The High Court has declined to strike out Sean Gallagher’s action against RTÉ over its coverage of a 2011 presidential election debate, despite finding that Gallagher negligently failed to make proper discovery. It ordered an independent electronic discovery expert to review the material and said the parties would share the expert’s costs equally.
Mr Justice David Keane gave the ruling on 11 April 2017 on an RTÉ motion seeking dismissal of the action or, alternatively, a stay or further discovery directions. The court did not decide the underlying allegations about the debate or the election. It adjourned the motion for 12 weeks and reserved the costs of the application for a later hearing.
Gallagher’s claim concerns an RTÉ televised debate on 24 October 2011. He alleges that RTÉ unfairly put to him a statement posted on a social media account purporting to belong to another candidate’s official campaign, and that the broadcaster rebroadcast debate extracts the next morning without clarification. He claims the conduct damaged his election prospects. RTÉ denies wrongdoing and disputes that its conduct caused the loss or damage claimed. The judgment records that RTÉ acknowledged and apologised for failing to verify the statement’s origin and to explain that its provenance was in issue.
The dispute before the court concerned Gallagher’s compliance with a 2014 discovery order. The judge found deficiencies in the form of his discovery affidavits, including how privileged documents were listed; failures concerning relevant electronic material and metadata; and shortcomings in identifying and reviewing potentially relevant documents. He noted that a campaign email account had been allowed to lapse in August 2012 without a backup, before Gallagher’s solicitors sent a letter before action the following month. The judgment records that Google support later said a closed account’s contents could not be recovered after 30 days.
The judge found the discovery failure negligent, but not wilful or contumelious. He concluded it had not yet compromised the prospect of a fair trial enough to justify striking out the proceedings. He also said factual disputes about the underlying case could not be resolved on this interlocutory application.
Under the order, an independent expert is to be appointed by agreement or, failing agreement, by the court. The expert is to review Gallagher’s discovery, report to both parties’ solicitors within four weeks of appointment (unless they agree an extension), and receive a list of relevant data custodians and devices from Gallagher. Gallagher must then swear a consolidated or comprehensive affidavit of discovery, taking account of the report and the court rules. Each party is to pay 50% of the expert’s reasonably incurred fees and expenses, which may be treated as that party’s costs under the applicable rules. The court left further or ancillary orders and the application’s costs to the adjourned date.