High Court refuses application to discharge jury over late discovery of non-disclosed email during cross-examination.

[2017] IEHC 798

THE HIGH COURT

[2013/11363 P]

BETWEEN

RYANAIR LTD AND RYANAIR HOLDINGS PLC

PLAINTIFFS

AND

EVERT VAN ZWOL, JOHN GOSS, TED MURPHY,

DEFENDANTS

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 13th day of December, 2017.

1. This is an application brought by the Plaintiffs to have the jury discharged in the following circumstances. On the 19th day of the

trial, Mr. Martin Duffy, a witness called on behalf of the Defendants, was cross examined by Mr. Hayden S.C. in relation to discussions

which took place on the 4th September, 2013, between a number of individuals, including the witness and the Defendants, concerning

the preparation of a “pilot update”, published on the 12th September, which incorporated the statement which is the subject matter

of these proceedings.

2. During his examination in chief Mr Duffy had been questioned about the origins of the ‘pilot update’ discussions and recalled having

received an email from an unidentified pilot colleague which had drawn his attention to a drop in the price of Ryanair shares. The

existence of the email was unknown to the Plaintiff’s up to that point in the trial.

3. The question of discovery has been extremely contentious in the course of these proceedings and resulted in a number of

applications on foot of which written judgments of the Court were handed down. See Ryanair Ltd, and another v. Van Zwol and

Others [2016] IEHC 264 and [2016] IEHC 616. Four affidavits of discovery have been sworn on behalf of the Defendants, the most

recent of which was on the 6th November, 2017, shortly before the commencement of the trial. It is not in issue that the email which

Mr Duffy received from his pilot colleague came within one of the categories of documents to be discovered but was not included in

the documents discovered on affidavit.

4. When asked in the course of cross-examination by Mr. Hayden S.C. why the email had not been included with the other emails

which he had produced for discovery, Mr Duffy said he believed it had been included. After the Court rose, the Defendants solicitor

(with the permission of the Plaintiff as the witness was under cross-examination), asked Mr Duffy to carry out a search for the email

over night which he located and produced to the Court, in the absence of the jury, the following morning.

5. The name of the author of the email had been redacted. It was sent on the 4th September, 2013, at 13:12 to Mr. Duffy. The

subject of the mail is stated as: ‘Ryanair profit warning/sale of stock by O’Leary’. Given the nature of the application and the content

of the mail, I consider it pertinent to set out the text in full:

“Hi Martin,

Just been reading about the unexpected profit warning from Ryanair. Seems like the city wasn’t expecting it as O’Leary

had been upbeat at the investor’s presentation in June and never hinted at any problems. I noted from a link on the

REPA website that O’Leary sold 500,000 shares on the 27th July when the price was a lot higher (14% drop today!).

David Bonderman sold over one million shares in mid June too.

There was a big case earlier this year where a director of Tesco sold stock ahead of a profits warning. From what

I can gather from the FSA guidelines:

“Directors should not buy or sell shares in their company while in possession of unpublished, price sensitive

information”

The regulations, policed by the Financial Services Authority also directors and senior managers to obtain board-level

approval before selling shares and forbid trading in shares during so called “close periods” between the end of a financial

period and the reporting of its results.

I don’t know much about finance but could this be seen as some sort of insider dealing based on knowledge he had?

Also, a different perspective on it from the Telegraph.

HTTP://www.telegraph.co.uk/finance/newsbysector/transport/1028594/ryanairs-oleary-should-focus-on-the-main-

job.html.

Best regards”

6. In the absence of the jury, Mr. Duffy gave evidence concerning his knowledge of the email, the requests made by the Defendants

solicitor that he furnish all documentation in his possession relating to the process of discussion and preparation involved in the

writing of the ‘pilot update’ as well as the subsequent requests made in the context of supplemental affidavits of discovery having to

be sworn. Mr. McAleese, Solicitor for the Defendants, also gave evidence concerning his first knowledge of the missing email and the

requests which he had made to Mr. Duffy.

