Other Remedies
Cases
Lowry -v- Smyth
[2012] IEHC 22 [2012] 1 IR 400
JUDGMENT of Kearns P. delivered on 10th day of February, 2012.
This is an appeal brought by the plaintiff against the order of the Circuit Court dated 31st January, 2001, whereby Her Honour Judge Heneghan refused to grant summary relief to the plaintiff pursuant to s. 34 of the Defamation Act 2009.
The plaintiff is a T.D., businessman, and former Government Minister. The defendant is a well known journalist and broadcaster.
The indorsement of claim in the Civil Bill recites that on 24th June, 2010, in a TV3 programme entitled “Tonight with Vincent Browne” the defendant uttered the following words concerning the plaintiff:-
“But the first that we caught sort (sic) on video with hand in till was Michael Lowry and he resigned as you might remember as Minister for Communications which all this has led on from …”
The interviewer Vincent Browne then said:-
“Now lets be clear now, lets be careful about the hand in till. There is no suggestion at all anyway that Michael Lowry used his position as Minister to extract public funds that weren’t, that he wasn’t entitled to.”
Sam Smyth:-
“No but was in receipt, in allowed?? the biggest business in the country to pay for the refurbishment of his home. I mean …”
Vincent Browne:-
“There was a tax that was a tax fraud …”
Sam Smyth:-
“and that well, there was not only a tax fraud, I really don’t think most people think it’s a good idea for Ministers to have their bills picked up by businessmen …”
The plaintiff contends that these words, in their natural and ordinary meaning and/or by way of innuendo meant and/or were understood to mean and that the plaintiff was a thief, a corrupt politician, unfit to be a T.D. or Government Minister and was or is a dishonest or untrustworthy politician.
The plaintiff further contends that on 27th May, 2010 the defendant published an article in the Irish Independent newspaper concerning the plaintiff which was headlined “Tribunal will reveal findings on money trail to ex-Minister”, the words following or words to the effect of the following namely:-
“The total value of all the property transactions involving Mr. Lowry was around 5 million pounds sterling.”
The plaintiff complains that these words in their natural and ordinary meaning and/or by way of innuendo meant and were understood to mean that the plaintiff had unlawfully benefited from transactions concerning property valued at £5m.stg by awarding a mobile phone licence while he was Minister for Communications and had the other meanings detailed in relation to the television interview.
In his Civil Bill the plaintiff claimed the following reliefs:-
(a) A declaration pursuant to s. 28 of the Defamation Act 2009 that the statements as contained in the endorsement of claim were false and defamatory of him;
(b) A correction order pursuant to s. 30 of the Defamation Act 2009 directing the defendant to publish a correction of the defamatory statement in a form, content, extent and manner such as the court might deem fit;
(c) An order pursuant to s. 33 of the Defamation Act 2009 prohibiting the publication or further publication of the statements in respect of which defamation was alleged.
(d) Relief pursuant to s. 34 of the Defamation Act 2009 for summary disposal of the action.
The application was heard on affidavit evidence before the learned Circuit Court judge. However, the application proceeded only in relation to the s. 34 relief and not in relation to the other reliefs claimed in the Civil Bill. Having referred to the publications of which he complains, the plaintiff contended that the accusations made by the defendant were false and constituted a grave defamation of his character. He deposed that members of his family, constituents and colleagues had interpreted the words used by the defendant in both the newspaper article and the TV3 programme as meaning that he had been accused of stealing money and unlawfully benefiting from property transactions valued at £5m stg. He further deposed that he called upon the defendant by letter dated 30th July, 2010, to undertake to publish an apology and correction and to desist from making further defamatory statements concerning him. The defendant declined to furnish such undertakings.
In his replying affidavit, Mr. Sam Smyth stated that in respect of the TV3 programme, the words which he used did not have the meaning contended for by the plaintiff, and/or were true in their natural and ordinary meaning and/or consisted of honest opinion. He further stated that he had been advised that the words he used were a fair and reasonable publication on a matter of public interest. He offered a similar line of defence in respect of the words contained in the Irish Independent article.
The defendant in his affidavit made extensive reference by way of background to the reports of both the McCracken Tribunal and the Moriarty Tribunal. The affidavit referred to portions of the report of the former which detailed various payments made to Mr. Lowry and to a company set up for the benefit of Mr. Lowry by Ben Dunne, and certain payments made into offshore accounts held by or for the benefit of Mr. Lowry by or on the instructions of Mr. Dunne, which were intended to and did facilitate the evasion of tax. The McCracken Tribunal further noted that a sum of £395,000 had been paid to contractors for refurbishment work done on the home of Mr. Lowry in County Tipperary which, in the opinion of the Tribunal chairman, had been made by Dunnes Stores on the instructions of Ben Dunne with a view to assisting the plaintiff to evade tax.
The defendant’s affidavit then referred at length to information gleaned from proceedings before the Moriarty Tribunal and from an article in the Irish Times by Colm Keena to state that the Tribunal was investigating links between the plaintiff and certain property transactions in Doncaster, Cheadle, Mansfield and Carysfort, the total value of which was of the order of £5m stg.
Based on the foregoing, Mr. Smyth contends that his article and comments were all made on matters of significant public interest.
In relation to the TV3 programme, Mr. Smyth denies that any words he spoke on that occasion were uttered either falsely or maliciously. He contends that seen in context, the words are true in their natural and ordinary meaning. He states that the words spoken by him on TV3 related to the fact that the lengthy trail of investigations into the plaintiff’s affairs culminating in the Moriarty Tribunal had its origin in the fact that he was found to have engaged in wholesale tax evasion and to have told lies about his business and financial affairs. It was made clear that the plaintiff had not used his position as Minister to extract public funds for his own benefit, but rather that he had engaged in a tax fraud. This was true. It therefore followed that the plaintiff had lied and cheated. Mr. Smyth further deposed that no conclusions were drawn from that as to the plaintiff’s fitness and/or suitability to be a Minister or T.D., but if and insofar as they were present by inference, they were matters of honest opinion and were fair and reasonable publication on a matter of public interest. He further deposed that the only conclusion that one could reasonably draw from what had been discovered about the plaintiff led inevitably to the conclusion that he was indeed corrupt, dishonest, untrustworthy and both unfit and unsuitable to be a Minister or a T.D.
In relation to the Irish Independent article Mr. Smyth denied that the words were published falsely or maliciously or that they had the meanings contended for by the plaintiff. In order to read them in context, the impugned words had to be read in conjunction with the preceding paragraphs in the Independent article which stated:-
“In a ruling in 2005, the judge said he would be looking into the circumstances in which Mr. Lowry purchased a house in County Dublin as well as English property transactions in Cheadle, Mansfield and Doncaster. The Tribunal chairman wrote that he would be looking into whether or not any of those transactions were part of a train of transactions related to the conferral of a benefit on Mr. Lowry. The total value of all of the property transactions involving Mr. Lowry was around 5 million sterling.”
Mr. Smyth contends that the words referred to what the Moriarty Tribunal was, as a matter of fact, investigating. He further deposed that, in his opinion, the words used are true in their real meaning because the ruling of the Tribunal on 29th September, 2005 specifically refers to whether the various property transactions in England related to the conferral of a benefit on the plaintiff.
He therefore contended that he had a full and valid defence to any defamation proceedings brought by the plaintiff.
At the conclusion of the hearing, the learned Circuit Court judge, having taken time to read the alleged defamatory material attached to Mr. Smyth’s affidavit, including matters to do with the McCracken and Moriarty Tribunals, Mr. Lowry’s dealings with Dunnes Stores and his personal statement to the Dáil in 1996 after his resignation from Cabinet, ruled against the plaintiff. She held that test for Mr. Lowry’s case was very high, that it must be shown that the defendant had “no defence” reasonably likely to succeed. She could not find that such was the case and the matter now comes by way of appeal to this court from that decision.
Before turning to a consideration of the relevant legal provisions, it might be appropriate at this stage to emphasise that the hearing before this court is a full rehearing of the original application. That being so, I do not regard either side as being confined in argument or submissions to the identical arguments or submissions placed before the learned Circuit Court judge.
THE DEFAMATION ACT 2009
The purpose of the Defamation Act 2009 is stated in the explanatory memorandum as follows:-
“The purpose of the Act is to revise in part the law on defamation and to replace the Defamation Act 1961 with modern updated provisions taking into account the jurisprudence of our courts and the European Court of Human Rights.”
The part of the Act with which the court is concerned is Part 4 which relates to remedies.
The following sections are of relevance and importance in the context of the present application:-
“28. — (1) A person who claims to be the subject of a statement that he or she alleges is defamatory may apply to the Circuit Court for an order (in this Act referred to as a ‘declaratory order’) that the statement is false and defamatory of him or her.
(2) Upon an application under this section, the court shall make a declaratory order if it is satisfied that –
(a) the statement is defamatory of the applicant and the respondent has no defence to the application,
(b) the applicant requested the respondent to make and publish an apology, correction or retraction in relation to that statement, and
(c) the respondent failed or refused to accede to that request or, where he or she acceded to that request, failed or refused to give the apology, correction or retraction the same or similar prominence as was given by the respondent to the statement concerned.
(3) For the avoidance of doubt, an applicant for a declaratory order shall not be required to prove that the statement to which the application concerned relates is false.
(4) Where an application is made under this section, the applicant shall not be entitled to bring any other proceedings in respect of any cause of action arising out of the statement to which the application relates.
(5) An application under this section shall be brought by motion on notice to the respondent grounded on affidavit.
(6) Where a court makes a declaratory order, it may, in addition, make an order under sections 30 or 33, upon an application by the applicant in that behalf.
(7) The court may, for the purposes of making a determination in relation to an application under this section in an expeditious manner, give directions in relation to the delivery of pleadings and the time and manner of trial of any issues raised in the course of such an application.
(8) No order in relation to damages shall be made upon an application under this section.
(9) An application under this section shall be made to the Circuit Court sitting in the circuit where—
(a) the statement to which the application relates was published, or
(b) the defendant or one of the defendants, as the case may be, resides.
30.— (1) Where, in a defamation action, there is a finding that the statement in respect of which the action was brought was defamatory and the defendant has no defence to the action, the court may, upon the application of the plaintiff, make an order (in this Act referred to as a ‘correction order’) directing the defendant to publish a correction of the defamatory statement.
(2) Without prejudice to the generality of subsection (1), a correction order shall –
(a) specify –
(i) the date and time upon which, or
(ii) the period not later than the expiration of which,
the correction order shall be published, and
(b) specify the form, content, extent and manner of publication of the correction,
and shall, unless the plaintiff otherwise requests, require the correction to be published in such manner as will ensure that it is communicated to all or substantially all of those persons to whom the defamatory statement was published.
(3) Where a plaintiff intends to make an application under this section, he or she shall so inform –
(a) the defendant by notice in writing, not later than 7 days before the trial of the action, and
(b) the court at the trial of the action.
(4) An application under this section may be made at such time during the trial of a defamation action as the court or, where the action is tried in the High Court sitting with a jury, the trial judge directs.
33.— (1) The High Court, or where a defamation action has been brought, the court in which it was brought, may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion:-
(a) the statement is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.
(2) Where an order is made under this section it shall not operate to prohibit the reporting of the making of that order provided that such reporting does not include the publication of the statement to which the order relates.
(3) In this section ‘order’ means –
(a) an interim order,
(b) an interlocutory order, or
(c) a permanent order
34.— (1) The court in a defamation action may, upon the application of the plaintiff, grant summary relief to the plaintiff if it is satisfied that –
(a) the statement in respect of which the action was brought is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.
(2) The court in a defamation action may, upon the application of the defendant, dismiss the action if it is satisfied that the statement in respect of which the action was brought is not reasonably capable of being found to have a defamatory meaning.
(3) An application under this section shall be brought by motion on notice to the other party to the action and shall be grounded on an affidavit.
(4) An application under this section shall not be heard or determined in the presence of a jury.”
Some of the definitions contained at s. 2 of Act are also of particular importance. A “defamation action” is now defined as meaning:-
“(a) an action for damages for defamation, or
(b) an application for a declaratory order, whether or not a claim for other relief under this Act is made.”
“Summary Relief” means, in relation to a defamation action:-
“(a) a correction order, or
(b)an order prohibiting further publication of the statement to which the action relates.”
While the defence of “fair and reasonable publication on a matter of public interest” remains a defence to a defamation action by virtue of s. 26 of the Act, the same section provides that a defamation action does not include an application for a declaratory order so that the defence would not appear to be available to an application for a declaratory order under section 28.
It is also a matter of considerable significance that an applicant who makes an application to court under s. 28 is not entitled to bring any other proceedings in respect of any cause of action arising out of the statement to which the application relates. Section 28 also provides that no order in relation to damages shall be made upon an application under that section. Further, where the court makes a declaratory order, it may, in addition, make an order under s. 30 or s. 33, upon an application by the applicant in that behalf. Relief under all of these sections was originally sought in the instant case. Somewhat strangely, however, when the matter came to court the plaintiff saw fit to proceed under s. 34 alone. This would suggest that a view was taken that an application brought on the basis that the defendant had “no defence” (as provided in s. 28) offered less prospect of success than one brought under s. 34 which provides for relief where it can be shown the defendant has “no defence to the action which is likely to succeed”.
The explanatory memorandum to the Bill explains the purpose and function of s. 34 in the following manner:-
“This section provides a mechanism whereby defamation proceedings may be disposed of in a summary fashion, on the application of the plaintiff, where the court is satisfied that the statement was defamatory and the defendant has no defence that is reasonably likely to succeed. The court may also dismiss the action, upon the application of the defendant, where it is satisfied that the statement in respect of which the action was brought is not reasonably capable of being found to have a defamatory meaning.”
Given that the part of the summary relief available under s. 34 is an order from the court directing the publication of a correction, the wording of the section seems to address itself to media outlets such as newspapers or television (where a correction might be expected to appear) rather than to private individuals. For some reason, however, the plaintiff has not joined either TV3 or Independent Newspapers as defendants to this application. However, while that omission may appear somewhat surprising, the section does not preclude the making of an application directed against an individual.
Having regard to the nuclear nature of the relief available to either party under the section some consideration of what test the Court should apply in deciding whether or not to grant relief is clearly required.
THE TEST
Given the understandable reluctance on the part of the courts to strike out proceedings and thereby deprive either a plaintiff or defendant of access to the courts, the test on applications for summary judgment generally seem entirely appropriate to an application brought by a party under this part of the Act. This was the test argued for by the defendant and the appropriateness of adopting such an approach was not challenged in any way by counsel for the plaintiff on the hearing of this application.
That test was outlined succinctly by Hardiman J. in Aer Rianta v. Ryanair [2001] 4 IR 607 when he said as follows (at p. 623):-
“In my view, the fundamental questions to be posed on an application such as this remain: is it ‘very clear’ that the defendant has no case? Is there either no issue to be tried or only issues which are simple and easily determined? Do the defendants affidavits fail to disclose even an arguable defence?”
The test of “arguable defence” is that which is argued before judges of the High Court on a daily basis to persuade them to allow contested cases proceed to plenary hearing, notwithstanding assertions by a plaintiff that he is entitled to summary judgment. A refusal to accede to such an approach in all but the clearest of cases would altogether deprive a defendant of his legal and constitutional rights to defend himself, either in accordance with Article 6 of the European Convention on Human Rights or by reference to the principles laid down in In Re Haughey [1971] I.R. 217.
By the same token, an application brought under s. 34 by a defendant to dismiss a plaintiff’s claim would also require to measure up to a test as to whether or not the plaintiff has demonstrated a stateable cause of action and not merely one which is merely vexatious or frivolous.
As was pointed out by Keane C.J. in Twohig v. Bank of Ireland (Unreported, Supreme Court, 22nd November, 2002):-
“…[T]here is an understandable reluctance on the part of the courts to strike out proceedings in limine, as it were, and to deprive the plaintiff in the proceedings of what would normally be his constitutional right of having access to the courts.”
In summary, therefore, it seems to this court that, where either party seeks relief under s. 34, a high threshold requires to first be met. In the instant case, it can only mean that the plaintiff must satisfy the court that the defendant has no arguable case to suggest that his defence might be reasonably likely to succeed. While s. 28 provides for relief where there is “no defence” and s. 34 provides for relief where the defendant has “no defence which is likely to succeed”, I think in practical terms the test under both sections is a high one, though that under s. 28 must necessarily be at the very highest, being that of no defence at all.
SUBMISSIONS OF THE PARTIES
On behalf of the plaintiff, Mr. Martin Giblin S.C. submitted that both statements were clearly defamatory. The defendant was not entitled to rely in defence on findings or evidence given before various tribunals of enquiry set up by the Oireachtas. The learned Circuit Court Judge had erred in taking the view that such material was admissible as hearsay evidence on an interlocutory proceeding. The affidavit sworn by the defendant on 19th November, 2010 effectively provided the basis for the assertion by the defendant that the statements in respect of which the action was brought were true in all material respects.
In essence therefore the plaintiff’s case might best be summed up as follows: “Your statements are false and on the face of them defamatory and you cannot stand them up because to do so you would have to rely on the findings of Tribunals of Inquiry which are inadmissible in other proceedings”
On behalf of the defendant, Mr. Oisín Quinn S.C. first argued that the meanings ascribed by the plaintiff to the words published were incorrect. He submitted that he could contest the case on that basis alone. His client’s second line of defence would be that the statements complained of were in fact true and correct. Third, the defendant was entitled to express an honest opinion on matters of public importance, particularly where the same involved public figures and had been the subject matter of extensive investigation by one or more tribunals of inquiry.
Insofar as the first complaint was concerned, it could not conceivably be the meaning of the words complained of that Mr. Lowry had his hand in a physical till or even, slightly less literally, that he was thieving in that sense. The plaintiff had always accepted that the bill for the house renovation in Tipperary had been paid by Dunnes Stores and that the plaintiff had not paid tax for the benefit received, having only settled with the Revenue in April 2007, shortly before the 2007 General Election. The defendant therefore clearly had an arguable case to make on all three mentioned grounds of defence in relation to the TV3 interview.
In relation to the second complaint, Mr. Quinn argued that he was not relying on evidence or findings of the Tribunals themselves, but was entitled to make a statement that the Moriarty Tribunal was investigating the possible involvement of Mr. Lowry in four property transactions and the value of those transactions. For the purpose of recording that fact, it was not necessary for the defendant to rely on evidence or findings made by the Moriarty Tribunal.
DECISION
I must commence by acknowledging the correctness of the submission advanced on behalf of the plaintiff that the evidence given to, or a finding made by, a Tribunal of Enquiry has no evidential value in other proceedings. This was made abundantly clear by Finlay C.J. in Goodman International & Laurence Goodman v. The Hon. Mr. Justice Liam Hamilton, Ireland & The Attorney General [1992] 2 I.R. 542 when he stated at p. 590:-
“A finding by this Tribunal, either of the truth or of the falsity of any particular allegation which may be the subject matter of existing or potential litigation, forms no part of the material which a court which has to decide that litigation could rely upon. It cannot either be used as a weapon of attack or defence by a litigant who in relation to the same matter is disputing with another party rights arising from some allegation of breach of contract or illegal conduct or malpractice.”
Any suggestion that tribunal reports could be admitted as evidence on the basis that it is a public document and thus admissible in subsequent civil proceedings as an exception to the hearsay rule was strongly rejected by Irvine J. in Director of Corporate Enforcement v. Michael Bailey & Anor [2008] 1 I.L.R.M. 13, a decision later upheld by the Supreme Court [2011] IESC 24. I am not aware of any case law which would suggest that a different approach is possible in defamation cases.
But of course tribunal hearings and findings may be reported upon by the media and tribunal findings may certainly provide a roadmap or trail for other bodies or persons with an interest in the subject matter of inquiry, be it the Oireachtas, the Office of the Director of Public Prosecutions or litigants who engage in private litigation. Shorn of this characteristic, the function of tribunals would be rendered totally nugatory and pointless. The critical consideration in the cases cited above is that tribunal findings do not of themselves constitute material of probative value in such proceedings. They may however point to sources of evidence which may then be accessed in that separate context. Thus to the extent that the learned Circuit Court judge had regard to the tribunal materials as evidence, hearsay or otherwise, upon which she could rely to reach her decision, she would, on the authorities, have been in error. However, to the extent that she had regard to the material in question as pointing to potential sources of evidence to which the defendant, quite apart from tribunal findings, could resort to formulate a defence to the plaintiff’s claims, she was in my view entirely correct.
The demanding test in an application of this sort requires the judge dealing with it to be satisfied that the defendant has no defence with a reasonable chance of success. I do not believe the Circuit Court judge could have been so satisfied in this case. This is not in my view a case where the defence to either allegation can only be made or necessarily depend only on evidence or findings delivered by tribunals of enquiry. I believe a roadmap has been disclosed in the tribunal reports which is indicative of how and in what way the defendant can marshal his defence without actually being forced to rely on the findings of either tribunal. The fact that the roadmap has been extensively referred to by Mr. Smyth in his affidavit should not be taken as an assertion that he cannot otherwise defend the proceedings than by relying on tribunal material.
In relation to the first allegation, I believe it is certainly open to the defendant to quite separately establish all or some of the grounds which would enable him to argue his defence successfully. Evidence of payments made to the plaintiff via his offshore accounts and in relation to the refurbishment of his home in Co. Tipperary and any failure to pay tax thereon are matters quite capable of being established otherwise than by evidence given or findings made by any tribunal. The defendant avers that, quite apart from anything said or found to have occurred by tribunals, the plaintiff has himself made admissions elsewhere with regard to the payments in question. In the course of his replying affidavit the plaintiff does not challenge specifically the receipt of the payments referred to by Mr. Smyth and indeed admits arriving at a settlement with the Revenue in 2007. It is hardly to be supposed that officials of the Revenue are not compellable witnesses for the purpose of demonstrating non-payment of tax.
In relation to the other matter complained of, I certainly believe it is open to the defendant to argue that to report the mere fact that a tribunal is investigating a person’s possible involvement in a series of property transactions with a possible link to the awarding of a mobile phone license is not necessarily defamatory per se.
Two cases amply bear out this proposition. Both were cited to this court in Griffin v. Sunday Newspapers [2011] IEHC 331. in which the defendant newspaper sought an order under s. 14(1)(a) of the Defamation Act 2009 to narrow down the scope of the plaintiff’s claim on the basis that certain imputations ascribed to an article were not reasonably capable of bearing the defamatory meanings contended for by the plaintiff.
That case concerned a newspaper article which stated that there was a military investigation underway into allegations that members of the Army Rangers Wing took leave of absence to give weapons training to police in the Seychelles.
The issue which the court had to consider was whether a statement that an inquiry or investigation was under way was of itself indicative of wrongdoing and of having the defamatory meanings contended for by the plaintiff.
In the course of argument, reference was made to two cases which provided considerable assistance.
In Lewis v. Daily Telegraph Ltd. [1964] A.C. 234, the facts were that the City Fraud Squad in London were inquiring into the affairs of a limited company of which Mr. Lewis was chairman. Both he and the company of which he was chairman issued writs against the newspapers who had issued front page stories to that effect. It was alleged that the words were defamatory in their ordinary and natural meaning and were meant and were understood to mean that the plaintiffs had been guilty of fraud or dishonesty. In the course of his judgment Lord Reid stated as follows in relation to reports about ongoing investigations (at p. 259):-
“What an ordinary man, not avid for scandal, would read into the words ‘complained of’ must be a matter of impression. I can only say that I do not think he would infer guilt of fraud merely because an inquiry is on foot. And, if that is so, then it is the duty of the trial judge to direct the jury that it is for them to determine the meaning of the paragraph but that they must not hold it to impute guilt of fraud because as a matter of law the paragraph is not capable of having that meaning.”
A similar view was expressed by Lord Justice Hirst in Mapp v. Newsgroup Newspapers Ltd. [1998] QB 520 to emphasise that the reference to an investigation could not reasonably be read as imputing guilt to the plaintiffs as contrasted with reasonable suspicion of guilt. In that case the court had to consider whether the reference to the suicide of a police officer in conjunction with a report of the existence of an investigation was such as to transform a reasonable suspicion of guilt into something more.
In Griffin, this Court endorsed the approach taken by Lord Reid in Lewis and by Hirst L.J. in Mapp to hold that, while the impugned article contained many statements to the effect that allegations had been raised, there was no suggestion that these allegations had been proven or that findings had been made adverse to the plaintiff.
Turning now to the substance of the statements or articles complained of, I am satisfied that the defendant may argue that the words “hand in till” in their correct meaning may be taken as referring to tax fraud and bills inappropriately picked up for the benefit of the plaintiff by business interests. The fact that Dunnes Stores paid €395,000 to the contractors who had refurbished his home in Co. Tipperary and that the plaintiff was availing of offshore accounts to receive other payments are also matters capable of being established in evidence other than exclusively through evidence or findings of any tribunal of enquiry. In this context, I note that the plaintiff in his various affidavits does not dispute that he had engaged in tax fraud, although he deposes that his tax affairs are now in order having reached a settlement with the Revenue in 2007.
In relation to the article in the Irish Independent, it is equally open to the defendant to report and comment on the fact, as fact it was, that the Moriarty Tribunal was following a “money trail” into certain property transactions to which it felt the plaintiff was linked and which had a combined value in the region of £5m Stg. The Carysfort Avenue transaction involved an examination of a sum of £147,000 Stg moving from accounts involving the plaintiff. The Cheadle and Mansfield property transactions being investigated had valuations of £445,000Stg and £250,000Stg and the Doncaster Rovers property transaction had an approximate value of £4.3 million Stg.
I am satisfied therefore that it cannot be said that the defence of this claim must necessarily fail. On the contrary, it seems clear that the defendant has a good arguable case in respect of both publications. That being so, the plaintiff’s claim for summary relief under s. 34 of the Act must fail. Having regard to the higher test imposed on a plaintiff applying to court for relief under s. 28 or s. 30 of the Act, it follows a fortiori that any claim maintained by the plaintiff under those sections must also fail. For all the reasons set out in this judgment I am also satisfied that the plaintiff has no entitlement to relief under s. 33 of the Act either. I will accordingly dismiss the appeal.
Watters -v- Independant Star Ltd. Watters -v- Independant Star Ltd
[2010] IECC 1
Judgment of His Honour Judge J. Mathews S.C. given on 3rd day of November, 2010
This is an Application for
(1) A Declaration pursuant to s. 28(1) of the Defamation Act, 2009 that the Defendant published false and defamatory statements concerning the Plaintiff such statements being published in the Defendant’s newspaper, Star on Sunday, on September 5th, 2010.
(2) An Order pursuant to the Defamation Act, 2009, s. 30 subsection 1 directing the Defendant to publish a correction and to direct the form, content, extent and manner of publication of the said Correction in such manner as to provide coverage comparable to that given to the false and defamatory statements.
(3) An Order pursuant to the Defamation Act, 2009, s. 33, Prohibiting the Defendant from publishing or further publishing the false and defamatory statements in respect of which the within Application is made.
(4) An Order for the plaintiff’s costs of and incidental to the Application and for such legal costs incurred in seeking to have the Defendant correct the false and defamatory statements of the Defendant concerning the Plaintiff.
The Application is grounded upon the proceedings already had herein this notice of motion (with proof of service thereof), the affidavit of James MacGuill affirmed on 5th day of October, 2010, the verifying affidavit of the Plaintiff sworn on 5th day of October, 2010, the affidavit of Paul Cooke on behalf of the Defendant sworn on 15th day of October, 2010 and the replying affidavit thereto of James MacGuill affirmed on 18th day of October, 2010 together with all exhibits contained in the material affidavits.
As this is the first Application of its kind under the Defamation Act, 2009 it is necessary to set out in detail the Remedies claimed under part 4 of the Defamation Act, 2009 and in particular s. 28, s. 30 and s. 33 of the said Act.
