Court of Appeal grants disclosure to advance conspiracy charge
The Court of Appeal recently indicated that, when requesting discovery, some latitude will be granted as to the particularization of pleadings alleging clandestine wrongdoing.
In O’Brien vs. Red Flag Consulting,1 the plaintiff brought proceedings against the defendants, alleging conspiracy, libel and harm caused by illegal means. In particular, he argued that as part of the alleged conspiracy, some of the accused had engaged in an information campaign of politicians and journalists with elements contrary to the interests of the applicant. He said it was for the express purpose of causing these people to promote and post the material with the predominant intention of harming and / or causing loss to the claimant. In an appendix to the pleadings, the plaintiff set out the details of communications between certain defendants and an appointed politician.
In order to advance the larger conspiracy allegation, the Complainant requested the discovery of all documents relating to the briefing of any politician or journalist with material contrary to the interests of the Complainant, including documents relating to the purpose or motive of such briefings.
In opposing the claim, the defendants argued that the claimant failed to provide meaningful details about the broader conspiracy allegations. They said that the plaintiff was engaged in a fishing expedition, that the category of documents sought was imprecise and that the material was irrelevant to the plaintiff’s claim.
Principles of discovery
In granting disclosure, Donnelly J reiterated the applicable principles. She said the discovery should be both relevant and necessary. A document was relevant if it could reasonably form the basis of an investigative lead that could lead to the discovery of information which would advance the plaintiff’s case and / or weaken that of the party against whom it was requested. It suffices for a document to contain such information. It was not necessary to prove it.
She added that relevance was determined on the basis of pleadings and not evidence. A plea must be considered at its peak and it is generally not for the court to launch into an inquiry into the strength of the case or the likelihood of proving an alleged fact. However, it was not open to a party to present a simple and unspecified means in the hope of using the discovery to obtain evidence to support an unspecified claim. In particular, a document could not be searched for the purpose of demonstrating the existence of a claim when there was no other evidence to suggest that it existed.
Case in court
Donnelly J said the documents sought here were clearly relevant and closely reflected the pleaded claim. She was also convinced that the conspiracy allegation was sufficiently detailed. However, she went on to say that if there was any doubt as to the sufficiency of the particularization, this was ruled out by the fact that the alleged conspiracy was, by its nature, a clandestine affair the extent of which was not was not known to the complainant.
She said the decision to National Council to Protect Education Against Ryan2 was relevant here. In that case, the plaintiff alleged that the first defendant was bribed by the second defendant to overcharge the plaintiff for goods and services. The second defendant asked the plaintiff for details of the claim, but the plaintiff did not respond. Despite this failure, the court ordered the defendant to present a defense. Justice Clarke held that if a plaintiff making an allegation of fraud was required to clarify before the defense in a manner that narrowed the case;
“… There was every chance that, in an actual case of fraud, the perpetrator would escape detection of aspects of the fraud because the claimant would not have been sufficiently aware of the details of those aspects of the fraud to plead them appropriately …”.
Justice Donnelly noted that in his judgment, Justice Clarke had considered that the principles he had enunciated could apply to “cases of fraud or other clandestine activity”. She was satisfied that the allegation before her, being that of a conspiracy, fell into this category and that the relevant principles were applicable to a request for discovery.
However, she pointed out that in her opinion, Clarke J had been fully aware of the problem of allowing the parties to make a simple invocation of fraud in order to engage in a full-scale trawl net. It was not allowed. There was a balance to be struck between these competing factors. There should be no leniency in a claim made by means of a simple assertion, but it should also be recognized that not all the details could be provided.
In this case, Donnelly J. stated that the details given in the pleadings went beyond mere assertion and sufficiently detailed the plaintiff’s allegation of conspiracy to provide the defendants with a “reasonable picture” of the alleged conspiracy.
This judgment shows that the Irish courts are aware of the practical difficulties encountered by litigants seeking redress for alleged clandestine wrongdoing against them. However, while some leeway is allowed, courts will not allow mere allegations of wrongdoing to form the basis of a trawl review of an opponent’s material. There is a balance to be struck between the parties in all cases.