Pleading defamation defences

Quinn Insurance logoIn a recent post, I discussed newspaper reports of a recent High Court case in which Quinn Insurance Group lost a High Court bid to strike out parts of the Sunday Tribune’s defence to forthcoming libel proceedings taken against it by the insurance company; and I promised to return to the case as soon as a full report of the judgment became available online. I can now make good on that promise, as the judgment is available here and here. It turned on the question of how much detail must be pleaded before trial by a defendant claiming that an alleged defamation was either true or covered by qualified privilege.

Relying on an internal and confidential Garda (police) memorandum, the Sunday Tribune alleged that senior Gardaí had been recruited by Quinn to investigate insurance claims being made against it, and that the Gardaí not only relayed detailed information to Quinn, but also offered bonuses or sweetners to solicitors on behalf of plaintiffs to recommend early settlements in cases or claims against Quinn. The paper characterised this as “a scandalous subversion of garda independence” and resources. The Quinn Group disputed the authenticity of the memorandum and sued for libel; the paper defended the memorandum and pleaded justification (in effect, that allegations were true), or alternatively that the disclosures were in the public interest and thus protected by qualified privilege.

In Quinn Insurance Ltd v Tribune Newspapers plc [2009] IEHC 229 (13 May 2009) (also here) the question for Dunne J was whether sufficient detail about the plea of justification had been provided to Quinn by the Sunday Tribune. She held:

There is no doubt whatsoever that a party is entitled to know the nature of the case being made against them. However, the role of particulars is not to require a party to furnish detailed particulars of specific aspects of the case. It is sufficient that the issues between the parties should be adequately defined and that the parties should know in broad outline what is going to be said at the trial of the action.

Quinn claimed that, in order to prepare fairly for the trial, they needed to know which of their employees (in particular, claims managers) were alleged to have acted corruptly, and when, so that they could know what witnesses would be necessary to rebut the plea of justification. As Dunne J said, they contended that “not to provide the particulars sought … would amount to a trial by ambush”. On the other hand, the Tribune claimed that they had provided a broad outline of the case being made in respect of the plea of justification, and that they wre not obliged to go beyond that. Dunne J therefore characterised the issue as

whether the defendants have, in fact, provided a broad outline of the case being made in justification against the plaintiffs, or are the plaintiffs attempting, by means of the notices for particulars, to force the defendants to disclose the names of the witnesses who will be giving evidence on their behalf at the trial of the action.

Relying on various cases including McDonagh v Sunday Newspapers Ltd [2005] 4 IR 528, [2005] IEHC 183 (10 May 2005) and Cooper Flynn v RTE [2000] 3 IR 344, she derived certain principles from the authorities:

… a party is entitled to know the case being made against them. If necessary, particulars may be ordered to clarify the issues or to prevent the party from being taken by surprise at the trial of the action. However, a party is only entitled to know the broad outline of the case that he/she will have to meet. A party is not entitled to know the evidence that will be given against them in advance of the hearing. Further, it is not usual to order the names and addresses of witnesses to be furnished in advance of the hearing of an action.

The absence of particulars in relation to a plea of justification may result in an order to furnish such particulars … [and] the names and addresses of potential witnesses may be ordered in circumstances where not to do so would be to the litigious disadvantage to the party pleading justification and to the considerable advantage of a plaintiff in a manner that would be unfair. The overriding principle in deciding whether to order replies to particulars which would have the effect of disclosing the names and addresses of potential witnesses, should be the need to ensure a fair trial for both parties to the litigation.

Applying these principles, she held that the plaintiffs had been furnished with the particulars of the defendants’ plea of justification and that they been provided with a broad outline of the material facts relied on by the defendants, which, she said, was neither “more nor less than they are entitled to”. She emphasised that the paper’s allegations were derived from the contents of the disputed memorandum, and that, as a consequence, she was not of the view that the plaintiffs would be subject to “trial by ambush”. Rather, she took the view that plaintiff must be aware of the manner in which it conducted its business:

It knows the identity of its claims managers and I have no doubt it is in a position to establish whether or not it employed serving members of the Gardaí to investigate claims and claimants. They have been furnished with a broad outline of the case being made against them. As far as I can see, the only parties who will be at a significant litigious disadvantage in this case would be the defendants if required to furnish the particulars sought herein as they could not reasonably be expected to provide the particulars without access to the first named plaintiff’s files and records.

As a consequence, she declined to order the particulars sought by the plaintiff. Finally, the defendants also claimed that the relevant article “were published on an occasion or occasions of qualified privilege”; and Dunne J held that this sentence was sufficient to put the plaintiffs on notice of the defence, so that it was not necessary to furnish any further reply to the plaintiffs’ request for “full and detailed particulars” of that public interest.

It is, therefore, an important decision on the extent to which a defendant pleading justification and public interest qualified privilege can be required to show its hand in advance of trial. If it gets that far, the trial itself should be very interesting indeed.