RTÉ and businessman Declan Ganley have each alleged failure by the other to make proper discovery of documents for the businessman’s action alleging he was defamed in a Prime Time broadcast 10 year ago. RTÉ denies defamation.
The Court of Appeal (COA) on Wednesday heard appeals by Mr Ganley and RTÉ over various orders made by the High Court in early 2017 arising from discovery disputes.
The COA president Mr Justice George Birmingham, sitting with Ms Justice Mary Irvine and Ms Justice Marie Baker, said the court was reserving judgment.
The judges earlier agreed to watch the November 2008 Prime Time broadcast after Paul O'Higgins SC, for RTÉ said that would assist in deciding the issues in the appeals.
In proceedings initiated in 2011, Mr Ganley claims the Prime Time programme defamed him in using words or innuendo which, he alleges, meant he had links to organised crime.
He also claims the programme used words or innuendo that meant he had falsely claimed to be a paid advisor to the Latvian government; was somehow involved in the death of a man with whom he had a close business relationship; caused a fund to lose the life savings of thousands of Albanian pensioners and was covertly working for the US Central Intelligence Agency and/or “an ill-defined group known as ‘Neocons’”.
RTÉ denies defamation or that the words complained of mean what Mr Ganley alleges.
It pleads the “sting” of the words, taken as a whole, was that Mr Ganley tended to make false or exaggerated claims in respect of business or other matters and it pleads truth or justification in that context.
The appeals concern a judgment of the High Court’s Mr Justice Max Barrett in February 2017. He refused RTÉ’s application to halt, on grounds of alleged failure to discover documents, the defamation proceedings.
He also refused Mr Ganley’s application to strike out RTÉ’s defence over its delay making discovery.
Having found apparent “deficiencies” in Mr Ganley’s own discovery to date, the judge made orders permitting RTÉ to cross-examine Mr Ganley over discovery issues.
In submissions on Mr Ganley’s appeal, Declan Doyle SC argued there should not be an order at this stage for a “tactical” cross-examination by RTÉ of Mr Ganley about discovery.
Mr Ganley could explain defects in his discovery to date in affidavits, counsel said.
RTÉ had “flatly refused” to make full discovery, he argued. The broadcaster was keeping documents from Mr Ganley in order to “lay a litigation trap” for him and the COA should uphold the High Court’s refusal to allow RTÉ provide a form of sealed discovery.
Paul Burns SC, also for Mr Ganley, argued aspects of RTÉ’s defence should have been struck out, including pleas Mr Ganley had a tendency to make false or exaggerated claims in business and other matters, which he denies.
Counsel said there were a number of distinct defamations in the broadcast and the High Court wrongly dealt with RTÉ’s defence to those in “one bundle” and as alternative meaning pleas.
Mr O’Higgins, with Luán O Braonáin SC, for RTÉ, said Mr Ganley had failed to make “honest” discovery of documents, including material relating to a mobile phone contract for Iraq.
In those circumstances RTÉ wanted the COA to make an “unusual” order permitting the broadcaster to provide sealed documents to the court which Mr Ganley cannot access until he has made discovery as sought by RTÉ.
RTÉ is entitled to plead any alternative meaning provided it accords with the “sting” of something complained about by Mr Ganley, he argued.
Mr Ganley has “carefully selected” bits of the programme and wrongly maintains RTÉ is not entitled to contend the broadcast, when taken as a whole, was accurate, he submitted.
