knowledge | 9 June 2020 |

Court of Appeal Rules on Consequences of Witness Failing to Produce Documents Prior to Trial

The Court of Appeal has held that the defendants in a recent action were not accountable where a witness failed to voluntarily provide documents for the purpose of discovery, where those defendants had no legal right to obtain the documents.

In the Court of Appeal’s recent judgment1 dismissing Ryanair’s appeal against a jury verdict in its defamation action against three pilots (see our briefing, here), an issue of wider application was addressed concerning Ryanair’s contention that the defendants had failed to discover a critical document held by a witness and that this should ultimately have led to a re-trial.  The Court of Appeal upheld the decision of the trial judge that the defendants did not have an obligation to discover documents held by a witness, where those defendants themselves had no legal right to obtain them from the witness in question.


Ryanair had brought defamation proceedings against three pilots, founders of the Ryanair Pilot Group (“RPG”), a nascent pilots’ trade union.  The proceedings arose out of an update email RPG issued to an email mailing list for Ryanair pilots which Ryanair claimed accused it of market manipulation and insider dealing.  The defendants had not sought to prove the truth of the email but had relied on the defence of qualified privilege at the trial.

In the course of witness evidence for the defence, it transpired that the witness in question held a document which Ryanair said was critical to its case and had not been discovered by the defendants.  Ryanair sought a retrial, which the trial judge refused as he was satisfied that the defendants had complied with their discovery obligations, having had no entitlement to obtain the document from the witness and having had no prior knowledge of its existence.

The jury ultimately found that Ryanair had failed to prove malice on the part of the pilots and the defence of qualified privilege succeeded. Ryanair appealed a number of the trial judge’s directions to the jury, including those relating to the disputed document and the refusal to send the matter for a retrial.

Decision of the appeal court

The Court of Appeal pointed out that any obligation on the witness to provide documents to the defendants depended on whether or not he was their agent.  The Court concluded this was not the case, meaning that the defendants had no legal entitlement to obtain the document from the witness and the document was not in their power, possession or procurement for the purposes of their discovery obligations. Moreover, Noonan J noted that there was nothing to suggest that the defendants were even aware of the existence of the document. 

Even if the witness made a deliberate decision to withhold the document in question or any other documents from the defendants, this would not have impacted their discovery obligations.  It was a matter for the defendants to make discovery of all relevant documents in their power, possession or procurement – the witness was essentially beyond their control and they were not in breach as a result of his failing to produce the document. 


A critical document coming to light at trial can have serious consequences for the conduct of the trial and the parties affected by it, including the risk of the trial collapsing depending on the facts surrounding the emergence of the document.  It is important when intending to put forward witness evidence to ensure as far as possible that the witness has made available any relevant documents on which he or she will rely when giving evidence and that these are produced.  If the witness is an agent of the party making discovery, then serious consequences may flow for the party putting forward the witness if there is a failure to produce material documents. 

The Media Defence Group at McCann FitzGerald is available to answer any queries you may have in relation to this briefing. Alternatively, your usual contact at McCann FitzGerald would be pleased to provide further information.

Also contributed by Emily Cunningham.

  1. Ryanair DAC v Van Zwol [2020] IECA 105.

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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