The Court of Appeal has rejected most challenges to interlocutory orders in Declan Ganley’s defamation proceedings against RTÉ, while allowing appeals on the handling of costs. The substantive case over a 2008 Prime Time broadcast has not yet been heard.
In a judgment delivered on 23 January 2019, Ms Justice Irvine upheld the High Court’s refusal to dismiss Mr Ganley’s claim for want of prosecution over disputed discovery. She also upheld permission for RTÉ to cross-examine him about his discovery affidavits sworn in August 2014 and April 2015.
The court said the High Court judge was entitled to use further discovery and cross-examination as a way to address deficiencies, rather than end the claim. It accepted that the evidence supported the judge’s conclusion that the cross-examination was necessary to resolve issues fairly. The Court of Appeal did not decide the underlying defamation dispute or make findings on whether the broadcast was defamatory.
RTÉ had appealed an order requiring it to provide discovery under a February 2015 consent order. It had sought to delay disclosure until after Mr Ganley’s discovery was complete and he had been cross-examined, and to file its own discovery in a sealed format. The Court of Appeal dismissed both appeals, finding that the consent order was not conditional and that RTÉ had to comply with it.
Mr Ganley also challenged paragraphs 8, 9 and 10 of RTÉ’s defence, which included alternative meanings and a plea that the broadcast conveyed a general criticism that he tended to make false or exaggerated claims. The Court of Appeal dismissed that appeal. It held that RTÉ could seek to justify a reasonable meaning the broadcast might bear, and that Mr Ganley’s reliance on the programme as a whole did not prevent RTÉ from advancing a common-sting defence. The court did not decide whether RTÉ’s allegations were true; those issues remain for the substantive proceedings.
The appeals concerned orders made by the High Court on 1 March 2017. The Court of Appeal allowed RTÉ’s appeals against reserving the costs of the interlocutory applications until trial. It proposed hearing submissions on how those costs should be dealt with alongside the costs of the appeals. The judgment did not determine the final allocation of those costs.