knowledge | 26 October 2016 |

Decision to Hold Defamation Trial in Private is a Departure for Irish Courts

In a case which it described as “unusual, even unique”, the Court of Appeal has acceded to an application by the Garda Commissioner to have defamation proceedings heard in private, overriding an express constitutional requirement that justice in Ireland be administered in public.

In this case,1 the defendant newspaper had published articles relating to a witness protection scheme operated by An Garda Síochána, Ireland’s police force. The plaintiffs, a handler and a doctor involved in the scheme, complained that they had been defamed and brought proceedings against the newspaper. The Garda Commissioner, who was responsible for the scheme, sought to be joined as a notice party in the proceedings and applied for any hearings to be conducted in private, with no publicity except for the jury verdict. She argued that secrecy was paramount for the successful operation of the scheme. It was likely that the working of the scheme would feature in the proceedings and she was anxious to ensure that its integrity was protected. There were also concerns about the operation of the Official Secrets Act 1963 in the context of the proceedings. The Commissioner sought to rely on the related High Court case of Mooney v Commissioner of An Garda Síochána2 which had traversed similar evidence and where this type of order had been made.

Proceedings Should be Held in Public Save in Exceptional Circumstances

Article 34.1 of the Constitution provides:

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”

In Irish Times Ltd v Ireland,3 the Supreme Court held that the courts had jurisdiction in special and wholly exceptional circumstances, even in the absence of legislative provision, to direct that a criminal trial be heard otherwise than in public. The defendants argued that that case was authority for the proposition that this jurisdiction was confined to the criminal sphere and did not extend to civil proceedings and particularly defamation proceedings.

The Court of Appeal disagreed. The fact that Irish Times had concerned a criminal trial was not decisive. Ryan P held that that case endorsed a departure from the strict rule of Article 34.1 where the competing interest was of a sufficient status in the ranking of constitutional rights to warrant such a departure. The jurisdiction was available in a civil action, but only in highly exceptional and rare circumstances. The following test must be satisfied:

  • there must be a high constitutional right or interest at stake;
  • there must be cogent evidence as to an existential threat to that right or interest;
  • the endangered interest cannot be protected otherwise than by a secrecy order eg by rulings of the trial judge at the hearing or in advance; and
  • the order should embody an element of proportionality in that the scale of the issues and the nature of the threat must be such that it is reasonable in all the circumstances as a matter of proportion to make the order.

On the undisputed facts here, the Commissioner had established that there was an existential threat to a practically unique catalogue of public and individual constitutional rights and interests which was sufficient to outweigh the indisputably important requirements of Article 34.1. This included rights to life, state security, public safety and international cooperation to combat serious crime. The only way to safeguard these was to make the order sought.


Ireland has always been marked out as a jurisdiction where it is extremely difficult to obtain in camera hearings, save in a small range of specified circumstances such as family law disputes. It is not possible, for example, to obtain private hearings in breach of privacy actions, where a court hearing can in and of itself negate the privacy rights that are alleged to have been breached. Similarly, a party seeking freezing orders has to make the application in open court, although the court may be prepared to place temporary reporting restrictions for the duration of the application. This emphasis on doing justice in public is generally regarded as essential for the proper functioning of the legal system, and it avoids applications being made in chambers without the proper scrutiny that the media and the public provide. In the instant case, the High Court refused the full relief sought and it is interesting that the Court of Appeal regarded the imperatives that the Garda Commissioner put forward as sufficient on the facts of this case to grant this highly unusual relief. Media practitioners will note, however, that the case will still be heard by a jury.

  1. Gilchrist & Rogers v Sunday Newspapers Ltd [2016] IECA 296
  2. [2014] IEHC 155. There, a witness in the scheme had brought unsuccessful proceedings alleging breach of agreements and undertakings made to him
  3. [1998] 1 IR 359

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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