Section 28 deals with a Declaratory Order
28(1) A person who claims to the subject of a statement that he or she alleges as defamatory may apply to the Circuit Court for an Order (in this Act referred to as a “declaratory order”) that the statement is false and defamatory of him or her.
(2) Upon an Application under this section the Court shall make a declaratory Order if it is satisfied that –
(a) The statement is defamatory of the applicant and the respondent has no defence to the Application
(b) The applicant requested the respondent to make and publish an apology, correction or retraction in relation to that statement and
(c ) The respondent failed or refused to exceed to that request or, where he or she exceeded that request, failed or refused to give the apology, correction or retraction the same or similar prominence as was given by the respondent to the statement concerned.
(3) For the avoidance of doubt, an applicant for a declaratory order shall not be required to prove that the statement to which the application concerned relates is false.
(4) Where an application is made under this section, the applicant shall not be entitled to bring any other proceedings in respect of any cause of action arising out of the statement to which the application relates.
(5) An application under this section shall be brought by motion on notice to the respondent grounded on affidavit.
(6) Where a court makes a declaratory order, it may, in addition make an order under section 30 or 33, upon an application by the applicant in that behalf.
Correction Order Section 30
30(1) Where in a defamation action there is a finding that the statement in respect of which the action was brought was defamatory and the defendant has no defence to the action, the court may, upon the application of the plaintiff, make an order (in this Act referred to as a “Correction Order”) directing the defendant to publish a correction of the defamatory statement.
(2) Without prejudice to the generality of subsection (1) a correction order shall –
(a) specify- (1) the date and time upon which, or (2) the period not later than the expiration of which, the correction order shall be published, and
(b) specify the form, content extent and manner of publication of the correction and shall, unless the plaintiff otherwise requests, require the correction to be published in such manner as will ensure that it is communicated to all or substantially all of those persons to whom the defamatory statement was published.
(3) Where a plaintiff intends to make an application under this section, he or she shall so inform-
(a) the defendant by notice in writing of not later than 7 days before the trial of the action, and
(b) the court at the trial of the action
Order Prohibiting Publication of a Defamatory Statement
33 (1) The High Court, or where a defamation action has been brought, the court in which it was brought may, upon the application of the plaintiff make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion-
(a) the statement is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed
(2) Where an order is made under this section it shall not operate to prohibit the reporting of the making of that order provided that such reporting does not include the publication of the statement which the order relates
(3) In this section, “order” means-
(a) an interim order
(b) an interlocutory order, or
(c) a permanent order.
The Act further provides in s. 34 for summary disposal of such an action.
34 (1) The court in a defamation action may upon the application of the plaintiff grant summary relief to the plaintiff if it is satisfied that—
(a) the statement in respect of which the action was brought is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.
(2) The court in a defamation action may, upon the application of the defendant, dismiss the action if it is satisfied that the statement in respect of which the action was brought is not reasonably capable of being found to have a defamatory meaning.
(3) An application under this section shall be brought by motion on notice to the other party to the action and shall be grounded on an affidavit.
(4) An application under this section shall not be heard or determined in the presence of a jury.
For the purposes of the Act of 2009 “defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society and “defamatory” shall be construed accordingly.
Mr. Hugh Mohan S.C. on behalf of the Plaintiff instructed by James MacGuill and Company Solicitors outlined in his opening submissions how by letter of 9th September, 2010 the Plaintiff solicitors wrote to the defendant acting on behalf of the Plaintiff Barry Watters of Hazelwood Avenue, Dundalk, Co. Louth who was presently a serving prisoner in Arbour Hill Prison in relation to an article carried in the Star on Sunday edition of 5th September, 2010 referring to the Plaintiff by name, address and accompanied by his photograph. Mr. Mohan outlined how the article entitled “LARRY’S SECRET SHOWER BUDDY” purported to be an expose of a relationship quite clearly presented to the reader as being sexual in nature between Barry Watters the Plaintiff and one Larry Murphy a recently released and extremely high-profile convict.
Mr. Mohan contended that the article contended that the Plaintiff had variously a “seedy” and “weird” relationship with Mr. Murphy and was “close to him” and a participant in a “bizarre and secretive relationship”. The article Mr. Mohan said purported to give an account of the conduct of the Plaintiff and the said Mr. Murphy within the prison, attributed to “prison sources” and detailed conduct which were it to be true would constitute a serious violation by the Plaintiff of prison rules.
It was stated in the said letter that the entire tone of this sensationalist article was grossly defamatory of the Plaintiff and it would appear had been calculated to inflict maximum damage upon him. It was not indicated in the article who the “prison sources” may be, but what was beyond argument is that no effort was made to confirm any of the details in the article with the Plaintiff prior to publication.
In that letter and for the record the Plaintiff stated that he has never been involved in any form of “relationship” with Larry Murphy, much less the relationship described in the article. He had not shared shower facilities and has not accompanied Larry Murphy on walks in the prison yard as was claimed in the article.
Accordingly it follows argued Mr. Mohan from the letter that the headline from the article and each of the other references to the claimed relationship which did not exist in any shape or form were false and defamatory of the Plaintiff.
In addition to the falsity of the headline Mr. Mohan indicated how in the terms of the written letter on behalf of the Plaintiff of 9th September, 2010 to the Defendant how in addition to the falsity of the headline of the article each of the following ten statements were false and untrue and have been published irresponsibly by the paper.
The ten statements referred to as false and untrue and published irresponsibly by the publication were set out as follows:-
(1) “Rapist Larry Murphy had a ‘seedy’ and ‘weird’ relationship with the convicted child porn user while he was behind bars, Prison sources have revealed”.
(2) “But during his time in Arbour Hill Prison Murphy (45) was rumoured to have become ‘close’ to another twisted pervert, Barry Watters”.
(3) “Murphy, who was known as a loner behind bars, began a ‘bizarre and secretive’ relationship with Watters when he was jailed a year and a half ago”.
(4) “Prison sources have revealed Murphy would leave his cell and travel to a different wing at Arbour Hill Prison in order to have a shower alone with Watters at the same time every morning”.
(5) “’The pair of them were very odd’, said the Prison source”.
(6) “Larry went out of his way to use the same shower that Barry was using at the same time every time. He would leave his prison cell to go to another wing where Watters was showering everyday”.
(7) “The men were always alone in the showers”.
(8) “No-one ever caught them doing anything but was suggested that something might be going on”.
(9) “Both of them were obsessed with cleaning themselves and keeping themselves in good shape. Watters was known to shave every inch of his body in the shower everyday”.
(10) “The source said ‘There are seven men in the jail who would be considered ‘friends’ but weren’t necessarily close. While every other prisoner walked in a circle in the exercise yard, these men including Murphy walked side by side in a straight line up and down the yard. Since Larry has left the jail the men don’t seem as close anymore”.
Mr. Mohan indicated that the purpose of this letter was to make a formal demand upon the Defendant pursuant to s. 28 (2) (b) of the Defamation Act, 2009 to publish immediately an apology with equal prominence to the original defamation in terms to be agreed with the Plaintiff. It was noted that if such a satisfactory apology was not agreed to be published within a period of seven days from the date of the letter the Plaintiff’s solicitors had strict instructions to make an Application to the Circuit Court pursuant to s. 28 of the Act for Declaratory Order. The Defendant was further put on notice that in the event that such proceedings prove necessary an Application to seek a Correction Order under s. 30 and an Order in the nature of a Permanent Injunction under s. 33 of the Act would be proceeded with.
The Defendant by letter of 17th September, 2010 replied to the Plaintiff’s Solicitors letter noting their letter of 10th September, 2010 and noting the formal demand made on behalf of the Plaintiff pursuant to s. 28 (2)(b) of the Defamation Act, 2009. The letter from Dillon Eustace Solicitors on behalf of the Defendant rejected the Plaintiff Solicitors assertion that that article of which the Plaintiff complained was defamatory of the Plaintiff. The letter went on to state “furthermore even if it could be considered defamatory, which is denied, in circumstances where your client is serving a sentence in relation to the possession of child pornography on two occasions it is extremely difficult to see how it could injure your client’s reputation among reasonable members of society further than he has done himself”.
The letter concluded by stating that the Defendant has no intention of publishing an apology sought by the Plaintiff or his Solicitors.
By letter of 27th September, 2010 to Messrs. Dillon Eustace Solicitors on behalf of the Defendant the Plaintiff’s Solicitors in that letter noted the Defendant’s refusal to publish an apology concerning the defamatory article published in the newspaper on September 5th 2010, concerning Mr. Watters. They further noted that Messrs. Dillon Eustace on behalf of the Defendant did not in their letter of September 17th 2010, at any stage assert the truth of the contents of the article with respect to defamatory assertions of a relationship between Mr. Watters and Mr. Larry Murphy at Arbour Hill Prison. It was again stressed in the letter of 27th September, 2010 to Messrs. Dillon Eustace on behalf of the Defendant that all such ascertains are entirely false. In the circumstances the Defendant’s Solicitors were again called on to address this aspect of Mr. Watters claim and acknowledge that the contents of the article were false and defamatory of him. It was further stated in the letter of 27th September, 2010 on behalf of the Plaintiff to Messrs. Dillon Eustace Solicitors for the Defendant that “if you are not in a position to assert the truth of your allegations we should be obliged for your positive averment to that effect. If you are not in a position to prove the truth of your allegations we should be obliged for your clear acknowledgment the contents of the article concerning Mr. Watters with respect to Mr. Murphy are untrue and false in their entirety”. It was also stated in the letter of 27th September, 2010 that “your failure to satisfactorily address this issue within seven days will result in the immediate issue of defamation proceedings by Mr. Watters. We await your reply”.
There was no reply and proceedings duly issued.
The Plaintiff in his affidavit sworn on 5th October, 2010 states on oath that he is lawfully serving two sentences of imprisonment imposed at Dundalk Circuit Criminal Court for offences contrary to s. 6 of the Child Trafficking and Pornography Act, 1998. On May 23rd 2008, the Plaintiff was sentenced to two years and six months imprisonment suspended on terms for a period of three years such sentence being imposed pursuant to a plea of guilty in respect of charges contrary to s. 6 of the Child Trafficking and Pornography Act, 1998. On April 25th 2009, the Plaintiff was arrested and subsequently charged with further offences under the Child Trafficking and Pornography Act s. 6 and on October 22nd 2009, the Plaintiff consented to the activation of the suspended sentence imposed in May 2008 and on May 19th 2010, he was sentenced again on a plea of guilty to a period of three years imprisonment such sentence to commence on April 25th 2009, in respect of further offences contrary to s. 6 of the Child Trafficking and Pornography Act, 1998.
As referred to by Mr. Mohan S.C. on his behalf the Plaintiff pleaded guilty to such offences in recognition of his wrong-doing and with the sincere intention of seeking rehabilitation in respect of addiction to the use of child pornography. While at liberty and before the imposition of the second sentence which was custodial the Plaintiff had sought to address the issue of offending contrary to the Child Pornography Act by
(1) attending for counselling at the Granada Institute
(2) submitted to psychiatric evaluation
(3) submitted to psychological evaluation and has since been remanded in custody in April 2009, sought treatment for his addiction via the Sex Offenders Programme at Arbour Hill.
On September 5th 2010, the Defendant published an article in the Star on Sunday newspaper under the heading “Larry’s Secret Shower Buddy”. The Plaintiff says that the article proceeds to assert that he the Plaintiff was engaged in a “seedy” and “weird” relationship with one Larry Murphy. He identifies Larry Murphy as recently released from Arbour Hill Prison following serving a sentence for the abduction and rape of a woman in the year 2000, Mr. Murphy’s release was attended by intense media coverage. The Plaintiff says on oath that the article of September 5th 2010 by way of innuendo infers that he was engaged in an illicit homosexual relationship with the said Larry Murphy and he further deposes to the fact that all references in the article with respect to the Plaintiff being engaged in any relationship or knowing Larry Murphy are untrue and further says and believes that all references to any relationship as described in the said article are otherwise existing between the deponent and Larry Murphy are false and defamatory.
He further deposes to the fact that he has at all times acknowledged his guilt with respect to offences committed contrary to s. 6 of the Child Trafficking and Pornography Act, 1998 and states in his affidavit that during the course of all criminal proceedings against him he did not seek to diminish the extent of his addiction to child pornography and has at all times sought to address this issue by way of therapy and engagement with those programmes offered by the Irish Prison Service with respect to sex offenders of which he is one. He further says that he has sought to address this issue of addiction at every possible opportunity and has acknowledged his guilt on two occasions before the Circuit Criminal Court.
In paragraph 7 of his affidavit the Plaintiff accepts that his own actions have injured his reputation in the eyes of reasonable members of society but that nonetheless the publication of an article in the Star on Sunday to the effect that he was engaged in a “seedy”, “weird” or any other type of relationship with Larry Murphy described in the article as “a rapist” and the “Beast of Baltinglass” further injures the Plaintiff’s reputation in the eyes of reasonable members of society and by innuendo implies that he is not sincere in seeking rehabilitation with respect to his addiction to child pornography and nor is he sincere in expressions of remorse with respect to his offending. The Plaintiff affirms in paragraph 7 of his grounding affidavit that he wishes to live the best life possible and is determined not to re-offend and seeks to be reintegrated with society in due course. He further says the publication of the article in the Star on Sunday makes it more difficult for him to reengage with society and undermines his efforts to rehabilitate himself into society. He makes the further point that the publication of the article does not just effect himself but in particular his family including his elderly parents and he states that he has been open and honest with his parents and family members with respect to his sexual orientation and relationships. He says publication of the article in the newspaper has injured his reputation further in the eyes of those reasonable members of society including his family members upon whom he relies to assist with his rehabilitation to lawful citizenship.
As a result of the publication of the article the Plaintiff says he was subject to adverse comments from fellow prisoners at Arbour Hill Prison to the effect that he was engaged in a sexual relationship with Larry Murphy. The Plaintiff states that he was so stressed as a result of the publication of the false and defamatory statements in the article that he considered suicide and because of his stress and anxiety had to be isolated within Arbour Hill Prison and put on suicide watch for a 72 hour period. He further deposes to the fact that all references in the article to a relationship between himself and Larry Murphy are false and defamatory. Among other matters the assertion that he was engaged in a “seedy” and “weird” relationship implies that he was engaged in an illicit homosexual relationship with Larry Murphy and he says that he was not engaged in any form of relationship, illicit, sexual or otherwise with the said Mr. Murphy. He further says that the article which draws an association between himself and Mr. Murphy who is described as a “rapist” and “Beast of Baltinglass” and a person guilty of the brutal abduction, rape and attempted murder of a woman in 2000, suggests by innuendo and/ or implication that he condones such behaviour such suggestion being false and defamatory of him. He further says the article suggests he was engaged in “a bizarre and secretive” relationship with Mr. Murphy. He says he has not been engaged in any such “bizarre and secretive” or any other type of relationship with Larry Murphy and deposes to the fact that such suggestion has undermined his efforts to lawfully serve his sentence and to maintain open and honest relationships with his own family members concerning his behaviour at Arbour Hill Prison.
He further deposes to the fact that the article suggests that Mr. Murphy is a psychopath with whom he showered every day. He says that such allegations are untrue and further believes that the article states that “no-one ever caught them doing anything but it was suggested that there might be something going on” implies that he and Mr. Murphy were engaged in illicit sexual activity at Arbour Hill Prison such suggestion being false and defamatory of him. The article further suggests that he is one of a group of “friends” at Arbour Hill Prison and the Plaintiff affirms that such suggestions are both false and defamatory of him in that he is not part of any such group and has at all times sought lawfully to serve his sentence at Arbour Hill Prison.
Paragraph 13 of the Plaintiff’s grounding affidavit contains a most important admission and realisation by the Plaintiff that he does not enjoy a reputation of good character among reasonable members of society with respect to his conviction for possession of child pornography contrary to s. 6 of the Child Trafficking and Pornography Act, 1998. This absence of a reputation of good character is essentially what goes to the heart of this application for a declaratory order under the Defamation Act, 2009. Despite his acceptance of absence of reputation of good character among reasonable members of society with respect to his convictions for possession of child pornography the Plaintiff nonetheless says that he has at all times sought to address his criminal offending by pleading guilty to the charges brought in respect of those offences and has sought to address his addiction to child pornography by way of therapy both psychiatric and psychological while at large and while in custody in the prison system. He says the publication of untrue and false allegations concerning him and any relationship with the said Mr. Murphy further injures his already damaged reputation among reasonable members of society and further injures that already damaged reputation with respect to reasonable members of society and particular his family members who have supported him and with whom he has sought to be truthful and honest with respect to his relationships with other people and his behaviour in prison.
Concluding his affidavit the Plaintiff states that his Solicitors have sought an apology on his behalf from the Defendant but believes that such apology is not forthcoming in circumstances where the newspaper has not asserted the truth of the allegations made but rather relied on the fact that his impaired reputation cannot be injured further than he has already impaired it by his own actions. Mr. Mohan S.C. on behalf of the Plaintiff has urged on me the view that the Defendant’s position in that regard takes no account whatever of the false nature of the allegations published by it and the effect such a publication has had on the Plaintiff’s attempts to reintegrate with society.
Mr. Mohan S.C. on behalf of the Plaintiff puts great weight on the reply dated September 17th 2010, from the Solicitors for the Defendant rejecting the Plaintiff’s assertion that the article published by it was defamatory of the Plaintiff that letter of September 17th 2010, asserts that even if the article could be considered defamatory, which is denied, that it was difficult to see how the article could injure the Plaintiff’s reputation among reasonable members of society further than he had himself done in circumstances where he was serving a sentence in relation to child pornography on two occasions. Mr. Mohan argues strongly that while the letter asserts that the Plaintiff cannot be defamed at no stage does it assert the truth of the content of the article with respect to its allegations of a relationship between Mr. Watters and Larry Murphy. He also urges me to give great weight to a letter dated September 13th 2010, from the Governor of Arbour Hill Prison to the Plaintiff Solicitors confirming that there is no evidence or indication that any prison staff or support agencies were involved in the provision of information to the Star on Sunday newspaper. This letter from the Prison Governor at Arbour Hill is exhibited in the grounding affidavit of Mr. MacGuill’s Solicitor on behalf of the Plaintiff sworn on 5th October, 2010. This letter of September 13th, 2010 from the Governor of Arbour Hill Prison is an important letter and having reviewed the article and having consulted with appropriate prison staff the Governor is satisfied that there is absolutely no truth to the claims made in respect of the Plaintiff by the Star on Sunday with regard to the Plaintiff’s conduct within Arbour Hill Prison. This letter of September 13th, 2010 from the Governor of Arbour Hill Prison exhibited in the affidavit of James MacGuill sworn on 5th October, 2010 is important and as such an important exhibit is worthy of quotation in full in that it would appear to me to be capable of corroborating the affirmations on oath in his affidavit of the Plaintiff.
The terms of this letter from the Prison Governor of Arbour Hill Prison to Mr. James MacGuill, Solicitor for the Plaintiff of 13th September, 2010 is as follows:-
“Dear Mr. MacGuill I am to acknowledge receipt of yours of 9th instant. We can appreciate your client’s concerns at purport the article referred to therein and in particular the numerous references to ‘prison sources’ this term which is frequently used in the written media where no attributable source can be quoted is in effect meaningless insofar as it could refer to prisoners, prisoner’s family members, prison personnel other prison employees, visitors and numerous other agencies. In this specific incident we suspect that it was used to disguise the complete absence of any credible source. Notwithstanding same it remains the position of the management of Arbour Hill Prison and indeed of the Irish Prison Service generally that unauthorised contact with any media format is viewed as a serious breach of ‘terms of employment’ as defined in the official secrets act. In this specific incident we have absolutely no evidence, or indication, that any of our staff or support agencies were in any way involved in the provision of information to the Star newspaper.
Having reviewed the said article and having consulted with the appropriate staff members I am quite satisfied that there is absolutely no truth to the claims made in the Star on Sunday on 5/9/10 apropos Barry Watters conduct within Arbour Hill Prison. In conclusion might I reiterate my concern that the targeting of vulnerable prisoners in custody in calculated, baseless, malicious and false articles appearing in newspapers is a gross abuse of position and is frequently a major cause of concern not only to prisoners themselves but also to their extended family for whom such falsity is an additional burden in what may be an already stressful situation.
Yours faithfully,
Governor
13/09/2010
The affidavit of Paul Cooke, Managing Director of the Defendant sworn on 15th day of October, 2010 in reply to the grounding affidavit of Mr. MacGuill and verifying affidavit of the Plaintiff of 5th October, 2010 deals in considerable detail in paragraphs 5 and 6 therein with the background facts and details of the offences to which the Plaintiff pleaded guilty and incurred a reactivated prison sentence of 3 years. Mr. Cooke deposes to the fact in paragraph 6 of his affidavit that as a result of the matters to which the Plaintiff pleaded guilty he was described in Court as effectively “a social pariah”. Paragraph 7 of Mr. Cooke’s affidavit further deposes to the fact that in regard to paragraphs 5 and 6 of his affidavit he refers to the court report of Elaine Keogh, Court Reporter and the following publications/online versions of the publications
(1) The Argos (Ireland) October 28th, 2009
(2) The Argos (Ireland) November 18th, 2009
(3) The Argos (Ireland) January 20th, 2010
(4) The Irish Times January 27th, 2010
(5) The Argos (Ireland) May 12th, 2010
(6) The Argos (Ireland) May 26th, 2010
All of which references and publications and online versions of the publications which are exhibited in his affidavit. It is further stated in paragraph 8 of Mr. Cooke’s replying affidavit that as appears from these publications the Plaintiff also has other convictions numbering 26 in total including 4 counts of criminal damage.
In a further affirming affidavit of 18th October, 2010 Mr. MacGuill, Solicitor for the Plaintiff replied to the affidavit of the Defendant sworn on 15th October, 2010 and in paragraph 3 thereof says that the matters to which the Plaintiff pleaded guilty before the Circuit Criminal Court are accurately set out at paragraph 3 of the affidavit sworn by the Plaintiff in these proceedings. Mr. MacGuill says that other than those offences described at paragraph 3 of his (Mr. MacGuill’s) affidavit affirmed on 5th October, 2010 the Plaintiff has no other criminal convictions nor has he appeared before the Criminal Courts on any other matter save the convictions in respect of possession of child pornography.
At paragraph 4 of his supplemental affidavit affirmed on 18th October, 2010 Mr. MacGuill on behalf of the Plaintiff says and believes that the Barry Watters referred to at paragraph 8 of the Defendant’s affidavit is another person of the same name who resides at a wholly different address. He says and believes that the information exhibited in the Defendant’s affidavit clearly refers to two different people, one being Barry Watters, 33 years old of Hazelwood Avenue, Bay Estate, Dundalk (the Plaintiff) and the other being one Barry Watters, 36 years old of 2 Cashlainn, Heynestown, Dundalk and he says and believes that the most cursory examination of the material exhibited by or on behalf of the Defendant newspaper would reveal that it refers to two different people of the same name. With respect to the previous convictions of the Plaintiff he refers to details of convictions recorded in the criminal registry against the Plaintiff as furnished by An Garda Síochána in the criminal proceedings brought against him and he further says and believes that the record shows that the Plaintiff has no convictions recorded against him other than those for which he is now lawfully serving two sentences of imprisonment and these are exhibited in the affirming supplemental affidavit of Mr. MacGuill affirmed on 18th October, 2010. In paragraph 7 of his supplemental affidavit Mr. MacGuill affirms that the Defendant’s failure to verify the facts upon which it relies in its defence aggravates the defamatory nature of the false statements previously published by it in respect of the Plaintiff and further it says and believes that the affidavit fails to aver to the truth of the content of the statements published by the Defendant in respect of the Plaintiff on September 5th 2010, in its newspaper and in this regard appears to accept that the statements concerning the Plaintiff with regard to being engaged in a relationship with Mr. Larry Murphy at Arbour Hill Prison are false and untrue.
Mr. Mohan S.C. on behalf of the Plaintiff takes particular exception to the extent of detail and minutia of the Plaintiff’s 2 criminal convictions before the Circuit Criminal Court and argues that the depth of such minutia in regard to detail given in the replying affidavit of Mr. Cooke on behalf of the Defendant offends against the rule in Finbarr Hill and Cork Examiner Publications Limited, a judgment of the Supreme Court delivered by Mr. Justice Francis Murphy on 14th November, 2001. Having said this I do accept that both Mr. Hugh Mohan S.C. for the Plaintiff and Mr. Eoin McCullough S.C. for the Defendant accepted that the judgment of Cave J. in Scott v. Samson (1882) 8 Queens Bench Division at 491, correctly stated the law in relation to general evidence of bad reputation when he said:-
“Damage however which he the Plaintiff has sustained must depend almost entirely on the estimation in which he was previously held. He complained of an injury to his reputation and seeks to recover damage for that injury; and it seems most material that the jury who have to award those damages should know, if the fact is so, that he is a man of no reputation. To deny this would as is observed in Starkie, Evidence, be to decide that a man of the worst character is entitled to the same measure of damages with one of unsullied and unblemished reputation”.
Both Counsel in fact referred me to the problem of distinguishing between evidence of general bad reputation and of specific conduct on which such reputation might be based and reference was made to Judge Denning’s remarks in the leading case of Plato Films Limited v. Speidel 1961 1 Appeal Cases at 1138. As the Supreme Court pointed out in Hill and Cork Examiner Publications Limited specific acts of misconduct are not admissible as proof of general bad reputation. The Hill judgment indicates that the primary reason for that restriction is that the allowance of such evidence would lead to enumerable subsidiary trials of collateral issues concerning the reputation of the Plaintiff. It is therefore clear that evidence of specific previous convictions is an exception to the rule. As Mr. Justice Murphy said at p. 7 of his judgment one justification for that exception is the clarity and certainty with which a conviction can be established. In his judgment Mr. Justice Murphy referred to the learned trial judges’ summary of the position as follows:-
“He (the Plaintiff) has an admitted bad reputation relating to the offence of which he was serving a sentence at the time. That is a serious crime which the jury will be told about but I do not think it would be proper to go into the minutia of that particular crime. It would mean investigating the entire of it and it would be bringing the jury down a cul de sac which would not really in the end help them very much. At the end of the day they know he has been convicted of a serious crime that is all they require to know. I would certainly exclude all attempts to investigate the details of that particular crime”.
It seems to me therefore that the criticism by Mr. Mohan on behalf of the Plaintiff of the minutia of the particular offences in respect of which the Plaintiff stands convicted and detailed so fully in the replying affidavit of Mr. Cooke is well made. Mr. Mohan’s main objection however with the replying affidavit of the Defendant is that it did not answer the question of the falsity of information published but sought to “demonise” his client with further false information in such a way that they could not reasonably be said to have sought to stand over the publication in any real sense or at all. In essence Mr. Mohan said that the Defendant claimed the Plaintiff had no reputation at all because of his criminal convictions and so could not in effect be defamed. The question I must therefore examine is had the Plaintiff no reputation at all or a reputation so worthless by his incurring criminal convictions under the Child Trafficking and Pornography Act, 1998 that he is a person who because of these convictions lacks the capacity to be defamed by the publication of an article alleging a sexual relationship between him and a fellow prisoner of great notoriety in Arbour Hill Prison. Mr. Mohan accepts that his client because of his pleas of guilty to two separate set of offences under the 1998 Act has indeed suffered a huge diminution in his reputation but he argues that this actual loss of reputation does not and can not in the particular circumstances of this particular case mean that his reputation is indelibly lost forever or totally destroyed particularly because of the fact that he pleaded guilty to these offences voluntarily and accepted his guilt. Further he showed remorse and contrition and sought to come to terms with his addiction to child pornography by engaging with psychiatric and psychological services whilst at liberty and seeking whilst in custody a place on the treatment programme for sexual offenders in Arbour Hill. All of this and in particular his openness with his family and confession of his addiction and criminality indicates genuine responsibility for his crimes and indicates a person capable of redeeming whatever residue is left of his reputation by his acceptance of his crimes and his genuine attempts to come to terms with his addiction. As to the question is the Plaintiff’s reputation any worse as a result of the publication Mr. Mohan effectively argues that whatever little residue of reputation remains to the Plaintiff has been deeply damaged by the inaccurate, false and defamatory publication of the Defendant.
