Anthony Harris (plaintiff/ respondent) v Stephen Fagan (first defendant/appellant) and Rory Burgess (second defendant).
Practice and Procedure - Discovery - Defamation - Plea of justification - Rules of the Superior Courts 1986 (SI No 15), Order 63.
The Supreme Court (the Chief Justice Mr Justice Hamilton, Mr Justice Lynch, Mr Justice Barron); judgment delivered 22 January 1999.
IT is not acceptable that a defendant in a defamation action, should seek discovery, by reliance upon a plea of justification of the meaning set out in the statement of claim, in respect of words which are not defamatory of themselves, where such a plea is sought to be introduced by reliance on vague words. If that is the intention of a defendant then a clear and specific plea should be included in his defence. This can be done quite simply by pleading that the said words, or such of those meanings as the defendant chooses to stand over, are true in substance and in fact.
The Supreme Court so held in dismissing the first defendant's appeal.
Paul Murray BL for the appellant; Harold A. Whelehan SC and Timothy F. Sheehan BL for the respondent.
Mr Justice Lynch set out the facts stating that this was an appeal by the first defendant against an order, made by Mr Justice Morris in the High Court, on 13 May 1996, setting aside an order of the Master of the High Court, made on the application of the said defendant, on 18 January 1996, requiring the plaintiff/ respondent to make discovery.
The respondent's action was for damages for slander, alleged to have been committed by the defendants on 22 September 1992 in the Village Inn, Crumlin, at the public inaugural meeting of the Crumlin Development Group. The respondent alleged that a number of different slanders had been uttered, in the course of, and following the conclusion of the said meeting, and he alleged in his statement of claim that the various slanders meant in short that he was an incompetent and negligent solicitor. The appellant denied that he uttered any of the said statements save for one, namely: "Mr Harris, you know who I am. What I want to know is what you are doing here and why you are showing such a new found interest in the environment of Crumlin when you are only just moving into the village. I also want to know whether the people of Crumlin know your motives for being on this committee and your history. I grew up in Crumlin and lived here all my life."
The appellant then denied that the said words bore, or were understood to bear, or were capable of bearing, or being understood to bear, any of the meanings set out in the statement of claim, or any meaning defamatory of the respondent as alleged or at all. He went on to plead that further or in the alternative the said words were true in substance and in fact. The appellant sought discovery and he swore a supporting affidavit on 16 August 1995, in which he averred, inter alia, that the respondent alleged, in his statement of claim, that he had suffered and continued to suffer loss and damage. He further averred that he was advised by his solicitors that it was essential to the proper defence of the respondent's claim, that he obtain sight of all records of the respondent's alleged loss and damage and that in particular, it was essential that he obtain sight of all records of the respondent in respect of all his dealings with the appellant; the wife of the appellant, May Fagan (nee Malone); the second named defendant; and all or any companies of which the appellant was a director or shareholder and sought legal advice or legal service from the respondent.
The appellant swore a further affidavit on 6 December 1995 in which he averred, inter alia, that the respondent had acted as solicitor for the two defendants in both a personal capacity and in their capacity as directors of Greendale Developments Limited (hereinafter Greendale), a company of which the appellant was the chairman and managing director and in which he and his wife each owned one-third of the issued share capital. He also averred that the respondent had acted in a personal capacity on behalf of the appellant's wife and also advised on matters relating to Greendale. The appellant further averred, at paragraph 5 of his affidavit, that he was advised by his solicitors that for the purposes of defending the respondent's claim on the basis of the defence already delivered, discovery was required in relation to the activities of the respondent in his capacity as solicitor for the defendants, the wife of the appellant and Greendale, and in particular, the activities of the respondent in relation to: firstly, the proposed acquisition (in trust) by the appellant and his wife of premises from Greendale; secondly, all activities of the respondent while acting as solicitor to Greendale; and thirdly, all activities of the respondent in relation to the allegation made by the respondent in Circuit Court proceedings entitled May Malone v Anthony Harris (Circuit Court Record No 8007/1993) that a fire, which occurred on or about 18 October 1991, was caused by the deliberate acts of May Malone or of her servants or agents or other persons acting in concert with her, their servants or agents and constituted a trespass against the property of the respondent herein.