7. Having considered the evidence of these witnesses in relation to this aspect of the matter, I am satisfied that at the time when

discovery was being made, and subsequently, Mr. Duffy was aware that he had received an email from a pilot colleague upon which

he had relied in drawing up Draft No. 2 of the ‘pilot update’. I also accept the evidence of Mr. McAleese concerning the requests he

made of Mr Duffy for the purposes of making discovery, who, to be fair to him, now accepts that he did not produce the email, that it

ought to have been produced and that he was mistaken in his belief that he had done so.

8. It is not intended to set forth the submissions made on behalf of the parties which are, in any event, apparent from the transcript.

Suffice it to say that the principal grounds and submissions maybe summarised as follows.

Plaintiff’s Submissions

9. The email contains information which the Plaintiffs contend was crucial to their case since it goes to the very heart of the

complaints made by the Plaintiffs in relation to the impugned statement. Firstly, it is said the email encapsulates the whole essence of

the case. Secondly, it was the very genesis of the subject statement about which the Plaintiffs complain and, finally, it was cogent

evidence of the state of mind of both the author and Mr Duffy at the time.

10. Asserting that Mr Duffy was the servant or agent of the Defendants the Plaintiffs say that the email was thus in the power and

possession of the Defendants. Accordingly, they were bound to make discovery of the email and had to take the consequences for

their failure to do so, consequences which are serious. The Plaintiffs say they have been deprived of an opportunity to join Mr. Duffy

into the proceedings and/or to plead, in the context of the plea of malice, that the Defendants are vicariously liable for his malice as

their servant or agent, a plea which, if successful, would effectively deprive the Defendants of the defence of qualified privilege.

11. In the event the Plaintiffs also contend that the omission has created an unfairness and prejudice in the prosecution of the claim

that cannot now be rectified. Accepting that a plea of malice against someone is a plea that should not lightly be made, it was

submitted that without the email the Plaintiffs could never have made such a plea against Mr. Duffy. The content of the email was

crucial to his state of mind when he inserted the extract from the email into Draft No. 2 which was part of the chain which led to the

pilot update.

12. Additionally, the email referred to “closed periods”, a matter upon which the Court had made a ruling earlier in the trial which may

have led to further enquiry as to whether that was a complaint which the Plaintiffs should have or could have made and pleaded.

13. It was also submitted that the Plaintiffs had been prejudiced by the way in which they had approached the trial, particularly the

way in which they had approached the cross examination of Captains Van Zwol and Goss and the issue of the credibility of the

Defendants which could have been called into question, especially in relation to the discussions which they may or may not have had

or might have had and what they knew in relation to the contents of the email leading up to and at the time of the publication of the

‘pilot update’. It is said that the resulting mischief cannot be undone by permitting these witnesses to be re-examined.

14. Finally, the Plaintiffs contend that they had also been deprived of the opportunity to deploy the email in the conduct of the

litigation both before and after the commencement of the trial. Accepting that the discharge of the jury was something that should

occur only in exceptional circumstances, it was submitted that what had happened in this case warranted precisely that course of

action since a fair trial could not now be achieved.

The Defendants Submissions.

15. In response, it was submitted on behalf of the Defendants that the omission of the email from the discovered documents and any

consequences as might be said to flow from it could not be laid at the Defendants door. Firstly, there was no evidence that they had

any knowledge of it nor was it ever in their power and possession. Secondly, while it was undoubtedly the case that Mr Duffy was

assisting the Interim Council of the RPG, there was no evidence to support the Plaintiffs assertion that he was their servant or agent.

Accordingly, the Defendants had no legal entitlement to possession of any document in his possession let alone the missing email. The

fact that Mr Duffy cooperated in the production of the documents in his power and possession, and would likely have included the

missing mail had he adverted to it, did not alter that position.