Mr. Eoin McCullough, S.C. on behalf of the Defendant said that the facts of the case were essentially not in dispute. The Plaintiff had been convicted of possessing child pornography and received a suspended sentence. Less than a year later when he was seen on a bus with pornographic images on a camera and his home was raided by Gardaí who found 81 images of child pornography. He had been described at sentencing in the Circuit Criminal Court as a “social pariah” and sent to prison for a total of 3 years. These were serious offences counsel submitted even on the scale of sexual offences a submission with which I fully concur. The key question for consideration was therefore whether people would think any worse of the Plaintiff who had said the newspaper was claiming he was some sort of pervert which Mr. McCullough submitted he was. He submitted it was not defamatory in this day and age to say a person was engaged in a lawful sexual activity with another adult and asked the question “Is it defamatory of anyone to say they were engaged in a homosexual relationship?”. In this regard Mr. McCullough relied heavily on the decision of the Supreme Court of New South Wales, Law Division case of Rivkin v. Amalgamated Television Services PTY Limited (2001) NSWSC at 432. This was a defamation action where amongst other issues it was alleged that the Plaintiff had engaged in homosexual intercourse with one Gordon Wood where the Defendant argued that such imputation lacked capacity to defame the Plaintiff. By way of comparative analysis with the facts of that case Mr. McCullough has suggested that for reasons which I will deal with shortly such imputation of a homosexual relationship between the Plaintiff in this case and Mr. Murphy is incapable of being defamatory of the Plaintiff. As in the Rivkin case Mr. McCullough has submitted that in order for it to be defamatory an imputation must tend to lower the Plaintiff in the estimate of “right thinking members of society generally”. To publish an ascertion which would disparage an individual in the eyes of a section of the community was not sufficient unless the views of that group happen to correspond with those of right thinking members of society generally. As was argued in the Rivkin case Mr. McCullough acknowledges that until relatively recent times the charge that a man had had homosexual intercourse with another would, without more, have been capable of being defamatory of him however he argued that there had now been a change in the social and moral standards of the community such that, as a matter of law, it could not be said that right thinking members of society generally would hold the mere fact of homosexual intercourse lowered a man in their estimate. For comparative purposes Mr. McCullough drew my attention to a framework of legislation at the state and federal level in the Australian case (at paragraph 19 of the judgment) which reflected the change in community attitudes on the topic of homosexuality. In that section of the judgment it is noted that the former proscription of homosexual conduct between consenting male adults had been abolished by amendment to the Crimes Act, 1900 introduced in 1984. Further the provisions of the Anti-Discrimination Act, 1977 render it unlawful to discriminate against a person on the grounds of homosexuality in a wide range of context including employment, the provision of goods and services and education. The Anti-Discrimination (Homosexual Vilification) Amendment Act, 1993 inserted a provision into the Act making it unlawful by a public act to insight hatred towards, serious contempt for or severe ridicule of a person on the grounds of homosexuality. The Property (Relationship) Legislation Amendment Act, 1999 which amended the de facto Relations Act, 1984 (now the Property Relations Act, 1984) broadens the definition of “de facto relationship” so as to include homosexual relationships thus providing for Court Orders adjusting property rights as between homosexual couples upon determination of a domestic relationship. Mr. McCullough in his submission contrasted the position in Ireland under the terms of (a) The Equality Act, 2000 and in particular s. 3, The Civil Partnership Act and that the former Proscription of Homosexual Conduct between consenting male adults has now been abolished by statute. Mr. McCullough submitted that such a framework spoke strongly of the change in recent years in social and moral values concerning homosexuality. In his submission he argued it is no longer open to contend that the shared social and moral standards with which the ordinary reasonable members of the community is imbued include that of holding homosexual men (or men who engage in homosexual sex) in lesser regard on account of that fact alone. He however agrees that this is not to say that the assertion that a man is a homosexual (or that he has engaged in homosexual activity) may not give rise in certain instances to a defamatory imputation where grounds of hypocrisy may be argued. Given the force of Mr. McCullough’s submission can it therefore be argued that the imputation or innuendo arising complained of in the article as published can be capable of being defamatory of the Plaintiff? In answer to my question that the allegations are of a sensational character the alleged relationship is with a named person described as “the beast of Baltinglass” Mr. McCullough says that it is of no matter whether the alleged relationship was with a person with a good or a bad reputation. Mr. McCullough essentially asks is it defamatory of this Plaintiff to say he has engaged in sexual relations consensually with another prisoner whilst in lawful custody? In my judgment to answer that question baldly in terms of the Rivkin arguments are to determine the issue wholly without context and evidence without context can be meaningless. In this case it is not simply the allegation of a consensual homosexual relationship with another prisoner which is complained of: it is rather in my view the context in which such allegations are made. The article complained of is presented as an investigative report by a journalist who is described as “Investigations Correspondent”. The allegations are of a sensational character. In short the article purporting to be an exercise in investigative journalism seems to me capable of conveying the imputations pleaded by the Plaintiff. In this regard I take into account the observations of Lord Devlin in Lewis v. The Daily Telegraph Limited (1964) Appeal Cases 234 at 285 to which I have been referred by a Mr. McCullough.
“It is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis, a man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question; what is the meaning of the words conveyed to the ordinary man- you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded”.
Mr. McCullough on behalf of the Defendant has argued cogently that Defamation is not necessarily about particular facts and whether they are precisely true. The question becomes; is the reputation of the Plaintiff any worse as a result of the publication complained of? Mr. McCullough has rejected the assertion that the article of which the Plaintiff complains is defamatory or indeed capable of being defamatory and argues furthermore even if it could be considered defamatory (which is denied) in circumstances where the Plaintiff is serving a sentence in relation to the possession of child pornography it is extremely difficult to see how the Plaintiff’s reputation among reasonable members of society could be injured any further than he has already done to himself. Is the Plaintiff’s reputation any worse as a result of the publication by the Defendant of the article complained of published on September 5th 2010? In this regard Mr. McCullough has referred to the case of Grobbelaar v. The News Group Newspapers Limited (2002) U.K. H.L. at p. 40 and has referred me to Lord Bingham’s statement at paragraph 24 of the judgment in which he states that “the tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection”. Mr. McCullough’s contention is strongly for the proposition that the Plaintiff is a man who because of his convictions on two occasions for child pornography is a man effectively of no reputation and undeserving of any legal protection. To argue that the Plaintiff, because of his two previous convictions under the Child Trafficking and Pornography Act, 1998 is beyond the pale of reputation is, in a material sense, to ignore certain relevant considerations. These in my judgment are;
(1) The Plaintiff voluntarily admitted guilt to these very serious offences in circumstances where he expressed remorse and contrition and confessed to a chronic addiction to child pornography.
(2) He made himself available, whilst at liberty, for psychiatric evaluation and psychological assessment.
(3) He sought in custody a place on the Arbour Hill Sexual Offenders Treatment Programme.
(4) He earnestly wishes to be rehabilitated into society and citizenship.
(5) He has faced his family and been honest about his addiction to such pornographic material.
(6) He seeks to rehabilitate himself and make amends for his crimes by serving his lawful sentence.
(7) He did not oppose in any sense the activation of his already suspended sentence.
(8) He has sought in particular with his family members who have supported him to be truthful and honest with respect to his relationships with other people and his behaviour in prison.
Although he has suffered a substantial loss of reputation the Plaintiff cannot reasonably be said to be in the same category as a convicted prisoner who refuses to accept his guilt, continues to deny all offences and do absolutely nothing but serve a sentence under protest of innocence with no remorse, contrition, acceptance of wrong doing or any intention to rehabilitate or not re-offend. There is therefore in my view in this Plaintiff a residual “reputation” capable of being damaged by the nature of the allegations suggested in the article of 5th September, 2010. He has because of the manner in which he has met the case against him in the Circuit Criminal Court a residue of reputation that is capable of being damaged and fits into a category of prisoner who is different in degree, if not in kind, to those who, in similar circumstances, simply deny all wrongdoing despite their conviction.
Admission of guilt mandates mitigation of sentence. The gravity of the offence must be contrasted with the real and personal circumstances of the offender (see DPP.v M, [Denham J]. I.R.L.M. 1994). If this is so as a matter of sentencing law and policy so too it ought to be for reputation and loss of reputation in defined and particular circumstances.
Having considered carefully the learned submissions by Mr. Mohan on behalf of the Applicant and Mr. McCullough on behalf of the Respondent, the affidavits filed in the within application (together with all exhibits therein contained) I am satisfied for the reasons set out above, that the Applicant is entitled to a declaratory order under s. 28 (1) of The Defamation Act, 2009.
Where, in a defamation action, there is a finding that the statement in respect of which the action was brought was defamatory and the Defendant has no defence to the action, the Court may, upon the application of the Plaintiff, make an order (and this Act referred to as a “Correction Order”) directing the Defendant to publish a correction of the defamatory statement. Whilst such a correction order under s. 30 subsection 1 would logically follow and does in my judgment, Mr. McCullough has earlier in the course of his submissions pointed out how in the 11th edition of Gatley on Libel and Slander at p. 1083 it was considered undesirable that the Court should take an active role in formulating the terms of a correction and apology. The Act provides for the parties to agree the content of the correction and apology as well as the time, manner, form and place of publication. So where there is defamation in a newspaper for which the claimant is granted summary relief, he has submitted it is for the parties to agree the wording of the correction and apology and also the issue of the newspaper and the appropriate position, page and place where the correction and apology is to appear. If the parties cannot reach agreement on the content of the correction of the apology then the court has power to direct the publication of a summary of the Court’s judgment (by which summary relief was granted). I would agree with Mr. McCullough’s suggestion in this regard and would hope that the parties agree the wording of the correction and apology required. The applicant is further entitled pursuant to the Defamation Act, 2009 s. 33 thereof to an Order prohibiting the Defendant from publishing or further publishing the false and defamatory statements in respect of which the within application was made.
Jones -v- Coolmore Stud
[2017] IECA 164
JUDGMENT of the President delivered on 25th May 2017
Introduction
1. This is an appeal by Mr. William Jones from a decision of Costello J. in the High Court refusing a declaration and interlocutory injunctions in proceedings against his former employers, Coolmore Stud (“Coolmore”). He worked at Coolmore over a period of nine years until late 2014. After he resigned, he wrote a book and privately published it in November 2015. Coolmore’s solicitors corresponded with distributors and booksellers endeavouring to prevent them disseminating the book. They first alleged, before they saw the book, that it might be defamatory or in breach of an agreement between the parties. When they read it, they confirmed those protests and also claimed that it infringed the good name and interests of the Stud and the rights of employees, clients and others. Coolmore did not, however, sue Mr. Jones for libel; he said that if it did, he would defend his book line by line, which is probably just what Coolmore did not want to happen. Mr. Jones brought High Court proceedings seeking injunctions restraining Coolmore from adopting these measures to prevent or restrict dissemination of the book. He also wanted the court to declare that his book was not defamatory. His case was that Coolmore was not entitled to adopt those measures in relation to third parties when there had not been any determination of libel.
2. The High Court refused the reliefs that Mr. Jones sought in an interlocutory application. Costello J. held that Coolmore was entitled to take the steps it did to protect its interests. Specifically, it was legally permissible to write in the terms of the solicitors’ letters to distributors and sellers with a view to closing those avenues of dissemination. She said that the court could not in any case make the declaration of non-defamation that he wanted. In the circumstances, Mr. Jones had not made out a fair case to be tried, which was required for an injunction, much less a strong case which he would need for a mandatory order. Neither had he shown that damages were not an adequate remedy for any wrong he might establish. And finally, the court held that Mr. Jones, by his conduct in regard to an agreement he had made with Coolmore, had disentitled himself from equitable relief, even if the other proofs had been present.
3. Against these orders Mr. Jones appeals to this Court. He appears before the court as a litigant in person who is possessed of considerable literary and presentational skills as well as an impressive capacity for legal research. At the same time, his unfamiliarity with legal procedures and the way courts operate has also been evident. This would be a difficult case for an experienced lawyer and the challenge is so much greater for somebody not versed in the ways of courts, lawyers and judges.
4. The central question, although not the only one for determination, is whether it was legally permissible for the solicitors acting for Coolmore to correspond as they did with distributors and booksellers alleging possible or actual defamation and other wrongs with a view to dissuading them from dealing with Mr. Jones’s book. The judgment appealed against and the submissions of Coolmore rely heavily on s. 27 of the Defamation Act 2009, and the implications that are said to arise from its provisions in relation to innocent dissemination. Because this statutory defence is open to a person who only distributes or sells a book and who does not know that it is or might be defamatory, it is legitimate as Coolmore argues for a person who apprehends that he may be libelled to notify the distributor. The section provides as follows: –
“27. — (1) It shall be a defence (to be known as the “defence of innocent publication”) to a defamation action for the defendant to prove that—
(a) he or she was not the author, editor or publisher of the statement to which the action relates,
(b) he or she took reasonable care in relation to its publication, and
(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.
(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if—
(a) in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,
(b) in relation to a film or sound recording containing the statement, he or she was responsible for the processing, copying, distribution, exhibition or selling only of the film or sound recording,
(c) in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.
(3) The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did caused or contributed to the publication of a defamatory statement, have regard to—
(a) the extent of the person’s responsibility for the content of the statement or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the person.
5. The facts of the case are set out in detail in the judgment of the High Court including details of the correspondence between Coolmore and Mr. Jones and Coolmore and Amazon and other distributors or sellers. It is unnecessary for the purpose of the appeal to repeat this history. Although Mr. Jones is very critical of the High Court judge and the judgment – a matter which I will address at a later stage – he does not challenge any of the facts that are central to the dispute. They are in truth relatively simple in their essential facts.
The Agreement of 12th December 2014
6. The appellant was an employee of the defendant for nine years. In circumstances that are not before the court, in 2014, he brought a claim arising from his employment to the Labour Relations Commission. The matter was compromised and parties reached agreement with the assistance of a Rights Commissioner and made a written agreement in the following terms:
“1. It is agreed the claimant will retire on Friday 16 January ’15 as per his normal retirement date and all staff of the respondent will be informed accordingly.…
3. The claimant accepts he was provided with the opportunity to get professional advice prior to signing this agreement but he declined this offer and that he was happy to sign this as written.
4. The claimant accepts he has no further claim against the respondent under any other relevant employment legislation (including, but not limited to, Unfair Dismissals, Employment Equality and Protected Disclosures Acts), Personal Injuries or common law whatsoever.
5. He withdraws his claim r 147483-ir-14 which is before the Rights Commissioner
. . .
7. This agreement is strictly private and confidential to the parties involved except where called upon by the statutory bodies or by law. Confidentiality is an essential term of this agreement on both parties.
8. It is a term of this agreement that no records relating to animals or clients will be disclosed by the claimant.
9. Both parties agree they will not make any derogatory comments about each other at any time in the future.…
12. The respondent will pay to the claimant the sum of €30,000 (net) as a gesture of appreciation (which shall be inclusive of redundancy) and no further sums are due to the claimant.”
7. On 23rd November 2015, the appellant published the book. It was advertised on Amazon.com before publication and Coolmore became apprehensive that its contents might be defamatory of the Stud and its personnel. They believed that Mr. Jones was severely restricted in what he could write because of the agreement and its confidentiality provision, and also the term prohibiting the making of derogatory comments about Coolmore. Arthur Cox Solicitors on behalf of Coolmore wrote to Mr. Jones asking to see an advance copy to clear it for offending material, but he refused. By letter dated 8th June 2015, Arthur Cox reminded him of his contractual obligations, in particular clauses 7, 8 and 9 of the Agreement of 12th December 2014. The plaintiff replied by e-mail stating that he had “received barrister’s advice about what I can and can’t refer to and I have, accordingly, complied with the terms of the Agreement”.
8. The solicitors also wrote to Amazon and other distributors and booksellers with a view to dissuading them from dealing with the book because of Coolmore’s apprehensions about the likely contents. Following publication, the Stud became even more concerned and redoubled its efforts, this time giving some details about the matters that it considered to be defamatory in the book. The solicitors now told their correspondents that they had instructions from their clients to consider suing for defamation in the event that they went ahead with distribution or sales. These efforts proved successful. Although Mr. Jones published the book himself and was able to achieve some level of distribution, Amazon and other distributors and booksellers declined to stock or market the book. Coolmore did not sue anybody; its solicitors’ letters were effective in substantially restricting the circulation of the book through normal sales channels. Mr. Jones’s plans for his book to be widely available were thus thwarted.
9. Coolmore did not sue Mr. Jones; he has maintained at all times and continues to do so that his book is not defamatory and that if sued, he will defend it line by line on the basis that it is true. This is the very thing that Coolmore seeks to avoid happening and which Mr. Jones may indeed welcome as an opportunity to vindicate his position and justify his allegations. In this action, he challenges the entitlement of Coolmore to circumvent suing him and avoid a libel action and yet succeed in restricting the circulation of his book and inhibiting references to the material in it. In response to the activities of Coolmore, through its solicitors, Mr. Jones instituted High Court proceedings seeking various reliefs, including injunctions restraining Coolmore from approaching third parties in the manner in which it did so and ordering it to undo the results of its efforts. Following an application for an interim injunction, he moved on notice to Coolmore for interlocutory injunctions to undo what he perceived as the harm that had been done to him.
The High Court Proceedings
10. The appellant sought four injunctions against the defendant as follows:-
“(i) Preventing the defendant and/or its representatives from threatening any bookshops or websites with legal action for defamation relating to the book, ‘The Black Horse Inside Coolmore’;
(ii) Compelling the defendant and its representatives to immediately withdraw in writing all threats of legal action previously made to bookshops and Amazon in relation to ‘The Black Horse Inside Coolmore’;
(iii) Declaring that ‘The Black Horse Inside Coolmore’ is not defamatory on the face of it and may be sold in outlets where books are sold; and
(iv) Instructing the defendant to provide the plaintiff in this action all evidence without exception relating to their claim that ‘The Black Horse Inside Coolmore’ is defamatory and if they refuse to do so they will pay the plaintiff’s costs unless the court decides the refusal is reasonable”.
11. The appellant commenced the proceedings by way of plenary summons issued on 13th April 2016, and by an ex parte motion docket dated 8th April 2016, he sought reliefs in the same terms as the general endorsement of claim. No interim relief was granted, but instead, the matter proceeded before Costello J. as an application for interlocutory injunctions.
Judgment of Costello J.
12. Costello J. applied the standard tests for injunctive relief and held that Mr. Jones had failed to satisfy any of them. She decided that he had not shown that there was a fair case to be tried or that damages would not be an adequate remedy or that the balance of convenience lay in his favour. The judge had regard to the serious complaints made in the affidavits filed on behalf of Coolmore as to the nature of the defamatory material, which it alleged was in Mr. Jones’s book. She considered that there was evidence that he was in breach of the agreement in respect of confidentiality by revealing information about clients and animals of the Stud. In addition, as she found, Coolmore had put before the court allegations of plagiarism and breach of copyright supported by affidavit evidence of authors and publishers.
13. The judge held that a person was entitled to protect his rights by asserting that he had been defamed and calling on the party to remedy the alleged wrong before a court ruled whether the material was defamatory or not. The right to send a letter of that kind was inherent in the right of access to the courts. It was also implicit in s. 27 of the Defamation Act 2009. The section gives publishers of potentially defamatory material a fair opportunity either to withdraw the publication or to proceed, but in the latter case, in the knowledge that innocent publication may not be available as a defence: “I do not accept that it was wrong, much less an actionable wrong, for the defendant to instruct its solicitors to write in the terms of the letters quoted above to the retailers of the plaintiff’s book”.
14. The fact that Mr. Jones claimed that he could prove the truth of everything in the book did not give rise to a cause of action on his part against Coolmore for having their solicitors write the letters. It is possible that a letter written in bad faith in order to damage another person, rather than in defence of rights, might give rise to a cause of action, but that was not the case here. Coolmore sought to defend itself and others associated with it from defamation and to rely on the Agreement of 12th December 2014, which were legitimate grounds for writing the letters. The High Court also found it unnecessary for the complaining party to set out exhaustively all the matters in the publication that they claimed to be defamatory or otherwise wrongful.
15. These determinations by the High Court meant that Mr. Jones had not established an arguable cause of action against Coolmore and he was therefore not entitled to an interlocutory injunction as he sought. A fortiori he did not have a strong case which outruled mandatory orders in reliefs 2 and 4 of the motion.
16. The judge also held that Mr. Jones had not established that damages were not an adequate remedy, which was another reason why injunctive relief should be denied.
17. Finally, Costello J. held that Mr. Jones had behaved in a manner that disentitled him to equitable relief because his book appeared to be a breach of the Agreement of 12th December 2014, as well as giving rise to other complaints including breach of copyright and plagiarism.
Mr. Jones’s Appeal
18. In his notice of appeal, Mr. Jones lists as his grounds breach of rights and rules under the Irish Constitution and European Convention on Human Rights. He made extensive arguments in a lengthy affidavit, but as a result of a Directions hearing, he produced a concise list including bias; breach of the right to freedom of speech and expression; promoting censorship and various errors of law.
The Appellant’s Written Submissions
19. Mr. Jones submits that the trial judge did not allow him to present his full narrative in a way he would have liked, thereby breaching his rights to natural justice under Article 40-44 of the Constitution along with Article 6 of the ECHR. In BOI v. O’Donnell [2015] IECA 73, the Court of Appeal was happy to rely on written and oral submissions alone. Affidavits and replying affidavits were not necessary. Mr. Jones submits that he was subject to undue criticism by the judge and opposing Counsel on the basis that he attempted to allude to facts not sworn on affidavit, but which were the subject of his book.
20. He had sought injunctive relief based on the respondent’s sending of letters to booksellers and its failure to provide full details of alleged defamation. He wanted a declaration that his book was prima facie compliant with the law on defamation, which he said was legally possible because such relief was given in a case where there was a positive finding of defamation: Watters v. Independent Star Ltd (trading as Irish Daily Star on Sunday)[2010] IECC 1.
21. He alleged that Coolmore attempted to frustrate his application with reference to the Rights Commissioner’s Agreement and alleged breaches of copyright which are unrelated to the defamation suit. The agreement as to confidentiality amounted to an attempted gagging order regarding Coolmore’s alleged breaches of employment law. In Tillery Valley Foods v. Channel Four Television, Shine Ltd [2004] Chd 18, the court did not allow a claim of confidentiality to be used to support an application for injunctive relief which was in reality one of defamation. The alleged copyright breaches are similarly side issues in disguise. In Service Corporation International PLC v. Channel Four Television, Shine Ltd [1999] ChD EMLR 83, the court rejected an attempt to restrain the broadcast of material on the basis that the copyright claim was little more than an attempt to get around the difficulties in a defamation action. The question is not whether these are legitimate claims of themselves, but rather if they are parallel claims that should have no impact on the defamation action. They must be the subject of separate proceedings.
22. Mr. Jones submits that he was not bound by the Rights Commissioner’s Agreement as he signed it under duress through “the realisation that there [was] no other practical choice open to him”, as articulated by Lord Scarman in Universe Tankship v. International Transport Workers Federation, the Universe Sentinel [1983] AC 366.
23. He claims that Coolmore’s refusal to give particulars of the defamatory material is problematic in circumstances where it has been tacitly accepted that the material is defamatory and letters have been sent to booksellers alleging same. Costello J’s judgment does not leave open the possibility that defamation may not have occurred or that Mr. Jones may have a defence in law. Mr. Jones argues that the failure to provide particulars is grounded on an illogical assumption on Coolmore Stud’s part that as the author of the material, he knows what is defamatory.
24. Mr. Jones submits that the effect of the judgment is that someone can allege defamation, but the originator of that purportedly defamatory statement cannot challenge it, unless the alleging party sues them directly. In allowing that to happen, the learned trial judge effectively decided the case outright by holding that Mr. Jones has no case against Coolmore Stud in respect of alleged wrongs against third party retailers. In Bonnard v. Perryman [1891] 2 Ch 269, Lord Coleridge emphasised the importance of upholding free speech up until the point when there had been a ruling that libel had, in fact, been committed.
25. He argues that allowing letters to act as the solution to a disagreement concerning defamation is to go against the principles outlined in American Cynamid Co v. Ethicon Ltd [1975] AC 396. Coolmore has made it clear that it has no intention of taking a case against Mr. Jones to prove the defamation. It is suggested that the balance of convenience lies in reverting to the position when the book was first published and before the letters were sent.
26. Mr. Jones submits that the High Court was wrong to dismiss his action as lacking a serious question to be tried. The learned trial judge held that truth, in defamation proceedings, is a defence and not grounds for a legal action in and of itself. However, it would be inconceivable if someone claiming the defence of truth could not bring an action where their freedom of expression was being unconstitutionally infringed.
27. Turning to the adequacy of damages, Mr. Jones notes that the respondent is attempting to use its own privileged position against him. It is submitted that by its own admission, Coolmore has sought to limit circulation of Mr. Jones’s book, despite there being no injunction prohibiting its sale. It takes this position because its expenses and prospective damages would be more than that of a lay litigant. In doing so, it has engaged in conduct contrary to the spirit of Barron J’s statement in Currust Financial Service v. Loewe-Lac-Werk [1994] IR 450, “a rich man has never been entitled to buy out the rights of a poor man just because he wishes to do so”.
Oral Submissions
28. Mr. Jones began by noting that the disputed work had been published and was out in the world for those who could find it. Coolmore has not taken any direct defamation action against him personally; instead, it has opted to allege defamation to would-be distributors of the material. The attempt by the respondent to restrict the sale of his book amounts to unlawful censorship.
29. The appellant submitted that the trial judge had acted in a biased fashion, contrary to constitutional justice, in circumstances where he was a lay litigant taking on a powerful company. Mr. Jones suggests bias because of the way the judgment is written. He complained about interruptions by the trial judge, attempting to direct his submissions temporally and substantively, contrary to his right to run the case his own way. Mr. Jones also claimed that more time and deference was given to Mr. Paul Gallagher SC, Counsel for the respondent. It is emphasised that all that is required is the perception of bias in order for it to be successfully invoked.
30. Mr. Jones submits that the judge did not give due credit to his defence of truth. In cases alleging defamation, the burden of proof lies with the defendant to prove they have not committed such an act. However, as no defamation proceedings have been brought against him, this does not apply. Mr. Jones sought a declaration that there had been no ruling that he committed defamation. He also wanted the particulars of the alleged defamatory statements which the trial judge denied him.
31. Mr. Jones suggests that Costello J. mistook his passion for a frustration with the tactics employed by Coolmore i.e. its failure to sue him personally. He submitted that the respondent engaged in DIY defamation by sending letters threatening legal action if retailers sold the book in question. No legal action has been taken to date because it would fail.
Respondent
32. It is submitted that Mr. Jones was allowed to make his submissions as he saw fit, but he was restricted where appropriate when he went outside the scope of the affidavits. The interjections from the learned trial judge were there for the purpose of clarity and procedure. It was inappropriate for the appellant to criticise Costello J’s allocation of time. As a lay litigant, Mr. Jones may not have fully understood the trial judge’s role. Where there is a lay litigant and a fear of imbalance, the court endeavours to assist them to bring focus to their submissions.
33. In the case of Orange Communications, it was emphasised that the judgment itself cannot be the basis for an allegation of bias. It had to be something external to the process. It would be contrary to principle to hold otherwise. If there are errors in a judgment then the appropriate response is to appeal those errors of law or fact, rather than alleging bias. If bias becomes apparent during a hearing, a litigant may ask the judge to recuse themselves, this was not entered into.
