The High Court has rejected arguments, in the course of defamation proceedings, by two State bodies that non-party discovery should not be ordered against them on grounds of confidentiality and public interest privilege, emphasising that confidential communications do not automatically create a privilege against disclosure. The court also held that the proper time for asserting public interest privilege is when making discovery and necessary redactions can be applied at that stage.
The non-party discovery applications arose from proceedings taken against the Guardian News & Media Ltd, arising from publication of an article entitled “Revealed: trafficked migrant workers abused in Irish fishing industry”, which included details of a Filipino fisherman’s alleged experiences on an Irish flagged trawler and appeared on The Guardian's website in November 2015. The article alleged that African and Asian migrant workers were being “illegally used as cheap labour on Irish fishing trawlers” and reported that the allegations were denied. The owners of the vessel issued defamation proceedings in February 2016 and were met with a truth defence, among other defences.
The applicant newspaper submitted that it had identified a number of documents that must originate with the non-party State bodies which were not held by the plaintiffs. It submitted that the documents were directly relevant to its plea of truth in respect of the allegedly defamatory statements contained in the article under suit, that the non-parties were the only source of the documentation and that orders for discovery were necessary.
The non-parties contested the motions on the grounds of relevance and necessity, excess scope and oppression, public interest privilege, and confidentiality. They argued that the court could have regard to alternative means of proof available to the applicant that would avoid unfairness at trial in the absence of discovery. In particular, they relied on Hansfield Developments v Irish Asphalt Ltd, where the court found that non-party discovery was unnecessary because the information sought could be provided by way of expert evidence.
Barton J agreed with the applicant newspaper that the scope of the categories sought was not oppressive and noted that there had been a concerted effort to narrow them down.
He also said that there was no requirement to identify specific documents sought as distinct from categories of documents sought, provided that the categories were sufficiently detailed to enable the non-parties to identify the relevant documents.
The court was not satisfied that it was inevitable that assertions of public interest privilege would be upheld in respect of documents held by the non-parties and accepted submissions from the applicant that “the question of protecting sources and information given in confidence together with information of a highly sensitive nature, including information relating to national security, is properly and appropriately addressed by redaction when the affidavit as to documents is being sworn.”
This decision confirms that there is no blanket entitlement to rely on public interest privilege, either in defence of an application for discovery against a State body or in making discovery once ordered. Each document falls to be considered on its own merits and if a category of documents is relevant and necessary for the fair disposal of proceedings or to save costs, discovery cannot be resisted on the basis that the documents are confidential or will be the subject of a claim of public interest privilege.