16. Furthermore, although Order 31 of the Rules of the Superior Courts had been amended to include ‘procurement’ of documents,

there remained nonetheless a distinction between documents which were in the power and possession of someone and documents

which might be procured. See Thema International Fund Plc v. HBSC Institutional Trust Services (Ireland) Ltd [2013] 1 I. R. 274. The

former involves an enforceable legal right whereas the latter arises only where it is likely that the document in question would be

furnished voluntarily if sought. As to the circumstances in which a court would make a discovery order in such circumstances, these

are rare and in this regard the Court was referred to decision in Thema and to Northern Bank Finance v. Charlton & Others [1979] IR

149.

17. There was no evidence of any contract between the Defendants and Mr. Duffy nor was the relationship, such as it was, one

which would have entitled the Defendants to obtain possession of any documents. Even if there was a contract made for their

benefit, they were not parties and could not rely upon it. In this regard, reliance was placed on the decision in Jackson v. Horizon

Holidays [1975] 1 WLR 1468. In order to comply with the discovery to which they had agreed, the Defendants did what was required

of them, they had made all appropriate enquiries as to the availability of documentation in advance of the affidavits of discovery

being sworn. The suggestion that they had the power to compel the production of anything which came into Mr. Duffy’s private email

address was nothing short of fantastic and had no basis in law.

18. The contention that the missing email prevented proceedings being pursued against Mr Duffy was also baseless. The omission did

not prevent the Defendants from being sued, moreover, Mr Duffy’s involvement in the preparation and authorship of the pilot update

became well known to the Plaintiffs in time but they chose not to join him as a party. The Plaintiffs could also have sued the Stichting

once they became aware of its existence but again chose not to do so, nor did they pursue third party discovery.

19. Even if the Plaintiffs had pleaded vicarious liability, the missing email is not evidence of any relationship between the Defendants

and Mr. Duffy and if malice was established on his part that was not something for which the Defendants could be made responsible

since Mr. Duffy was neither their servant nor their agent. Legal malice in the sense understood in the context of a plea of qualified

privilege was not infectious; it was not capable of rendering the Defendants liable in the absence of a legal relationship which made

the Defendants vicariously liable for Mr Duffy’s tortious acts or omissions. In the circumstances, to plead and pursue a claim of

vicarious liability on the part of the Defendants for any malice that might be established on the part of Mr. Duffy would have been

entirely futile.

20. It was also contended that the email is neither crucial to nor does it encapsulate the case made by the Plaintiffs. What was

relevant was the statement about which complaint is made and not the genesis of the statement. The jury are concerned with the

meaning of the statement not with the meaning of some other document the content of which was, in any event, largely expunged

from the ‘pilot update’ that was ultimately published.

21. Neither the content of the email nor the delay in its production until a late stage in the case warranted the drastic step of

discharging the jury, a result which would be altogether disproportionate to any mischief which might reasonably be said to arise as a

result of the omission from discovery. The Plaintiffs were still in a position to cross-examine Mr. Duffy, moreover, the third Defendant

had yet to give evidence and be cross-examined. Furthermore, the Court had discretion in the interests of justice to permit Captain

Van Zwol and Captain Goss to be recalled and cross examined on what, if anything, they knew of the existence or subject matter of

the email.

22. It was contended that no prejudice, inability to make enquiry or plead any innuendo meaning that late June was outside the

permitted period for dealing, arose from the omission of the email. The knowledge of the person which gives rise to a defamation by

innuendo meaning is knowledge of the person to whom the defamation was published, not the knowledge on the part of the publisher

or on the part of someone who said something to the publisher.

23. The attention of the Court was also drawn to the fact that the disadvantage arising from the omission to make discovery of the

email was not one sided but was also disadvantageous to the Defendants. The advantages or disadvantages which might be said to

arise in one way or the other or flow from late discovery were not such as to make a fair trial impossible; the jury will still get to know

everything that they need to know about the email.

24. Finally, the discharge of the jury in the circumstances would not materially alter the case to be tried before a new jury and would

thus be completely futile. Furthermore, the costs and time involved would work oppression on ordinary litigants such as the

defendants who were not before the Court of their own choosing.

