Court Recognises Need For Leeway In Listing Of Source Protection Documents

• Published date: 30 September 2020
• Law Firm: McCann Fitzgerald
• Author: Ms Audrey Byrne, Karyn Harty and Lesley Caplin

The question of the scope of the discovery that a publisher should have to make in a defamation action is often contentious, particularly where a plea of truth has been put forward. To what extent is the pre-publication conduct of the publisher relevant where truth is pleaded and, if relevant, will discovery be granted if the publisher intends to assert journalistic privilege over the documents?

Background

In Crawley v Sunday Newspapers Ltd,¹ the plaintiff submitted that in light of the newspaper's truth defence, the defendant should have to produce by way of discovery the background material on which it relied in preparing the articles, including details of any investigation that it carried out into the plaintiff. The newspaper argued that its conduct prior to publication was not relevant because it was relying on truth and said that it would, in any event, be relying on journalistic privilege in respect of the documentation which it argued militated against granting the discovery sought. The court granted a more defined form of discovery, while acknowledging the practical issues...