34. The respondent submits that the declaration sought by Mr. Jones could not be given at the interlocutory stage, particularly in circumstances where the evidence given by Mr. David Gleeson indicates that the book was highly defamatory. It would be defamatory even if it was true. It is suggested that Mr. Jones misunderstands the law as truth is merely a defence to legal action in defamation; it does not make the statement less defamatory.
35. Coolmore argues that it is entitled to protect its interest in any way it deemed necessary and appropriate. Notification is an implicit remedy, particularly where the maker of the defamatory statements is not a mark for damages. It allows for the notified party to consider the position themselves and assess whether or not they wanted to defend the claim. In circumstances where Amazon and other conglomerates were among those served with these notices, it is unlikely they were intimidated by the letter. Coolmore did not engage in threatening tactics, it merely protected its good name in the manner it thought best. One cannot be forced to issue proceedings and damages would not be an adequate relief for the respondent. In contrast, damages for loss of sales would be an adequate remedy should Mr. Jones ultimately succeed in his claim.
36. With respect to freedom of expression, Coolmore notes that the law of defamation acts as a limiter on publication and speech. It is accepted that Mr. Jones, through self-publication, has already sold out the book’s first printing, but it does not follow that he must be assisted in expressing his view or distributing it further. Putting the booksellers on notice is legitimate where it is done bona fide as it has been in this case.
37. It is submitted that any allegation of bias or a breach of fairness is unfounded. The trial judge only interjected to ask relevant questions. Furthermore, no objections or suggestion of bias was brought up during the course of the hearing itself.
38. In order for a claim of bias to succeed, there must be an external element that impacts the decision maker’s judgment and Mr. Jones fails to allege any such extraneous factor. Hogan and Morgan emphasise that neither the conduct of the proceedings or the “perversity” of the decision itself are grounds for a claim of bias. The locus classicus, Orange Communications Ltd v. Director of Telecommunications Regulation (No.2) [2000] 4 IR 159 outlines the two-step test that must be proven on the balance of probabilities:
“First, that the adjudicator is affected by some factor external to the subject matter of his decision and, secondly that in relation to the particular decision the external factor operated as to tilt the judgment in favour of the successful party. The distinction is crucial…” [At p.241]
39. The alleged errors of law stem from a misunderstanding of the nature of an application for interlocutory injunctions. There is a distinction between Costello J. noting that he was not entitled to assert the contents of his book as established fact when they were not included in an affidavit.
40. Bank of Ireland v. O’Donnell [2015] IECA 73 does not hold that a litigant may introduce oral evidence in a hearing by affidavit, rather that oral submissions may assist an application for relief.
41. Nothing in Costello J’s judgment amounts to a finding that Mr. Jones has committed defamation; it was not a hearing of the substantive issue, but rather one for interim reliefs which were rejected. The court’s interjections were aimed at ensuring same. The trial judge simply stated that for the purposes of the application that an arguable case had not been put forward.
42. The central issue is whether or not the respondent can take pre-emptive measures to protect its good name before the material is declared defamatory in a court of law. Section 27 of the Defamation Act 2009, through the creation of a defence of innocent publication, provides an inherent entitlement to notify third party publishers of potentially defamatory material, prior to the outcome of a court case. Coolmore was within its rights to issue such letters to various book retailers.
43. It is argued that damages are more than adequate a remedy for addressing Mr. Jones’s claims should he prove successful, particularly in circumstances where he himself did not deny the adequacy of damages, but merely noted that they would be difficult to calculate.
44. Coolmore suggests that Mr. Jones’s motivation in seeking interim relief is “the legitimisation of breaches of negative covenants” found in the Rights Commissioner’s Agreement. In such circumstances, Costello J. would have been entitled to deny equitable relief by virtue of Mr. Jones’s conduct i.e. issuing derogatory statements against the company or persons associated with it. Additionally, Mr. Jones’s book prima facie infringes the copyright of a number of individuals.
45. The respondent highlights that Mr. Jones cannot claim duress so as to void the agreement when he has derived benefits from it. Furthermore, no sworn evidence was given alleging duress on his part and Mr. Jones accepted he was given the opportunity to seek legal advice before signing the agreement. In short, he cannot take the good and disregard that which does not suit him.
46. Finally, it is not open to the court to declare Mr. Jones’s book non-defamatory at this stage. The reliance on Watters v. Independent Star Ltd [2010] IECC 1 is misguided as this is not a defamation action, but rather an attempt to restrict Coolmore’s ability to send letters of notification pursuant to s. 27 of the Defamation Act 2009. Even if it was defamation action with respect to the contents of the letter, then the respondent has a defence in that the contents are true.
Discussion
47. The High Court held that Mr. Jones was not entitled to an injunction or injunctions restraining Coolmore from communicating with booksellers with a view to preventing them from selling his book. The court was satisfied on a prima facie basis that Coolmore had established a contract with Mr. Jones to the restrictive effect, as above outlined, and also that the book was prima facie defamatory, at least in some respects, and that it was derogatory of the Stud, at least to some extent or in some respects, and that it was or might be revelatory of confidential information about the owners of horses being trained at Coolmore. Moreover, the court was impressed to some extent by the fact that Coolmore had enlisted a number of writers of other books who complained that Mr. Jones had plagiarised their works in writing his own book. Mr. Jones’s major complaint that gave rise to his proceedings and is the central plank of his application for injunctive relief was that Coolmore did not sue him as he contends they ought to have done. They did not allege defamation, as to which he says that he can defend his book line by line. Neither did the Stud sue him for breach of the agreement that the parties executed, as to which he said that he signed it under duress. His central point is that Coolmore was not and is not entitled to approach booksellers, bypassing him and for the purpose of suppressing the distribution of his book.
48. The decisive question in the case is whether Coolmore was entitled to write to distributors and booksellers warning or threatening them with legal action in the event that they proceeded to deal with Mr Jones’s book. If it was legitimate for Arthur Cox to communicate the concerns of their client and its possible intentions as to litigation in the event of refusal to abide by Coolmore’s wishes, it is impossible to see how Mr. Jones could have succeeded in obtaining the relief he sought in the High Court or how he could now have the orders made by Costello J reversed.
49. Section 27 of the Defamation Act, 2009 affords a statutory defence of innocent publication. Coolmore has sought to exploit this provision by putting potential distributors and retailers on notice of their claim that the book is defamatory so as to make it clear to those parties that they will not be able to avail themselves of the defence in the event that the matter proceeds to a determination of an action for defamation. Also material is the entitlement of a person or body claiming to be defamed to proceed directly against distributors and sellers and to do so without making the author a defendant. He or she may not be a mark for damages or the potential plaintiff may think it less likely that their protests will be contested by commercial entities with no personal interest in the truth of the contents of the publication.
50. A party is not obliged to sue any particular person such as the author of allegedly libellous material before taking steps in relation to other persons to protect his reputation. In this case, Coolmore’s solicitors, by notifying the relevant parties of their client’s concerns, put them in the position of having to elect between abandoning the further distribution of the book or going ahead with publication thus jeopardising their ability to successfully claim the defence of innocent publication available to a secondary disseminator under s. 27 of the Defamation Act 2009. That was a legitimate legal manoeuvre in the circumstances and the trial judge was correct in so holding. The result followed that Mr. Jones was not entitled to injunctions in restraint. As to the declaration of non-defamation, the High Court could not have made that order on the motion, as the judge said in her judgment.
51. Mr. Jones is wholly mistaken on the question of bias. There is simply no basis for his allegations that the trial judge was biased in either of the senses of the term. The law on this topic is correctly set out in the respondent’s submissions. Although he could not be faulted for the courteous manner that he displayed towards this Court, Mr. Jones’s criticisms of the trial judge were extreme and intemperate, going far beyond anything that could be considered necessary or appropriate for an argument that the judge was in error in her decision. It is perhaps possible that he believes that for an appeal to succeed, it is necessary to demonstrate that the trial judge was biased, in either of the legal senses in which the concept exists, which could perhaps account for some of the imputations that Mr. Jones makes. In his submissions, Mr. Jones sets out the correct test and notes the distinction between objective and subjective bias, but it is in the application of the tests that Mr. Jones embarks on a wholly unwarranted, unjust and frankly irrational attack on the trial judge. I do not think that this is done wilfully or maliciously, but is, rather, the result of a serious misunderstanding on the part of a lay litigant. It may indeed be the case that Mr. Jones’s unfamiliarity with the processes of the court and the way judges interact with Counsel and litigants, as well as the outcome of the case and his study of the transcript of the proceedings in the trial court, has led him to make this argument, but it is wholly groundless and mistaken.
52. I should perhaps add a comment on a point raised by Mr. Jones in his enumerated points and in the submissions. He says that the behaviour of Coolmore interferes with his constitutional right of freedom of expression. I do not agree. In the first place, he is free to express his views and to publish them, subject of course to the law of defamation and other lawful inhibitions on expression. The fact that he is unable to insist on distribution in a particular manner is not a restriction on his freedom. It is also the case that other parties are entitled to their rights including their reputations and they may legitimately take steps to vindicate those rights or to inhibit attacks on them.
53. My conclusions may be summarised as follows.
54. The defence of innocent dissemination is now been embodied in statutory form in s. 27 of the Defamation Act, 2009 set out above. It is implicit in the defence that a person who apprehends that a publication may contain defamatory material about him is entitled to communicate that to the distributor or seller or other person involved who is not the author, editor or publisher. The protection afforded to a person for his reputation would be seriously reduced if he was not entitled to head-off publication or distribution by putting such person in the position of knowing the complainant’s allegations about the material.
55. The fact that it has not been established in a court that the publication is defamatory is irrelevant. There is no obligation on a person claiming to have been defamed to sue any particular defendant. He is free to choose between persons having liability so as to proceed against one or more and not against others. There are obvious practical reasons why this should be so but it is also available as a matter of principle. An author cannot insist that a person claiming to be defamed in his work has to sue him as well as others or instead of others. This is the mistake that Mr. Jones is making in this case.
56. The complainant’s protest about publication and endeavours to prevent it or to restrict distribution is no more than an allegation. The person to whom the letter is directed does not have to comply with the request or demand. He may proceed to distribute and the only thing the complainant can do in those circumstances is to sue for damages for defamation unless he can bring himself within the very restricted class of cases in which an injunction will be granted.
57. The distributor on receipt of correspondence alleging libel has a choice to make. He can proceed to distribute or follow the path of prudence and comply with the request to desist. If it subsequently transpires in an action against him that the publication was indeed defamatory, as claimed by the injured party, he will be in real difficulty in seeking to invoke the defence of innocent distribution in view of the explicit notice that the complainant gave. That, of course, is the purpose behind writing the letter but it is a legitimate legal purpose.
58. It follows, therefore, that there is no valid objection in law to a person seeking to protect his good name by notifying a distributor or other secondary disseminator of his complaint of defamation with a view to preventing distribution. Decided cases focus on the means of knowledge of the defendant claiming innocent dissemination. The defence will be jeopardised if the distributor has been expressly informed of a claim by a person alleging defamation and yet he has proceeded with distribution.
59. I am also satisfied that the other subsidiary grounds of appeal are unsustainable.
Rooney -v- Shell E&P Ireland LTD
[2017] IEHC 63
JUDGMENT of Ms Justice Ní Raifeartaigh delivered on Friday 20th January, 2017
1. The issue in this case is whether the plaintiff should be permitted to bring defamation proceedings outside the statutory time limit of one year provided for by the Statute of Limitations Act, 1957, as amended by the Defamation Act, 2009. The Court has a discretion to permit the bringing of a defamation action after the expiration of one year within a further period not exceeding two years pursuant to section 11(2)(c) of the 1957 Act as inserted by section 38(1)(a) of the Defamation Act, 2009. The question arising is whether this discretion should be exercised in favour of the plaintiff in the particular circumstances of the present case.
2. Section 38 of the Defamation Act, 2009 provides:
“Limitation of actions.
38.— (1) Section 11 of the Act of 1957 is amended—
(a) in subsection (2), by the substitution of the following paragraph for paragraph (c):
“(c) A defamation action within the meaning of the Defamation Act 2009 shall not be brought after the expiration of—
(i) one year, or
(ii) such longer period as the court may direct not exceeding 2 years,
from the date on which the cause of action accrued.”,
and
(b) the insertion of the following subsections:
“(3A) The court shall not give a direction under subsection (2)(c)(ii) (inserted by section 38 (1) (a) of the Defamation Act 2009)unless it is satisfied that—
(a) the interests of justice require the giving of the direction,
(b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given,
and the court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the period specified in subparagraph (i) of the said subsection (2)(c) and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.
(3B) For the purposes of bringing a defamation action within the meaning of the Defamation Act 2009, the date of accrual of the cause of action shall be the date upon which the defamatory statement is first published and, where the statement is published through the medium of the internet, the date on which it is first capable of being viewed or listened to through that medium.”.
(2) Section 49 of the Act of 1957 is amended by the substitution of the following subsection for subsection (3):
“(3) In the case of defamation actions within the meaning of the Defamation Act 2009, subsection (1) of this section shall have effect as if for the words ‘six years’ there were substituted the words ‘one year or such longer period as the court may direct not exceeding two years’.”.”
3. Accordingly, it is clear from the statutory provisions above that, if the discretion to extend the time period is to be exercised in favour of a plaintiff, the court must be satisfied of two separate matters: (a) that the interests of justice require the giving of the direction; and (b) the prejudice that the plaintiff would suffer if the direction were not given would ‘significantly outweigh’ the prejudice that the defendant would suffer if the direction were given. The Court is specifically directed to have regard to two matters in particular, namely, the reason for the failure to bring the action within the one year period, and the extent to which any evidence relevant to the matter is, by virtue of the delay, no longer capable of being adduced.
4. The following events constitute the context in which this issue arises. The plaintiff through a company, OSSL, had provided goods and services to the defendant company in connection with its Corrib Gas project in County Mayo for a number of years from the year 2004 onwards. This relationship broke down for reasons which are not necessary to explore in this application. On the 5th September, 2014, the Plaintiff made a request pursuant to data protection legislation seeking information as to the data held by the defendant concerning him. By letter dated the 15th October 2014, he received a reply to this request by letter from a Mr. Paul Walsh on behalf of the defendant company, which stated, inter alia:
“I confirm that Shell E&P Ireland Limited (‘SEPIL’) and other companies within the Shell Group of companies processed personal data about you for the purposes of business execution, including concluding and executing agreements with customers, suppliers and business partners, organisation and management of the business, health safety and security of Shell assets and individuals and for legal and regulatory compliance.
I can also confirm that:
• the source of your personal data is yourself, OSSL and companies within the Shell Group, a number of media sources which are referred to in the attached document and Mr John Donovan.
• the categories of data are your contact details (name, address and email address) details of the work that you were involved in on behalf of OSSL Company and disputes between OSSL Company and SEPIL (insofar as they involved your personal data).
• the recipients of your personal data were SEPIL, other companies within the Shell Group and those third party organizations providing administration or other services to the Shell Group.”
A document was enclosed with this letter and this set out a number of data entries. One of these was an entry dated the 7th March, 2014, stating that the plaintiff had been prosecuted by the Northern Ireland Environment Agency for illegal transportation and dumping of toxic waste, in respect of which he received a conviction and a substantial fine. The entry contained a link to a webpage of the Northern Ireland Department of Environment website, which contained further details of the illegal dumping case. In fact, the plaintiff had never been convicted of any such offence. The person who had been convicted of the offence in question was not the plaintiff, but another person of the same name. The core of the defamation case that the plaintiff wishes to bring is based upon the publication of this particular entry.
5. As the letter of 15th October, 2014, made clear, the recipients of the information in question were “SEPIL, other companies within the Shell Group, and those third party organizations providing administration or other services to the Shell Group.” From the affidavits sworn for the purposes of the present application, there would appear to be a factual conflict as to whether the information was additionally published to parties other than those identified in the letter of the 15th October, 2014, but it is not necessary to resolve that conflict for present purposes. It is not entirely clear in what format the information was published, but my understanding is that it was in some sort of electronic format such as an electronic database to which the recipients had access. At the hearing, complaint was made by the plaintiff that the date of publication was not in fact clear, and might have been later than the 7th March, 2014, but counsel for the applicant ultimately confirmed that this was the date of publication. If this is so, the cause of action accrued on that date in accordance with the statute, and the one year deadline for the bringing of defamation proceedings expired on or about the 7th March, 2015. However, the plaintiff did not issue defamation proceedings until October, 2015, six months after the expiry of the deadline, and further, did not serve those proceedings until January, 2016.
6. It was a most unsatisfactory feature of the plaintiff’s approach to this case that his grounding affidavit made no reference to some important correspondence that followed between him and the defendant company in the months following his receipt of the data. His first affidavit merely exhibited two emails dated the 23rd and 24th October, 2014, and even those two emails appear to be in edited form. It was not until a replying affidavit was sworn on behalf of the defendant company that the relevant correspondence was exhibited. Further emails were subsequently exhibited by the plaintiff in a second affidavit, again in edited form. Given that the onus is on the plaintiff to satisfy the Court that the circumstances warrant an extension of time, this less than comprehensive approach to the facts is to be deprecated.
7. Reconstructing the chronology of communications following the letter of the 15th October, 2014, as best I can from the various exhibits laid before the Court, what transpired between the plaintiff and defendant after that date appears to be as follows.
8. At 9.10am on the 23rd October, 2014, the plaintiff sent an email containing the following: “Are you aware there was a Shell headed letter sent to my family home containing claims of criminal activity which have shocked myself and my family, what on earth is going on…. I need clarification on this immediately…”. At 2.13pm on the same date, he sent another email, saying:
“I have exhausted every avenue… To get an answer to the damming lies that have been printed and transmitted by Shell reference toxic waste…
can you provide any assistance or point me in the right direction so I may get to the root of this within Shell….
My family has read the fabricated toxic waste story…. my elderly parents are in shock and i require immediate assistance to resolve this matter…
I have travelled to Dublin today to seek assistance. But I have been told by reception that none of the persons I have asked for are there.. And in any case no one will speak with me…..
The matter is urgent… Please help..”
The references above to his family appear to arise from the fact that the letter, addressed to the plaintiff, was sent to his family home and that the plaintiff either showed the letter to family members or it otherwise came to their attention.
9. In the exhibit to his grounding affidavit the plaintiff provided details of another email dated the 24th October, 2014, which he referred to as “An email from 3rd Party (OSSL) to SEPIL and Royal Dutch Shell” and which stated:
“It is reported to me that you have communicated a Shell document indicating that Mr Neil Rooney has been involve in criminal activity resulting in a prosecution.
You state as a fact that Rooney is or was involved in the illegal transportation of toxic waste from the Republic of Ireland across the border to Northern Ireland.
Mr Rooney has an exemplary record of outstanding service to the Corrib both for Enterprise Energy and later for Shell ….until your CEO called to his office and demanded that he falsify a freely and honestly given account of an incident at Pollathomish Pier in which Shell and the Irish police were involved.”
10. On the 3rd November, 2014, according to the affidavit sworn on behalf of the defendant company, a telephone conversation took place between the plaintiff and Mr. Paul Walsh, the IT Service and Operations Manager of Shell for the UK and Ireland, during which Mr. Walsh told the plaintiff that the data had not been circulated outside of the Shell Group and that the defendant would write to the plaintiff explaining his options if he was unhappy with any of the data being held. The plaintiff has not given any account of this conversation in either of his affidavits.
11. By letter dated the 4th November, 2014, Mr. Walsh wrote to the plaintiff in the following terms:
“I refer to your recent email to me and others within the Shell group of companies (‘Shell Group’), in relation to the response to your subject access request of 5 September 2014.
I understand that you consider that some of the personal data processed about you by SEPIL and/or its affiliates within the Shell Group is inaccurate.
Please note that you have the right under the applicable law (the Data Protection Acts 1988 & 2003) to request that personal data is rectified, blocked or deleted if it is inaccurate or incomplete and also to object, on compelling legitimate grounds, to the processing of your personal data.
I would be grateful if you would confirm which specific data item you are referring to and what steps you are requesting SEPIL and/or its affiliates takes in relation to the personal data.
We will rectify, delete or cease processing such personal data (as appropriate) in response to the request unless we are satisfied there is a legitimate basis for continuing to process such personal data.”
Thus, the defendant company’s approach at this stage was to invite the plaintiff to make a request via a data protection avenue. The letter does not show any clear awareness on the part of the defendant company that they had made a mistake with regard to the data entry of the 7th March, 2014, concerning the environmental pollution offence. On the contrary, the letter asks the plaintiff to confirm “which specific data item you are referring to”. It was at all times submitted on behalf of the plaintiff that he told the defendant that he was not convicted of any environmental offence, but in my view, a close reading of the emails set out above does not lead to the conclusion that his emails, at least, had made this clear. Insofar as there were telephone calls in which this was made clear by the plaintiff, he has not provided any evidence of these in his affidavits.
12. A further email from the plaintiff, exhibited in the case, was dated the 25th November, 2014, and stated:
“I have written to you and spoke with you on the telephone regarding your grotesque circulation of a Shell generated document indicating criminal activity on my behalf.
You have been made aware that your claims regarding my involvement in toxic waste dumping are a complete falsehood.
You have failed to respond to my requests to rectify and apologise for this damnable situation.
Why?”
This email appears to me to go further than the previous emails insofar as it clearly identifies his complaint that the assertion that he was involved in toxic waste dumping was false.
13. Mr. Walsh, by letter dated 10 December, 2014, wrote as follows:
“Further to your phone call of the 3rd November, our correspondence to you of the same date, and your recent email, we have as yet received no letter from you.
You will recall from our conversation that we need you to state exactly in writing any issue under the Data Protection Acts you may have with our response to your Data Subject Access Request.”
14. By letter dated the 27th January, 2015, the plaintiff wrote to Mr. Walsh at the defendant company as follows:
“In your covering letter of 15/10/2014 you ‘confirm’; allude to, and intimate, that the above-mentioned data-file was instantiated and processed by Shell E&P Ireland Limited (SEPIL). Furthermore, you also confirm that the ‘recipients’ of said data-file ‘were SEPIL and ‘other companies’ within the Shell Group and other ‘third party organisations providing administration or other services to the Shell Group’.
The collection and dissemination of erroneous and counter-factual data/information concerning my ‘character’ and my reputation, constitutes a gross violation of my human rights vis HRA (acts 1998/2003) and overarching European Convention on Human Rights.
Some of the information included in the data-file is patently not attributable to me and is therefore libellous and causative of harm and detriment to myself; my family and my extended social circle. I also believe that the false (criminal) attribution contained within the data-file has and will continue to constrain my prospects for future employment in general and specifically in the petrochemical industry.
I consider this mis-appropriation of erroneous information to my person as an act of ‘defamation’. Ex-post-facto; it is not possible to assuage the harm done to my person by any remedial action including: ‘rectification’; ‘blocking’; ‘deletion’, or any other means.
I have taken legal advice on the foregoing and have instructed my legal team to pursue above matters with due diligence.
The data-file and other pertinent/relevant materials will be forwarded to the Office of the Data Commissioner for their perusal and consideration. I am of the opinion that the findings and ultimate decision of said organisation will corroborate my position vis the application of ‘false information’ to my good name and character.”
A number of points may be made about this letter. First, it is clear from this letter that by this stage, January, 2015, the plaintiff had engaged legal advice. Further, the language for the first time specifically invokes the concept of defamation, although it could not be said to constitute a ‘warning letter’ of the usual type in defamation proceedings. On the contrary, the indications from the plaintiff are that he will make a complaint to the Data Protection Commissioner. Thirdly, at no point does the plaintiff request the defendant to delete the information, despite the fact that he had been asked several times whether this is what he wants. In fact, he seems to reject this remedy, saying that “it is not possible to assuage the harm done to my person by any remedial action including rectification, blocking, deletion, or any other means”.
15. On the 14th October, 2015, a plenary summons issued, seeking damages for defamation. It was not until three months later that proceedings were served, on the 12th January, 2016. An appearance was entered on behalf of the defendant on the 21st January, 2016. An application was made for an extension of time within which to bring the proceedings by notice of motion dated the 10th February, 2016, grounded on an affidavit sworn by the plaintiff on the 2nd February, 2016. A statement of claim was delivered on the 17th February, 2016, notwithstanding that no order of the Court had been obtained.
The reason for the delay
16. As noted earlier, section 38 of the Defamation Act, 2009, specifically requires the Court to have regard, inter alia, to the “reason for the failure to bring the action within the period specified”. In this regard, the plaintiff, in an affidavit sworn on the 2nd February, 2016, said as follows:
“I say that in or around early January 2015 I contacted solicitors and was advised that I had until 15 October 2015 to initiate proceedings. I instructed them that I wished to initiate proceedings immediately.
I say that I was unhappy with the speed at which my case was progressing and on 31 July 2015 I met with my current solicitors to discuss this case and other related matters. I say that my file was transferred to my current solicitors on 1 September 2015; I say and believe that when my solicitors received my file and on advice from counsel, they noted that the date of publication of the statement in issue was in fact 7 March 2014. I further say that the plenary summons then issued in early October 2015.”
In the affidavit sworn on behalf of the defendant company, criticism was made at paragraph 55, in particular, as to: the lack of clarity and precision on the part of the plaintiff as to the instructions he gave to his original solicitors; the absence of any explanation of the further delays that occurred; the absence of a letter of claim; and the three month delay before the plenary summons was served. In his second affidavit, the plaintiff did not respond to these criticisms in any way and there is, accordingly, no further explanation as to the delay other than what is set out above.
17. A number of Irish and English authorities have dealt with explanations for delay in issuing defamation proceedings in other cases. In Watson v Campos and MGN Limited trading as Irish Mirror, [2016] IEHC 18, Barrett J. refused to exercise his discretion in favour of a plaintiff who sought to bring defamation proceedings outside of the one-year time limit. The case arose out of a newspaper’s coverage of a particular criminal trial, which allegedly impugned the reputation of a person who was not the subject of the trial but was effectively described as someone who had condoned the criminal activity in question. Barrett J’s refusal of the application to extend time arose in circumstances where he found, inter alia, that the plaintiff’s delay remained ‘completely unexplained’. The reason for delay which had been put forward on behalf of the plaintiff was that there had been repeated efforts to get the name of the Sunday Mirror editor before proceedings could be launched. This quest for the editor’s name was described by Barrett J. as a “red herring” and not a valid reason for failing to initiate proceedings against the newspaper. Barrett J also discussed the long-established principle of the ‘need for speed’ in issuing defamation proceedings, and said: “to put matters succinctly, when it comes to bringing a defamation action, as defined, a one-year limitation period is standard, more than one year is exceptional.”
18. In Taheny v. Honeyman, Fox, the Irish Prison Service and the Minister for Justice, Equality and Law Reform (Unreported, High Court, 6th February, 2014), Peart J. also refused to exercise his discretion in favour of a plaintiff who sought an extension of time within which to bring defamation proceedings. The plaintiff was a prison officer who wished to bring proceedings concerning allegations that he and another officer were party to the smuggling of contraband, including drugs, into the prison in which he worked. An issue arose in the case as to when he became aware of the defamatory allegations; whether on the 16th March, 2012, or an earlier date. A letter sent on his behalf by his solicitor, dated the 16th March, 2012, referred to his having become aware of the allegations on the 10th March, 2012. The plaintiff sought to argue that this was an error on the part of his then solicitor and that the correct date of knowledge was the 16th March, 2012, the date of the letter itself. This was rejected by Peart J. who commented in the following passage:
“In relation to that issue, it is the plaintiff who bears the burden of proving that this two year ‘long stop’ limit had not been exceeded by the 10th March 2014. To do that he must establish, on the basis of a probability, that he became aware of the allegations for the first time on the 16th March 2012. He does not contend for any other date between the 10th and the 16th March 2012. He says it was the 16th March 2012, being the same date on which he wrote his letter to the Governor to which I have referred. As I have already set forth, the defendants have produced his solicitor’s letter which refers to Saturday the 10th March 2012 as the date on which he first learned of the allegations. The plaintiff must rebut that evidence not by mere assertion of an error on the part of his solicitor but by something more. He has not sought to do so. He has not sought to adduce any evidence from his former solicitor which might acknowledge the error. He has not exhibited any notes or memoranda which his then solicitor may have put on his file recording what the plaintiff said to him at what must have been a lengthy consultation leading to that very detailed letter to the Governor. The plaintiff has not deposed that he has attempted to get his file or a copy of any such note or memorandum which may be on that file, and that his solicitor has refused to hand it over. All he states is that his then solicitor made an error.”