The Master of the High Court ordered the respondent to make discovery of the documents which were or had been in his possession or power relating to the matters in question in this action and in particular the documents referred to at paragraph 5 of the affidavit of the appellant filed on 6 December 1995. The respondent brought a motion, pursuant to Order 63 rule 9 of the Rules of the Superior Courts, to discharge the order of the Master of the High Court, and swore a supporting affidavit in which he averred, inter alia, that he had made it clear to the appellant, and to his then solicitors, that he made no claim for special damages in this action, including specifically, no claim for loss of earnings arising out of the matters complained of. He also averred that the appellant did not plead justification in respect of any of the matters complained of and set forth in the statement of claim, save those words which the appellant had rephrased and set forth in his defence. The respondent further averred that in circumstances where the appellant did not plead justification, and in fact denied that he spoke the said words, that it was not open to him to seek discovery, in order to peruse and trawl through documentation in the possession of the respondent, to ascertain whether or not he ought to have pleaded justification in respect of same, or for any other reason.
Mr Justice Morris, in the High Court, in an ex tempore judgment, reversed the order of the Master of the High Court, and held that that none of the documents which were sought, bore on the issues of the case. He further held that the justification which was pleaded in this case was not wide enough to allow the discovery sought.
In the Supreme Court, it was submitted on behalf of the appellant that he was entitled to discovery in relation to the matters pleaded as true. Counsel emphasised the fact that the words "and your history" were included in the plea of justification. The appellant was a former client of the respondent. He was not seeking to trawl through all the respondent's files relating to the business of the appellant, the appellant's wife and Greendale; he sought discovery only of the three files mentioned in his affidavit.
In response, counsel for the respondent submitted that the main purpose of the application for discovery was to delay the trial of the respondent's action. The application was first brought in November 1995, when the case was already in the list to fix dates, and since service of the notice of appeal of 28 May 1996, the respondent had had to bring two motions to dismiss for want of prosecution in order to compel the appellant to lodge the necessary books of appeal. The issue was whether the words were defamatory or not. The admitted words were denied to have any defamatory meaning such as pleaded in the statement of claim relating to the competence of the respondent as a solicitor. The decided cases did not contemplate that discovery should be ordered solely for the purposes of cross-examination as to credit.
Mr Justice Lynch held, that the plea of justification in this case was as to words which, without the meanings attributed to them by the respondent, were not defamatory in themselves. It was clear, for example, that the respondent did know who the appellant was. Counsel for the appellant had, however, emphasised the inclusion in the passage quoted above of the words "and your history". He seemed to be suggesting that the plea of justification, so far as it related to those words, amounted to a justification of the meanings set out in the statement of claim. If it was the intention of the appellant it should have been plainly pleaded that the respondent was an incompetent and negligent solicitor. That could have been quite simply done by pleading, that the said words, including the meanings attributed to them in the statement of claim, (or such of those meanings as the appellant chose to stand over), were true in substance and in fact. No such clear and specific plea was included in the defence.
Mr Justice Lynch further held that it was not acceptable that such a serious plea, as a justification of the meaning set out in the statement of claim, should be sought to be introduced by reliance on such vague words as "and your history" in the passage quoted above. Mr Justice Lynch agreed with Mr Justice Morris in the High Court that the justification which was pleaded in this case was not wide enough to allow the discovery sought. Accordingly, he dismissed the appeal.
The Chief Justice and Mr Justice Barron concurred with the judgment of Mr Justice Lynch.
Solicitors: Cullen Tyrrell & O'Beirne (Bray) for the appellant; Fergus Dunleavy & Co (Dublin) for the respondent.