High Court allows appeal to narrow discovery scope to specific 1989 articles and defers confidential lawyer instructions for trial.

Neutral Citation Number: [2006] IEHC 276

THE HIGH COURT

[2003 No. 7197 P]

BETWEEN

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED

PLAINTIFF

and

JOSEPH MURPHY JUNIOR

DEFENDANT

Judgment of Mr. Justice Clarke delivered on the 28th day of July, 2006

1. Introduction

1.1 On the 2nd May, 2006, the Master of the High Court ordered that the plaintiff (“Independent”) make discovery of a category of

documents described in the order of the Master in the following terms:-

“All articles prepared and/or published by journalists writing for the plaintiff prior to the 20th July, 2001, on the issue of

the defendant’s alleged attendance at Ray Burke’s house in May/June 1989, together with memoranda or notes of any

unpublished information irrespective of the reliability of its source contained in the instructions of the plaintiff to its

lawyers prior to the 20th July, 2001.”

1.2 The category which had been sought by the defendant (“Mr. Murphy”) differed in some respects from the category directed to be

discovered by the Master.

1.3 Independent has appealed against the order of the Master and this judgment is concerned with that appeal.

1.4 As in all cases of discovery an important starting point has to be a consideration of the issues which arise in the proceedings to

which discovery is directed. As these proceedings are somewhat unusual in nature it is necessary to turn, firstly, to those

proceedings and the issues which may or are likely to arise in them.

2. The Substantive Proceedings

2.1 On the 17th May, 1998, Independent published an article which referred to a Michael Bailey as being famous for being “the man in

Ray Burke’s house when a brown paper bag with IR£50,000 in cash was handed over to the former Minister by Joseph Murphy of

J.M.S.E. as a campaign contribution”.

2.2 On the 29th May, 1998, Mr. Murphy commenced proceedings in this court (record No. 1998/64/89P) in which he claimed damages

for alleged defamation arising out of that article (“the defamation proceedings”).

2.3 It would appear that the defamation proceedings were compromised on the 20th July, 2001, as a result of an agreement reached

between the respective solicitors for both parties on terms that Independent would pay to Mr. Murphy a sum of IR£53,000 inclusive of

costs and would publish an agreed apology.

2.4 It would also appear that the terms of that compromise were implemented, with the sum of money being paid and the apology

appearing in the agreed form in the Sunday Independent on the 22nd July, 2001. Resulting from those two matters, the defamation

proceedings were struck out by consent with no further order on the 16th October, 2001.

2.5 It is clear that Mr. Murphy’s case, as made in the defamation proceedings, was to the effect that he was never present in Mr.

Burke’s house on the occasion in question and never paid any sum of money to Mr. Burke. It also needs to be added that that

question, together with related issues, formed the central focus of the earlier considerations of the Flood Tribunal.

2.6 In these proceedings Independent maintains that the defamation proceedings were based upon a false representation by Mr.

Murphy to the effect that he had not been present in Mr. Burke’s house on the occasion in question and had not handed any sum of

money to Mr. Burke. It is contended, therefore, that the proceedings were a malicious abuse of the process of the Court and were

based upon fraudulent misrepresentation. In those circumstances, it is contended that Independent is entitled to have appropriate

declarations or orders which would set aside or rescind the settlement agreement. Damages are also claimed. In his defence, Mr.

Murphy claims that, as of the date of the settlement of the defamation proceedings, all evidence, whether oral or documentary, and

all submissions, relating to the relevant events in Mr. Burke’s house had been heard by the Flood Tribunal and were publicly available.

Mr. Murphy also states that by the time the settlement had been reached, Independent had obtained discovery from Mr. Murphy in

the defamation proceedings and had also obtained third party discovery from Mr. Dermot Ahern. In those circumstances, it is

contended that, at the time the settlement was entered into on the 20th July, 2001, Independent had the benefit of legal advice and

the benefit of all relevant evidence relating to the defamation proceedings. In those circumstances, Mr. Murphy contends that

Independent is now estopped from pleading that the defamation proceedings were an abuse of process, malicious or otherwise

unlawful.

2.7 As the proceedings are, undoubtedly, unusual, if not unique in this jurisdiction, it is necessary to consider the legal principles

which may be applicable to such proceedings (for the purposes of identifying the matters of fact which may be relevant to the

determination of those proceedings). I should emphasise that a final determination as to any such principles is a matter for the judge

who will have carriage of the trial of the substantive action in this case. My purpose, at this stage, is simply to give sufficient

consideration to the legal issues to enable a reasonable estimate to be made as to the factual issues which may be before the court.

I now turn to those legal principles.