25. In reply, Mr. Hogan submitted that Mr. Duffy was working for the Interim Council on the RPG project and not some third entity,

such as the Stichting, about which no mention had been made in the context of the contractual relationships involving the

Defendants. As a servant or agent of the Defendants, the email in Mr. Duffy’s possession was in the power and possession of the

Defendants and thus fell to be discovered. The consequences of Mr. Duffy’s failure to furnish the email had to be borne by them. The

suggestion that Mr. Duffy was not a servant or agent of the Defendants was contrary to the evidence; he was employed on the

project by the RPG Interim Council, of which the Defendants were members. Finally, third party discovery was irrelevant in

circumstances where the Defendants were obliged to make the discovery themselves.

Decision

26. Every order of the Court is a constituent part in the administration of justice the object of which is the effective and efficient

disposition of litigation in accordance with the law. Discovery, where relevant, is an important and integral part of that process,

described by O’Flaherty J. in Allied Irish Banks Plc & Anor v. Ernst & Whinney (a firm) & Anor [1993] 1 I.R. 375 at 396 as “an

instrument to advance the cause of justice”. The purpose of discovery is to aid a party in the progress of litigation by advancing the

cause of action or the defence or any issue raised in the pleadings.

27. The documents sought on discovery must be relevant, directly or indirectly, to the matters in issue between the parties. Using

the process to create and establish a cause of action which a party is not otherwise in a position to plead is an abuse of process and

will not be permitted, per McKechnie J. in Keating v. RTE & Anor [2013] IESC 22 at p. 30 and 31. Although the parties differ on the

consequences which flow from the discovery of the missing email on the 20th day of the trial, there is no suggestion that the email is

not relevant to the issues in the case.

28. First and foremost, of the matters to be considered by the Court on an application to discharge a jury must be whether or not,

having regard to the circumstances in which the application arises, a fair trial can be had and concluded.

29. In the circumstances of the application under consideration a number of observations fall to be made in relation to the missing

email. Firstly, although part of the content was incorporated into Draft No. 2 by Mr Duffy, the email was not authored by him but by

an individual whom he described as a ‘pilot colleague’. Secondly, later the same day the author corrected the information contained in

the first mail relating to the sale of shares by Mr. O’Leary. Thirdly, on receipt of the subsequent email, Mr Duffy acted on the content

and largely expunged from Draft No. 3 the information from the initial email which he had incorporated into Draft No. 2, something

which goes to the state of Mr. Duffy’s mind in the preparation of the third draft on which the published update was based, albeit that

it is the idea represented by what was expressed in the email which the Plaintiffs say still found its way into that draft. Finally, the

content of the missing email is devoid of any material relevant to the relationship between the Defendants and Mr. Duffy, in particular,

the assertion that Mr. Duffy was the servant or agent of the Defendants.

30. With regard to the question as to whether Mr. Duffy was the servant or agent of the Defendants, the evidence, so far as it goes

at this time, is that although Mr Duffy and Mr Kelly were undoubtedly providing services to the Interim Council of the RPG as well as to

other pilot associations of the European Cockpit Association, the invoices for those services were issued to IALPA, (Irish Airlines Pilots

Association) which discharged to cost.

31. In so far as the nature of the contractual relationship for the provision of the services is concerned, such appears to me to be

one of a contract for services; accordingly, Mr Duffy was an independent contractor. Furthermore, there is no cogent evidence to

found a conclusion that Mr Duffy was employed and paid by the Defendants. In my judgement, the fact that he provided services

directly to and for the benefit of the Interim Council of the RPG on foot of a contract for services rendered which were invoiced to

and paid by IALPA does not make Mr Duffy a servant or agent of the Defendants.

32. It follows that for the purposes of complying with discovery, the Defendants had no legal entitlement to obtain the missing email

from Mr Duffy; the email was not in their power and possession. Moreover, there is nothing in the evidence given so far in the trial

which suggests that Captain Goss and Captain Van Zwol were aware of the first or second draft pilot updates or of the missing email

or any emails relating to those drafts at the time when the Defendants became involved in the preparation of what has been

designated ‘pilot update’ Draft No. 3 or indeed, subsequently, up to and including publication of the pilot update and beyond.

