The High Court refused an application by Helen Lucy Burke for discovery of two categories of documents from David Norris in his defamation action against RTÉ and Burke. President of the High Court Kearns delivered the judgment on 28 February 2014. The ruling addressed discovery only; it did not decide whether the broadcasts were defamatory or whether the pleaded truth defence would succeed.
The action arose from RTÉ’s “Liveline” broadcasts on 30 May and 21 October 2011. The first broadcast discussed a 2002 interview between Norris and Burke for Magill magazine, including disputed claims about what Norris had said on sexual activity and consent. The second included an eight-minute recording of their restaurant conversation and commentary by journalist Harry McGee. Norris alleged that words in the programmes conveyed, among other things, that he supported incest and underage sex, was unfit for public office and had endorsed Burke’s article before publication. Those were allegations in the pleadings, not findings in this discovery ruling.
Burke’s defence pleaded that certain meanings alleged by Norris were true in substance and fact. Her lawyer’s affidavit said the requested documents could support that defence and an honest-opinion defence. The requests covered documents about Norris’s representations to Israeli authorities on behalf of his former partner, Ezra Nawi, and documents relating to his support for poet Cathal Ó Searcaigh after a television documentary about Ó Searcaigh’s relationships with Nepalese teenage boys.
The court found that the pleaded truth defence was sufficiently particularised to support a discovery application. It then considered whether each category was relevant, within scope and necessary to dispose of the action fairly.
The court refused discovery of the Ó Searcaigh-related documents. On the defence’s own account, Norris had called for an RTÉ programme to be investigated by an Oireachtas committee and said Ó Searcaigh was being subjected to “trial by media”. The court said the relevant correspondence with newspapers and media had to be assumed to be in the public domain, and Norris’s conduct on the issue could be explored in cross-examination. It therefore did not regard discovery as clearly necessary.
The court also refused discovery of the Israeli correspondence. Norris had already made some of it public, and the intervention on behalf of Nawi had not been denied. The court said the information was already available to Burke and that the request’s central reliance on Norris’s alleged “ambivalent attitude” was not a particular pleaded in the defence. It disallowed this category as not relevant to the material facts relied on in the truth plea.
The order sought was therefore refused in both categories. The judgment did not resolve the underlying defamation claims or determine the truth of the disputed broadcast statements.