RTÉ may cross-examine businessman Declan Ganley over deficiencies in his discovery of documents for his defamation action over a Prime Time programme broadcast in 2008 about his life and business interests, the Court of Appeal has ruled.
Among various complaints about Mr Ganley's discovery, RTÉ cited a lack of documents concerning the Anglo Adriatic Fund. Mr Ganley had said those were lost as a result of looting and civil disorder in Albania and as a result of damp/mildew.
In his action initiated in 2011, Mr Ganley claims the November 2008 programme defamed him by using words or innuendo which, he alleges, meant he had links to organised crime.
He also claims the programme used words or innuendo which meant he had falsely claimed to be a paid adviser 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'.
Exaggerated
RTÉ denies defamation and denies the words complained about 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 three judge appeal court on Wednesday gave judgment on appeals by Mr Ganley and RTÉ concerning a 2017 High Court judgment on discovery and other pre-trial issues in the litigation.
It refused RTÉ’s appeal over the High Court’s refusal to strike out Mr Ganley’s action over the discovery deficiencies.
That was a "drastic" remedy "of last resort" which the court should shy away from unless satisfied that discovery deficiencies could not be cured via another avenue, Ms Justice Mary Irvine said.
That avenue was to direct Mr Ganley to swear a further affidavit of discovery and to permit RTÉ cross-examine him concerning his default.
In making that order, the High Court judge struck a “fair and just balance” between the sides, she held.
Dismissing Mr Ganley’s appeal against the order permitting his cross-examination about his discovery affidavits, she said the High Court had set out its reasons for that order in very significant detail, including its findings of deficiencies in Mr Ganley’s discovery affidavits.
The High Court also considered that the “clear” absence of information that must be available cannot but be “deliberate”, she said.
Dismissed
She further dismissed RTÉ’s appeal over orders directing it to make discovery “forthwith” for the action in line with a February 2015 High Court order and refusing to allow it make a form of “sealed” discovery of documents which could not be opened until Mr Ganley had addressed the alleged deficiencies in his discovery.
She rejected Mr Ganley’s appeal over the High Court’s refusal to strike out aspects of RTÉ’s defence to his claim, including pleas he had a tendency to make false or exaggerated claims in business and other matters, which he denies.
The High Court had provided a sound basis for that refusal, including its finding that the alternative meaning contended for by RTÉ was capable of arising from the publication, she said.
The High Court was correct as a matter of law in concluding there was nothing to preclude RTÉ seeking to justify what it maintains is the “sting” of the entire programme even though faced with seemingly distinct allegations of defamation made by Mr Ganley.
The matter has been adjourned for two weeks when the court will reassemble to make final orders arising from its judgment, including costs orders.
