Judge warns of ‘chilling effect’ for free speech of long defamation cases

A High Court judge has warned of the "chilling effect for free speech, a right of the most profound significance" if defamation cases are allowed become "enormously" long and therefore enormously costly.

Mr Justice Max Barrett made the comments when refusing RTÉ's application to halt defamation proceedings brought against it by businessman Declan Ganley over his alleged failures to prosecute that case or make proper discovery of documents.

The judge refused Mr Ganley’s own bid to have struck out RTÉ’s defence to the case over its delay making discovery. Having found apparent “deficiencies” in Mr Ganley’s own discovery to date, the judge also agreed to permit the broadcaster to cross-examine Mr Ganley over discovery issues.

Noting the defamation case was initiated in late 2011 and concerned a Prime Time broadcast of November 2008, the judge said he wished to set a date in the next law term for cross-examination of Mr Ganley.

It was not fair on either Mr Ganley, who considered himself defamed, or on the relevant journalists, if they did nothing wrong, to remain “mired” in defamation proceedings for such a long period, he said.

Chilling effect

There are concerns as to the “chilling effect for free speech, a right of the profound significance”, if defamation proceedings generally are to become “enormously lengthy and hence enormously costly affairs”, he said.

He adjourned the matter for a week to allow the parties consider his detailed judgment.

In his action, Mr Ganley claims the Prime Time programme defamed him in using words or innuendo which, he alleges, meant he had links to organised crime; had falsely claimed to be a paid advisor to the Latvian government; was somehow involved in the death of a man with whom he had a close business relationship; caused a fund to lose the life savings of thousands of Albanian pensioners and was covertly working for the US Central Intelligence Agency and/or“an ill-defined group known as ‘Neocons’.

Denies defamation

RTÉ denies defamation or that the words complained of mean what Mr Ganley alleges. It also pleads truth or justification and that the "sting" of the words, taken as a whole, was Mr Ganley tended to make false or exaggerated claims in respect of business or other matters. Mr Justice Barrett was asked to decide three pre-trial motions, two by Mr Ganley and one by RTÉ.

He refused Mr Ganley’s application to have aspects of RTÉ’s defence struck out, including its pleas Mr Ganley had a tendency to make false or exaggerated claims in business and other matters, which he denies. Mr Ganley sought those orders on the basis of his claim RTÉ had failed to comply with discovery orders.

The judge said he would direct RTÉ to comply with a High Court discovery order of February 2015 “forthwith”. He refused RTÉ’s application to be permitted to file an affidavit of discovery sworn by Katie Hannon, along with sealed documents to be opened only if the High Court ordered release of those to Mr Ganley on his making full and proper discovery.

RTÉ, the judge noted, had said making discovery now in accordance with the court’s order may disadvantage it in terms of any cross-examination of Mr Ganley on his discovery affidavits. .

Disadvantage

Discovery brings a risk the party making discovery may suffer some disadvantage and RTÉ had done no more than voice a generalised concern of possible disadvantage, he said. The apparent deficiencies in Mr Ganley’s discovery were not such as to require the court to fashion some “ad hoc” discovery process different from the normal regime.

Due to the deficiencies that appeared, from the factual evidence before the court, to exist in Mr Ganley’s discovery to date, and mindful that discovery is “not an exercise in perfection”, the judge said he would make orders giving RTÉ leave to cross-examine Mr Ganley over three affidavits of discovery sworn by him.

Notwithstanding the apparent deficiencies, he would not grant RTÉ’s application to dismiss Mr Ganley’s case either for want of prosecution and/or failure to make discovery, he added.