Court Recognises Need For Leeway In Listing Of Source Protection Documents

• Published date: 30 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Libel & Defamation
• 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 arising from listing the documentation.

The plaintiff's claim arose from the publication of several articles in the Sunday World newspaper in April 2014, which alleged criminality and involvement in the illegal trafficking of women. The plaintiff also claims that the defendant was negligent in failing to ensure that the information it published about him was properly checked and verified. In its defence the defendant denies meaning, relies on truth, honest opinion and denies negligence, as well as relying on the defence of fair and reasonable publication on a matter of public interest.

The plaintiff sought discovery of documents relating to the preparation of the articles, including any interviews, transcripts particulars of relevant telephone numbers, photographs and letters. The defendant opposed the application, arguing that the categories sought were over-burdensome given the description of the documents sought and the lack of any temporal limitation The defendant also submitted that the truth defence did not require a consideration of the investigation that it carried out. The defendant also sought to avoid the discovery categories on the basis that documents relating to its investigation would be covered by journalistic privilege and the orders sought by the plaintiff would endanger the functioning of the press by dissuading sources from speaking with newspapers.

Decis...