3. Malicious prosecution

3.1 It is clear that, in principle, a defendant may have a cause of action against a plaintiff, where that plaintiff maintains and

prosecutes a claim without reasonable cause and for the wrongful purpose of exacting pressure on a defendant such that the

defendant may suffer damage. In Dorene Limited & Another v. Suedes (Ireland) Limited [1981] 3 I.R. 312 Costello J. so held in

determining that the defendant in those proceedings was entitled to damages arising from the fact that the plaintiff pursued a claim

for specific performance with the view to exerting pressure on the defendant to obtain a lease of premises.

3.2 The precise parameters of such a cause of action remain to be clearly defined. The basis of the finding of Costello J. in Dorene

stemmed from advice of counsel, given after the commencement of proceedings, but well before the proceedings came on for hearing,

to the effect that the plaintiffs in that case did not have a cause of action, because the necessary elements required to justify a

decree of specific performance were not present. Despite that advice, the plaintiffs did not discontinue the action, but attempted to

negotiate the lease concerned. It is clear, therefore, that the reason why the proceedings were regarded, on the facts of that case,

to have been prosecuted (from the date of counsel’s advice) maliciously and inappropriately was that the proceedings were

unstateable for legal reasons (of which the plaintiff had been advised) rather than by virtue of any issue of fact.

3.3 It is, of course, in principle open to a party to allege that the reason why the court should conclude that proceedings were

maliciously progressed was because of the assertion by the plaintiff of factual matters which the plaintiff knew not to be true. There

seems no reason in principle why, in an inappropriate case, the pursuit of a claim in such circumstances, based on an assertions of

facts which the plaintiff knew not to be true, would not equally amount to an abuse of process. However, additional difficulties arise

where, unlike in Dorene, the proceedings have already been concluded whether by compromise or by determination by the court,

without reference to the question of malicious prosecution.

3.4 In the latter case (and on the assumption that the plaintiff succeeds), there will be a binding determination by the court to the

effect that the facts are as contended for by the plaintiff. Such a finding could only be gone behind in the limited circumstances

identified in the jurisprudence such as a case where it can be shown that the plaintiff’s success was procured by a fraud on the court

(see for example House of Spring Gardens Limited v. Waite). In the absence of the defendant being in a position to have the original

order set aside on such grounds, the Court could not entertain a second set of proceedings which was predicated upon the fact that

the original finding of the court was incorrect.

3.5 Somewhat different considerations may well apply in respect of a case which was compromised rather than determined by the

court. In those circumstances, there is no finding of a court, binding on the parties, which can only be set aside on very limited

grounds.

3.6 The precise parameters of the circumstances in which a party, such as Independent, may be entitled to seek to go behind a

settlement on such grounds, remain to be the subject of authorative determination. However it seems to me to be at the very least

arguable that it could be the case that a plaintiff, in a position such as Independent, can simply not re-run on the same evidence the

action which it had compromised by means of asserting that the claim made by the plaintiff in that action was false to the knowledge

of the plaintiff concerned and no move.

3.7 The issues which arise in litigation vary. However quite a number of cases turn largely on questions of fact where it is clear, in

advance of the hearing, that the parties propose leading contradictory evidence as to key events. Where the parties compromise

such an action, such settlement will be based on a view (presumably with the benefit of expert advice) as to the chances of each

succeeding or failing in persuading the court that the facts are as they allege. If it were possible, in effect, to reopen such a case,

notwithstanding such a settlement, by the defendant simply asserting that the plaintiff’s factual contentions were, to the knowledge

of the plaintiff, false, without more, then it would, in practical terms, be virtually impossible to compromise any such action. If, in

such a case, the court were merely asked to hear the competing evidence which would have been presented to the court on the first

action with a view to persuading the court that the plaintiff’s evidence was not to be believed, then the court would, in effect, be

being asked to allow the defendant to run the case which he had already settled. Without expressing any concluded view on this

issue it seems to me that such a conclusion as to the state of the law would be improbable.

3.8 Leave is likely, to be an issue in this case as to whether the plea of estoppel raised by Mr. Murphy should succeed unless it can

be shown that there is now available to Independent additional materials which would not result in the court being invited to re-run

the case that has been compromised. The precise nature of the materials which would suffice, the circumstances surrounding

whether such materials were or could have been available at the time of the compromise, and how they are available now, are

matters which the court at trial will have to address. In the absence of authority, it would be both difficult and, indeed, inappropriate,

to express any view as to the precise test or barrier which Independent may have to surmount. However, it seems to me that it can

be safely concluded that there is at least a very real possibility that the question of the state of knowledge of Independent and its

advisors, at the time when the settlement was entered into, may be relevant for the purposes of ascertaining whether any of the

materials which are to be put before the court at the trial were or could have been available to Independent at the time of the

compromise. It is not, therefore, that Independent’s state of knowledge is relevant in itself. That state of knowledge may, however,

be relevant to the question of the status of evidence now put to the court by reference to whether it was or could or should have

been available to Independent at the time of the compromise. It should be said that whether any such materials may become relevant

will depend on the detail of the case, both on the facts and the law, made by the parties at the trial.

