The Irish Reports – Cornec V Morrice

Edited by Sínead Ní Chúlacháin, Barrister

Published by the Incorporated Council of Law Reporting for Ireland

Here follows the article from The Irish Reports* covering the Cornec V Morrice case, which involved the question of whether Dialogue Ireland could be compelled through litigation to violate the confidentiality of its sources. The ruling, delivered by Justice Hogan, affirmed the constitutional protection of sources to discuss and share information with Dialogue Ireland freely and in confidence without threat of disclosure through litigation.
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In the matter of the Foreign Tribunals Evidence Act 1856 and in the matter of civil proceedings now pending before the Colorado District Court of the City and County of Denver, between Jean Cornec, Plaintiff v. Susan Morrice, Defendant/Counter Claimant, and Jean Cornec, Marie Lawlor, John Vincent Fennelly and Shiela McCaffrey, Additional Counter Claimants/Third Party Plaintiffs, and Marie Lawlor, Additional Counter Claim‑ ant/Third Party Defendant, and Susan Morrice and Joshua Stewart, Additional Counter Claimants/Third Party Defendants, and Nicola Tallant and Mike Garde, Notice Parties [2012] IEHC 376, [2012 No. 4 FTE]

Constitution — Personal rights — Journalist — Expression — Educate public opinion —New media — Whether rights confined to traditional journalists — Balancing with other public interests — Discretion of court — Constitution of Ireland 1937, Article 40.6.1″.
Evidence — Request for evidence from foreign court — Privilege — Journalism — Sources of information — Disclosure — Whether disclosure of sources necessary — Whether disclosure would be oppressive — Whether distinction between identity of source and contents of disclosure — Rules of the Superior Courts 1986 (5.1. No. 15), 0. 39, r. 39 — Foreign Tribunals Evidence Act 1856 (19 & 20 Vic., c. 113), s. 1 — Constitution of Ireland 1937, Article 40.6.1°.

High Court              18th September, 2012

The parties were involved in commercial litigation in Colorado in the United States concerning a disputed share purchase agreement for shares in an oil company in which it was alleged that the plaintiff’s attorney travelled to Ireland at his behest and met with N.T. and M.G., giving rise to critical articles being published by the Sunday World newspaper, and that the plaintiff had thus contravened a non-disparagement clause in the share purchase agreement. The defendant thus contended that N.T. and M.G. were relevant witnesses who ought to be deposed and sought that the Irish courts give effect to letters rogatory issued by the District Court of Denver, under s. I of the Foreign Tribunals Evidence Act 1856. An ex parte order was granted by the High Court to this effect and the notice parties applied to have it set aside.

Held by the High Court (Hogan J.), in setting aside the ex parte order and refusing to give effect to the letters rogatory, 1, that questions which probed the identity of journalistic sources and the information conveyed by those sources were part of a core journalistic activity in respect of which a journalist could properly decline to answer if those questions were posed in that form and in those circumstances in an Irish court.

The media were clearly entitled to educate public opinion about the leader of a religious cult which had used psychological techniques as a means of controlling gullible adherents.

In re Kevin O’Kelly (1974) 108 I.L.T.R. 97 distinguished. Mahon v. Keena [2009] IESC 64, [2010] 1 I.R. 336 applied. Goodwin v. United Kingdom (App. No. 17488/90) (1996) 22 E.H.R.R. 123 followed.

  1. That where evidence would be relevant to the foreign proceedings, but was essentially confirmatory ‘of evidence already available, that weakened the case for disclosure as the evidence could not be said to be essential.
  2. That activities which involved the chronicling of the activities of religious cults fell squarely within the “education of public opinion” provision envisaged by Article 40.6.1° and a person who blogged on an interne site could just as readily constitute an “organ of public opinion” as those media which were more familiar in 1937. There was a high constitutional value in ensuring that the right to voice views was protected. The rightful liberty of expression and the right to educate and influence public opinion obvious from the text of Article 40.6.1° would be compromised if disclosure of sources and discussions with sources could readily be compelled through litigation.
  3. That it could not be said that there was any ex ante distinction between the pro­tection of the source on the one hand and the contents of what the source disclosed on the other. In some cases, the source would wish to have their identity protected. In other instances, the source would wish to have the contents of what was said protected, even if they were identified as a source. In both cases, the public interest in protecting the journalist from compelled disclosure was very high, since the exploration of the contents of any discussions with the source also had the ability significantly to hamper the exercise of freedom by the journalist in question.
  4. That the public interest in disclosure was not as compelling in commercial pro­ceedings as would have been the case where the potential innocence of a third party was at stake in criminal proceedings.

