In August 2013, Channel 4 broadcasted an episode of its "Dispatches" series, called "Secrets from the Cockpit". This programme appeared to allege that Ryanair compromised the safety of passengers, crew and those living under Ryanair flight paths in pursuit of financial gain. There were additional allegations concerning Ryanair's fuel policies and an alleged failure to preserve cockpit voice recordings.
Following broadcast of the programme, Ryanair issued proceedings seeking damages (including aggravated and exemplary damages) for defamation.
Channel 4 delivered a full defence, pleading that the matters dealt with in the broadcast were true. Channel 4 then sought non-party discovery from the Irish Aviation Authority (IAA) and were successful in this application before the Irish High Court in November 2017.
Non-party discovery requires a person to produce documents which are relevant to a case, even if that person is not a party to the case. Channel 4 sought certain categories of the IAA's internal documents and correspondence, which it stated were relevant to the case. The documents requested included documents relating to a report prepared by the IAA in relation to "fuel Mayday" emergencies declared on three Ryanair flights. Ryanair had specifically pleaded that Channel 4 had failed to inform viewers of the content of this report.
The IAA raised concerns about the confidentiality of the documents and its obligations under Irish and EU law relating to aviation safety. The IAA voiced a concern that if it was required to produce the documentation requested, that it would have a "chilling effect" on persons in the aviation industry reporting occurrences to the IAA in the future.
Mr Justice Meenan, in the High Court, referred to a previous decision made by him in relation to the disclosure of documents between Channel 4 and Ryanair. In that decision, he set out the requirement of a court to carry out a "balancing test" in deciding whether to direct the disclosure of documents given in confidence to an aviation authority. He noted that he also had regard in that decision to the "chilling effect" argument now raised by the IAA. Judge Meenan held that since he had concluded in his previous decision that the balance lay in favour of full disclosure, subject to certain redactions, it now followed that confidentiality was not an issue in this application.
Judge Meenan considered that two of the categories of documentation sought were relevant and necessary for the fair disposal of the case. Therefore, he ordered that the IAA disclose documents falling within those categories.
However, Judge Meenan noted that non-party discovery should only be required in circumstances where the documents in question are not readily available to be produced by a party to the case.
Having regard to this case, parties should be mindful that where they hold documents that may be relevant to a court case, they may be required to produce those documents even if they are not directly involved in the case. From the costs perspective, some comfort can be taken from the requirement on the party seeking discovery to indemnify the non-party in respect of all costs reasonably incurred.