Supreme Court allows discovery of pre-broadcast recordings in defamation cases where broadcast differs from private showings.

THE SUPREME COURT

Fennelly J.

McKechnie J.

Laffoy J

[Appeal No. 462/2013]

BETWEEN:

Lisa Craddock

Plaintiff/Respondent

AND

Raidio Teilifís Eireann

Defendant/Appellant

[Appeal No. 463/2013]

BETWEEN:

Sandra Kavanagh

Plaintiff/Respondent

AND

Raidio Teilifís Eireann

Defendant/Appellant

JUDGMENT of Mr. Justice Fennelly delivered the 7th day of February 2014.

1. The plaintiffs in these two actions have obtained orders in the High Court for discovery against Raidio Teilifís Eireann (hereinafter

“RTE”) in defamation actions. Each plaintiff issued a plenary summons on 16th July 2013 claiming damages for defamation against RTE.

They claim that they were defamed in a television programme broadcast to the public on 28th May 2013. Each order, made by Cross

J, required discovery to be made in advance of delivery of the statement of claim.

2. The plaintiffs were each employed at the Links Crèche at Abbington, Malahide, County Dublin. The RTE broadcast was called “A

Breach of Trust.” It concerned, to use RTE’s description, the standards of care and regulation of crèches. The plaintiffs claim that the

programme depicted them as being responsible for mistreatment of children under their care.

4. An appearance was entered in each case but no statement of claim has yet been delivered. The plaintiffs claim that they are

unable to prepare a statement of claim without discovery of copies of recordings shown prior to broadcast to parents of children at

the crèche. The High Court (Cross J) on 21st October 2013 ordered discovery in each case of:

a) the Recording of the “ Breach of Trust” programme which was shown by the Defendant herein to the parents of the

children cared for by Links Crèche at Abbington, Malahide, Co Dublin and any transcript of what was shown to them;

b) The Recording of the programme that was in fact broadcast and any transcript of what was broadcast.

5. As appears from paragraph a) of the order, the recording was shown in advance of broadcast to parents of children who were in

the care of the Links Crèche, where the plaintiffs were employed.

6. RTE has appealed against the orders of Cross J. It says that an order of this type has potentially serious implications for RTE

generally in litigation which frequently arises from the carrying out of its broadcasting function.

7. The matter was brought before this Court pursuant to motions for a stay of execution of each of the orders pending the hearing of

the appeal. However, the parties are agreed that the hearing of the motions can be treated as the hearing of the appeals. This

judgment, therefore, disposes of the appeals. Furthermore, the parties have reached agreement for the provision of copies of

recordings of the programmes as broadcast. This judgment does not, therefore, need to deal with paragraph b) of the High Court

orders. Nothing said in this judgment should be taken as expressing any view as to the correctness of that part of the order.

8. It is, of course, unusual for a court to grant an order for discovery prior to delivery of a statement of claim. The normal rule is that

discovery may not be sought until after the pleadings have been closed. The rationale for that rule is that the purpose of discovery is

to enable a party to have access to documents in the possession of the opposing party which are relevant to the issues in the case,

but that the issues in contention between the parties will not have been identified until the pleadings have been closed. It is,

therefore, necessary to explain the context in which the matter arises in this case.

9. There was considerable correspondence and interaction prior to the broadcast on 28th May 2013 between the plaintiffs and their

solicitors, on the one hand, and RTE and its solicitor on the other. The factual circumstances of the two plaintiffs are similar but not

identical. Ms. Kavanagh was shown in the recording shown to parents but, unlike Ms. Craddock, did not appear in the programme as

broadcast to the public.

10. RTE prepared the broadcast based on the work of an under-cover journalist. On 20th May 2013, a journalist in the RTE

Investigations Unit wrote separately and directly to each of the plaintiffs at the address of the Links Crèche. These letters were

received on the evening of 21st May. The journalist said that she was working on a programme about standards of care and

education in pre-schools and crèches in Ireland. She said that the programme was due to be broadcast in the week beginning

Monday, 27th May. The letter accused each plaintiff, in identical terms, of acts of mistreatment of children at the crèche. In fairness

to both parties, as the litigation is pending, I do not here give any details of those allegations.

