The High Court allowed an appeal by Independent Newspapers (Ireland) Limited against a discovery order in its dispute with Joseph Murphy Junior, replacing immediate disclosure of confidential unpublished material with a requirement to preserve and list it pending trial.
In a judgment delivered on 28 July 2006, Mr Justice Clarke considered an order made by the Master of the High Court on 2 May 2006. It required the newspaper to disclose articles prepared or published before 20 July 2001 about Murphy’s alleged attendance at Ray Burke’s house in May or June 1989, as well as notes of unpublished information included in instructions to the newspaper’s lawyers before that date.
The underlying dispute followed a 1998 defamation action brought by Murphy over a Sunday Independent article. That article described Michael Bailey as the man in Burke’s house when a brown paper bag containing IR£50,000 was handed to the former minister by Murphy as a campaign contribution. Murphy’s case was that he was not present and paid no money. The defamation proceedings were compromised in July 2001: Independent agreed to pay IR£53,000 inclusive of costs and publish an agreed apology. The proceedings were later struck out by consent.
In the current proceedings, Independent alleges Murphy’s earlier claim rested on a false representation and amounted to malicious abuse of process and fraudulent misrepresentation. It seeks to set aside or rescind the settlement and claim damages. Murphy argues that relevant evidence and submissions had already been heard publicly by the Flood Tribunal and that Independent had obtained discovery and legal advice before settling. He says the newspaper is estopped from pursuing its present claim. These are the parties’ positions, not findings made in this discovery appeal.
Justice Clarke said the legal principles governing an attempt to go behind a compromised case remained unsettled. He considered it at least arguable that the state of Independent’s knowledge at settlement could matter if the company relied at trial on material that was not, and could not have been, available then. Whether that issue would arise depended on how the case was presented.
The judge allowed discovery of the published material, noting that Independent could compile the relevant documents more easily. But he found immediate disclosure of confidential unpublished material disproportionate when its relevance was uncertain and disclosure could breach confidence. Under the replacement arrangement, Independent must not destroy the material and must prepare a list for its solicitors. The trial judge may later order disclosure of specific categories if necessary for a fair resolution. The refusal to disclose now was not final. The judgment did not decide the underlying claims.