Chambers v. Times Newspapers Ltd.

Factual and Procedural Background

This matter concerns an application brought under Order 31 Rule 29 of the Rules of the Superior Court seeking an order directing the Registrars of the Special Criminal Court and the Court of Criminal Appeal to make discovery on oath of certain documents. These documents include all witness statements and other materials furnished to the Accused and/or relied upon by the Prosecution in a criminal prosecution in which the Plaintiff was tried by the Special Criminal Court and convicted of multiple offences on 29 November 1994, as well as the transcript of that trial and the Order of the Court of Criminal Appeal dismissing the Plaintiff’s appeal in February 1996.

The Plaintiff commenced a defamation claim against two Defendants, identified as the Publisher and Editor of a newspaper, for publishing allegedly false and malicious statements asserting the Plaintiff’s involvement in terrorist activities and membership in a paramilitary organisation. The Defendants admitted publication but pleaded justification, relying on the Plaintiff’s prior conviction.

The Defendants sought to obtain the "Book of Evidence" and trial transcripts to properly defend the defamation claim. After unsuccessful attempts to obtain these documents voluntarily from the Garda Commissioner and the Chief State Solicitor’s Office, and refusals by the Registrars of the relevant courts based on established practice, the Defendants applied for an order compelling discovery from these third parties.

Legal Issues Presented

1. Whether the Court should order third party discovery of documents held by the Registrars of the Special Criminal Court and the Court of Criminal Appeal under Order 31 Rule 29 of the Rules of the Superior Court.
2. Whether it is appropriate to compel discovery from a third party when the documents may be available from a party to the action.
3. The circumstances under which the Court should override established court practice restricting access to such documents.

Arguments of the Parties

Defendants' Arguments

• The Defendants require the witness statements and trial transcripts ("Book of Evidence") to properly defend the defamation proceedings.
• Voluntary discovery requests to the Garda Commissioner and Chief State Solicitor’s Office were unsuccessful, and the Registrars refused to provide the documents based on court practice.
• It is unreasonable to rely solely on the Plaintiff to produce these documents, especially given the Plaintiff’s alleged terrorist background and hostility towards the Defendants.
• The Defendants are willing to bear all reasonable costs associated with the discovery.

Third Party's (Registrar's) Position

• The Registrar of the Special Criminal Court refused to provide the documents, adhering to the established practice that transcripts and related materials are only released for appeals.
• This practice is justified because transcripts are only formally prepared when an appeal is lodged.

Court’s Consideration of Plaintiff’s Position

• The Plaintiff, although a notice party, did not confirm whether he currently possesses the documents sought.
• There is no evidence that the Plaintiff would fail to make proper discovery or that the documents are unavailable from him.
• Hostility between parties does not justify presuming non-compliance with discovery obligations.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged the relevance and possession of the requested documents by the Registrars of the Special Criminal Court and Court of Criminal Appeal. It recognized the established practice restricting access to such documents except for appeals, justified by procedural and practical considerations regarding transcript preparation.

The Court considered the principle that third party discovery under Order 31 Rule 29 is permissible when documents are relevant and in the possession of a non-party. However, the Court emphasized the desirability of avoiding imposing discovery obligations on third parties if the documents are available from a party to the litigation.

The Court found no satisfactory evidence that the Plaintiff did not possess the documents or would fail to produce them. The mere hostility between parties was insufficient to presume non-compliance with discovery obligations.

Citing relevant precedents, the Court noted that third party discovery is a discretionary remedy and should be granted only when no realistic alternative exists. The Court considered that the Defendants’ concerns, while valid, did not justify overriding the principle that discovery should first be sought from the parties to the action.

Consequently, the Court declined to make the order for third party discovery at this stage but granted liberty to re-enter if it becomes apparent that the documents are not forthcoming from the Plaintiff.

Holding and Implications

The Court’s final decision was to ADJOURN THE APPLICATION GENERALLY WITH LIBERTY TO RE-ENTER. The Court refused to grant the order for third party discovery against the Registrars at this time.

The Court indicated that should the Plaintiff fail to produce the documents on discovery, the Defendants may renew their application, at which point the Court would be inclined to grant the order.

The Plaintiff was ordered to have the costs of the motion paid by the Defendants, with costs between the Defendants and the third party reserved.

This decision maintains the established principle that third party discovery is a discretionary remedy of last resort and does not set new precedent beyond affirming the cautious approach to compelling discovery from non-parties when documents may be available from parties to the litigation.