11. From 22nd May, Robert Dore & Company commenced correspondence with RTE on behalf the plaintiffs and there was an extensive

exchange of letters with the RTE solicitor’s office. It appears from the letter of 22nd May that the plaintiffs were personally shown

part of the footage and that they asked for a copy of that footage so that they could consult their legal advisers but were refused. I

will limit references the correspondence to matters which bear on the question of discovery and will not refer to the other issues in

the contentious correspondence, such as complaints of the defamatory character of the broadcast, requests for deletion of material,

demands for apology, all potentially relevant to the main action. It emerges expressly or implicitly from the exchange of

correspondence that on more than one occasion parts of the material it was intended to broadcast were shown to groups of parents

of children at the crèche.

12. On 23rd May an early version of part of the programme was shown to the plaintiffs together with their solicitor and counsel at the

RTE studios at Montrose. Their solicitors demanded a copy of the entire of the film footage recorded by the undercover reporter. On

the same day RTE responded to say that a request to view the entire footage was excessive and offered to show the solicitors only

the footage concerning the plaintiffs. The solicitors rejected this offer and twice demanded a DVD of the entire programme. It appears

that, on 24th May, groups of parents were to be invited to RTE at Montrose to view the programme. By a letter of that day, the

plaintiffs’ solicitors reiterated their demand for a DVD of the entire programme it was intended to broadcast.

13. On 24th May, RTE’s solicitor told Dore & Company that it was intended to pixelate /blur the images of the plaintiffs. Dore &

Company replied and demanded that they be given notice of when it was intended to broadcast the programme. RTE replied that the

broadcast would take place on Tuesday 28th May at 9:30 pm, which indeed it did.

14. Writing on 31st May, Dore & Company said that there had been changes in the programme as broadcast as compared with what

had been “shown to our client and their legal advisers on Thursday last 23rd May in Montrose.” That letter noted that the images of

Ms Craddock had been pixelated but that the footage relating to Ms. Kavanagh had not been shown in the broadcast. In the same

letter, Dore & Company demanded, inter alia, the following material:

• A disk of what had been shown to the plaintiffs and their advisers on 23rd May;

• A disk of what had been shown to parents in Malahide;

• A disk of what had actually been broadcast.

14. RTE replied on 6th June saying that the Garda Síochána had requested that it retain all footage taken at the Links Crèche until

further notice and that RTE was not in a position to provide a copy of the footage to third parties other than by way of court order

“save to the Gardaí and the HSE to assist with their ongoing investigations into the matter.” The letter continued:

“It is important that RTE does not take any steps which would interfere with or otherwise prejudice these investigations

and RTE cannot accede to your request for copies of footage.”

15. On 16th July 2013, Dore & Company wrote seeking voluntary discovery in each case. It is worthy of note that these requests

were made contemporaneously with the issues of the plenary summons. The request was for discovery of:

a) the Recording of the “ Breach of Trust” programme which was shown by the Defendant herein to the parents of the

children cared for by Links Crèche at Abbington, Malahide, Co Dublin and any transcript of what was shown to them;

b) The Recording of the programme that was in fact broadcast and any transcript of what was broadcast.

The justification for that request was stated in the letter to be the following:

“The Plaintiff was obliged to issue these proceedings and now must seek pre statement of claim discovery to access this

information, in circumstances where RTE has refused to furnish the Plaintiff with the recording of the “Breach of Trust”

programme which it showed to the parents of children attending at Links Abbington, Malahide, on a date unknown prior to

its national broadcast of the “Breach of Trust” programme in its final version.

The Plaintiff is unaware of the contents of the programme shown to the parents.

A version of the portion of the programme concerning the Plaintiff intended to be broadcast nationally was shown to the Plaintiff and

her legal advisors in Montrose on 23 May 2013. What was shown to the Plaintiff on that occasion differed significantly from that

programme that was broadcast.

The Plaintiff has repeatedly requested of the Defendant sight of the programme shown to the parents, which requests have been

refused. The Defendant has refused to confirm or deny whether or not the programme shown to the Plaintiff and her advisers was

what was shown to the parents of the children attending Links Abbington, Malahide.”

16. The solicitor fro RTE, by letter of 25th July 2013, characterised the request for voluntary discovery as “premature and

inappropriate.” The letter continued: “My client must respect the rights of parents and children and Discovery, if appropriate, can only

follow in the ordinary way and by Order of the Court.”

17. Each of the plaintiffs applied to the High Court for an order for discovery pursuant to Order of 31, Rule 12 (1) of the Rules of the

Superior Courts or to the inherent jurisdiction of the courts.

