The High Court refused RTÉ’s application for discovery of two categories of documents in a libel action brought by Senator David Norris over two Liveline broadcasts in 2011. Ms Justice Baker ruled that the material sought would support a case the broadcaster had not pleaded and amounted to a fishing exercise.
Norris’s action concerns programmes broadcast on 30 May and 21 October 2011. He alleges that the broadcasts defamed him. RTÉ pleaded that certain meanings conveyed by the programmes were true, including that Norris had endorsed underage sex and had agreed with journalist Helen Lucy Burke’s 2002 Magill article before its publication.
RTÉ sought documents about representations Norris made to Israeli or Irish authorities or politicians on behalf of his former partner, Ezra Yizhak Nawi. It also sought documents about Norris’s support for poet Cathal Ó Searcaigh after an RTÉ documentary about his relationships with teenage boys in Nepal.
The broadcaster argued the documents could support its claim about Norris’s views on consent and underage sex. Norris disputed that he had made the statements attributed to him in Burke’s article. He accepted, in a 2014 letter, that he did not consider an arbitrary minimum age of consent should be the sole criterion governing the law, but said that was not the same as endorsing the meanings RTÉ pleaded.
Justice Baker said RTÉ had a factual basis for pleading truth, but discovery still had to be relevant to the defence as pleaded. She found the defence expressly linked its truth plea to what the recorded interview between Norris and Burke showed. In her view, the documents sought concerned a consent issue that was not itself pleaded as a defamatory meaning in the action.
The judge also rejected RTÉ’s argument that Norris had put the consent issue in dispute by denying a paragraph in his reply to the defence. A denial of a pleaded fact, she said, did not amount to a claim that the fact was defamatory.
A related discovery application by Burke had been refused in 2014. Justice Baker said that ruling was not directly determinative because RTÉ had reformulated its request, but she reached her decision on the pleadings and the relevance of the documents sought. She also found that discovery could not address the evidential gap concerning any unrecorded part of the interview, because Burke would not be able to give evidence about an exchange that was not recorded.
The court refused RTÉ’s discovery application. The judgment dealt only with that application; it did not decide the underlying libel claim or whether the pleaded meanings were true.