Howlin v. Morris [2005] IESC 85, [2006] 2 1.R. 324 considered.

  1. That the power to grant international assistance via letters rogatory was a discre­tionary one. Before any such order could properly be granted, it would be necessary to establish that (i) the evidence proposed to he taken was relevant to the foreign proceedings; (ii) the application was not oppressive; (iii) the grant of the request would not override any established privilege or protection available to the prospective witness and (iv) the evidence so taken on commission was itself admissible under the law of the requesting state. The applicant for such judicial assistance had to satisfy all four of those conditions.

Novell Inc. v. M.C.B. Enterprises [2001] 1 I.R. 608 considered.

  1. That although the application came before the court as a motion to set aside the order made ex parte pursuant to s. 1 of the Act of 1856, that application was made ex parte precisely because that was the procedure contemplated by the Act of 1856. That order simply had a provisional status and the original moving party carried the burden of making the application afresh when the addressees of the order sought to have it set aside. Courts could not constitutionally make orders ex parte finally affecting the rights of parties.

D.K. v. Crowley [2002] 2 I.R. 744. Chambers v. Kenefick [2005] IEHC 402, [2007] 31.R. 526, Doyle v. Gibney [2011] IEHC 10, [2012] 1 l.L.R.M. 194 and In re Custom House Capital Ltd. (No. 2) [2011] IEHC 399, (Unreported, High Court, Hogan J., 28th October, 2011) considered.

Obiter dicta: 1. That the issues in this case and in the defamation proceedings were fundamentally different even if there was some overlap in the dramatis personae and the factual background, given the limited nature of the evidence sought to be tendered. While the application would have to be regarded as oppressive if securing evidence for those defamation proceedings was the main motive in moving this application, the present application was bona fide and was designed to secure the evidence of witnesses who could give relevant evidence in aid of the foreign proceedings.

2. That it would be oppressive to require an expert to give testimony which might amount to a breach of confidence and where the preparation of the evidence required of him would require considerable time and study and in this regard there was a distinc­tion between witnesses as to fact and expert witnesses.

Seyfang v. Searle & Co. [1973] Q.B. 148 considered.

Cases mentioned in this report:
Carmody v. Minister for Justice [2009] IESC 71, [2010] 1 I.R. 635; [2010] 1 I.L.R.M. 157.
Chambers v. Kenefick [2005] IEHC 402, [2007] 3 I.R. 526.
Cullen v. Wicklow County Manager [2010] IESC 49, [2011] 1 I.R. 152.
In re Custom House Capital Ltd (No. 2) [2011] IEHC 399, (Unreported, High Court, Hogan J., 28th October, 2011).
Doherty v. Referendum Commission [2012] IEHC 211, (Unreported, High Court, Hogan J., 6th June, 2012).
Doyle v. Gibney [2011] IEHC 10, [2012] 1 I.L.R.M. 194.
Goodwin v. United Kingdom (App. No. 17488/90) (1996) 22 E.H.R.R. 123.
Howlin v. Morris [2005] IESC 85, [2006] 2 I.R. 321; [2006] 1 I.L.R.M. 44.
D.K. v. Crowley [2002] 2 I.R. 744; [2003] 1 I.L.R.M. 88.
J. McD. a P.L. [2009] IESC 81, [2010] 2 I.R. 199.
Mahon v. Keena [2009] IESC 64, [2010] 1 I.R. 336; [2009] 2 I.L.R.M. 373; [2009] 11 J.I.C. 2601.
Novell Inc. v. M.C.B. Enterprises [2001] 1 I.R. 608; [2002] 1 I.L.R.M. 350.
In re Kevin O’Kelly (1974) 108 I.L.T.R. 97.
Seyfang v Searle & Co. [1973] Q.B. 148; [1973] 2 W.L.R. 17; [1973] 1 All E.R. 290; (1972) 117 Sol. Jo. 16.
SM Life Ventures v. Morrice (Unreported, East Caribbean Supreme Court, Nevis Circuit. Bannister J.. 16th july, 2012)
The Sunday Times Ltd v. United Kingdom (App. No. 6538/74) (1979) 2 E.H.R.R. 245.
Walsh v. Newsgroup Newspapers Ltd [2012] IEHC 353, (Unreported, High Court, O Neill J., 10th August, 2012).