18. The grounding affidavit was sworn on behalf of each plaintiff by Mr Robert Dore. In the case of Ms. Kavanagh, he said that the

plaintiff had been “defamed in what was shown to parents and possibly others prior to the national broadcast of the “Breach of Trust”

programme.” He also contended that, although that plaintiff was not shown in the actual broadcast, it was, nonetheless, defamatory

of her in relation to persons to whom the material had been shown earlier. In the case of Ms Craddock, Mr Dore said that the

defamation had been both in what was shown to the parents in advance of the broadcast and in the actual broadcast. He said that

the plaintiff and her advisers had no way of knowing what had been shown to the parents. In each case, Mr. Dore said that he had

been advised by counsel that “access to and sight of the material shown to the parents, as well as what was broadcast nationally is

necessary to enable the plaintiff's legal advisors properly to draft a statement of claim…”

19. RTE did not file any affidavit in the High Court in reply to Mr Dore’s affidavit in either case.

20. The Court does not have the benefit of a written judgment from Cross J and must work from an agreed note of counsel approved

by the learned judge. Insofar as it is possible to discern, the principal focus of the arguments for the plaintiffs was that they did not

know what had been shown to parents. It was submitted that this showing to parents was “almost even more important” than what

was broadcast. It was submitted that it was possible to prepare a rudimentary statement of claim which would be wholly undesirable,

since it would have to be amended later. For RTE, it was submitted that the case was one of general importance in view of the

frequency of defamation claims. A discovery order before statement of claim could only be justified by extraordinary circumstances. It

was contended that the plaintiffs’ legal advisers were already clear about the basis of the claim for defamation. Reference was made

to the undertaking given to the parents that the broadcast would not be available on RTE Player and the interest of the Gardai and

the HSE.

21. Cross J said that it was well settled law that very exceptional circumstances would be required before the court would depart

from the generally accepted rule. He referred to the fact that the film had been shown, not merely to the public, but also to the

parents. He said that this was an exceptional case, apparently on the basis that the plaintiffs would almost certainly have to come

back and redraft the statement of claim.

22. In dealing with this appeal it is important to start from a restatement of the ordinary rule. That is that discovery will not be

granted prior to the close of pleadings. That is because it is not possible for the parties to know until that point what the issues are.

The plaintiffs justify their application on the basis that, without access to the actual recording of the alleged defamatory material, it

is not possible to draft the statement of claim. At least, that is the implicit underlying justification. Certainly, the point is made

repeatedly and forcefully and, to my mind, justifiably that a version or versions of the “Breach of Trust” programme was shown on one

or more occasions to a group or groups of parents and that neither the plaintiffs nor their advisers were in a position to know what

part or parts of what was ultimately broadcast to the general public was shown on those occasions. RTE, for its part, has been less

than forthcoming in its response to requests for information made by Dore & Company seeking detail on this point.

23. In the light of these comments, I turn to consider the authorities.

24. It is common case that, in the absence of exceptional circumstances, discovery will not be ordered until the pleadings are closed.

Each of the recent Irish cases which the parties have cited adopt with approval the principle as it is stated in Gayle v. Denman

Picture Houses Limited [1930] K.B. 588. In that case, at p. 590, Scrutton L.J. said:

“I do not question for a moment that under the wide words of Order 31, rr. 12 and 14, there is power to make such an

order, but equally I think that it should not be made unless in the most exceptional circumstances. A plaintiff who issues a

writ must be taken to know what his case is. If he merely issues a writ on the chance of making a case he is issuing what

used to be called a "fishing bill" to try to find out whether he has a case or not. That kind of proceeding is not to be

encouraged. For a plaintiff after issuing his writ but before delivering his statement of claim to say 'Show me the

documents which may be relevant, so that I may see whether I have a case or not', is a most undesirable proceeding.”

25. Lawrence L.J., at page 592 expressed himself at least as strongly:

“So far as I can see there is no difficulty in the way of the plaintiff stating his claim without the production of those

minutes, though I appreciate that they may have an important bearing upon the question of whether the claim is well

founded are not. It may well be that after the statement of claim and the defence have been delivered, production of the

minutes will not be resisted. At the proper stage of the action all documents relating to any matters in question will have

to be discovered. I however deprecate the idea that a plaintiff after issuing a writ and before delivering his statement of

claim, can apply for discovery. This is entirely contrary to the practice, and such an application should be discouraged."

26. Morris J applied these principles in Law Society of Ireland v Rawlinson [1997] 3 I.R. 592, holding that such an order would “only be

made in the most exceptional circumstances.” That was a case of a claim by the Law Society for damages for negligence against a

firm of accountants in auditing the accounts of a solicitor in circumstances where the Law Society would be obliged to make good the

loss in the solicitor’s accounts. The essence of the view of Morris J is in the following passage from page 597:

“Accordingly, it appears to me beyond doubt that the plaintiff is already in possession of such information as would enable

it to prepare and deliver a statement of claim reflecting the basic ingredients of the case which it wishes to make against

the defendant. This is not a "trawling exercise" nor is it what has been described as a "fishing bill". There is a clear and

concise case to make. This case would undoubtedly, when discovery had been made, require alteration and amendment

so as to include in or exclude from the statement of claim various particulars.”

