The High Court refused an application by Ryanair Ltd and Ryanair Holdings plc to discharge the jury in their case against Evert Van Zwol, John Goss and Ted Murphy, after a relevant email was found during the trial but had not been included in discovery. Justice Bernard J. Barton ruled on 13 December 2017 that the remaining prejudice could be addressed while the trial continued.
The email, sent to witness Martin Duffy by an unnamed pilot colleague on 4 September 2013, came to light during the trial’s 19th day. Duffy located it after being asked to search for it following cross-examination. The email’s author had been redacted. Duffy accepted that it should have been produced and that he had mistakenly believed it was included in discovery.
Ryanair argued the email was central to its case about a statement incorporated into a “pilot update”. It said the omission had deprived it of opportunities to investigate Duffy’s state of mind, join him to the proceedings or plead that the defendants were vicariously liable for his alleged malice. Ryanair also claimed the late discovery had caused trial prejudice that could not be repaired.
The defendants disputed that the email was in their possession or control. They said there was no evidence Duffy was their servant or agent, and argued that the jury could hear evidence about the email without restarting the trial.
Barton found, on the evidence then before the court, that Duffy provided services to the Interim Council of the RPG and other pilot associations under a contract for services. The invoices were issued to IALPA, which paid the cost. The judge concluded that Duffy was an independent contractor, not a servant or agent of the defendants, and that they had no legal entitlement to obtain the email from him for discovery. He also found no cogent evidence that the defendants employed and paid Duffy.
The judge said the email did not establish a relationship between Duffy and the defendants. Without a master-servant or principal-agent relationship, malice by Duffy could not, on that basis, deprive the defendants of qualified privilege. He also found no serious prejudice from Ryanair’s failure to join Duffy or plead vicarious liability, noting that Ryanair had known of Duffy’s involvement and could have taken those steps earlier.
Discharging a jury, Barton said, should be a last resort. He found the trial could remain fair because the email would be examined before the jury, Duffy could be further cross-examined, and the third defendant had yet to give evidence. The first and second defendants could also be recalled if needed. He refused the application; the jury was not discharged.