Notice of motion

The facts have been summarised in the headnote and are more fully set out in the judgment of Hogan J., infra.
Ms. Morrice sought and was granted an order ex parte giving effect to the letters rogatory of Judge Bronfin of the District Court of Denver on the 31st May, 2012, by the High Court (Hogan J.) on the 25th July, 2012. Ms. Tallant and Mr. Garde then applied to have that order set aside by way of notices of motion dated the 29th August, 2012, and the 21st August, 2012, respectively.
These motions to set aside were heard by the High Court (Hogan J.) on the 7th, 10th and 11th September, 2012.

Brian 0′ Moore S.C. (with him Ronan Lupton) for Ms. Tallant.
Seamas O Tuathail A.S. (with him John Smith) for Mr. Garde.
Jim O’Callaghan S.C. (with him Niall F. Buckley) for Ms. Morrice.

Click here for the full text of Justice Hogan’s judgement.

About the ICLR for Ireland

The Incorporated Council of Law Reporting for Ireland, a legal charity established by the Irish legal profession, publishes the Irish Reports and Digests and other materials intended to help promote the best practice of Irish law. Today, the Chief Justice, the President of the High Court, the Attorney General, the Chief Executive Officer of the Courts Service and the Director General of the Law Society of Ireland are ex officio members of the Council. Seven members of the Inner Bar (Senior Counsel), five of the Outer Bar (Junior Counsel) and three representatives of the Law Society of Ireland comprise the elected members of the Council.

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History

A committee was appointed by the Irish bar in the Law Library, Four Courts, Dublin on Saturday, 26th May 1866 to examine the issue of law reporting in Ireland. The committee was very conscious of the deficiency in law reporting that had been articulated by many jurists around that time. Subsequently, on 25th June 1866, the committee of members of the Irish Bar proposed a scheme which was adopted unanimously.

The essence of the scheme was that law reporting in Ireland was to be placed under the control and management of a council consisting of 16 members, of whom the Attorney General and Solicitor General for the time being were to be ex officio members, 12 members to be elected by the Bar, seven to be Queen’s Counsel, 5 to be members of the Outer Bar (Junior Counsel) and 2 to be nominated by the Incorporated Society of Attorneys and Solicitors (subsequently to be known as the Law Society of Ireland). The first part of the Irish Reports was published by the recently formed Council of Law Reporting in Ireland on 1st March 1867. The Reports were published in two series, the Equity series and the Common Law series.

By late 1867, the Irish Chancery and Common Law Reports and the Irish Jurist had been discontinued. The Irish Reports were then the only authorised publication reporting the decisions of the superior courts of Ireland. In 1891, the Irish Council of Law Reporting became incorporated under the style of “The Incorporated Council of Law Reporting for Ireland”. In effect, the Law Reporting Council is a joint venture composed of the judiciary, the senior law officers, senior counsel, junior counsel and solicitors.

2 Responses

  1. If this is the case the LA newspapers need to be informed about it and all information on Quinn sent to them. There are plenty of Irish Americans living there who need to know what has been going on in Ireland and the INE oil company. Millea and McKenna’s names and photos should be given to the police as potential con artists with a history of scamming on Quinn’s behalf. They should not be given a chance to unduly influence or fleece Americans.

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  2. There are rumours that Collette Millea and Tom Mc Kenna are moving to LA – could this be true? Have they actually been run out of Ireland? No “classes” to run?

    Like

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