27. Following reference to the complexity of the case, the obligations of the Law Society and the “desirability of having a concise and

clear statement of claim which will enable the defendants to know the case which they have to meet,” Morris J decided that the case

fell into the category of exceptional cases.

28. The parties also cited this Court’s decision in L(A) v N(M) (Supreme Court, unreported, 4th March 2002). In that case, in which

the leading judgment was delivered by Murphy J, the Court set aside an order for discovery before statement of claim which had been

made by the Master and affirmed, on appeal, by Smith J in the High Court. The claim was for damages for alleged sexual assault by a

priest in the confessional. The High Court judge had noted that the named defendants, who did not include the accused priest, were

being sued in their representative capacity as representing the priests of the diocese in question, although, as Murphy J pointed out,

that fact could not be identified from the plenary summons. The apparent object of seeking discovery was to identify the culprit (the

priest in the confessional). Murphy J was sceptical as to whether this could be done on the basis of the material placed before the

court. He reiterated the principle that “an order for discovery should not be made until pleadings are closed save in exceptional

circumstances.”

29. I turn to apply these principles to the facts of the present case. I will begin with RTE. It cannot make any difference that RTE, as

the national broadcaster is regularly and frequently faced with defamation actions. That is, of course, true of any media outlet

whether producing written or broadcast material. The question before the Court is whether the plaintiffs have established exceptional

circumstances. I am also unimpressed by the reasons provided in writing originally by RTE. The fact that either the Gardaí or the HSE

wished to conduct enquiries cannot affect the rights of the plaintiffs, if they have rights, to have copies, which is all they were

seeking, of the relevant recordings. Equally, I fail to see how RTE’s undoubted and entirely proper respect for the parents of the

children could enter into the matter.

30. On the other side, I accept that the plaintiffs had made a clear and consistent argument that they should be entitled to access

to what was variously described as footage, a DVD or a recording of what was shown to the parents. Assuming the material to have

been defamatory (upon which, of course, I express no view), they are entitled to claim damages for defamation. RTE has sought to

argue that there is no difference between the broadcast programme and what was shown to the parents. There do, nonetheless,

appear to have been some differences between the different versions. For example, Ms Kavanagh does not appear in the broadcast

programme at all. In an affidavit sworn for the purpose of the appeal, RTE has sought to maintain that “there had at all times been

only one version of the programme, which version was subject to editing on an ongoing basis.” However, in a letter of 31st October to

the plaintiffs’ solicitors it was stated that an additional 30 seconds of footage featuring Ms Craddock speaking I the staff room, was

shown to a wider group of parents in the weekend prior to transmission.” In any event, the plaintiffs are not obliged to accept the

assurances of the defendant on the point. RTE placed no affidavit before the High Court. It has relied upon the general importance of

the matter for RTE, the interests of the Gardaí, the HSE and the parents.

31. I have come to the conclusion that this case qualifies as being sufficiently exceptional to justify the making of an order for

discovery of the recordings shown to the parents prior to the delivery of the statement of claim. I reach that conclusion for two

principal reasons. Firstly, there is uncontradicted evidence on behalf of the plaintiffs that they have no means of knowing what

version of the programme was shown to the parents on any of the occasions on which RTE showed it to them. In the case of Ms

Kavanagh, in particular, the showings to the parents may be the only, or at least the principal, occasion on which the alleged

defamatory material concerning was disseminated. Secondly, and crucially there is a sharp and obvious distinction between written

and broadcast material when it comes to drafting a statement of claim. It is unrealistic to expect a solicitor to be able to instruct

counsel with sufficient accuracy to enable a clear and cogent pleading to be prepared where the alleged defamation takes the form of

a visual and audio recording and the solicitor is not in possession of any recording of what was transmitted. This situation is quite

different from the case of written defamation, as in a newspaper. There the solicitor places the text before counsel and instructs him

to draft the statement of claim. It is true that, in the present case, the solicitors for both plaintiffs had the benefit of watching the

programme as broadcast. However, the crucial fact is that they had no sight of what was shown to the parents.

32. For these reasons, I would uphold the decision of the High Court and dismiss both appeals.