The High Court has ordered The Irish Times to make discovery of three categories of documents in a defamation action brought by businessman Dermot Desmond over a 2016 article based on the Panama Papers. It refused two other categories. The ruling concerns discovery only; it does not decide the underlying claims or whether the newspaper’s publication was lawful or fair and reasonable.
Mr Justice Maurice Collins delivered the judgment on 17 February 2020. Mr Desmond’s action concerns an article published on 7 April 2016 that referred to him and included his photograph. He claims the article was defamatory and breached his privacy and confidence. The Irish Times admits publishing it but denies those claims and pleads, among other defences, fair and reasonable publication under section 26 of the Defamation Act 2009.
The court ordered discovery of documents supplied to the newspaper relating to Mr Desmond and considered in connection with articles referring to him. It also ordered discovery of records concerning editorial decisions about the part of the 7 April article that reported the response of Mr Desmond’s spokesperson, including earlier drafts of that portion. The third category covers documents recording or evidencing the newspaper’s knowledge of the origins of the Panama Papers relating to Mr Desmond or his associated companies. The parties had substantially agreed on that category, with the court retaining the words “or evidencing”.
In reaching its decision, the judge said preparation of a story and editorial decisions about whether, when and how to publish could be relevant to the statutory fair and reasonable publication defence. He found the material sought in the first category relevant to the issues in dispute, including that defence and Mr Desmond’s claim for aggravated or exemplary damages. The editorial decisions about how the spokesperson’s response was reported were also relevant. The ruling did not determine whether any particular document must ultimately be produced for inspection: the orders were without prejudice to objections at that later stage, including claims of journalistic privilege.
The judge refused discovery of records about efforts to contact Mr Desmond or his representatives, finding no basis for the request beyond two emails already in Mr Desmond’s possession. He also refused records of communications between the newspaper, other journalists or the material’s suppliers about selecting information for publication or considering its public interest. He found that category irrelevant and unnecessary, and said there was no basis to infer that other ICIJ members had input into the newspaper’s decision to publish.
The application therefore succeeded in part. The judge said he would hear the parties on consequential matters.