Factual and Procedural Background
These defamation proceedings arise from an episode of a current affairs programme broadcast by Company B on 27 November 2008. The broadcast focused on the life and business interests of the Plaintiff, a prominent businessman. The Plaintiff contends that the programme was defamatory and initiated proceedings by plenary summons on 15 December 2011. Despite nearly ten years passing since the broadcast, the substantive proceedings have not been heard.
This judgment concerns several appeals arising from interlocutory orders made by Barrett J. in the High Court on 1 March 2017. The appeals include:
- Company B's appeal against the refusal to strike out the Plaintiff's claim for want of prosecution and failure to make proper discovery;
- The Plaintiff's appeal against an order granting Company B liberty to cross-examine him regarding affidavits of discovery;
- Company B's appeal against an order requiring immediate compliance with a discovery order and refusal of its application to file discovery in a sealed envelope;
- The Plaintiff's appeal against refusal to strike out specific paragraphs of Company B's defence;
- Company B's appeal against an order reserving costs of interlocutory applications to the hearing of the action.
The pleadings and discovery history are extensively detailed, with the Plaintiff alleging various defamatory meanings arising from the broadcast and Company B responding with a full defence, including a plea of qualified privilege and alternative meanings. Discovery disputes between the parties have been protracted, involving multiple affidavits and motions concerning adequacy and compliance.
Legal Issues Presented
- Whether the High Court erred in refusing to strike out the Plaintiff's claim for want of prosecution due to failure to make proper discovery;
- Whether the Plaintiff should be subject to cross-examination on affidavits of discovery;
- Whether Company B should be permitted to file its affidavit of discovery in sealed form pending further order;
- Whether paragraphs 8, 9, and 10 of Company B's defence should be struck out as unnecessary or prejudicial;
- Whether the costs of interlocutory applications should be reserved to the trial or determined at interlocutory stage.
Arguments of the Parties
Appellant's (Plaintiff's) Arguments
- The Plaintiff contended that the broadcast was defamatory in multiple distinct ways, including allegations of links to organised crime, false claims about advisory roles, and involvement in a death.
- The Plaintiff objected to paragraphs 8, 9, and 10 of Company B's defence, arguing that these paragraphs improperly seek to justify meanings not pleaded by him and should be struck out.
- The Plaintiff argued that the meanings pleaded in his claim are separate and distinct and cannot be subsumed under a single common sting as contended by Company B.
- The Plaintiff resisted discovery requests and challenged the adequacy of Company B's discovery, seeking to strike out its defence for failure to comply with discovery orders.
- The Plaintiff appealed the order permitting Company B to cross-examine him on discovery affidavits.
Appellee's (Company B's) Arguments
- Company B maintained that the broadcast did not bear the meanings alleged by the Plaintiff except for one specific claim, which it justified as true.
- Company B asserted that the overall sting of the broadcast was that the Plaintiff had a tendency to make exaggerated or false claims in business matters.
- Company B argued that paragraphs 8, 9, and 10 of its defence set out proper alternative meanings and supporting particulars, consistent with established defamation pleading principles.
- Company B contended that the Plaintiff failed to make proper discovery, justifying its application for cross-examination and refusal to file discovery in sealed form without compliance.
- Company B appealed the refusal to strike out the Plaintiff's claim for want of prosecution based on discovery failures and sought to have discovery obligations enforced.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Dunnes Stores v. Irish Life Assurance [2008] IEHC 114 |
Guidance on consequences of failure to make proper discovery and preference for fair trial over punitive measures. |
The High Court judge applied this principle to avoid striking out the claim, opting for remedies addressing discovery failures without terminating proceedings. |
| Ryanair Limited v. Van Zwol and Others [2016] IEHC 264 |
Cross-examination on affidavits of discovery should be granted only when necessary and other remedies are inadequate. |
The court upheld the order permitting cross-examination as a proportionate remedy to ensure fairness. |
| Leahy v. OSB Group Limited & Others [2015] IEHC 10 |
Conditions for striking out a claim for failure of discovery: ongoing failure, deliberate conduct, and prejudice to fair trial. |
The court found no sufficient basis to strike out the claim, as deficiencies could be remedied. |
| Hamilton v. Clifford [2004] EWHC 1542 |
High threshold for judicial intervention to strike out pleadings in defamation; intervention only if it would be perverse for jury to uphold meaning. |
Supported the court's cautious approach in refusing to strike out parts of the defence. |
| Jameel v. Wall Street Journal Europe [2003] EWCA Civ 1694 |
Judge's role is to pre-empt perversity, not to supplant jury's role in determining meaning. |
Reinforced the principle that pleadings should be left for jury consideration unless clearly untenable. |
| Quigley v. Creation Press Ltd. [1971] IR 269 |
Judge should not withhold matters from jury unless no reasonable person could find defamatory meaning. |
Guided the court in allowing the defence to stand for jury determination. |
| Mapp v. News Group Newspapers Ltd. [1998] QB 520 |
