition to the six persons alluded to (but not named in the article), there were three further individuals referred to at paragraph (xviii). Mr Justice O'Sullivan considered that the defendants should file an affidavit in support of this aspect of the application, adjourned the matter in so far as it related to this and gave liberty to the defendants to file such an affidavit and re-enter the matter on notice to the plaintiff.

Solicitors: McKeever Rowan (Dublin) for the plaintiff; Michael E. Hanahoe (Dublin) for the defendants.