These comments are of assistance in the context of the present case, where the plaintiff seeks to blame his solicitor for the delay in bringing proceedings within the one-year time limit, albeit that the alleged error in the Taheny case was as to the date of knowledge of the plaintiff and not an error as to the time-limit for issuing proceedings, as is alleged in the present case. In my view, the relevance of the comments of Peart J is that a plaintiff who seeks to blame a former solicitor for an error which is relevant to his explanation for delay must do more than make a generalised assertion if he wishes the court to be satisfied of the validity of the complaint against his solicitor.
19. In the course of delivering his judgment, Peart J. also made the following comments as to the proper approach to an application for an extension of time in the present context:
“That onus is discharged in my view firstly by providing an explanation which excuses the delay so that the Court could be satisfied that the interests of justice are best served by allowing the case to proceed, and by satisfying the Court additionally that the prejudice which the plaintiff will suffer by being refused a direction outweighs the prejudice which the defendants will suffer if the direction is granted. It is insufficient in my view that there is a reason simpliciter for the delay. The Court must consider the quality and justifying nature of the reason or reasons put forward, and also weigh the respective prejudices. These requirements are evident from the words used in section 11, subsection 3A of the Act of 1957.”
I agree with the view that the court should conduct a qualitative assessment of the reason offered for the delay, and that the mere proferring of a reason is not necessarily sufficient in and of itself.
20. In Steedman and others v. BBC, [2001] EWCA Civ 1534, the Court of Appeal considered a similar legislative provision in the United Kingdom providing for a one-year limitation period in defamation actions as well as for a discretion for the period to be extended by a court. This arose in the context of a defamation action which eight police officers wished to bring in connection with a television broadcast about the death of a man which took place following his interaction with police officers. The death of the man took place on the 11th January, 1999. A firm of solicitors were instructed by the Police Federation in early course with regard to any disciplinary or criminal charges against the police officers. The broadcast complained of took place in April 1999, on the date of the man’s funeral. A transcript of the broadcast was sent to the firm of solicitors within a week. The Court described what subsequently happened as ‘entirely obscure’. The police officers sought to issue their defamation claim on the 26th June 2000, some 15 months after the broadcast. The Court was critical of the paucity of information put before it as to why the defamation matter was not addressed sooner by the solicitors, saying:
“10. It is notable that this evidence fails to furnish either directly or indirectly any information from the claimants, or their former solicitors, as to the instructions given by the claimants following the broadcast, the purpose of obtaining the transcript or even any indication as to whether there were any discussions between the solicitors and their clients about notification of a complaint to the BBC.
11. What is certain is that no communication, let alone complaint, was ever made at any stage to the defendants. The file remained in the charge of a member of the firm who was concerned with the criminal and disciplinary aspects of the case. We were told that, at a later and unidentified stage, the file was transferred in unspecified circumstances to a person with defamation experience. Even then no complaint was made, let alone proceedings commenced.”
On this point, Steel J said, in its conclusions,
“The statute expressly requires that there be consideration of the length and reasons for the delay. The delay in terms of time is significant and it is almost wholly unexplained. Certainly no good reason for the delay has been advanced. Given the terms of the particulars of claim as to the alleged impact of the broadcast on the claimants and on the administration of justice, it may properly be surmised either that there was no contemporary concern about the terms of the broadcast (at least as regards defamation) or that there was some tactical reason for not complaining.”
21. The case of Reed Elsevier Limited (t/a Lexis Nexis) & Anor v. Bewry [2014] EWCA Civ 1411, concerned the electronic publication of information about a court case in respect of which the plaintiff, a foster carer of young boys, wished to bring defamation proceedings on the basis that the report suggested that he had engaged in sexual impropriety with the boys. He sought an extension of time within which to bring the proceedings and in the course of its judgment, the Court said:
“The onus is on the claimant to make out a case for disapplication: per Hale LJ in Steedman at para 33. Unexplained or inadequately explained delay deprives the court of the material it needs to determine the reasons for the delay and to arrive at a conclusion that is fair to both sides in the litigation. A claimant who does not “get on with it” and provides vague and unsatisfactory evidence to explain his or her delay, or “place[s] as little information before the court when inviting a section 32A discretion to be exercised in their favour …should not be surprised if the court is unwilling to find that it is equitable to grant them their request.” per Brooke LJ in Steedman at para 45.”
The Court also examined a particular claim made by the man that he did not know of the limitation period until a certain date and said;
“The relevant paragraph of the claimant’s witness statement did not state when he took legal advice; indeed it seems to have been deliberately couched in vague language, which obscured rather than clarified what was (on the claimant’s case at least) this important factual issue. Nor did the witness statement say that the claimant was not aware of the relevant limitation period before he took legal advice. I mention this point because the claimant is no stranger to the civil courts as the judge himself observed and has been involved in a considerable amount of litigation in the last 15 years. It is not necessary to refer to any of that litigation, except to say that it has involved proceedings for judicial review and employment claims with much shorter time limits (strictly applied) than are involved here. I think Mr Rushbrooke is entitled to say that this should have led to a sceptical rather than a benevolent interpretation of the claimant’s evidence.”
This again makes it clear that a person seeking to persuade the court to exercise its discretion in his favour must provide full and adequate information as to the particular reasons for delay that he relies upon to support his application.
22. The authorities, therefore, make it clear that the onus is on the plaintiff to explain the delay, and that the evidence offered in support of the explanation must reach an appropriate level of detail and cogency. In the present case, the plaintiff has provided minimal explanation and very little detail as to the reason for not issuing before 7th March, 2015, which he blames on an error made by his former solicitor as to the date from which the period of one year is to run. He fails to explain why, having instructed new solicitors in July, 2015, proceedings did not issue until October, 2015. He also fails to explain, at all, the delay between October, 2015, and January, 2016, in serving the proceedings which were issued. All of this sits uneasily with his assertions concerning the grave nature of the defamation and the serious impact it had upon him. I am not satisfied that the entirety of the delay has been satisfactorily explained or that the explanation offered for some of the delay has been sufficiently substantiated.
The extent to which any evidence relevant to the matter is, by virtue of the delay, no longer capable of being adduced.
23. A second factor to which the Court is required by the statute to have regard is the extent to which any evidence relevant to the matter is, by virtue of the delay, no longer capable of being adduced. In the present case, the defendant company did not seek to rely on this factor in order to resist the application.
Whether the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given.
24. As regards the issue of prejudice, the plaintiff relies in particular on the grave nature of the defamation, involving as it does, an incorrect assertion that he had been convicted by a Court of an environmental pollution offence for which he received a large fine, in circumstances where he is a businessman. He also relies on the potentially large group of people to whom the defamation was published, given the size of the Shell company. The prejudice to the plaintiff if he were refused the extension of time, taken at its height, would be his being deprived of the opportunity to pursue a defamation claim involving allegations of serious criminality to a wide audience.
25. As regards the prejudice to the defendant if the extension of time were granted, this concept of prejudice is wider than the concept of lost evidence. Not only must this be so by reason of the words of the statutory provisions, which provide separately that the loss of evidence to be considered by the Court is a discrete factor, but this is also the interpretation adopted in the authorities referred to.
26. The defendant relies upon a number of matters in respect of the potential relative prejudice of the plaintiff and defendant. First, it is argued that if, as the plaintiff asserts, the reason for the delay was his former solicitor’s failure to issue proceedings within one year from the date of publication because the solicitor made an error of law, he will have a cause of action against the solicitor, and this alternative remedy is relevant to the question of prejudice. Secondly, the defendant argues that the defamation claim is a weak claim because the publication in question is covered by the defence of qualified privilege. Thirdly, the defendant argues that it is relevant that the material was taken down from the website, and that there is no plea of justification ‘left hanging’, as there was, for example, in the case of Desmond v. MGN Limited [2009] 1 IR 737.
27. The issue of how a potential claim against a former solicitor should be considered in the present context was discussed in Steedman and others v. BBC, [2001] EWCA Civ 1534. Steel J. said:
“24 I turn now to the complaint that the learned judge should not have taken account of the claimants’ ability to sue their own solicitors or at least that he placed excessive weight on that aspect. Given the absence of any explanation for the delay, it is not easy to determine whether they are justified in placing the blame upon their legal advisors. But since that was indeed the claimants’ case, in my judgment the judge was fully entitled to take some account of it.
25 The suggestion that it is a wholly irrelevant consideration was rejected by this court in Firman v Ellis [1978] QB 886 . The argument that the judge accorded excessive weight to the issue is not a promising line of attack on an exercise of discretion. The fact remains that the existence of the claim against the solicitors ameliorates to some extent such prejudice as flows from the impact of the limitation period. The extent of that prejudice in turn depends upon the strength or otherwise of the claim.
26 It has to be remembered that none of the officers were named in the broadcast or, indeed, in any of the contemporary newspaper reports. The defendants contend, with some force, that a particular difficulty about the claim is the apparent need in those circumstances for the claimants to rely upon relatives, friends and colleagues to establish that they were being referred to. Of course it is wholly inappropriate to make any determination of the merits of the claim. But its nature and form suggest that the prejudice of not being able to pursue it is of a low order.
27 In this connection, it is instructive to focus upon the complaint that, if the claimants were left to their claim against the solicitors, they would not thereby be able to vindicate themselves appropriately. But as was submitted on behalf of the defendants, it is very difficult to see how the claimants can seriously suggest that they have any expectation of vindication as a result of the pursuit of the defamation proceedings. That would only be achieved, if at all, in the light of the outcome of the inquest when it is resumed. Absent any contemporary complaint, the pursuit of vindication as a result of a claim to an apology some 15 months or more after the event, strikes me as an entirely empty gesture.
28 The appellants sought to suggest that this approach had the effect of visiting the faults of the claimants’ lawyers on the claimants. I readily accept that, on the assumption that the delay was the solicitors’ fault, such would be impermissible: see Corbin v. Penfold Metallising Company Ltd [2000] Lloyd’s Rep Med 247 and the cases there cited. But that is to confuse two quite separate considerations. As Lord Diplock observed in Thompson v. Brown ,supra:—
‘If he has acted promptly and reasonably it is not to be counted against him, when it comes to weighing conduct, that his lawyers have been dilatory and allowed the primary limitation to expire without issuing a writ. Nevertheless, when weighing what degree of prejudice the plaintiff has suffered, the fact that he will have a claim over against his solicitor for the full damages that he could have recovered against the defendant if the action had proceeded must be a highly relevant consideration.’”
He went on to say,
“To some extent the prejudice is counter-balanced by prejudice to the claimants in not having the time-bar lifted. But the claim would not appear to be a strong one, certainly if vindication is the aim. If it is stronger than it appears, the prejudice is ameliorated by the ability to claim against the former solicitors.”
28. It seems to me that it is correct to say that the potential availability of a remedy against his solicitor on the part of the plaintiff is relevant to the court’s discretion. It is also relevant in this regard that the only relief sought in the defamation proceedings which the plaintiff seeks to bring is the remedy of compensation.
29. As regards the strength or otherwise of the plaintiff’s claim, it was argued on behalf of the plaintiff that the issue of malice, which would defeat a claim of qualified privilege, was in the case, at the very least, from mid-November, 2014, onwards, because by this time the plaintiff had notified the defendant company that the information was false and yet the information was not removed from the database for another 14 months. To this the defendant replied that malice had not been pleaded in the Statement of Claim. There was also the factual issue, to which I made a brief reference earlier, as to whether or not the defendant had published the information outside of the company. It is not necessary for the court to enter upon a detailed analysis of these matters for present purposes. For the present, I am prepared to take the plaintiff’s case at its height and to accept that that it would not necessarily be an ‘open and shut’ case where a defence of qualified privilege would apply to the entire claim. Nonetheless, I am also prepared to accept that it is likely that qualified privilege will apply as a defence to at least some of the plaintiff’s claim.
30. It is certainly true, however, that there is no plea of justification and that the material has now in fact been removed from the database, albeit that this was only done in January 2016. In Desmond v. MGN Limited [2009] 1 IR 737, the Court pointed out that a plea of justification would be a factor which could weigh heavily in the balance against allowing proceedings to be struck out for inordinate and inexcusable delay. Obviously the present case, being an application for extension of time within which to bring proceedings, is an application of a different type but the logic of the proposition would seem to me to apply with similar force.
The interests of justice
31. As regards the overall interests of justice, the plaintiff relies upon the fact that the underlying right which he seeks to vindicate in his defamation action is a right explicitly protected by Article 40.3.2 of the Constitution, namely his right to a good name. I am willing to take this into account, although this may be unduly generous to the plaintiff as it must be presumed that the Oireachtas was well aware of the constitutional status of the right to a good name underlying defamation proceedings when it crafted the regime in the Defamation Act, 2009, combining the one-year time limit with the Court’s discretion to extend it up to two years. To put the constitutional right to a good name into the balance again may be a form of ‘double-counting’, but I am prepared to do so for present purposes.
32. It is also argued on behalf of the plaintiff that no press freedom issue arises in the present case, unlike the Watson case, where the issue of press freedom was referenced at paragraph 28 of the judgment of Barrett J. I am not convinced that the issue of press freedom necessarily alters the balance in a case such as this. Article 40.6.1(i) guarantees the right of freedom of expression to ‘citizens’ and there seems to be no reason to view the policy underlying the one-year limitation period in defamation actions as being linked to press-related publications as distinct from other forms of publication or non-media authors.
33. The plaintiff also relied heavily on the fact that the defendant company knew from mid-November, 2014, that the information published was false and chose not to take it down from the database until January, 2016, after the proceedings were served. I am not entirely convinced, having regard to the content of the emails sent by the plaintiff to the defendant laid before the Court, that it was crystal clear to the defendant company by mid-November of the specific nature of the problem, namely, that they had made an error in assuming that the person convicted of the environmental offence was the plaintiff, but I am prepared to take the view that the defendant company was at least on notice that something might be amiss with regard to this particular piece of information. On the other hand, they expressly invited the plaintiff several times to indicate whether he wished certain information to be deleted, and he indicated by letter dated January 2015 that he did not, and that he wished instead to pursue a complaint to the Data Protection Commissioner. This may explain the failure of the defendant to remove the material until proceedings issued, although it would obviously have been more prudent if they had removed it immediately and investigated the circumstances more thoroughly. In all the circumstances, I do not consider the defendant company’s behaviour to have been so egregious as to tilt the balance of justice decisively in favour of the plaintiff.
Conclusions
34. To summarise my views as set out above, the factors weighing in the balance in favour of the plaintiff are:
(a) the constitutional nature of the right to a good name which underlies the defamation proceedings he wishes to bring;
(b) the gravity of the defamation;
(c) the large number of persons to whom it appears to have been circulated; and
(d) the failure of the defendant company to remove the material from its database from mid-November 2014 or investigate the accuracy of the material, when it had been put on notice, at the very least, of the fact that something was wrong.
35. The factors weighing in favour of the defendant are:
(a) the failure of the plaintiff satisfactorily to explain the delay;
(b) the existence of a defence of qualified privilege which appears to me likely to apply to at least some of the period, but not necessarily all, and at least some, although again not necessarily all, of the recipients of the defamatory material;
(c) the fact that plaintiff has an alternative remedy against the solicitor who misadvised him as to the time limit, if what he avers in this regard is true;
(d) that the material is no longer on the database and there is no plea of justification in the case.
While I consider the matter to be rather finely balanced, particularly by reason of the mid-November response of the defendant company to the plaintiff’s complaints, I am of the view that the Court’s discretion should be exercised so as to refuse the plaintiff’s application. His failure to satisfactorily explain the delays in issuing and serving proceedings, together with the availability of an alternative remedy against his former solicitor, if what he says is true about their error as to the time limit, are important factors in my view. I do not think that the interests of justice require that the Court exercise its discretion in favour of the plaintiff. Nor do I consider that the prejudice to the plaintiff in being prevented from bringing these proceedings would significantly outweigh the prejudice to the defendant in losing its statute of limitations defence.
36. I note that in the present case, the proceedings were issued and a motion then served seeking an extension of time, rather than seeking the leave of the Court before issuing proceedings. As the Court is exercising its discretion against the plaintiff, it does not appear necessary to rule on what the appropriate procedure is, but I would have thought that the appropriate procedure might be to issue a motion seeking the Court’s leave, with a grounding affidavit exhibiting a draft plenary summons and statement of claim. I say this in passing, because there was no argument on the point and nothing turns on it in the present case.
37. I refuse the relief sought by the plaintiff.
Watson -v- Campos & Anor
[2016] IEHC 18
JUDGMENT of Mr Justice Max Barrett delivered on 14th January, 2016.
Part I: Background.
1. The awfulness of Mr Durran’s crime was such that it attracted a blaze of publicity. After he was convicted of rape, the victim,his daughter, waived her right to anonymity and gave an interview to the Sunday Mirror newspaper. The article that followed that interview explained how immediately after the crime occurred, the daughter complained to a “female occupant of the house” where the rape occurred.This “female occupant”,the article indicates, was at first somewhat incredulous regarding the daughter’s claim.
2. Ms Watson claims that she is the “female occupant” in question and that she has been defamed by the article in that it suggests, to borrow from her affidavit evidence, “that I was sympathetic to a rapist or somehow complicit in a rape or the cover up of the crime or/and that I declined assistance to a victim of rape”.
3. The difficulty that Ms Watson faces in continuing her claim at this time is that she is outside the standard one year limitation period that, pursuant to s.38 of the Defamation Act 2009, normally applies to the commencement of defamation claims. So Ms Watson comes now to court seeking that pursuant to the same provision, it now extendthe limitation period in order that Ms Watson may continue these proceedings.
Part II: Chronology.
4. A summary chronology of the pertinent background facts follows:
16.02.2014. Article appears in the Sunday Mirror. On what seems to be the back page of the newspaper, the required publisher details are stated as follows: “Published by MGN Ltd. at One Canada Square, Canary Wharf, London, E14 5AP (020 7293 3000) and printed at […]…Registered as a newspaper at the Post Office Serial No. 2538.” [1]
08.07.2014 Ms Watson’s solicitor issues letter to Sunday Mirror complaining of alleged defamation.[2]
03.12.2014 Ms Watson’s solicitor issues letter to Sunday Mirror seeking confirmation of identities of appropriate defendants and name of editor or person nominated to defend.[3] Notably, this letter includes the following text:
“We now have High Court proceedings drafted and settled by Senior Counsel and which we are ready to issue and perhaps you would first of all provide is with the name of your editor, who we intend naming in the proceedings together with the journalist in question and responsible for the article”. [4]
06.02.2015 Ms Watson’s solicitor issues further letter to Sunday Mirror seeking confirmation of identity of editor.[5]
09.06.2015 Ms Watson’s solicitor issues further letter to Sunday Mirror seeking confirmation of identity of editor.[6]
18.06.2015. Defamation summons issues.[7]
[1] At the hearing of the within application, it was sought to make some play of the fact that the address given is a United Kingdom address. The court sees no significance to this. There is no reason why a summons cannot be served readily on a corporate party at its registered address in another European Union member state.
[2] By this date, less than five months after the Sunday Mirror article was published and seven months before a year elapsed from the date of publication, Ms Watson had professional legal advice. Her advisors would doubtless have been aware of the standard one-year timeframe arising for a defamation claim.
[3] Although there was no harm in Ms Watson’s solicitor sending this letter, there was and is no obligation on the Sunday Mirror to assist Ms Watson in her quest to sue the Sunday Mirror.
[4] By this date, still well within the standard one-year timeframe, all was ready to go. The quest for the editor’s name is a ‘red herring’. First, it was not necessary for the bringing of proceedings. Second, MGN had been stated in the Sunday Mirror of 16th February to be the publisher and could have been (as it has been) sued. As publisher, it was vicariously liable for the editor’s actions. Third, even if the name of the editor was required and unavailable, the proceedings could have been commenced and his name added at a later stage, following production of the correspondence that sought unsuccessfully to discover the editor’s identity. Fourth, the court must admit to some mystification as to why no-one just called ++ 44 20 7293 3000, the contact telephone number for the Sunday Mirror that was published in the Sunday Mirror of 16th February, and asked the Sunday Mirrorreceptionist, the editor’s PA, or someone in the Legal Department for the name of the Sunday Mirror’seditor. Even a Google search would have yielded the relevant detail.
[5], [6] Again, for the reasons stated at [4], this quest for the editor’s name is a ‘red herring’.
[7] This date is 16 months after the date of publication, four months outside the standard one-year timeframe.
Part III: Some relevant legislation.
5. Section 38(1)(a) of the Defamation Act 2009 introduces a new s.11(2)(c) into the Statute of Limitations 1957. This new sub-section (c) provides as follows:
“(c)A defamation action within the meaning of the Defamation Act 2009 shall not be brought after the expiration of –
(i) one year, or
(ii) such longer period as the court may direct not exceeding 2 years,
from the date on which the cause of action accrued.”
6. So, to put matters succinctly, when it comes to bringing a defamation action, as defined, a one-year limitation period is standard, more than one yearis exceptional.
7. Section 38(1)(b) of the Defamation Act 2009 introduces a new s.11(3A) into the Act of 1957. This prohibits the court from granting the direction referred to in the new s.11(2)(c)(ii) unless certain criteria are satisfied. Thus, per s.11(3A) of the Act of 1957:
“(3A) The court shall not give a direction under subsection (2)(c)(ii)…unless it is satisfied that –
(a) the interests of justice require the giving of the direction, and
(b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given,
and the court shall, in deciding whether to give such a direction, have regard [c]to the reason for the failure to bring the action within the period specified in subparagraph (i) of the said subsection (2)(c) and [d]the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.”
8. The court notes the use of the mandatory form ‘shall’; the court must not give a direction unless (1) (a) and (b) are satisfied; and (2) it has had regard to [c] and [d]. As a process, it seems appropriate logically to deal with matters backwards, i.e. by dealing with [d], then [c], then (b) and then (a) in that order.
Part IV. Order 1B of the Rules of the Superior Courts (1986), as amended.
9. The court must admit to some sense that there has been a touch of ‘cart before horse’ about the within application. It is clear from the new s.11(2)(c) of the Act of 1957 that a defamation action“shall not be brought” after (i) one year or (ii) such longer period as the court may direct, not exceeding two years.
10. Strictly speaking, it seems to the court from the foregoing that once a plaintiff is outside the standard one-year limitation period, a direction ought to be sought for the extension of the limitation period so that – assuming the extension is granted – a defamation action may then commence, rather than a defamation action commencing and a direction then being sought. It is true that O.1B, r.3(2) appears implicitly to acknowledge that either approach is possible. Thus it refers to the process to be adopted “[w]here a defamation action has not been brought…” and so appears to contemplate that a situation may arise ‘where a defamation action has been brought…’, notwithstanding that, as mentioned above, s.11(2)(c) appears to contemplate that no defamation action can be brought after one year, absent the previous issuance of a direction under s.11(2)(c)(ii). Not a lot may ride on the foregoing in substance, save for the not-so-minor fact that, absent a determination of unconstitutionality, it is necessary for the courts, and the rules of court, to conform with what our elected lawmakers prescribe in statute. In the within application, the issue is perhaps met by the fact that here the application made by the plaintiff has in any event failed and so any issue arising in this regard is therefore rendered largely moot.
Part V. Some applicable case-law.
i. Overview.
11. Counsel for MGN has referred the court to a helpful trio of cases. These are briefly considered hereafter and point respectively to (i) what might be called the ‘need for speed’ in the pursuit of defamation actions, and (ii) the need for an adequate explanation to be provided by a plaintiff as to why a direction is being sought under a s.11.(2)(c)(ii) of the Act of 1957.
ii. Ewins v. Independent Newspapers (Ireland) Limited
[2003] 1 I.R.583.
12. This was a libel action in which the impugned article had been published in April 1995, a plenary summons issued in December 1995, a notice of intention to proceed was served in November 2000, and a statement of claim was delivered in February 2001. An application was made to strike out the proceedings for want of prosecution. This failed in the High Court but was successful on appeal to the Supreme Court. In his judgment in that case, Keane C.J. observed, at 590, that:
“A plaintiff in defamation proceedings, as opposed to many other forms of proceedings, is under a particular onus to institute his proceedings instantly and without delay and, of course, not simply because he will otherwise be met with the response that it cannot have been of such significance to his reputation if he delayed so long to bring the proceedings but also in his own interests in order, at once, to restore the damage that he sees to have been done to his reputation by the offending publication. Therefore, I do not think that an issue such as arose in this case is to be tested by what would be extraordinarily unlikely conduct for a plaintiff bringing anything in the nature of bona fide proceedings for defamation, namely, that he would wait until close to the expiration of the limitation period.”
13. This is a judgment that is doubtlessmuch beloved of newspaper proprietors for obvious reasons. However, it is also perhaps a judgment that has been somewhat overtaken by subsequent events, in particular by the enactment of the Act of 2009. That Act, and the remarkably short timeframe for defamation actions established thereby, represents an even greater level of protection to newspaper proprietors than the learned observations of Keane C.J in Ewins.Moreover, that Actwould appear also to have the effect that Ewins must be viewed as a creature of its time and, to some extent, redundant in our time. In particular, the court would note the following:
(i) Keane C.J.’s judgment was fashioned in the context of a six-year limitation period and the factors to which he makes reference in that case seem to be less pressing in the context of the standard one-year limitation period (and, exceptionally, up to two-year limitation period) now applicable pursuant to s.38 of the Act of 2009.
(ii) if one is to meet that one-year limitation period and not to be reliant on the grace-and-favour of the High Court pursuant to a s.11.(2)(c)(ii) direction application, then one is effectively obliged to act “instantly and without delay”. Indeed the notion that a person who meets the one-year period could ever convincingly be accused to have acted with such sluggishness as to have implicitly conceded the insignificance of a publication vis-à-vis her reputation seems a mite fantastic. Of course, if a person does not act within the one-year period, particularly where she has the benefit of legal advice, then this is an argument that could still convincingly be made in the context of any s.11(2)(c)(ii) application that might follow.
(iii) as to the notion of delay prior to the end of a limitation period, it seems to this Court that (ignoring precedent for a moment) as a matter of principle it is an inappropriate intrusion by the courts into the province of our elected lawmakers ever to have regard to delay within a limitation period. If our elected lawmakers set a limitation period of Date A to Date B, then it seems to this Court that one has until the last second on Date B to proceed, and that it impinges upon and constrains that freedom of action which our elected lawmakers contemplate as arising between these two dates for the courts to have negative regard to a person’s actions or inactionwithin that period, for example in an application for strike-out based on inordinate and inexcusable delay. The court is conscious that there is an abundance of precedent to suggest otherwise…and yet an inconsistency between precedent and principle appears to arise in this regard. Of course, in the within application a rather different scenario presents. Here the plaintiff has acted outside the limitation period, and that immediately places her on the back-foot: she must apply for an extension of the limitation period and, per s.11(3A) of the Act of 1957, “[t]he court shall not give a direction” unless it is satisfied as to some matters and had regard to other matters (which matters are identified in Part III above).
14. In short, there is no doubt that the general ‘need for speed’ identified in Ewins remains extant. However, the practical significance of that judgment seems lessened by the fact that the Oireachtas has since ‘waded in’ via the medium of the Act of 2009 and required an even more accelerated process than could have been contemplated in 2003, in the context of the limitation period then pertaining.
iii. Desmond v. MGN Limited
[2009] 1 IR 737.