Judge determines if words are capable of bearing meaning; jury decides actual meaning. |
Supported the court's approach to alternative meanings pleaded by the defence. |
| Polly Peck Plc v. Trelford [1986] QB 1000 |
Drastic remedy of striking out defence only if particulars cannot reasonably disclose an answer to claim; common sting defence principle. |
Central to the court's acceptance of Company B's plea of a common sting in the broadcast. |
| Berezovsky v. Forbes [2001] EWCA Civ 1251 |
Exercise of discretion on striking out pleadings is an exercise in generosity, not parsimony. |
Informed the court's restrained approach to striking out parts of the defence. |
| Lucas Box v. News Group Newspapers Ltd. [1986] 1 All ER 177 |
Defendant must specify meanings relied upon in plea of justification to clarify case for plaintiff. |
Supported the court's view that Company B properly particularised its alternative meanings. |
| Brembridge v. Latimer (1864) 12 WR 878 |
Defendant cannot justify one libel by proving truth of another distinct libel. |
Discussed in context of severability of meanings; court found meanings in this case not clearly severable. |
| Bradley v. Independent Star Newspapers Ltd. [2011] IESC 17 |
Words must be capable of bearing the meaning contended for by defendant; otherwise plea fails. |
Distinguished on facts; court upheld principle that defence meanings must be capable of being borne by words. |
| Williams v. Reason [1988] 1 WLR 96 |
Scope of defence of justification depends on meanings words can bear, not on how plaintiff pleads case. |
Supported the court's acceptance of broad defence meanings despite plaintiff's pleading. |
| Prager v. Times Newspapers Ltd. [1988] 1 WLR 77 |
Defence of justification can cover any reasonable meaning of words found by jury. |
Reinforced the principle that defendants may justify alternative meanings. |
| Warren v. The Random House Group Ltd. [2007] EWHC 2856 |
Defendant entitled to justify common sting derived from parts of publication, even if claimant does not complain of those parts. |
Supported the court’s conclusion that Company B’s defence was properly pleaded. |
| Khashoggi v. IPC Magazine [1986] 1 WLR 1412 |
Defendant may justify common sting even if particular facts cannot be proved. |
Referenced as supportive authority for Polly Peck approach. |
Court's Reasoning and Analysis
The Court of Appeal reviewed the High Court judge’s exercise of discretion on interlocutory applications, emphasizing the appellate court’s limited role to review rather than rehear such matters. It acknowledged the broad discretion afforded to the High Court judge and the need for good reason to interfere with interlocutory orders.
Regarding discovery, the court accepted the principle that striking out a claim for failure to comply with discovery is a remedy of last resort. The High Court judge’s decision to refuse striking out the Plaintiff’s claim was supported by established case law emphasizing the preference for a fair trial over punitive sanctions. The court found the High Court judge’s approach reasonable and just, particularly in granting Company B liberty to cross-examine the Plaintiff on discovery affidavits as an alternative remedy.
The court further found no error in the refusal to permit Company B to withhold its discovery pending cross-examination of the Plaintiff, noting that discovery orders are not conditional and that the existing discovery regime should be adhered to.
On the issue of striking out parts of the defence, the court engaged in a detailed analysis of defamation pleading principles. It endorsed the high threshold for judicial intervention, emphasizing that striking out should only occur if no reasonable jury could uphold the pleaded meaning. The court applied key authorities including Polly Peck and Lucas Box, which support the defendant’s right to plead alternative meanings that share a common sting and to justify those meanings with particulars.
The court rejected the Plaintiff’s argument that the meanings pleaded were separate and distinct and incapable of a common sting, noting that the Plaintiff himself relied on the entire broadcast to support all meanings and acknowledged a general sting of exaggeration and fantasizing. The court agreed with the High Court judge that Company B’s defence was properly pleaded, not oppressive, and did not warrant striking out.
Regarding costs, the court held that the High Court judge erred in reserving costs of interlocutory applications to the trial judge, as the hearing judge was best placed to determine costs at the interlocutory stage. This aspect of the appeal was allowed.
Holding and Implications
The Court of Appeal made the following rulings:
- Dismissed Company B's appeal against refusal to strike out the Plaintiff's claim for want of prosecution.
- Dismissed the Plaintiff's appeal against the order permitting Company B to cross-examine him on discovery affidavits.
- Dismissed Company B's appeal against the order requiring immediate compliance with the discovery order and refusal to file discovery in sealed form.
- Dismissed the Plaintiff's appeal to strike out paragraphs 8, 9, and 10 of Company B's defence.
- Allowed Company B's appeal against the order reserving costs of interlocutory applications to the trial judge, directing that costs should be determined by the hearing judge.
The decision maintains the status quo regarding discovery obligations and the pleading of alternative meanings in defamation cases, reinforcing the high threshold for striking out pleadings and the preference for resolving issues through trial rather than interlocutory rulings. The ruling on costs emphasizes procedural efficiency and judicial economy by requiring interlocutory costs to be decided promptly by the hearing judge.