Lynda Meegan v Times Newspapers Limited t/a The Sunday Times  IEHC 495
The case arose out of defamation proceedings initiated on foot of an article published in the Sunday Times in September 2014 (Proceedings). The article was titled "Convicted bomb-maker was recipient of garda intelligence". The article outlined that a former member of An Garda Síochána (AGS) provided a "convicted bomb-maker" with sensitive intelligence relating to Garda operations against dissident republicans. The article also stated that "the officer, who cannot be named, resigned after being confronted".
Ms Meegan (Plaintiff) instituted the Proceedings, alleging that she was the member of AGS referenced in the article. She claimed the allegations were false and that the article incorrectly inferred that she had to resign as a Garda because she disclosed information likely to be of use to terrorists.
The Sunday Times (Defendant) denied defamation and raised a fair and reasonable publication defence under section 26 of the Defamation Act 2009.
Application for third party discovery
The Commissioner of AGS (Commissioner) was not a party to the Proceedings. However, in seeking to defend its position, the Defendant brought a motion for third party discovery against the Commissioner, seeking discovery of a report prepared for the Minister for Justice in October 2014 on the provision of confidential information by a serving member of AGS to dissident republicans (Report). The High Court ordered discovery of the Report in 2019; however, the Commissioner claimed privilege over the Report.
The Commissioner objected to making third party discovery on the grounds that the Report was covered by public interest privilege and in the interest of preserving the ability of AGS to investigate crime.
What is Public Interest Privilege?
Public interest privilege can be asserted to protect documents from disclosure where the proper functioning of the state may be adversely affected by disclosure. It may also be asserted where disclosure would adversely affect the prevention and detection of crime. The privilege is not confined to the executive functions of the state; it may also be available where the balance of the public interest favours non-disclosure.
See our previous article here for further information on the High Court's approach to public interest privilege and discovery.
Balancing respective interests
The Defendant and Commissioner accepted that unlike other forms of privilege, public interest privilege is not absolute. Mr Justice Meenan relying on Skeffington v. Rooney  1 I.R. 22 and Gormley v. Ireland  2 I.R. 75, noted that the role of the courts in considering assertions of public interest privilege is to balance
- the public interest relied upon by the state as a justification for refusing disclosure; and
- the public interest served by the disclosure of relevant documents.
Tipping the scales of justice in favour of discovery
Meenan J identified the relevant factors to be considered as:
- the right of the Defendant to defend the Proceedings and to vindicate its reputation and good name, and
- the public interest of AGS to effectively investigate and prevent crime, which may require the receipt of information and intelligence from informants whose identities are required to be protected.
Meenan J found that the required balance could be achieved through the redaction of certain information in the Report, namely information that could potentially lead to the identification of Garda informants.
The Commissioner was directed to make available a copy of a redacted Report to the Defendant in the Proceedings. The decision is consistent with prior judgments where a pragmatic approach to discovery is taken. The decision also illustrates the court's willingness to find effective compromises in discovery and inspection applications involving claims of privilege. Discovery of redacted documents is a solution available to the courts when dealing with privileged or sensitive materials, in addition to the restriction of access to documents to limited groups through confidentiality rings (which we have previously written about here.)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.