3.9 Against that background, it is necessary to turn to the discovery issue.

4. The documents sought to be discovered

4.1 The category of discovery in issue in this case can, in my view, conveniently be broken into two parts. The first part concerns

published material. While it is true to state that any such material might be available to Mr. Murphy through other sources, it does not

seem to me to be inappropriate to direct Independent to make discovery of such documents. It is clearly much easier for Independent

to compile a list of the relevant documentation.

4.2 Different considerations potentially arise in respect of the second part which involves unpublished internal documentation and

would, necessarily, involve, as a matter of likelihood, either materials which were communicated to journalists in confidence or

materials which were presented by Independent to its legal advisors for the purposes of obtaining advice. The former category would

be confidential but not privileged. The latter category would, prima facie, be privileged and, even if not privileged, would undoubtedly

be confidential.

4.3 I am satisfied that the court should only order discovery of confidential documents (particularly where the documents involve the

confidence of a person or body who is not a party to the proceedings) in circumstances where it becomes clear that the interests of

justice in bringing about a fair result of the proceedings require such an order to be made.

4.4 It is clear that confidential information (which is not privileged) must be revealed if not to reveal same would produce a risk of an

unfair result of proceedings. The requirements of the interests of justice would, in those circumstances, undoubtedly outweigh any

duty of confidence. There is ample authority for that proposition which now may be taken to be well settled. Where, therefore, it is

clear that the materials sought will be relevant, then discovery must be made notwithstanding any confidentiality.

4.5 However, it seems to me that the balancing of the rights involved also requires the application of the doctrine of proportionality.

To that extent, it seems to me to be appropriate to interfere with the right of confidence to the minimum extent necessary consistent

with securing that there be no risk of impairment of a fair hearing. In the unusual circumstances of this case it is far from clear (for

the reasons analysed above) as to whether any of the disputed documentation will become necessary. As pointed out relevance will

depend on the case which Independent makes, the facts and evidence led in support of that case and the legal submissions of the

parties. The balance is, therefore, between a possible relevance and a high probability of a breach of confidence.

4.6 In those circumstances it seems to me that it would be disproportionate to order an immediate discovery of what are undoubtedly

confidential documents in circumstances where those documents may (but only may) be relevant to the issues which will arise at the

trial. The uncertainty as to the issues derives in significant part from the fact of there being a very limited jurisprudence in this area.

4.7 In those circumstances it seems to me that the proportionate order that should be made (in the absence of an undertaking to like

effect given on behalf of Independent) should be to require Independent to refrain from destroying any of the documentation within

the second part of the order of the Master pending trial; to make a list of such documentation; and to provide such a list to

Independent’s solicitors. Depending on the way in which the case is presented at hearing, there may be a necessity to test a

contention that any evidence then put before the court on behalf of Independent was not and could not have been available to

Independent at the time of the compromise. It may be necessary to test such a contention by reference to any specific category of

documents which the trial judge might consider to be relevant to that question. Whether such an eventuality will arise depends on

the course of the trial and, in particular, the way in which Independent chooses to makes its case. It may never arise. In those

circumstances it seems to me that it would be disproportionate to require the disclosure of the relevant information at this stage,

when it may well not be relevant at all. However it would equally be unfair to Mr. Murphy to deprive him of the opportunity to have

access to such documentation at the trial, if it becomes apparent that the documentation is necessary to the fair resolution of the

issues which have arisen. Therefore any refusal to order the disclosure of such documentation at this stage should not be regarded as

final. The trial judge (who will then be able to take a much clearer view as to the precise factual issues which have arisen) will be in a

much better position to determine whether any such documents are, truly, necessary in relation to those issues in the way in which

they have evolved.

4.8 I have adopted a similar approach in Yap v. Temple Street Hospital. In that case discovery was sought of confidential patient

records in the context of a dispute between a consultant doctor and her hospital employer. As it was unlikely to be clear as to

whether any individual records would be necessary to a fair determination of the issues between the parties until the actual trial, I

adopted a similar approach to that which I propose adopting in this case. In an ex tempore ruling I made provision for securing the

relevant documents to ensure that they would be available, if required, at the trial.

4.9 Finally, it seems to me that it is unnecessary, at this stage, to deal with questions of whether legal professional privilege might

attach to those documents specified in the contested order which would amount to instructions to lawyers. Irrespective of whether

privilege attaches, such documents would also clearly be highly confidential. In those circumstances it seems to me that the same

principles and considerations apply to them as I have indicated apply in respect of confidential communications to Independent and its

employees. For those reasons I would propose applying the same regime to those documents, as I have already indicated I would

apply in respect of the earlier category.

5. Conclusions

5.1 In all the circumstances I would therefore propose allowing the appeal by deleting all words after “May/June 1989” in the order of

the Master.

5.2 In lieu of the second portion of that order, I direct that the documents referred to in that portion should be subject to the regime

which I have identified above.