33. These conclusions have further and other implications for the consequences of the mischief which the Plaintiffs contend arise from

the omission of the email from the discovery. Absent the relationship of master and servant or of principal and agent, the

establishment of malice on the part of Mr Duffy could not infect the Defendants and thus deprive any of them of the defence of

qualified privilege on that ground.

34. I am also satisfied that no serious prejudice arises from the fact that the Plaintiffs did not join Mr Duffy or plead that the

Defendants were vicariously liable for his tortious acts, if any, as a consequence of the late discovery of the missing email. Moreover,

to pursue such a case in the circumstances would most likely be futile. In any event I am also satisfied on the evidence presently

before the Court that the Plaintiffs were aware of Mr. Duffy’s involvement in the discussions and preparation of the pilot update with

the Defendants and that had they wished to join him into the proceedings or plead a case of vicarious liability they could have done

so.

Conclusion; Principles to be applied

35. At the outset of his submissions on behalf of the Plaintiffs, Mr. Hogan very fairly observed that an application to discharge the

jury should not and was not being made lightly. There is limited jurisprudence in this jurisdiction on the principles to be applied and in

particular the approach which the Court should adopt on such an application. The attention of the Court was drawn to the case of

Dawson & Dawson t/a A.E. Dawson & Sons v. The Irish Brokers Association [1998] IESC 39, in which the Supreme Court enunciated

the approach to be taken in circumstances where something was said in the opening of a case or where some inadmissible evidence

gets in. O’Flaherty J. observed at para. 16 that the discharge of the jury:

“…should be a remedy of the very last resort and only to be accomplished in the most extreme circumstances. Juries

are much more robust and conscientious than is often thought. They are quite capable of accepting a trial judge’s ruling

that something is irrelevant, or should not have been given before them, as well as in the face of adverse pre-trial

publicity. See D v. Director of Public Prosecutions [1994] 2 I.R. 465; Z v. The Director Public Prosecution [1994] 2 I.R.

476 and Irish Times v. Murphy [1998] 2 ILRM 161”.

Although not opened to the Court on this application, the decision of the Supreme Court in Mangan v. Independent Newspapers

Ireland Ltd [2003] IESC 5, is to the same effect.

36. Mr. Hogan submitted that the circumstances in this case were clearly altogether different and more serious than in Dawson,

however, it seems to me, as the case enters its sixth week, that the view of the learned judge is equally apposite, if not more so,

having regard to the matters which have given rise to the present application, particularly where, in my judgement, the object of

achieving a fair trail can be satisfied. For the sake of completeness, I should add that where the hearing is well advanced, with all the

attendant effort and costs involved, it is not the function of the Court to get the trial to the end no matter what; fairness, not

factors such as cost, time and effort expended or convenience which must be the governing determinant.

37. That, in my judgement, is the primary and fundamental requirement which has to be satisfied irrespective of the stage of the trial

when the application is made. The onus of establishing that a fair trial cannot be had and concluded falls on the moving party.

Furthermore, such an application should be made only where a meritorious case can be properly advanced. Certainly, it should never

be made lightly or for the purpose of gaining a real or perceived tactical advantage, a view consistent with the approach which should

be taken by the Court to discharge the jury only as a remedy of last resort in exceptional circumstances and where to do otherwise

would be unfair and unjust.

38. Accordingly, and having regard to the fact that everything about the email will undoubtedly be ventilated before the jury, that Mr.

Duffy may now be further cross-examined, that the third named defendant has yet to give evidence and that the first and second

Defendants may, if required, be recalled for cross-examination on the email, I am satisfied, insofar as there is any mischief remaining

from the failure of Mr. Duffy to produce the email for discovery, that the discharge of the jury on that account would be a wholly

disproportionate and unjustified response, particularly where, at this juncture , the object of a fair trail can be achieved. Accordingly,

I refuse the application and the Court will so order.