The High Court has ordered Independent News & Media plc and Independent Newspapers (Ireland) Limited to make discovery of two categories of documents in a privacy and confidentiality case brought by Pat Carey. The court did not decide whether journalistic privilege protects any documents; that question is to be considered after the media defendants identify documents in an affidavit of discovery.
The proceedings concern newspaper and online articles published in November 2015 about a Garda investigation into allegations of child sexual abuse against a former Government Minister. The articles initially did not name the person under investigation. Carey says he was identifiable from their details and that the reports prompted speculation about his involvement. He says he issued a statement on 12 November 2015 and stepped down from positions while the investigation was under way. The media defendants deny he was identifiable before his statement and say it was the statement that publicly identified him.
Carey alleges that confidential information about the investigation was unlawfully disclosed by Garda sources and that its publication breached his privacy and confidentiality rights. The media defendants deny unlawful disclosure and say the articles were published in the public interest. These are disputed claims, not findings made in this judgment. The court was told that the investigation had concluded and the Director of Public Prosecutions had informed Carey that no charges would be brought against him. That information was described as not strictly relevant to the discovery application.
The discovery motion concerned two remaining categories: communications between the media defendants and the Garda Commissioner or people working for the Commissioner, and documents about editorial consideration of the articles’ potential identifiability, private or confidential content, and likely harm to Carey. The parties had agreed on one other category, relating to circulation figures, and Carey did not pursue two more.
Justice Butler found both remaining categories relevant and necessary to the pleaded case. She rejected the arguments that the requests were speculative, insufficiently specific or disproportionately burdensome. She also held that the media defendants’ privilege claim was not so certain to succeed that discovery should be refused at this stage.
The order requires the media defendants to make an affidavit of discovery in the usual way. They may claim privilege in relation to particular documents, and Carey may challenge that claim. The court made no ruling on whether privilege ultimately applies, and expressly left that issue for later determination.