15. Mr Desmond, a prominent businessman, instituted certain libel proceedings in May 1998 concerning alleged payments to a politician. In February, 2005 a letter was sent to MGN indicating that a notice of intention to proceed would issue. Mr Desmond indicated that he had delayed acting because of legal advice that he should not proceed during the currency of a then extant tribunal of inquiry. MGN sought dismissal of the proceedings on grounds of inordinate and inexcusable delay by Mr Desmond. It failed in the High Court and, on appeal, in the Supreme Court.
16. In the within proceedings, the court’s attention has been drawn by counsel for MGN to the observation of Macken J., at 759, that “It is…axiomatic that in the case of a claim to vindicate the reputation of a person, the rule is that proceedings such as those for defamation must be progressed with extra diligence.”(One also finds reference to this axiom in the judgment of Dunne J. in Desmond v. Times Newspapers Ltd [2009] IEHC 271 at 23 et seq).
17. The Supreme Court decision in Desmond was handed down in October 2008. (The decision of Dunne J. was handed down in June 2009). The Act of 2009 was enacted in July2009. So although the axiom identified by Macken J. and later echoed by Dunne J., as with the ‘need for speed’ identified in Ewins clearly remain extant, it seems to the court that they will invariably be satisfied if a plaintiff moves in such a manner as to satisfy the incredibly short but still standard one-year timeframe established by the Act of 2009. It is when an extension of that timeframe is sought, by way of application for a direction under s.11(2)(c)(ii) of the Act of 1957, that allegations of sluggishness appear to acquire real potency.
18. In this last regard, the court notes that s.11(3A) of the Act of 1957 expressly requires that “the court shall [i.e. must], in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the [standard one-year] period specified in [s.11(2)(c)(i) of the Act of 1957]”. So this is a situation where our elected lawmakers expressly require of the courts that they have regard to behaviour (delay) within a limitation period in deciding whether or not an extension of same should be allowed. Indeed the fact that our lawmakers expressly make such provision might be construed as support for the general proposition that our lawmakers otherwise perceive the norm to be that, absent such provision, delay within a statutorily prescribed limitation period ought not to yield an adverse effect.
iv. Reed Elsevier UK Limited (t/a LexisNexis) v. Berry
[2014] EWCA Cv.1411.
19. There appear to be no previous written judgments of the Irish courts on the seeking of a direction under s.11(2)(c)(i) of the Act of 1957. Counsel for MGN indicated at the hearing that he is aware anecdotally of one such application that was brought and refused. However, while the court naturally accepts the truthfulness of what counsel had to say in this regard and appreciates his bid to be of assistance, the court cannot have regard to an ex tempore decision of uncertain vintage, of which there appears to be no written record, which seems unlikely by its very nature to have involved any meaningful consideration of the applicable law and principle, and of which, ultimately, only the final outcome appears to be known.
20. More helpful was counsel’s reference to Reed Elsevier, a decision of the English Court of Appeal concerning whether or not the limitation period applicable to libel actions under the United Kingdom’s Limitation Act 1980 ought to have been dis-applied by a lower court.
21. Almost a century on from Independence, this Court must admit to some scepticism as to the general persuasiveness of contemporary United Kingdom precedent concerning specific points of statute-law (as opposed to questions solely concerned with common law matters), (I)save in circumstances where (1) the court is looking at (i) pre-Independence legislation, (ii)Irish legislation directly modelled on United Kingdom legislation (now a rare species), or (iii)Irish legislation that derives from a common source, such as a requirement of European Union law, or (2) a United Kingdom judge opines on a question of principle which sits somewhat apart from the specific statutory point arising before her or him and can be transmuted via the ether of the common law into a principle of our separate but similar Irish legal system, and (II)subject always to viewing such precedent through the filter of the very different cultural and social circumstances and outlook that present in Ireland (there is, after all, a reason why, as a nation, our forebears elected that we should strike out on our own and form an independent state, notwithstanding the commonalities, friendship and shared interests that so often present when it comes to our nearest neighbour).
22. The point of relevance to the within proceedings that falls to be drawn from Reed Elsevier sits within category (I)(2) above. Thus at p.3 of her judgment in that case, Sharp L.J. observes as follows:
“8.The onus is on the claimant to make out a case for disapplication….Unexplained or inadequately explained delay deprives the court of the material it needs to determine the reasons for the delay and to arrive at a conclusion that is fair to both sides in the litigation. A claimant who does not ‘get on with it’ and provides vague and unsatisfactory evidence to explain his or her delay or ‘place[s] as little information before the court when inviting a section 32A discretion to be exercised in their favour should not be surprised if the court is unwilling to find that it is equitable to grant them their request.’ per Brooke LJ in Steedman at para.45.”
23. It seems to this Court that this observation applies, mutatis mutandis, with equal vigour in the context of an application made for a direction under s.11.(2)(c)(ii) of the Act of 1957.
Part VI: Application of law to facts presenting.
(i) Evidence no longer capable of being adduced?
24. Parties obviously want to ‘put the best foot forward’ in proceedings. However, the court must admit to reading with a degree of incredulity the averment in the affidavit by MGN’s solicitor that “[MGN] is prejudiced by the passage of time and its effect on the recollection of witnesses. The passage of time means that the evidence required to make that argument becomes increasingly difficult, if not altogether impossible, to adduce and [MGN]…will be significantly prejudiced in its defence of the claim as result.” The impugned article was published in February of 2014. It was in effect an account by a crime victim of an awful crime that had been perpetrated upon her in a quiet Dublin suburb. The court would hazard with some confidence that many people in or fromthat suburb remember entirely well the crime, the ensuing prosecution, the parties involved, the article that resulted, and their reaction thereto. If one has regard to the specific wording of s.11(3A) of the Act of 1957, the court does not accept as credible the notion that any evidence relevant to Ms Watson’s defamation action is by virtue of the delay presenting no longer capable of being adduced.
(ii) What is the reason for the delay in bringing the action?
25. The reason for Ms Watson’s delay remains completely unexplained. The repeated efforts to get the name of the Sunday Mirror editor offer, for the reasons stated above, no basis or justification for the delay presenting. Moreover, Ms Watson had the benefit from an early stage of legal advice and, by her solicitor’s letter of 3rd December, 2014, was ‘ready to roll’ in terms of commencing litigation well within the standard one-year limitation period, apart from the (spurious) need to obtain the details of the editor of the Sunday Mirror before proceeding further. In this regard, the court cannot but recall the above-quoted observation of Sharp L.J. in Reed Elsevier as to the onus on a claimant in the analogous situation where a disapplication of a limitation period is sought under the United Kingdom’s Limitation Act 1980 – and to the likely conclusion that such a claimant can generally anticipate where she does not ‘get on with’ proceedings and then provides an inadequate explanation as to why she did not.
(iii) The balance of prejudice arising.
26. What is the prejudice that Ms Watson will suffer if the direction is not given? She will not be able to bring a defamation action that, with the benefit of legal advice, she was ready to commence within the standard one-year limitation period and, for no identified reason, did not. What is the prejudice that MGN will suffer if the direction is given? It will be required to defend a defamation action that was eminently capable of being commenced within the one-year limitation period and, for no identified reason, was not. Even on this analysis, there is no good reason presenting – and none has been presented by Ms Watson – as to why MGN should suffer for Ms Watson’s unexplained inaction. This is not a case, for example, where Ms Watson was prevented by want of legal advice from bringing her proceedings in a timely manner. Nor, for example, has she suffered from a bout of serious ill-health, or some other such factor that prevented her from learning of the alleged defamation and/or bringing her action in a timely manner. Though it is not stated in the statute, the court considers that it is these types of factor – incidents where delay is either blameless or where delay ought because of some mitigating reason to be excused – that would justify the issuance of a direction under s.11(2)(c)(ii) of the Act of 1957. No such factor or incident presents here. Thus the court considers that the balance of prejudice that Ms Watson would suffer if the direction is not given does not “significantly outweigh” (indeed the court considers it is significantly less than) the prejudice that MGN would suffer if the direction were now given.
(iv) The interests of justice.
27. As the court reaches the end of writing this judgment, it looks to the portrait of the late President Kennedyon the wall opposite. A flawed man but a great man, Kennedycontinues to raise our eyes to a vision of our better selves. It was he who observed, in a speech to the American Newspaper Publishers Association back in 1961, that:
“Without debate, without criticism, no Administration and no country can succeed – and no republic can survive. That is why the Athenian lawmaker Solon decreed it a crime for any citizen to shrink from controversy. And that is why our press was protected by the First Amendment – the only business in America specifically protected by the Constitution – not primarily to amuse and entertain, not to emphasise the trivial and the sentimental, not to simply ‘give the public what it wants’ – but to inform, to arouse, to reflect, to state our dangers and our opportunities, to indicate our crises and our choices, to lead, mould, educate and sometimes even anger public opinion.”
28. That is the great public interest to which s.38 of the Defamation Act 2009 is directed. The Act recognises that the liberty of our nation is inextricably linked to the freeness of speech, that individuals must enjoy the right to vindicate their good name when the press gets it wrong, but that journalists and editors must not in the process be condemned to a Janus-like existence in which they must ever look backwards, while seeking to move forwards. It sets a one-year limitation period as standard. It implicitly acknowledges the challenges that such a short limitation period may sometimes present by allowing the court to direct an extension of that period up to two years when circumstances so require. But there is nothing in the facts of this case which would require such an extension. Ms Watson dallied in the commencement of her proceedings. No good reason has been offered as to why she did so. The interests of justice in her case, and the wider public interest in a responsible but free press, do not justify the exceptional extension of the standard one-year limitation period in her defamation proceedings to some longer timeframe. The court must therefore decline her application for the direction sought.
Ryanair Ltd v Goss
[2016] IECA 328
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 15th day of November 2016
1. In August 2013 the British television channel, Channel 4, broadcast a programme entitled “Dispatches: Secrets from the Cockpit” in which it claimed that the well-known Irish airline (and plaintiff in these proceedings), Ryanair, had compromised passenger safety in a number of respects. It would appear that this particular broadcast has given rise to a good deal of litigation. The present appeal is, indeed, now the third appeal within the last fifteen months or so in which this Court has had occasion to consider questions arising from this particular programme.
2. The defendant was a pilot formerly employed by Ryanair. He was, however, dismissed on the 14th August 2013, two days after the broadcast of the programme. Mr. Goss was interviewed by the Channel 4 team and excerpts from that interview were broadcast in the Dispatches programme. Ryanair commenced these defamation proceedings on 22nd August 2013.
3. Ryanair delivered a statement of claim on 6th September 2013 and Mr. Goss filed a defence and counterclaim on 16th December 2013. A defence to counterclaim is still awaited. A detailed notice for particulars was served by Ryanair on 28th March 2014 and the defendant replied with an equally detailed response on 2nd May 2014. A notice for further and better particulars was served on 24th November 2014 and the defendant replied on 15th October 2014.
4. The plaintiff was dissatisfied with this response to its requests for particulars and it issued a motion on 19th January 2015 seeking an order compelling a response to its notice for further and better particulars. At the hearing in the High Court before O’Connor J. the outstanding issues were, at his suggestion, reduced to two specific requests for further and better particulars, the details of which I will shortly set out. In an ex tempore judgment delivered on 20th October 2015 O’Connor J. dismissed the application on the basis that the plaintiff had sufficient knowledge from the pleadings and the particulars of the case it might meet at trial: see Ryanair Ltd. v. Goss [2015] IEHC 874. Ryanair has appealed against that decision to this Court.
5. It is, however, necessary to explain in summary the background to the pleadings before examining the disputed particulars. The general thrust of the Dispatches programme was that Ryanair had potentially compromised passenger safety by reason of its fuel conservation policies, the suggestion being that Ryanair pilots were discouraged from carrying excess fuel capacity in order to save costs. The defendant was interviewed for the programme and in the course of the broadcast he alleged that most of the Ryanair pilots had little confidence in aviation safety agencies and that two thirds of them did not feel comfortable “raising safety related issues to Ryanair’s own internal systems”. The defendant further alleged that a number of Ryanair pilots had made complaints to the Irish Aviation Authority (“IAA”) on a confidential basis, but that he was not aware of any pilot who had received a satisfactory response to such a complaint.
6. In its statement of claim Ryanair gave particulars of the alleged defamatory comments, including a claim that the programme had stated or implied that the IAA “is turning a blind eye to safety issues in Ryanair” and that safety issues at Ryanair “are being ignored and overlooked by aviation authorities.” So far as these specific particulars are concerned, the defendant pleaded that these allegations were true in fact and in substance for the purposes of s. 16 of the Defamation Act 2009 (“the 2009 Act”). The defendant specifically gave particulars of the material facts upon which he intends to rely at trial by way of support of this plea. These particulars included a plea that he had submitted confidential reports to the IAA in 2006 and 2007 and that the issues raised by him “in these reports included the operational effects of aggressive management behaviour” and simultaneous refuelling and boarding.
7. So far as the particulars of material fact supplied by the defendant in its defence regarding the allegations of inaction by the IAA are concerned, the defendant contended, inter alia, at paragraph 14 (iv) of his defence that:
“The defendant, and other pilots working for the plaintiff, have made reports to the IAA and received no substantive response from the said Authority.”
First disputed particular: details of alleged aggressive management behaviour
8. Against that background of the pleadings I can turn to the two disputed particulars which were the subject of the High Court decision. The first was particular no. 2 of its notice for particulars (as slightly reformulated). This particular sought details of the “instances of aggressive management behaviour on the part of the plaintiff which the defendant intends to reply upon.” Whatever uncertainty might hitherto have attached to the scope of these particulars of material fact in the defence (and, candidly, I am not sure that there was in fact any such uncertainty), counsel for Mr. Goss, Mr. Whelan, clarified that all the instances of alleged aggressive management behaviour upon which the defendant relies are contained in the reports made by him to the IAA. Ryanair has already been supplied with copies of this material. In these circumstances and in the light of this clarification, Mr. Hogan S.C. now accepts that the claim has been adequately particularised. It is, accordingly, unnecessary to consider this issue further.
The second disputed particular: details of other complaints made by Ryanair pilots who have reported issues to the IAA and have received no substantive responses
9. It is clear that the plaintiff has already adequately particularised the nature of his complaints to the IAA in respect of which he said that he had not received any adequate response and no issue arises in relation to this. The second particular relates to details of other similar complaints allegedly made by other Ryanair pilots to the Authority in respect of which it is alleged they have not received any substantive response.
10. The classic test regarding object of particulars remains that as articulated by Henchy J. in Cooney v. Browne [1984] I.R. 185, 191:
“Where particulars are sought for the purposes of delivering a pleading, they should not be ordered unless they can be said to be necessary or desirable to enable the party seeking them to plead, or for some other special reason: see Ord. 19, r. 6(3). Where the particulars are sought for the purpose of a hearing, they should not be ordered unless they are necessary or desirable for the purpose of a fair hearing….Thus, where the pleading in question is so general or so imprecise that the other side cannot know what case he will have to meet at the trial, he should be entitled to such particulars as will inform him of the range of evidence (as distinct from any particular items of evidence) which he will have to deal with at the trial.”
11. It follows, therefore, that particulars will be ordered in the interests of fair procedures and to ensure that a litigant will not be surprised by the nature of the case which he has to meet. The case-law shows that this is essentially the governing principle in all cases where the issue of whether the particulars should be ordered has been considered.
12. In Mahon v. Celbridge Spinning Co. Ltd. [1967] I.R. 1 Fitzgerald J. stated that the object of pleadings (of which particulars form part) was to ensure that a party “should know in advance, in broad outline, the case he will have to meet at the trial.” This basic principle – namely, that particulars must convey “in broad outline” the nature of the case which the litigant must meet at trial – as distinct from the nature of the evidence which the other party may lead in support of that case – has also been consistently endorsed in the subsequent case-law. It must be admitted, however, that this principle is sometimes easier to state than it is to apply.
13. The decided cases, however, give guidance in respect of the manner in which this test is applied. A good example is supplied by the decision of the Supreme Court in McGee v. O’Reilly [1996] 2 I.R. 229. In that case the plaintiff sued a medical practitioner for professional negligence in respect of the treatment of a young child. In his defence the medical practitioner had contended that he had examined the child following a house call and recommended that the child be brought immediately to hospital. Arising from this the plaintiff sought further and better particulars of the examination which the medical practitioner claimed to have undertaken, including the details of the observations and symptoms and the diagnosis made, and, in particular, the terms in which he had allegedly advised the parents to take the child to hospital.
14. The Supreme Court refused to order the particulars sought. As Keane J. noted, the plaintiff already knew from the defence “in broad outline” what was going to be said at the trial by the defendant regarding the house call. Keane J. further added ([1996] 2 I.R. 229 at 234):
“In our system of civil litigation, the case is ultimately decided having regard to the oral evidence adduced at the trial. The machinery of pleadings and particulars, while of critical importance in ensuring that the parties know the case that is being advanced against them and that matters extraneous to the issues as thus defined will not be introduced at the trial, is not a substitute for the oral evidence of witnesses and their cross-examination before the judge.”
15. Another example is supplied by the Supreme Court’s decision in Doyle v. Independent Newspapers (Ireland) Ltd. [2001] 4 I.R. 594. Here the plaintiff, who was a former coach of the Irish rugby team, sued for defamation in respect of a newspaper article which alleged that he had “become ostracised by the decision-making core among the players.” In response to a plea of justification, the plaintiff raised particulars in respect of the manner in which it was contended that he had been ostracised by senior players of that team and the High Court ultimately directed the defendant to furnish these details.
16. The plaintiff had, however, also sought the actual names of the members of the team who were said to have ostracised him. Although the High Court directed that these names be furnished, an appeal against this specific aspect of the order was allowed by the Supreme Court. Keane C.J. concluded that it could not be said that the plea of justification was so “general or imprecise” that the plaintiff did not know the nature of the case he had to meet at the trial. While the plaintiff did not know the actual names of the players concerned, Keane C.J. further noted ([2001] 4 I.R. 594 at 598) that the cases “in which a court will actually order a defendant to say what witnesses he is going to produce at the trial are extremely rare and unusual.”
17. It could, of course, be said that the pleading of the material facts by the defendant is in some respects imprecise in that it does not disclose either the range of years in which the complaints were made or the number of complainants to the Authority. The plaintiff is, of course, anxious to obtain third party discovery from the IAA in respect of such complaints – as is, doubtless, the defendant – and if it had further details in respect of these complaints it would undoubtedly assist in identifying the complaints in respect of which it seeks discovery.
18. In Playboy Enterprises International Inc v. Entertainment Media Networks Ltd. [2015] IEHC 102 – which was an action for copyright infringement under the Copyright and Related Rights Act 2000 – Baker J. held that in the case of an alleged breach of a statutory tort, the defendant was entitled to particulars of the alleged breach(es) by reference to the provisions of the statute itself. This decision is, however, no more than a general application of the general principle to which I have just referred, as without knowing the details of the alleged statutory infringements, the defendant cannot know in broad terms the case it had to meet.
19. In one sense, however, almost every pleading is imprecise and general. The defence in McGee did not identify the details of the observations and symptoms and the diagnosis made or the terms in which the defendant doctor had allegedly advised the parents to take the child to hospital. The same was true in Doyle where the defendant was not required to identify the names of the Irish rugby squad who were said to constitute the decision-making core who had ostracised the plaintiff. In neither case, however, were particulars ordered because the plaintiff was adjudged in each case to know in broad outline the case they respectively had to meet.
20. The role of discovery in the context of particulars was touched on by Clarke J. in Thema International Fund plc v. HSBC Institutional Trust Services (Ireland) [2010] IESC 19:
“…overly broad discovery carries with it the risk that in virtually every case, the costs of the proceedings will be increased for no gain in terms of the likely justice in the vast majority of cases, so that whatever party has to bear the burden of paying for that discovery (normally the losing party), will bear a larger burden than might otherwise have been the case. The injustice, to at least one party in virtually every case, that would arise in those circumstances is obvious.”
21. Clarke J. went on to acknowledge that the Court is obliged to engage in a balancing act in cases of this kind:
“To enable a party to move to discovery without having adequately pleaded its case is to run the risk of a significant injustice by virtue of that party being allowed to trawl through the other side’s often confidential information without real justification. On the other hand, to require a party to plead at a level of detail (in advance of discovery or the like) which it could not reasonably obtain other than by discovery or other procedural steps can lead to an obvious injustice. A balance again needs to be struck.”
22. Judged by these standards, I am driven to the conclusion that Ryanair knows in broad terms the case it has to meet, namely, that some of its pilots filed confidential reports with the IAA complaining about safety to which the Authority gave no substantive response. While the distinction articulated by Henchy J. in Cooney between being entitled to know the range of evidence on the one hand as distinct from any particular item of evidence on the other is – as this aspect of the present case readily illustrates – sometimes a subtle one, I nonetheless think, on balance, that the allegation regarding the other pilots filing confidential reports falls into the former rather than the latter category. In other words, Ryanair knows the range of evidence, but not the details of any particular item of evidence, such as the date of a particular complaint or the identity the pilot or pilots in question. The authorities are clear, however, that it is not entitled to the latter information by way of particulars.
23. While further details and particulars in respect of these complaints would probably assist Ryanair in its conduct of the litigation – by, for example, narrowing down the range of documents it might seek in discovery from the Authority – I am not persuaded that it does not already know in general terms the case it might meet at the trial. That is ultimately the test which the Supreme Court has mandated in the trilogy of leading cases on this topic: Cooney, McGee and Doyle. The fact that, if additional details were supplied by way of particulars, this would be likely to assist the plaintiff in the subsequent conduct of the litigation is not in itself a reason to order further particulars if, as here, the particulars already supplied to the plaintiff enable it to know in broad outline the case it has to meet. In any event, as Clarke J. pointed out in Thema, it would be generally unfair to require a defendant to plead to such a high level of particularity in advance of discovery.
Conclusions
24. In summary, therefore, for the reasons set out in this judgment I would affirm the decision of the High Court to refuse to make an order directing the defendant to answer the disputed two particulars. I would, accordingly, dismiss the appeal.
Tansey -v- Gill & Ors
[2012] IEHC 42 [2012] 1 IR 26
Judgment of Mr Justice Michael Peart delivered on the 31st day of January 2012:
1. The plaintiff is a well-known solicitor, who, along with many other solicitors in this country, has been the subject defamatory statements being made about him on a website www.rate-your-solicitor.com (hereinafter referred to as ‘the website). Many but not all these defamatory statements are made anonymously or under a pseudonym. He claims that the words used mean in their natural and ordinary meaning that he has committed criminal acts, has engaged in dishonest appropriation of clients’ property, has lied to clients, has engaged in corrupt conduct, has engaged in unprofessional conduct, has engaged in incompetent conduct, and that serious grounds existed for believing that these matters are true.
2. Put briefly, these proceedings are commenced against the defendants in order to put a stop to such defamatory material being posted on the website, and to prevent defamatory material from being posted in the future, including if necessary by an order requiring that the operation of the website be terminated.
3. On the 30th May 2011 this Court granted an order under Order 11, rule 1 RSC permitting the plaintiff to issue proceedings against the third named defendant whose registered office is outside the jurisdiction of this Court and to serve notice of such proceedings on that defendant at that address in the United States of America.
4. On the 22nd July 2011 this Court granted an order pursuant to the provisions of Section 11(2)(c)(ii) of the Defamation Act, 2009 (“the Act”) extending the limitation period in respect of which the plaintiff be entitled to bring these proceedings in order to cover the period between the date of commencement of that Act, and one year prior to the institution of the proceedings, that is to say from the 1st January 2010 to the 12th August 2010. In addition, the plaintiff was given liberty to bring the present application by way of Notice of Motion for injunctive relief pursuant to the provisions of Section 33 of the Defamation Act, 2009.
5. These proceedings were then commenced by way of Plenary Summons on the 3rd August 2011, and notice of same together with copy Statement of Claim and copy verifying affidavit were duly served upon the third named defendant on the 5th August 2011 by ordinary pre-post to its registered office. No appearance has been entered by that company. A Notice of Motion seeking judgment against the third named defendant has been issued and served and is before the Court also for determination.
6. On the same date, the proceedings were served upon the first and second named defendants by pre-paid registered post.
7. The first named defendant served a personal appearance on the plaintiff’s solicitors by letter dated 15th August 2011. He may not have actually entered that appearance in the Central Office as required, but one way or another he has appeared in person before the Court to argue his defence to the plaintiff’s Notice of Motion.
8. The second named defendant instructed solicitors to enter an appearance, and they did so, and she was represented by counsel before me. She swore an affidavit in response to the claims made against her and denies any knowledge of the subject matter of these materials, and the plaintiff appears to accept that. Counsel for the plaintiff informed the Court that no relief is sought against the second named defendant on this application for injunctive relief.
9. However, her daughter, Ann Vogelaar, the fourth named defendant, swore an affidavit in which she stated that she was an unpaid volunteer for the website, and in the light of this averment the plaintiff applied on the 13th October 2011 for an order to join her as a fourth named defendant, and that order was granted on that date. She was duly served with the proceedings. She has not entered an appearance, but she had previously sworn an affidavit before being joined in the proceedings in support of her mother’s response to the application for injunctive relief. That affidavit was prepared by the solicitors acting for her mother. I will come to its contents in due course. In addition, she wrote a letter to the Court dated 14th November 2011 indicating that she did not intend to attend court, and amongst a number of other matters in that letter she states that she has nothing to add to the said affidavit, but asks the Court not to grant the reliefs sought against her.
10. It has taken the plaintiff some years to identify the relevant parties against whom the proceedings should be directed, since he first became aware of it in 2007, given the anonymous or pseudonymous nature of the material posted on the website. By May 2008 he was in a position to write to those parties whom he believed had posted material, or who operated and/or hosted the site, and he called upon them, inter alia, to take down the offending material, apologise, and undertake not to repeat the same or similar material in respect of the plaintiff. Not unexpectedly perhaps these letters did not achieve any useful purpose and no reply was received from any party written to.
11. The plaintiff engaged the services of Dr Mark Humphries, B.Sc. Joint Hons. (UCD), PhD(Cambridge), and who is a lecturer in the School of Computing at Dublin City University to prepare a number of reports in order to assist in the identification of the relevant parties who operate and control the website. Among those identified were the first, second and third named defendants. The parties identified by Dr Humphries, including the first, second and third named defendants were written to and were called upon to withdraw the defamatory remarks, to apologise, to give an undertaking not to publish any further such material and to pay compensation, and were warned that a failure to comply with these requests would lead to the commencement of proceedings. No response was received.
12. The reports from Dr Humphries are extremely technical and thorough. I could not possibly do justice to the comprehensive contents of same by attempting a summary, beyond saying that it is pellucidly clear that the first named defendant runs the website here, and that it is hosted by the third named defendant, and indeed the name of the website was registered by that defendant. He also identified the second named defendant as an operator of the site, but the affidavit of the fourth named defendant and indeed the affidavit sworn by the second named defendant clarifies that the second named defendant has had no real involvement even though her name appears connected.
13. The fourth named defendant’s replying affidavit sets out her involvement in the website. She states therein that her mother, the second named defendant, knows nothing of her use of the internet and does not monitor her use at all. She goes on to state that since June 2010 she has been an unpaid volunteer for the website which she understands is a not for profit website. Her work on the website consisted of answering questions which may be sent to the website by email, and if she is unable to answer the questions she forwards the query to any friend of hers who she thinks may be able to do so. She states that her role is confined to this activity or involvement. She denies that she has ever had any involvement in the process of posting comments on the website, or that she runs, controls or organises the site. It appears that the reason why her mother may have been identified as being involved was that she (daughter) was using her mother’s computer around June 2010.
14. The second named defendant swore a replying affidavit also. She says that she is a stranger to the proceedings, but that she is familiar with the site because her late husband had had some dispute with a certain solicitor and had given publicity to that dispute on the website but by using his full name. But she absolutely denies having had any role or involvement whatsoever with the site.
