Judgment: 2021-09-30 · Court archive

High Court strikes out truth and honest opinion defences in two defamation cases

The court also ordered discovery of records on publication and pre-publication checks, while refusing the defendants’ requests for four categories of documents.

High Court · [2021] IEHC 660

Who, what, where, when and why

Who
  • Darragh Mackin (Plaintiff)
  • Gavin Booth (Plaintiff)
  • Denis O’Brien
  • James Morrissey (Defendant)
What

The court also ordered discovery of records on publication and pre-publication checks, while refusing the defendants’ requests for four categories of documents.

Where

Places mentioned in the report

  • Ireland
When

Judgment:

Why

Reasons reported in the judgment

The judge considered a motion to strike out the defendants’ pleaded alternatives, which said the report was not independent or balanced, advanced Sinn Féin’s political agenda, and related to Sinn Féin’s association with the IRA and the alleged chilling effect of IRA violence. Applying the Court of Appeal’s approach in Ganley v RTÉ, he concluded that the alternatives did not meet the plaintiffs’ pleaded complaint. He found that they arose from distinct allegations, and that most were not defamatory of the plaintiffs. He struck out both defences in each case.

The High Court struck out the defences of truth and honest opinion in two defamation actions brought by solicitors Darragh Mackin and Gavin Booth over a 2016 press release. The court also ordered the defendants to disclose records about the release’s circulation and their attempts to obtain a response and verify allegations. It refused the defendants’ requests for four categories of documents.

Mr Justice Mark Heslin delivered the judgment on 30 September 2021. The two claims, issued in 2017, concern the words “Sinn Féin/IRA certainly got the report they paid for”, published in a statement by Denis O’Brien and James Morrissey responding to a report on media ownership in Ireland. The plaintiffs say the words meant they had been paid by and acted for the IRA, and attacked their integrity and professional fitness. The defendants deny those meanings and deny the extent of publication.

The judge considered a motion to strike out the defendants’ pleaded alternatives, which said the report was not independent or balanced, advanced Sinn Féin’s political agenda, and related to Sinn Féin’s association with the IRA and the alleged chilling effect of IRA violence. Applying the Court of Appeal’s approach in Ganley v RTÉ, he concluded that the alternatives did not meet the plaintiffs’ pleaded complaint. He found that they arose from distinct allegations, and that most were not defamatory of the plaintiffs. He struck out both defences in each case.

The defendants had sought documents concerning the report’s commissioning, payments, terms of reference and drafts. The judge refused all four categories. He said the commissioning arrangements were not in dispute and the requests largely related to the truth defence, which had been struck out. On authorship, he said interrogatories could provide the information sought without discovery of drafts.

The plaintiffs sought two categories. The judge ordered discovery of documents recording the press release’s circulation, which was disputed and relevant to the extent of publication. He also ordered disclosure of records showing attempts to contact the plaintiffs and steps taken to verify allegations, finding these relevant and necessary to the defendants’ fair-and-reasonable-publication defence under section 26 of the Defamation Act 2009.

The judgment addressed interlocutory motions only. It did not decide whether the words were defamatory, whether the plaintiffs authored the report, or whether the remaining defences succeed. The parties were directed to correspond about the form of orders, including costs; if they could not agree, they were to file short written submissions within 14 days.

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