The High Court has refused Ryanair’s request to inspect documents over which Channel 4 claimed journalistic privilege, including material that could identify four pilots interviewed anonymously for a programme about airline safety. The ruling concerns discovery in Ryanair’s defamation action; it does not decide whether the programme’s allegations were true or whether Ryanair was defamed.
Ryanair sued Channel 4 Television Corporation and Blakeway Productions Limited after Channel 4 broadcast “Secrets from the Cockpit” in August 2013. The programme raised concerns about Ryanair’s fuel policy, cockpit voice recordings and employment practices. Ryanair claimed the broadcast conveyed that the airline was unsafe and that its practices put passengers and others at risk. Channel 4 pleaded, among other defences, that the broadcast was true in substance and that it was fair and reasonable publication on a matter of public interest. Those are the parties’ pleadings, not findings in this ruling.
The dispute before Mr Justice Meenan arose after Channel 4 disclosed about 2,400 documents but withheld or redacted some material, citing journalistic source protection, legal advice privilege, litigation privilege or irrelevance. Ryanair sought an order for inspection. The judge considered whether the documents were adequately described and whether the claimed privileges applied.
The judge held that the descriptions were adequate for documents covered by journalistic privilege. He said that privilege can protect both a source’s identity and information that could reveal it. Balancing the public interest in protecting sources against Ryanair’s right to vindicate its good name, he concluded that disclosure of the sources was not shown to be essential. He also noted that Channel 4’s pleaded truth defence placed the burden on it, and that publicly identified interviewees and aviation authority reports could be relevant at trial. He therefore refused to order production or inspection of documents covered by journalistic privilege.
For documents covered by legal advice or litigation privilege, the judge rejected Ryanair’s objections to the categories of material discussed, including draft scripts, notebooks and certain communications. He accepted that litigation privilege could apply to material created as early as May 2013 because Channel 4 could have apprehended litigation. He did not rule that every withheld document was privileged.
The court directed that documents covered solely by legal advice or litigation privilege receive fuller descriptions. It also ordered the solicitor advising Channel 4 on discovery to swear an affidavit confirming that each document for which legal advice or litigation privilege was claimed had been inspected and, in the solicitor’s professional opinion, properly categorised. The judgment addresses inspection of discovery documents; the defamation action remained unresolved in this ruling.