15. The first named defendant has sworn a replying affidavit also. As I have said, he represents himself in these proceedings. In that affidavit he describes how he first met the plaintiff in March 2001 after a member of An Garda Siochana had recommended the plaintiff to him as a solicitor who would take a case against other solicitors who Mr Gill considered had engaged in what he describes as “wrongdoing, perjury, forgery, bribery, distortion of legal contracts, money laundering and perverting the course of justice to a degree that only the frightened inflicted can understand”. He describes how he was given an appointment for a consultation at the plaintiff’s offices in Sligo on the 6th March 2001, and he attended for that appointment. He states that he had a lengthy consultation when he was able to go into great detail about the case he wanted the plaintiff to handle in relation to his business. Mr Gill believed when he left that the plaintiff would take his case, but a few days later received a letter returning all his papers and stating that regrettably the firm was not in a position to assist him. Mr Gill complains that the plaintiff had undertaken to take on his case, and that he has breached that undertaking.
16. Thereafter, in his affidavit, Mr Gill makes extensive complaint about Mr Tansey and a number of other named solicitors who appear to have had involvement in his affairs, and presumably about which he had wanted the plaintiff to act for him. He makes complaints and allegations about certain court officials connected with Mr Gill’s bankruptcy. Thereafter his affidavit goes into how an organisation he describes as ‘Victims of the Legal profession’ has exposed the plaintiff and others for what he describes as “their part in forgery, theft, and placing illegal charges on the property of vulnerable citizens of Ireland without their knowledge”. He exhibits a considerable amount of documentation in relation to the matters complained of, and says “we have massive Will and Probate fraud, medical negligence fraud, Road Traffic fraud, and many other frauds involving [the plaintiff], his colleagues and others”.
17. Richard Humphries SC for the plaintiff has submitted that there has been no attempt by Mr Gill or the other defendants to substantiate any of the allegations and accusations which have been posted on this website, and that the only evidence put forward against the plaintiff’s application is the affidavit filed by Mr Gill to which I have referred and the exhibits attached. He submits that no effort has been made to have affidavits filed by any of the other persons who have published defamatory material to stand over what they have published, and he submits that the mere assertion of allegations cannot be sufficient to justify that material remaining on public view, when the material is so clearly defamatory, and where the website in question facilitates the posting of such material without any control over what is said.
18. Mr Gill has stated in his oral submissions that there are many people who are available to give evidence of the wrongs which they complain that the plaintiff is guilty of in relation to the matters in respect of which the plaintiff has acted. Indeed, he said that some of these persons were in court during the hearing to support him.
19. Mr Humphries has referred to the judgment of Kelly J. in Reynolds v. Malocco [1999] 2 IR 203 in support of his submission that a bald statement of intention to plead justification was not sufficient to debar a plaintiff who might otherwise be entitled to an injunction from such relief. In his judgment, Kelly J. considered the judgment of Murnaghan J. in Gallagher v. Tuohy [1924] 58 I.L.T.R.134 where the Court refused an interlocutory injunction in circumstances where a plea of justification was made by the defendant, and did so on the basis that the Court should not readily grant an injunction where the material “is not obviously a libel”, and that justification having been raised, the Court should not prejudge that issue on an interlocutory application. Kelly J. referred to a Supreme Court judgment in Cullen v. Stanley [1926] I.R. 73 where a different view was taken in the face of an assertion on affidavit that the material published was true. In that case, O’Connor J. contrasted the affidavit evidence of the plaintiff and the “baldest affidavit” of the defendant, and held that on the evidence before the Court “there was nothing to support the plea of justification”. Kelly J. concluded that he preferred the latter approach, and stated:
“Of these two approaches I prefer the latter. I do not think that a rule which permits a defendant to, in effect, oust the ability of this Court to intervene by way of injunction in an appropriate case by the simple expedient of expressing an intention to plead justification at the trial of the action, is consistent with the obligations imposed on the court under the Constitution. Furthermore, the application of such a rigid rule, without an ability on the part of the court to ascertain whether the plea of justification had any substance or not, would provide a happy hunting ground for unscrupulous defamers.
I am therefore satisfied that it is open to the court to examine the evidence adduced by the defendant in support of the justification plea so as to ascertain whether it has any substance or prospect of success………”.
20. Having concluded thus, the learned judge went on to consider whether the undoubted discretion which exists as to whether or not to grant an interlocutory injunction should be exercised in favour of granting same. Kelly J. had regard to the unlikely prospect on the evidence that the successful plaintiff would be able to recover any damages which might be awarded. In the present case, the nature of the material is such, and the damage it has and would cause to a professional man such as the plaintiff is such that if an award of damages is made it would be substantial. The first named defendant was certainly in the past adjudicated a bankrupt and I have no evidence that this bankruptcy has been discharged or that he is a man of any substantial means. I have no doubt that neither he nor the fourth named defendant would be a mark for any such damages.
21. I have considered all the material exhibited by Mr Gill in his affidavit. It is voluminous. What is evident from it is that he harbours many grievances not only against the plaintiff in relation to his own affairs, but also against a number of other solicitors and other persons. But it is also clear that he has moved from those personal grievances to a point where he has decided to front a generalised campaign against the solicitors’ profession generally, including by establishing the website complained of in order to facilitate other persons in making their similar grievances against their solicitors made known publicly, and where anything and everything can be stated publicly on the website, without any opportunity for such solicitors, including the plaintiff from defending themselves. It can truly be said in the words of Kelly J. that this site has become “a happy hunting ground for unscrupulous defamers”. It provides a facility whereby persons who have a grievance against a solicitor with whose services they are dissatisfied for whatever reason can publish that grievance and say whatever they wish about that solicitor, even anonymously or under a pseudonym, thereby making it almost impossible for any solicitor who feels defamed from seeking any redress against them. Laws exist whereby a person who is named on a site and is the subject of allegedly defamatory material may communicate with the host or operator of the site and request that the material to be taken down. In the present case those attempts were unsuccessful prior to the commencement of these proceedings, and even prior to the application coming on for hearing. I am however informed by Mr Humphries for the plaintiff that the website may now be shut down. I am unsure whether that is so as a matter of fact as I have no evidence as such about it, but I certainly have no knowledge that it has been terminated in a permanent way. In addition, unless restrained, there is no reason why a similar site would be registered for a similar purpose.
22. The grievances which Mr Gill has aired publicly on the website have been repeated in his affidavit, but in spite of the exhibits which accompany his affidavit, I am completely satisfied that no matter how genuinely he believes that he and others have been let down by the plaintiff or other solicitors, the plea of justification which may be put forward at any trial of this action has no prospects of success. The evidence put forward is nowhere near substantiating any wrongdoing of the nature alleged, even though it is clear that the plaintiff harbours many grievances. Apart from his own grievances he relies on the complaints of others, and has concluded for himself that all these matters entitle him to regard not only the plaintiff but others too as fair game for his generalised accusations which include criminal activity, such as fraud, theft, money laundering and so forth.
23. Such accusations are very serious indeed for any person. It is particularly so for any professional person such as the plaintiff to be subjected to this sort of unbridled accusation of criminal activity in relation to his occupation as a solicitor. The material, unless removed and restrained is publicly available for all to see, and is not even confined to this jurisdiction but is available worldwide. If a solicitor has acted negligently, the client has his/her remedy under the law of tort, and these days this is a remedy very often pursued against solicitors, and on occasion successfully. Where a client alleges that a solicitor has wrongfully withheld his/her client’s money, or charged fees which the client feels are overcharged or not justified, there are avenues for redress by means of the disciplinary mechanisms available at the Law Society. Such claims are investigated and if they are decided to be well-founded, sanctions may be imposed and compensation obtained. If a client alleges criminal conduct on the part of a solicitor he, like any other victim of an alleged crime, may make a complaint to An Garda Siochana, who will investigate the matter and if satisfied that the offence may have been committed the DPP may decide that a prosecution should be brought. These are remedies available under the laws of the land whereby the rights of citizens are protected and vindicated. The rule of law applies to a solicitor in just the same way as it does to any person in the State.
24. In older times before the arrival of the Internet, any solicitor who was defamed in a newspaper or in any other public way could sue for defamation, and in an appropriate case could be granted interlocutory injunction pending any trial of the action, as occurred in Reynolds v. Malocco {supra]. The owners of such a newspaper or other media outlet would have been readily identifiable as would the author. Such a remedy was easily availed of as those to be named as defendant in any such action could be readily identified and sued for damages. Life has changed in that regard since the arrival of the Internet as this case demonstrates clearly, and it seems to me that whatever judicial hesitation has existed in the matter of granting an interlocutory injunction to restrain publication pending trial should be eased in order to provide an effective remedy for any person in this State who is subjected to unscrupulous, unbridled, scurrilous and defamatory material published on a website which can, without any editorial control by the host of the website, seriously damage him or her either in his/her private or business life. In my view, the ready availability of such a means of defaming a person by any person who for any reason wishes to do so has such a capacity to cause insult and immediate and permanent damage to reputation means that the Courts should more readily move to restrain such activity at an interlocutory stage of the proceedings in these types of proceedings, particularly where an award of damages is considered likely to provide an empty remedy.
25. The Internet has facilitated an inexpensive, easy, and instantaneous means whereby unscrupulous persons or ill-motivated malcontents may give vent to their anger and their perceived grievances against any person, where the allegations are patently untrue, or where no right thinking person would consider them to be reasonable or justified. By such means, anything can be said publicly about any person, and about any aspect of their life whether private or public, with relative impunity, and anonymously, whereby reputations can be instantly and permanently damaged, and where serious distress and damage may be caused to both the target, children and adults alike, leading in extreme cases to suicide. So serious is the mischief so easily achieved that in my view the Oireachtas should be asked to consider the creation of an appropriate offence under criminal law, with a penalty upon conviction sufficient to act as a real deterrent to the perpetrator. The civil remedies currently available have been recently demonstrated to be an inadequate means of prevention and redress.
26. The present Notice of Motion which was issued on the 24th August 2011 pursuant to leave in that regard being granted on the 22nd July 2011 seeks the following reliefs:
1. An order pursuant to section 33 of the Defamation Act, 2009 prohibiting the publication or further publication of the defamatory material complained of and/or an injunction requiring the defendants and each of them, their servants or agents, to remove from the internet any defamatory material of and concerning the plaintiff and/or restraining the defendants and each of them, their servants or agents, from publishing further defamatory material of and concerning the plaintiff.
2. An order by way of mandatory interlocutory injunction requiring the said defendants, and any person having notice of the making of such order, to terminate the operation of the website upon which defamatory material of and concerning the plaintiff is published.
3. An order by way of mandatory interlocutory injunction directing the said defendants to deliver up to the plaintiff the names and address of all persons involved and concerned in the publication of defamatory material of and concerning the plaintiff, including the author of such material and all persons involved in maintaining the website upon which the material is hosted.
Section 33 (1) of the Act provides:
“(1) The High Court, or where a defamation action has been brought, the court in which it was brought, may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion–
(a) the statement is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.”
27. I am entirely satisfied that the material complained of in these proceedings is seriously defamatory of the plaintiff. I am also satisfied based upon the contents of the replying affidavits and the submissions which have been made by Mr Gill that any defence he wishes to put forward at trial has no reasonable prospect of succeeding. Whatever grievances he has must be addressed by the various lawful means available for so doing, and do not entitle him and others to take the law into their own hands by publishing whatever defamatory accusations and allegations they wish against the plaintiff, or indeed others named, on this or any similar website.
28. I have no hesitation in granting interlocutory injunctions in terms of paragraphs 1, 2 and 3 above against the first and fourth named defendants, and will so order.
29. In respect of the third named defendant, Dotster Inc., there is a Notice of Motion seeking judgment in default of Appearance before the Court. I am satisfied that Dotster Inc. was properly served with the proceedings and the Notice of Motion dated 8th November 2011 and that they have not entered any appearance. I will make final orders in the terms of paragraphs 1, 2 and 3 above against Dotster Inc., and adjourn the question of damages for assessment should the plaintiff wish to pursue that issue against them.
30. In so far as the relief sought at 2 above is for a mandatory interlocutory order, I am satisfied that the facts of this case are such as to overcome the higher threshold for the granting such an order, namely that the plaintiff’s case should have a strong prospect of success at trial. I am satisfied that damages cannot be an adequate remedy for the plaintiff for the reasons stated, and also that in any event the balance of convenience lies squarely in favour of granting such injunctions.
31. I will put the matter back to another date for a consideration of any outstanding issues to be dealt with.
32. I will hear Counsel for the plaintiff as to the need now for any order in relation to relief 3, which is for an order under Norwich Pharmacal principles for the disclosure to the plaintiff of the names and addresses of all persons involved and concerned in the publication of defamatory material on the website.
CSI Manufacturing Ltd -v- Dun and Bradstreet
[2013] IEHC 547
Judgment of Kearns P. delivered on the 29th November, 2013.
1. This is an appeal from the Circuit Court in which the applicant seeks an order under s.28 of the Defamation Act 2009 declaring that certain statements allegedly questioning the applicants’ creditworthiness and published by the respondents on the internet are false and defamatory of the applicant. The applicant also seeks ancillary reliefs under s.30 and s.33 of the Act of 2009 for orders directing the respondent to publish a correction of the defamatory statements and prohibiting further publication of the statements.
2. The applicant is a producer of industrial bespoke labels and signage used for identification and health and safety purposes and has its business premises at Ballymount, Dublin 22.
3. The respondent is the United Kingdom registered arm of a major multinational corporation and has offices and operations globally. It is domiciled outside the jurisdiction of this court but is within the European Union.
4. The respondent publishes credit information and ratings and make it available on a subscription basis on the internet. On the 15th May, 2012, they placed online an assessment report in respect of the applicants which the applicants contend called their creditworthiness into question. However, the only evidence of access to the report was of access by Thales Ltd. a limited liability company based in Northern Ireland.
5. A preliminary issue of jurisdiction arises in that the respondent claims that under s.28 of the Defamation Act 2009 relief of the type sought can be granted only when two conditions are met. Section 28 of the Act provides:
“(9) An application under this section shall be made to the Circuit Court sitting in the circuit where—
(a) the statement to which the application relates was published, or
(b) the defendant or one of the defendants, as the case may be, resides.”
6. The respondent contends that the ‘publication’ requirement of s.28 has not been met in this case and seeks an order pursuant to the inherent jurisdiction of this Court striking out the proceedings against the said respondent for want of jurisdiction or, in the alternative, an order setting aside the service of the summons herein upon the respondent on the grounds that this Court does not have jurisdiction to hear and determine the applicant’s claim, as claimed under the provisions of Council Regulation (EC) No. 44/2001 or the provisions of the 1968 Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial matters.
7. Article 5(3) of the Regulation sets out that:-
“A person domiciled in a Member State may, in another Member State, be sued:…… in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur”.
8. It is alleged by the respondent that the only publication of the defamatory material occurred outside the jurisdiction of the particular circuit court and hence that court had no jurisdiction. The publication in question was an online publication and hence the issue of jurisdiction depends on the location of publication.
9. Amongst the cases opened to the court to interpret Article 5(3) of the Brussels I Regulation were EDate Advertising GmbH v. X and Martinez & Anor. v. MGN Limited [2012] QB 654 (hereafter Martinez), Shevill, Ixora Trading Inc., Chequepoint SARL and Chequepoint International Ltd. v. Presse Alliance SA (C-68-93), E.C.R. [1995] I-00415 (hereafter Shevill), and Coleman v. MGN Ltd. [2012] IESC 20, (Unreported, Supreme Court, 15th March, 2012) (hereafter Coleman).
INTERNET PUBLICATION
10. The Supreme Court in Coleman examined an instance where there was an alleged defamation by an English newspaper of the plaintiff. The defendant brought a motion in the High Court seeking “an order that the Court decline jurisdiction in this case pursuant to Council Regulation EC No. 44/2001 and/or S.I. 52 of 2002 and/or the Rules of this Court” and “a declaration that in the circumstances of this case the Court has no jurisdiction over the subject matter of the proceedings”. The High Court refused to grant the order sought and the defendant appealed to the Supreme Court. The claim of publication in Ireland was a claim of internet publication only and it was submitted that the paper could be found online every day. There was no evidence, however, of publication or of a person accessing the site. It was presumed that given that the paper was online there would probably be hits on the site. The difficulty with the plaintiffs’ claim was that pleadings did not in fact refer to online publication and only pleaded that the “newspaper was circulated in Ireland and within the jurisdiction of this Honourable Court and was read by people in this jurisdiction”. There was also no evidence before the court of online publication and no evidence of hits on the website. Thus the court did not have jurisdiction to determine the plaintiff’s claim.
11. The complexities of internet publication were addressed by the Supreme Court in Coleman at paras. 12-15:
“12. The case is now one where it is the plaintiff’s case that the defamation was published on the internet. Specifically he referred to the Daily Mirror on line. There was also reference to UKPressOnline, which is an archival website, to which institutions, such as academics, have access if they subscribe, but there is no general access other than to a thumbnail miniature of part of the article and photograph. It was agreed by counsel that the plaintiff could not be recognised on such a miniature, which could not be legibly enlarged. Further, as the plaintiff’s name was not mentioned in the articles in question he could not be identified by a search on that basis. Thus, the case for the plaintiff is now based on a publication of the Daily Mirror on line in 2003.
13. There has thus been a shifting nature to this appeal in its progress in this Court.
14. There are several relevant difficulties which arise on the plaintiff’s case. First, there is no pleading that the publication alleged of the relevant articles is by internet publication of the relevant newspaper. Nor could such a pleading be inferred from the words of the Statement of Claim. Secondly, there is a need for evidence of publication to establish the tort of defamation. There is no evidence before the Court that the Daily Mirror was published on line in 2003. There is no evidence that the daily edition of the Daily Mirror was on the world wide web in 2003. Thirdly, there is no evidence of any hits on any such site in this jurisdiction. These are fatal flaws in the plaintiff’s case.
15. The basic grounds upon which the plaintiff now moves his case in this Court was never pleaded and is not established in evidence. In spite of the ingenuity of counsel for the plaintiff in his submissions, these difficulties are insurmountable. Neither on the pleadings nor on the evidence does the Court have jurisdiction. Consequently, I would allow the appeal, and order that in the circumstances of the case the Court has no jurisdiction over the subject matter of the proceedings.”
12. In the judgment of the European Court of Justice in Martinez, the court proceeded in three stages. Redmond in referring to this case in “The ECJ eDate Decision: A Case Comment” (2011) Yearbook of Private International Law, Vol.13 pp.493-506 examines the three stages in the following manner:
(i) The court first examined the nature of the internet publication and recognised the need for a more adapted response.
(ii) For this purpose it created a new jurisdictional ground, referable to the location of the centre of interest of the affected party, which would allow for the recovery of all the damages.
(iii) Otherwise it confirmed the existing rules as laid down in the Shevill case.
13. The rules as per Shevill set out where the alleged victim may bring an action:
(i) The courts of the state in which the publisher of that content is established, for the entirety of the damage;
(ii) The courts of each state in which the publication was distributed and where the victim claims to have suffered damage to his reputation, for the part of the damage linked to that state’s publication.
14. In Martinez the court clarified that for internet publications it suffices that the content has been placed online or otherwise made accessible in the country of receipt. It is alleged by the applicant that the publication in the instant case is different to that in the Coleman case. It was alleged in Coleman that, as the site in question was a site accessible only to subscribers, the defamatory publication could not be deemed to have been published in this jurisdiction. The site in the present case is a subscription site. Akin to Coleman it cannot be inferred that publication has occurred. Where a site is a subscription site the information is not readily available across jurisdictions. The court in Coleman required evidence of internet publication and access from Ireland. The only evidence of access to the information in the present case is of access by Thales International, a company situated in Belfast.
15. The “accessibility” of the defamatory statement on the internet is discussed in Martinez at para. 52:
“Consequently, the answer to the first two questions in Case C-509/09 and the single question in Case C-161/10 is that Article 5(3) of the Regulation must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.”
Although the information in the present case was technically “accessible” in Ireland due to the fact that the respondent company has Irish clients it must still be proven that it has been accessed in this jurisdiction to show publication within s.28 of the Act of 2009. This has not been made out by the applicant.
16. The fact that the site is subscription only means that the information is only available to those who subscribe and in this instance the only subscribers who requested the defamatory information were in fact Thales. Thus the only publication was to Thales. This is evident from the spreadsheet attached to Ms. Moorcroft’s affidavit of the 17th January, 2013. Further, the only publication was to Thales Limited in Belfast.
17. On a strict interpretation of Martinez, which is the relevant law on the matter, and on an application of the rules in that decision, this Court considers: first that the particular nature of the publication in this case was to a restricted audience; and second, that the centre of interest of the injured party in this case requires examination.
18. The centre of interest test is set out in the Shevill rules which acknowledge the importance of both the place of the act of publication and the place of receipt of communication. The victim in the within case was an Irish company, the offending website of the respondent was based in the United Kingdom. The fact that the publication only occurred in Belfast also raises a controversial issue.
19. The centre of interests test is strongly relied on by the applicant. The centre of interests test is set out in Martinez at paras. 42-52:
“42 In relation to the application of those two connecting criteria to actions seeking reparation for non-material damage allegedly caused by a defamatory publication, the Court has held that, in the case of defamation by means of a newspaper article distributed in several Contracting States, the victim may bring an action for damages against the publisher either before the courts of the Contracting State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all of the harm caused by the defamation, or before the courts of each Contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised (Shevill and Others, paragraph 33).
43 In that regard, the Court has also stated that, while it is true that the limitation of the jurisdiction of the courts in the State of distribution solely to damage caused in that State presents disadvantages, the plaintiff always has the option of bringing his entire claim before the courts either of the defendant’s domicile or of the place where the publisher of the defamatory publication is established (Shevill and Others, paragraph 32).
44 Those considerations may, as was noted by the Advocate General at point 39 of his Opinion, also be applied to other media and means of communication and may cover a wide range of infringements of personality rights recognised in various legal systems, such as those alleged by the applicants in the main proceedings.
45 However, as has been submitted both by the referring courts and by the majority of the parties and interested parties which have submitted observations to the Court, the placing online of content on a website is to be distinguished from the regional distribution of media such as printed matter in that it is intended, in principle, to ensure the ubiquity of that content. That content may be consulted instantly by an unlimited number of internet users throughout the world, irrespective of any intention on the part of the person who placed it in regard to its consultation beyond that person’s Member State of establishment and outside of that person’s control.
46 It thus appears that the internet reduces the usefulness of the criterion relating to distribution, in so far as the scope of the distribution of content placed online is in principle universal. Moreover, it is not always possible, on a technical level, to quantify that distribution with certainty and accuracy in relation to a particular Member State or, therefore, to assess the damage caused exclusively within that Member State.
47 The difficulties in giving effect, within the context of the internet, to the criterion relating to the occurrence of damage which is derived from Shevill and Others contrasts, as the Advocate General noted at point 56 of his Opinion, with the serious nature of the harm which may be suffered by the holder of a personality right who establishes that information injurious to that right is available on a world-wide basis.
48 The connecting criteria referred to in paragraph 42 of the present judgment must therefore be adapted in such a way that a person who has suffered an infringement of a personality right by means of the internet may bring an action in one forum in respect of all of the damage caused, depending on the place in which the damage caused in the European Union by that infringement occurred. Given that the impact which material placed online is liable to have on an individual’s personality rights might best be assessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the objective of the sound administration of justice, referred to in paragraph 40 above.
49 The place where a person has the centre of his interests corresponds in general to his habitual residence. However, a person may also have the centre of his interests in a Member State in which he does not habitually reside, in so far as other factors, such as the pursuit of a professional activity, may establish the existence of a particularly close link with that State.
50 The jurisdiction of the court of the place where the alleged victim has the centre of his interests is in accordance with the aim of predictability of the rules governing jurisdiction (see Case C-144/10 BVG [2011] ECR I-0000, paragraph 33) also with regard to the defendant, given that the publisher of harmful content is, at the time at which that content is placed online, in a position to know the centres of interests of the persons who are the subject of that content. The view must therefore be taken that the centre-of-interests criterion allows both the applicant easily to identify the court in which he may sue and the defendant reasonably to foresee before which court he may be sued (see Case C-533/07 Falco Privatstiftung and Rabitsch [2009] ECR I-3327, paragraph 22 and the case-law cited).
51 Moreover, instead of an action for liability in respect of all of the damage, the criterion of the place where the damage occurred, derived from Shevill and Others, confers jurisdiction on courts in each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.
52 Consequently, the answer to the first two questions in Case C-509/09 and the single question in Case C-161/10 is that Article 5(3) of the Regulation must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.”
20. However for the centre of interest test to apply it must also be established that material was published and read in Ireland. Based on the test in Coleman and the fact that the subscription site is not readily accessible it cannot be said that the centre of interest can apply where the Shevill rules acknowledge the two steps of publication and the place of receipt of communication.
CONCLUSION
21. The publication in question by the respondent was on a subscription site only accessible to people paying a fee. In the instant case the publication was seen only by a subscriber in Belfast and the publication was from a company based in the United Kingdom. Hence publication which fulfils the requirements of s.28 of the Act of 2009 has not been made out.
22. Looking at the European jurisprudence as outlined in Martinez and Shevill the court will only proceed to apply the centre of interest test after publication is made out. The Supreme Court examining the same jurisprudence in Coleman could not infer publication from a subscription site where the information was not readily accessible in this jurisdiction. Furthermore no evidence of publication in Ireland has been made out.
23. Shevill confers jurisdiction on courts in each Member State in the territory where the content is accessible. Although the content is available to subscribers in Ireland it has not been proven to have been accessed by subscribers in Ireland. I would therefore allow the respondent’s application.
Cogley v Radio Telifís Éireann and Aherne and Ors v Radio Teilifís Éireann
[2005] 2 I.L.R.M. 529, Clarke JJUDGMENT of Mr. Justice Clarke delivered 8th June, 2005.
Both of the above proceedings were commenced on Friday 27th May, 2005 and relate to what was, at that time, an intention on the part of RTE to broadcast a programme on Monday the 30th May concerning a nursing home at Leas Cross. The plaintiff in the first proceedings (“The Cogley Proceedings”) is a Director of Nursing at the Leas Cross Nursing Home which is situated in Swords, Co. Dublin. She is a registered general nurse and holds a degree in Business Studies and Languages from Dublin City University. She has worked as a nurse since qualifying in 1992 apart from a break while she was completing her degree during which time she worked as an agency nurse. From 2003 until November 2004 she worked with Parexel Clinical Pharmacological Unit in Harrow in the United Kingdom, initially as a senior research nurse and, subsequent to a promotion as a Recruitment and Screening Manager. In the latter part of 2004 she decided to return to Ireland for personal reasons. She applied for and was appointed to the position of Assistant Director of Nursing at Leas Cross taking up duties on 8th November, 2004. She was promoted to the position of Director of Nursing when the existing holder of that office resigned. She took up her appointment as Director of Nursing in the latter part of March 2005. As it is material to the issues in the case it should be noted that Ms. Cogley was, therefore, a nurse in Leas Cross for less than seven months prior to the events which give rise to these proceedings and was Director of Nursing for approximately six weeks.
The plaintiffs in the second proceedings (“The Aherne Proceedings”) are the owners and occupiers of the nursing home and carry on the business of a nursing and retirement home at the Leas Cross premises having established same in April 1998.
The Initial Applications
Having issued separate proceedings on the 27th May the plaintiffs in both proceedings applied ex parte to the court on that day. The plaintiff in the Cogley proceedings simply sought short service of a motion seeking interlocutory injunctions which short service was ordered to enable the motion to come before the court on the following Monday (the 30th May) in time to allow the interlocutory application to be heard prior to the time when the broadcast then intended by the defendant was due to go out (at approximately 9.30 on Monday evening). Nothing furthers turns on that application.
