The Court of Appeal has allowed Denis O’Brien and James Morrissey to seek to amend parts of their defences in two defamation actions brought by Darragh Mackin and Gavin Booth over a 2016 statement about a report on Irish media ownership.
The appeals concerned interlocutory orders made by the High Court in 2021. The Court of Appeal did not decide whether the statement was defamatory or whether any defence would ultimately succeed. It provisionally proposed that the defendants deliver amended defences, with the actions then proceeding in the High Court in the ordinary way. The parties were to be heard on the precise orders, including costs.
The plaintiffs sued over the sentence, “Sinn Féin/IRA certainly got the report they paid for.” They pleaded that it meant, among other things, that they had received payment from or acted for the IRA and lacked professional integrity. The defendants denied those meanings and pleaded alternative meanings, including that the report was not independent, was not balanced or fair, and was designed to advance Sinn Féin’s political agenda.
The High Court had struck out the defences of truth and honest opinion. On appeal, the Court of Appeal held that the defendants could rely on four alternative meanings for a truth defence: that the report was not independent; that it was neither balanced nor fair, with the words referring to RTÉ deleted; that it was designed to advance Sinn Féin’s political agenda; and that a report commissioned by Sinn Féin would support its position and opposition to Mr O’Brien and Independent News and Media. The defendants must provide particulars of the facts supporting those meanings. The court said this ruling made no judgment on their merits or prospects of success.
The court upheld the striking out of two other proposed meanings: that Sinn Féin supported and remained associated with the IRA, and that IRA violence supported by Sinn Féin continued to have a chilling effect. It said those meanings were not defamatory of the plaintiffs or could not arise from the words complained of. The court also said IRA activities and the relationship between Sinn Féin and the IRA were not relevant to the permitted meanings and could not be relied on to support them.
The defendants may also amend their honest opinion defence, provided they identify the opinions they say they held and the factual allegations supporting them. The court said the pleadings as filed did not clearly identify those opinions. The defendants may not rely on the IRA-related matters as factual support for the permitted opinions.
On discovery, the court limited the plaintiffs’ request to documents showing how widely the defendants or their agents circulated the statement. A request for records of efforts to seek a response or verify the allegations fell away after the defendants confirmed they made no such attempts. The defendants were refused discovery of commissioning and payment records and earlier report drafts, but were granted discovery of documents about the report’s scope and terms of reference.