A former police officer who is suing the Sunday Times for defamation in Ireland has failed in a bid to force the newspaper to hand over a journalist’s notes and other background material it holds.
One-time An Garda Siochana officer Lynda Meegan is suing the newspaper over a story published in September 2014 which reported that a senior figure in the Continuity IRA had been identified as the person who received sensitive information from a former Garda about operations concerning dissident republicans, and said the un-named woman officer had resigned after being confronted.
Meegan has identified herself as the officer referred to in the piece, which she says is false and defamatory of her.
The newspaper is fighting the case under the defence of fair and reasonable publication on a matter of public interest which was introduced into Irish law by section 26 of the Defamation Act 2009.
Meegan’s attempt to force disclosure by the newspapers of notes and notebooks, schedules and other material succeeded in the High Court in Dublin.
But the newspaper appealed and the Court of Appeal overturned the High Court’s decision.
Mr Justice Gerard Hogan – who was sitting with Mrs Justice Mary Finlay Geoghegan and Mr Justice Michael Peart – said section 26 of the 2009 Act was a novel provision which had yet to successfully invoked in any reported defamation case.
It was clearly designed to provide a defence for publishers who showed that they acted in good faith and that the publication was fair and reasonable.
“Section 26 may be regarded as an endeavour by the Oireachtas to move away in some respects from the strict liability nature of the common law tort of libel and to introduce – in, admittedly, some specific and limited respects – a negligence-based standard in actions for defamation under the 2009 Act,” he said.
On the discovery issue, he said the material sought had to be both relevant and necessary.
“There may well be cases where the type of discovery ordered here – such as, for example, journalists’ notes and other background material – might possibly be relevant in assessing whether a section 26 defence has been properly made out,” he went on.
“Such a plaintiff would, however, have to satisfy the court that the documents sought are both relevant and necessary to the particular defence being pursued.
“As matters stand, however, I consider that the plaintiff has not yet established that such discovery is necessary, in part because the defendant’s pleading in relation to the section 26 defence is so general, but perhaps especially because the plaintiff has not sought the appropriate particulars which, when appropriately replied to, would articulate the precise basis for this defence.”
The grounds on which the Sunday Times was arguing that it was fair and reasonable to publish the article in question for the purposes of section 26 were unclear.
The very broad and potentially all-encompassing nature of the section 26 defence, and an absence of identification of facts on which the defendant intended to rely in pursuing it meant that it would be inappropriate to order discovery at this juncture, the judge said.
The plaintiff should have sought further particulars of the nature of the section 26 defence envisaged by the newspaper before applying for discovery.
“Without prejudging in any way any application for particulars, it would have to be said that the present section 26 defence is so general and imprecise that the plaintiff cannot at present know the nature of the actual section 26 defence she will have to meet at trial, nor the facts which may be relevant in the context of any such defence,” said Mr Justice Gerard Hogan.
It was at present premature to assess whether the discovery sought was genuinely necessary for the proper conduct of the litigation, at least until the scope and extent of the section 26 defence was clarified, he said.
But when the extent of the defence was known, the plaintiff could seek discovery afresh.