THE High Court yesterday refused an application by The Irish Times to have a defamation claim against the newspaper and a journalist struck out.
The claim for defamation is being taken by Knocktopher Abbey Trustees and Mr Stephen Edwards, Knocktopher, Co Kilkenny, against The Irish Times and Mr Patrick Smyllie, arising out of an article on a business page on March 24th, 1988. The defendants deny the claim.
Yesterday Mr Richard Nesbitt SC, for The Irish Times and Mr Smyllie, said he was applying to reverse a decision of the Master of the High Court concerning an application by the defendants to have struck out the defamation claim for failure to make discovery of documents. The Master declined it.
Mr Nesbitt said his clients were the subject of proceedings which started nine years ago. The plaintiffs had been given numerous opportunities to make discovery. He claimed the plaintiffs had wilfully and intentionally failed to make discovery.
Mr Sean Ryan SC, for the plaintiffs, said the defendants had sought to wrong foot the plaintiffs in every way. They could have asked for specific documents but that was not what they did. He said his clients had, in fact, produced the documents, and whether other documents were relevant or not should be ventilated at the trial.
Mr Justice Shanley, in his judgment, said the defendants suggested there was culpable neglect to discover documents on the part of the plaintiffs and that the court had jurisdiction, where culpable neglect was established, to strike out a claim.
In an affidavit, Mr Edwards said he had certain documents but not others. He gave the circumstances in which he came into possession of them and said he did not have any others.
Mr Nesbitt said that could not be and referred to a number of documents and identified a number of particular matters. Counsel claimed the plaintiff's affidavit of discovery was defective and at least deficient.
The judge said his function was to ensure there would be a fair trial of the action, not just for a plaintiff but also for a defendant. A defendant was entitled to ensure that he was not ambushed or taken by surprise at the trial.
A defendant was also entitled to be able to evaluate the position before the trial. A plaintiff must not prevaricate or calculatedly hide documents from a defendant seeking them.
The burden of proof on a defendant in a case such as this was high. It would be necessary to establish if Mr Edwards almost consciously neglected to make discovery of documents.
Mr Justice Shanley said he was not satisfied that he should draw all the inferences made by Mr Nesbitt.
However, the defendant must not be left without a remedy. He must now identify his options. He could bring on a particularised motion for discovery, although that may be spent. He could also bring interrogatories.
The last route, which was to cross examine on affidavits of discovery had to be taken by way of particular notice of motion seeking such liberty.
He considered justice could be ensured for the defendants without the draconian steps of striking out the claim. He would affirm the Master's order.