Discovery V Public Interest Privilege ' Scales Of Justice Tipped In Favour Of Discovery

• Published date: 16 November 2021
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Libel & Defamation, Privilege
• Law Firm: William Fry
• Author: Mr Derek Hegarty, Laura Murdock and Adele Hall

Lynda Meegan v Times Newspapers Limited t/a The Sunday Times [2021] IEHC 495

Background

The case arose out of defamation proceedings initiated on foot of an article published in the Sunday Times in September 2014 (Proceedings). The article was titled "Convicted bomb-maker was recipient of garda intelligence". The article outlined that a former member of An Garda Síoch'na (AGS) provided a "convicted bomb-maker" with sensitive intelligence relating to Garda operations against dissident republicans. The article also stated that "the officer, who cannot be named, resigned after being confronted".

Ms Meegan (Plaintiff) instituted the Proceedings, alleging that she was the member of AGS referenced in the article. She claimed the allegations were false and that the article incorrectly inferred that she had to resign as a Garda because she disclosed information likely to be of use to terrorists.

The Sunday Times (Defendant) denied defamation and raised a fair and reasonable publication defence under section 26 of the Defamation Act 2009.

Application for third party discovery

The Commissioner of AGS (Commissioner) was not a party to the Proceedings. However, in seeking to defend its position, the Defendant brought a motion for third party discovery against the Commissioner, seeking discovery of a report prepared for the Minister for Justice in October 2014 on the provision of confidential information by a serving member of AGS to dissident republicans (Report). The High Court ordered discovery of the Report in 2019; however, the Commissioner claimed privilege over the Report.

The Commissioner objected to making third party discovery on the grounds that the Report was covered by public interest privilege and in the interest of preserving the ability of AGS to investigate crime.

What is Public Interest Privilege?

Public interest privilege can be asserted to protect documents from disclosure where the proper functioning of the state may be adversely affected by disclosure. It may also be asserted where disclosure would adversely affect the prevention and detection of crime. The privilege is not confined to the executive functions of the state; it may also be available where the balance of the public interest favours non-disclosure.

See our previous article here for further information on the High Court's approach to public interest privilege and discovery.

Balancing respective interests

The Defendant and Commissioner accepted that unlike other forms of...