Egan v Fenlon & Ors (Approved)

Factual and Procedural Background

The Plaintiff, a solicitor, had acted for an unincorporated association known as the National Association of Regional Game Councils ("NARGC"). In 2015, the Plaintiff gave notice of ceasing to act for the NARGC, effective 17th October 2015. A dispute arose over the Plaintiff’s entitlement to fees, which was settled by a written agreement on 31st March 2016, including a clause regarding cessation of professional involvement with the NARGC. The core dispute centers on whether this clause bound the Plaintiff from acting against the association.

After terminating his retainer with the NARGC, the Plaintiff accepted instructions to represent certain NARGC members and a former employee in disputes against the association. The Plaintiff commenced this defamation action by plenary summons on 6th October 2016, alleging defamatory statements made by the Defendants, including a letter to the Law Society and statements at various NARGC meetings in mid-2016, accusing the Plaintiff of unethical conduct and breach of the settlement agreement.

The Plaintiff also alleged defamation in the NARGC’s 2016 annual report, specifically a resolution (Resolution 6) prohibiting engagement of the Plaintiff’s firm by NARGC members and threatening disciplinary action. The Plaintiff claimed these publications were made maliciously and caused grave injury to his professional reputation and business.

The Defendants denied malice and the defamatory meanings, asserting defences including qualified privilege, honest opinion, innocent publication, and truth. They contended the Plaintiff breached the settlement agreement and acted unethically. The Defendants requested particulars of the claim and voluntary discovery of documents relevant to complaints or investigations into the Plaintiff’s professional conduct. The Plaintiff delayed responding, leading to motions for orders compelling particulars and discovery.

Legal Issues Presented

1. Whether the Plaintiff is required to provide further particulars of his defamation claim, specifically regarding alleged malice, damage to reputation, loss, and instances of republication.
2. Whether the Plaintiff must make discovery of documents relating to investigations, complaints, and proceedings involving his professional conduct as a solicitor.
3. The scope and limits of discovery in defamation proceedings, particularly concerning relevance and necessity of documents relating to unsubstantiated complaints.
4. The application and interpretation of legal principles governing particulars and discovery, including the tests for necessity, relevance, and proportionality.

Arguments of the Parties

Defendants' Arguments

• The Plaintiff’s statement of claim contains assertions requiring further particulars to clarify the nature of the claim and avoid surprise at trial.
• The Defendants sought voluntary discovery of documents related to any investigations, complaints, or proceedings involving the Plaintiff’s professional conduct, arguing these were relevant and necessary to defend the action and assess damages.
• The Defendants relied on statutory provisions allowing evidence relevant to the Plaintiff’s reputation to be adduced for mitigation of damages.
• They contended that without discovery they would be at an evidential disadvantage and that discovery would promote a fair and efficient resolution.

Plaintiff's Arguments

• The Plaintiff contended that many particulars sought were not proper matters for particulars and that some requests overlapped with discovery.
• The Plaintiff offered limited voluntary discovery, including practising certificates and certificates of standing, as well as orders and determinations arising from investigations substantiated by professional bodies.
• The Plaintiff resisted discovery beyond the offered scope, arguing the documents sought were irrelevant, unnecessary, oppressive, and amounted to fishing expeditions.
• It was argued that unsubstantiated complaints do not affect reputation and are not relevant to the issues in the proceedings.
• The Plaintiff initially sought to abandon claims for damages but later confirmed intention to pursue damages.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the purpose of particulars, emphasizing that they must be necessary or desirable to enable the opposing party to prepare their case and ensure a fair hearing, applying the principles from established case law. It noted that many of the Defendants’ requests for particulars overlapped with discovery and that some were abandoned or found improper.

Regarding the motion for particulars, the court found the Plaintiff’s replies to be generally sufficient, particularly the explanation that alleged malice was inferred from the absence of merit in the complaint itself rather than specific animus. It ordered the Plaintiff to provide particulars on certain aspects (paras. 20, 21, and 22 of the notice for particulars) to clarify the basis for claimed damage and instances of republication.

On discovery, the court applied the tests of relevance and necessity, as articulated in recent Supreme Court and Court of Appeal decisions. It recognized that the Plaintiff’s professional reputation was relevant to the issue of damages. However, the court distinguished between substantiated complaints or findings against the Plaintiff, which were relevant and discoverable, and unsubstantiated complaints, which do not affect reputation and thus are not relevant. The court expressed concern that broad discovery requests aimed at unsubstantiated complaints would amount to impermissible fishing.

The Plaintiff had offered limited voluntary discovery of practising certificates, certificates of standing, and orders or determinations relating to investigations or complaints upheld by professional bodies. The court accepted this offer as appropriate and ordered discovery accordingly, limiting the scope to avoid unnecessary burden or oppression.

Finally, the court addressed costs, concluding that the motions for particulars and discovery had no clear winner and that costs should be costs in the cause.

Holding and Implications

The court ordered the Plaintiff to provide replies to certain particulars requested by the Defendants, specifically relating to alleged malice, damage to reputation, loss, and republication of defamatory statements.

The court further DIRECTED the Plaintiff to make discovery of documents limited to:

• All orders made in respect of the Plaintiff arising from investigations by professional bodies into his practice as a solicitor.
• All orders and determinations made against the Plaintiff concerning allegations touching upon his professional conduct, including claims against him as a solicitor.
• All orders and determinations arising from complaints made by third parties against the Plaintiff in his professional capacity, limited to substantiated matters.

The court refused to order discovery of unsubstantiated complaints as irrelevant and an abuse of process. The decision clarifies the limits on discovery in defamation cases concerning professional reputation, reinforcing the principles of relevance, necessity, and proportionality. No new legal precedent was established; the ruling applies established principles to the facts at hand.