The plaintiffs in the Aherne proceedings however, sought an interim order which I declined. I did, however, direct short service of a motion for an interlocutory application which again came before the court on Monday the 30th in time to enable a decision to be made prior to the intended time of broadcast. As both applications related to the same intended programme they were heard together.
I should, however, explain more fully the reasons why I felt it inappropriate to grant an interim injunction in the Aherne proceedings. Later on in this judgment I will deal in more detail with the balancing of rights required where a party seeks to restrain the publication of material. In addition to the jurisprudence of the courts in this jurisdiction it is now also necessary to consider the position pursuant to the European Convention on Human Rights in relation to the grant of what are, in the jurisprudence of that court, referred to as prior restraint orders (which are orders which restrain in advance the broadcast or publication of material). However it is clear that there is an obligation on a court only to grant such orders after what is described as “careful scrutiny”. Given that obligation it seems to me that a court should be reluctant to grant interim orders which would have the effect of restraining in advance, publication in circumstances where the intended publisher has not had an opportunity to be heard. For those reasons it seems to me that where it is at all possible the court should attempt to afford the defendant at least some opportunity to put before the court its case prior to making any form of restraint order. There will, of course, be cases where, for one reason or another, that is simply not possible. The time between the initial application to the court and the intended publication or broadcast may, in practice, be too short. In such circumstances the court may still have to consider granting an interim order but apart from the general considerations (which are dealt with in more detail later in the course of this judgment) which the court must keep in mind in granting any order of prior restraint this court should, in my view, in addition at an interim stage have regard to the question of whether the fact (if it be so) that there is not time to put the defendant on notice can, in any way, be attributed to a default or delay on the part of a plaintiff. Thus if a plaintiff delays in applying to the court in a manner which effectively precludes the court from ensuring that the defendant is given an opportunity to be heard prior to any order being made, that fact of itself must be taken into account by the court as a significant factor which would lean against the grant of an interim order. Furthermore any delay on the part of a plaintiff which, while not so severe as to preclude the court from affording the defendant an opportunity to be heard prior to the consideration of the making of an order, nonetheless places the defendant in a position where he may be prejudiced in the presentation of his case at a hearing designed to determine whether there should be prior restraint is also a factor that will have to be taken into account in appropriate cases. I should add that it does not seem to me, on the facts of this case, that either of the plaintiffs were guilty of any such delay in all the circumstances of the case.
The question of urgency also arose in the course of this hearing. It was contended by both plaintiffs that there was no urgency in the matter by virtue of the fact that the programme could be broadcast at some other time. It seems to me that in such circumstances the court must have regard to two different types of urgency. The first is the question of whether a short delay in a broadcast or publication may not be necessary to ensure that that proper scrutiny should be exercised at an interlocutory stage in determining whether a contested broadcast or publication should go ahead. No application for such a short delay was made in this case and it should also be emphasised that the court should not lightly interfere with an intended time of broadcast or publication without substantial reasons. In this case I do not believe that such a short delay would have been justified nor do I believe that there is any real likelihood that this judgment could have been altered had such a delay occurred. Nonetheless it should be noted that in an appropriate case it may be that the balance of justice would require a very short restraining order to enable proper analysis to be engaged in at the interlocutory stage.
The sort of delay that is likely to be encountered prior to trial and subsequent to an interlocutory order is, however, an entirely different matter. The reality is that the broadcast of a programme some significant period after its intended original date amounts to a significant interference in both the freedom of expression of the broadcaster concerned, and, in cases where the issue arises, in the public interest in the timely dealing with the matters raised in the broadcast. In that sense it seems to me that the grant of an interlocutory injunction would give rise to a significant detriment to the defendants by imposing an appreciable delay in the time at which the material could be broadcast.
The Programme
It was made clear at the hearing, from the affidavit of Eddie Doyle, the Executive Producer concerned with the programme in question, that RTE intended to broadcast a current affairs programme in the “Prime Time Investigates” series on the subject of the standard of contemporary nursing home care in general and the management and operation of the Leas Cross Nursing Home in particular. The defendant (“RTE”) in both proceedings contends that the programme involved the coverage of a number of areas of significant and legitimate public interest. In the course of his affidavit Mr. Doyle exhibited a copy of the programme intended to be broadcast and I was invited by counsel for the defendant, without objection from counsel for the plaintiffs in either proceedings, to view the programme. I did so. There can be little doubt but that the programme makes very serious allegations indeed about the manner in which the nursing home at Leas Cross was operated over a significant period of time. It is also clear that the programme can, on one view, be regarded as being critical of Ms. Cogley. However for reasons which I will explain more fully when dealing specifically with her case it may also be said that, on another view, the programme may be said to be more understanding of her position. It should also be noted that a significant amount of the footage included in the broadcast would appear to have been filmed secretly. It seems that an experienced care worker was engaged by RTE to seek and take up a job at Leas Cross. On the evidence before me at this stage it would appear that, after a period of approximately two weeks working at the Nursing Home, the person in question, in conjunction with the programme makers, decided that, by virtue of the seriousness of the situation, it was appropriate that he be equipped by RTE with a concealed camera. A significant amount of footage ensued some of which was included in the intended broadcast. A significant amount of the remainder of the broadcast involved expert commentary on the footage both shown and unshown. In the context of those background facts it is next necessary to examine the respective claims made in the proceedings.
The Claims
Both plaintiffs sought, ultimately, the same relief. They sought to restrain the broadcast of the programme in question. However they did so on somewhat different bases. It is necessary, therefore, to consider each of the claims as made.
In the Cogley proceedings the plaintiff based her claims squarely on defamation. She, therefore, contended that the court should grant an interlocutory injunction to prevent the broadcast of the programme so that she might not be defamed.
The plaintiffs in the Aherne proceedings adopted a somewhat different course. They relied upon the fact that in the course of the programme a significant volume of material is shown which was obtained on foot of the use of a secret camera in the circumstances referred to above. Thus, it is contended, this material was obtained in breach of the plaintiffs right to privacy and its publication should be restrained. It should also be noted that the plaintiffs in the Aherne proceedings did not disavow a defamation leg to their case. However, relying upon the fact that a copy of the intended programme was only made available to them in time for it to be viewed on the morning of the hearing, the plaintiffs in the Aherne proceedings indicated that the case was not originally made in defamation because they did not know, with any precision, the detail of the content of the programme. In those circumstances it seems to me that it was appropriate that I should also consider whether it was likely that the plaintiffs in the Aherne proceedings would have been able to maintain a claim to restrain the programme on the basis of defamation.
Defamation
The law in relation to the grant of an injunction at an interim or an interlocutory stage for the purposes of restraining potentially defamatory material has been the subject of a number of determinations of the courts in recent years. From the perspective of those who might seek such orders the high water mark would appear to be Reynolds v. Molocco and Others (Unreported, High Court, Kelly J. 11th December, 1998). It is clear from the judgment in that case that a plaintiff must not only show that he or she “has raised a serious issue concerning the words complained of” but that it must also be shown “that there is no doubt that they defamatory” (pages 6 to 7). This principle is derived from a long line of authority both in the United Kingdom and in this jurisdiction to the effect that an injunction will lie only in “the clearest cases” Sinclair v. Gogarty [1937] I.R. 377.
It should be noted that one of the key issues in Reynolds v. Molocco was as to whether the mere assertion by a defendant that he intended to raise a plea of justification was, of itself, sufficient to prevent a court from granting an interlocutory injunction (a proposition for which there was some authority in the United Kingdom). What Kelly J. determined in Reynolds v. Molocco was that it was necessary for a defendant to put forward some basis which was credible and potentially sustainable to suggest that the plaintiff might not succeed at trial. On the facts of that case Kelly J. considered in some detail the article intended to be published and concluded that it necessarily bore an innuendo in relation to the plaintiff concerning the availability of drugs at a nightclub premises run by him which was defamatory. Having considered the evidence put forward by the defendant Kelly J. was not satisfied that the defendant had any possibility of successfully pleading justification. Nor were there, apparently, any other defences available to the defendant on the basis of the case made at the interlocutory stage. In those circumstances Kelly J. was satisfied that the plaintiff was bound to succeed.
It seems clear, therefore, that the first question that needs to be addressed in any interlocutory application in which a plaintiff seeks prior restraint on the publication or broadcast of material, on the grounds that it is defamatory is as to whether on the evidence available at the interlocutory stage, it is clear that the plaintiff will ultimately succeed at a trial. For reasons which have been fully explored in the content of interlocutory injunctions generally (from the decision of the Supreme Court in Campus Oil v. Minister for Industry (No 2) [1983] I.R. 88 onwards) it does not seem to me to be appropriate to ask this court at an interlocutory stage and where it will, necessarily, have available to it only a limited opportunity to consider the merits of a case, to attempt to weigh the likelihood of a plaintiff succeeding or failing. Similarly it does not seem to be appropriate to invite the court to weigh the likelihood of the defendant succeeding in maintaining any defence in defamation proceedings. Thus the plaintiff will fail to cross the first hurdle if, on the basis of the argument and materials before the court, it appears that there is any reasonable basis for contending that the defendant may succeed at the trial of the action. The defendant may succeed in defending the action for any one of a number of reasons. For example the words or materials intended to be broadcast or published may not be found to be defamatory in the first place. Though defamatory the words may be shown, to the extent that they are defamatory, to be justified. There may on the facts of appropriate cases be possible defences of qualified privilege or, possibly, a public interest defence although the availability and parameters of such a defence in this jurisdiction have yet to be clearly established. I am satisfied that the reference in the authorities to a clear case means a case where it is clear that the plaintiff will succeed and where, therefore, it is equally clear that none of the possible lines of defence which may be open to a defendant could reasonably succeed. Kelly J. in Reynolds v. Molocco did not depart from that principle. He rejected the proposition that a mere assertion of an intention to justify was, of itself, sufficient.
Before departing from the principles it does seem to me that it is also necessary to note that notwithstanding the conclusions reached by Kelly J. in Reynolds v. Molocco in relation to this first question he nonetheless felt that it was appropriate for him to consider whether it was, nonetheless, an appropriate exercise of his discretion to grant the injunctions sought. In coming to that view Kelly J. noted that damages were the ordinary and appropriate remedy for defamation and that an injunction was not. The special circumstance which seemed to have acted most strongly in favour of the exercise of the discretion to grant an injunction in that case was the conclusion reached by the learned trial judge about the financial standing of the defendant and the “virtual impossibility of ever recovering any sum awarded”. It would therefore appear that even in a case where it can be clearly shown that the defendant would have no defence the court retains a discretion which can be exercised having regard to all the circumstances of the case.
Application to Cogley case
In analysing the case made on behalf of Ms. Cogley it should be noted that the programme does make clear that she has only held the office of Director of Nursing for six weeks. While it is contended on her behalf that it is likely that that fact was only added to the programme as a means of reducing the risk of it being defamatory (and, by inference, that the defendants were not aware of that fact until it was drawn to their attention on behalf of Ms. Cogley) nonetheless the programme which it is now intended to broadcast does contain that information. It should also be noted that two separate extracts from the programme which were filmed secretly show Ms. Cogley exhorting members of staff at general staff meetings to improve their standards. It is open, therefore, on one view, to consider the programme as one which depicts Ms. Cogley as someone who has been placed in the very difficult situation of attempting to deal with a nursing home in which very low standards have applied for a significant period of time. While all of the secret filming would appear to have occurred during a time when she, Ms. Cogley, was in charge, much of the remainder of the programme concerns interviews with the relatives of former residents whose experiences date back long before Ms. Cogley was involved.
Three specific complaints are relied on to seek to establish that the programme is defamatory of Ms. Cogley. In fairness to her counsel it should be pointed out that he, like counsel for the plaintiff in the Aherne proceedings, only had the opportunity to view the programme on the morning of the hearing. He only had, when the matter was initially called at 10.30, the opportunity to have viewed a portion of it. As it was necessary, for logistical reasons, to put the case back to 2 o’clock counsel had the opportunity to view the remainder during that interval. He did, however, indicate that having seen the programme he would, had time permitted, have sought to put in a further affidavit.
In any event the three specific items complained off were as follows:-
1. That the programme suggests that Ms. Cogley was engaged in a deception as to the weight of a patient so that Health Board inspectors would not be aware that the patient had not been weighed.
2. It is contended that, though not named specifically in this regard, the programme contains a suggestion that Ms. Cogley must necessarily have been involved in a situation where a patient whose family had paid for fulltime care had not, the programme contended, been given such care.
3. Finally insofar as the entire tenor of the programme maintains serious accusations about standards in Leas Cross it is contended that such are necessarily defamatory of Ms. Cogley.
In relation to the weight issue the relevant part of the programme contains secretly filmed comments made by Ms. Cogley in circumstances where, it would appear, the charts of the relevant patient did not contain a weight and she is shown discussing with the filmer the likely weight of the patient concerned. There then follows the comment of an expert who is critical of the fact that there was apparently and allegedly an insufficient understanding of the importance of weight loss in the management of elderly patients suffering in the manner concerned. It is, of course, impossible at this stage to judge whether the film shown, taken with and the comment of the expert, fairly and properly reflect the true situation. It may be, as the plaintiff contends, that she will be able to satisfy a jury that having regard to all of the background facts relevant to the management of the patient concerned and the appropriate meaning of the parts of the broadcast relating to that issue, the programme contains an unjustified imputation against her professional competence. It would not, however, be possible at this stage to conclude that she would necessarily succeed in so doing.
In relation to the second issue the programme shows a discussion between the filmer and a senior nurse (not Ms. Cogley) during which the senior nurse appears to indicate that she had sought on the occasion in question (but failed to obtain) a care worker to provide the full time care of the patient concerned. Again it may turn out to be the case, when all of the relevant background is put before a jury, that the implications of the relevant part of the broadcast reflect, in an unjustifiable way, on the competence of the plaintiff. It must again, be concluded that such an outcome is not clear.
In relation to the third issue, the same comment can be made. There can be little doubt that the programme contains accusations of the highest degree of seriousness as to the standards which operated within the nursing home concerned. For the reasons indicated above it is not at all so clear that, at least in a great many respects, a reasonable viewing of the programme would cause a viewer to conclude that Ms. Cogley was at fault. Even to the extent to which a reasonable viewer might infer that the programme contends that Ms. Cogley is at fault, it is by no means clear that, in the light of all the evidence that is likely to be before such a jury, the jury will necessarily conclude that any imputation of fault is not justified.
Before passing from an analysis of the programme in respect of Ms. Cogley it should also be noted that a great deal of the programme consists of either interviews with the relatives of persons who were patients at the home, the secretly filmed footage obtained in the manner described above, and the comments of experts. It seems unlikely, therefore, that it can be denied that the events shown on the secretly filmed footage actually occurred. It may, of course, be that Ms. Cogley will be able to persuade a jury that the way in which that film was put together and edited with the comments of experts amounts to an unfair presentation of the picture to such an extent that she may be able to succeed. However I do not believe a court could, at this stage, conclude that such an outcome, on the materials currently available, is now clear.
On the basis, therefore, of the established jurisprudence it does not seem to me that the plaintiff in the Cogley proceedings has crossed the first threshold and therefore I refused her application for interlocutory relief.
The Aherne Proceedings
It is now necessary to turn to the Aherne proceedings. As was pointed out earlier these proceedings are largely based upon a contention that key aspects of the programme (that is to say the secretly filmed footage), were obtained in circumstances which amounted to a breach of the plaintiffs right to privacy and were also unlawful as having been obtained while the person concerned was a trespasser. It is also necessary to consider the contention of these plaintiffs to the effect that there is a breach of the right to privacy of others (most especially patients).
That the plaintiffs have a right to privacy is clear. Firstly s. 3 of the Broadcasting Authority (Amendment) Act 1976 amends the Broadcasting Authority Act 1960 by the inclusion of a provision (s. 18(1B))to the effect that “the authority shall not, in its programmes and in the means employed to make such programmes, unreasonably encroach on the privacy of an individual.”
It is also clear from Kennedy v. Ireland [1987] I.R. 587 that a right to privacy is one of the personal rights of the citizen guaranteed by, thought not specifically mentioned in, the constitution.
However it is also clear from Kennedy that the right to privacy is not an unqualified right but is subject to the constitutional rights of others and to the requirements of public order, public morality and the common good. It should also be noted that the express recognition of an obligation to respect the privacy of others contained in the Broadcasting Acts referred to above is also not unqualified in that it places an obligation on the Authority not to “unreasonably encroach” on the privacy of an individual. Thus it is clear that while persons such as the plaintiffs in the Aherne proceedings have a constitutional right to privacy and an arguable entitlement to ensure that the Authority does not unreasonably interfere with their privacy in the course of making and broadcasting programmes, those rights are not unqualified. It is, therefore, necessary to address how the right of privacy may be balanced against other competing rights and in particular how an assessment of the situation in respect of such competing rights should be made at an interlocutory stage such as this.
In my view a useful starting point for the purposes of this case seems to me to be to distinguish between a right of privacy in the underlying information whose disclosure it is sought to prevent on the one hand and a right to privacy which does not extend to that underlying information but where it is contended that the methods by which the information has been obtained amount to a breach of privacy on the other hand.
There are certain matters which are entirely private to an individual and where it may validly be contended that no proper basis for their disclosure either to third parties or to the public generally exists. There may be other circumstances where the individual concerned might not, having regard to competing factors, such as the public interest, which may be involved, be able to maintain that the information concerned must always be kept private but may make complaint in relation to the manner in which the information was obtained.
It seems to me that different considerations apply most particularly at an interlocutory stage, dependent on which of the above elements of the right to privacy is involved.
In this regard I have also received assistance from the decision of the Court of Appeal in the United Kingdom in Douglas and Others v. Hello! Limited Times Laws Reports 16th January, 2001. That case differs from the current case in many respects. It amounted to a dispute as to whether the magazine OK! had exclusive rights to the publication of photographs taken at the wedding of the plaintiffs (Michael Douglas and Catherine Zeta Jones). Hello! had obtained possession of unauthorised photographs taken at the wedding and were about to publish them. In deciding not to grant the interlocutory relief sought, notwithstanding that it appeared that the unauthorised photographs had been taken in breach of the obligation of some person, whether guest or intruder, the court would appear to have had regard to the fact that while the plaintiffs had an arguable case that their right to privacy had been infringed it was necessary to balance that right with the right of freedom of expression. However the court placed reliance on the fact that the jurisprudence of the European Convention on Human Rights acknowledged different degrees of privacy. The more intimate the aspect of private life being interfered with, the more serious must be the reasons for interference. Dudgeon v. United Kingdom (1981) 4 EHRR 149. The fact that the plaintiffs in Douglas had in fact allowed significant publicity to attach to their wedding lessened the right of privacy. It was also clear, as was noted by Lord Brooke, that there was no significant public interest issues involved and that that was a factor.
It is clear, therefore, that the weight to be attached to the undoubted right of parties to privacy can vary significantly from case to case.
It is also necessary to have regard to the fact that the plaintiffs in the Aherne proceedings placed reliance on the right to privacy of others (most particularly patients) whom, they contended, have had their rights to privacy potentially infringed by the methods adopted in the taking of the secret film and whose right to privacy would be infringed in a much greater way should the broadcast containing such film be permitted. However in that regard the state of the evidence at present is as contained in para. 10 of the affidavit of Mr. Doyle which notes that the programme in the form in which it is intended to be broadcast seeks to protect the privacy interests of patients by obscuring their identities through a technical process known as pixilation, or by obtaining the consent of the patients families to the proposed broadcast, or both. On the basis of the evidence before me I have no reason to believe that such measures will not effectively protect the privacy rights of the patients concerned. On that basis I am not persuaded that I should take into account any privacy rights other than those of the plaintiffs. In saying that I would wish to emphasise that should it transpire that appropriate measures were not, in fact, taken by the programme producers for the purposes of giving reasonable and adequate protection in all the circumstances of the case to those who may have appeared on the film nothing in this judgment should be taken as implying that such parties would be debarred from seeking a remedy in the court. The extent to which it might, in those circumstances, be open to RTE to place reliance on the public interest involved in the broadcast of the programme would be a matter to be determined in such a case based on all the relevant circumstances.
So far as the right to privacy of the Aherne plaintiffs themselves is concerned it seems to me to fall into the second of the categories referred to above. It can be hardly be said that any right to privacy which the Ahernes or their company may enjoy in relation to the conduct of their nursing home business is such as would preclude information about the conduct of that business which tended to suggest that there were serious irregularities in the manner in which it was being conducted, from being broadcast. However the manner in which secret filming occurred in this case gives rise to more significant questions.
In that regard I have obtained particular assistance from the decision of the Court of Appeal in New Zealand in TV3 Network Services Limited v. Fahy (1999) 2 NZLR 129. In many respects TV3 bears significant resemblance to this case. TV3 equipped a woman who had made accusations against a medical practitioner with a concealed video camera so that it might film an appointment which she had made to see the doctor who was the subject of misconduct accusations. The most significant difference between TV3 and the current case is that the television station involved had, in that case, already broadcast a programme making accusations of sexual misconduct against the doctor concerned prior to the secret filming. The secret filming therefore took place in the context of a situation where the doctor concerned was already the plaintiff in defamation proceedings. However many of the general principles identified by the judgment in that case are equally applicable to circumstances such as exist in this case.
In relation to the status of the woman who was equipped with the concealed camera the court came to the following view:-
“This brings us to the third ground, trespass and invasion of privacy. Trespass is a civil wrong and entering and remaining on Dr. Fahey’s premises for the purposes of confronting him with allegations of sexual and professional misconduct and surreptitiously recording the conversation could scarcely come within the terms of the normal implied licence to attend at a doctor’s surgery. Clearly TV3 encouraged and facilitated X’s action. As to the privacy implications discussed in Todd, The Law of Torts in New Zealand (2nd Ed. 1997) at p. 951, in terms of the Broadcasting Act 1989, TV3 was and is responsible for maintaining in its programmes and their presentation standards which are consistent with the privacy of the individual (s. 4(1)(c)) but it is not under a civil liability in respect of any failure to comply with any provisions of the section (s. 4(3)).
In circumstances where the programme proposed to be broadcast may have been obtained in breach of the plaintiffs rights, the court, when considering the grant of an injunction, is required to weigh and balance the competing rights and values at stake. In that assessment the context and circumstances in which the impugned methods were employed, any special public interest considerations for broadcasting the programme, and the adequacy of damages as an available remedy for any wrong proved at trial, are amongst the considerations which must ordinarily be weighed” (p. 135).
The court then went on to apply those principles to the facts of the case before it.
On the basis of the above authority, which I find persuasive, it would seem that the plaintiff has at least made out an arguable case to the effect that the circumstances in which the surreptitious filming within Leas Cross occurred may amount, prima facie, to a trespass and breach of privacy. The implied entitlement of the individual concerned to be present as an employee would not be such as would be likely to encompass the conduct which actually occurred.
However it seems clear from TV3 that the mere fact that information may, arguably, have been obtained in breach of an individual’s rights is not, of itself, necessarily decisive. What also needs to be weighed in the balance is the importance of any public interest issues which arise and also the extent to which damages may be an adequate remedy.
The Public Interest
I should emphasise that at this stage anything which I say concerning the content of the programme should not be construed as amounting to a finding of fact by the court or that any facts alleged have been established. It will necessarily be the case that at an interlocutory stage a court which is asked to assess the extent of the legitimate public interest in a particular broadcast will have to have regard to the necessarily limited information that will be available to it at that stage.
However subject to that caveat it seems to me, having viewed the programme, that the following issues of very significant public importance indeed are potentially raised by the programme:-
(a) whether the standards applied at the Leas Cross Nursing Home fall, to a very marked degree, short of the standards that could be reasonably be expected in such a home;
(b) the extent to which, in addition to its ordinary regulatory role, the above matters ought to be of concern to the authorities charged with the administration of the health service by reference to the fact that, it would appear, a significant portion of the funding of the patients who reside at the home is provided out of public funds;
(c) the extent to which the existing regulatory regime in respect of such homes has been properly administered by those charged with that task; and
(d) whether that regulatory regime is, in itself, sufficient to allow for the proper regulation of the nursing home sector.
It should also be taken into account in assessing the importance of the public interest issues involved that those whom it may be said would suffer should the contentions of the programme be borne out are an extremely vulnerable section of the community who have a limited (or in many cases no) voice of their own.
In all those circumstances it seems to me that the issues raised in the programme are those of the highest public interest and that, therefore, a very significant weight indeed needs to be attached to those matters in weighing the rights and values involved at this stage.
It should be noted that one of the underlying reasons for the reluctance of the courts in this jurisdiction to grant injunctions at an interlocutory stage in relation to defamation stems from the fact that if the traditional basis for the grant of an interlocutory injunction (i.e. that the plaintiff had established a fair issue to be tried) was sufficient for the grant of an injunction in defamation proceedings public debate on very many issues would be largely stifled. In a great number of publications or broadcasts which deal with important public issues persons or bodies will necessarily be criticised. There will frequently be some basis for some such persons or bodies to at least suggest that what is said of them is unfair to the point of being defamatory. If it were necessary only to establish the possibility of such an outcome in order that the publication or broadcast would be restrained then a disproportionate effect on the conduct of public debate on issues of importance would occur. In that regard it is important to note that both the constitution itself and the law generally recognises the need for a vigorous and informed public debate on issues of importance. Thus the constitution confers absolute privilege on the debates of Dáil and Seanad Éireann. The form of parliamentary democracy enshrined in the constitution requires that there be a vigorous and informed public debate on issues of importance. Any measures which would impose an excessive or unreasonable interference with the conditions necessary for such debate would require very substantial justification. Thus the reluctance of the courts in this jurisdiction (and also the European Court of Human Rights) to justify prior restraint save in unusual circumstances and after careful scrutiny. Similar considerations also apply to a situation where a party may contend that there has been a breach of his right to privacy but where there are competing and significant public interest values at stake. It is for that reason that I have distinguished between a right to privacy which subsists in the underlying information which it is sought to disclose on the one hand and information which might legitimately be the subject of public debate on an issue of public importance (albeit private to some extent) but where there may be a question as to the methods used to obtain that information on the other hand.
I would wish to emphasise that the balancing exercise which I have found that the court must engage in is not one which would arise at all in circumstances where the underlying information sought to be disclosed was of a significantly private nature and where there was no, or no significant, legitimate public interest in its disclosure. In such a case (for example where the information intended to be disclosed concerned the private life of a public individual in circumstances where there was no significant public interest of a legitimate variety in the material involved), it would seem to me that the normal criteria for the grant of an interlocutory injunction should be applied. In such cases it is likely that the balance of convenience would favour the grant of an interlocutory injunction on the basis that the information, once published, cannot be unpublished. It is also likely, in such cases, that damages would not be an adequate means of vindicating the right to privacy of the individual.
However, as I have indicated, where, as here, the information concerned is one which, on its face, appears important to an informed public debate on an issue of significant public importance different criteria, it seems to me, apply.
Finally in considering whether the test adopted by the Court of Appeal in New Zealand is the appropriate test to be applied in this jurisdiction I have given consideration to the argument of counsel for the plaintiff in the Aherne proceedings which sought to distinguish the situation in New Zealand from that which pertains in this jurisdiction by reference to both the constitutional recognition of the right to privacy and the express statutory obligation on RTE to respect privacy.
However it seems clear from the passage from TV3 referred to above that the jurisprudence of the New Zealand courts also recognise a right to privacy and, as with the courts in this jurisdiction, the courts in New Zealand are called upon to engage in a balancing of rights where rights come into conflict. Similarly the passage quoted above makes clear that the relevant New Zealand legislation places an obligation on broadcasters to respect privacy. Finally it seems clear from the judgment taken as a whole that the overall approach of the courts in New Zealand to what is described in the judgment as “prior restraint” is broadly similar to the established approach of the courts in this jurisdiction. In all those circumstances it seems to me that the New Zealand Court of Appeal, in TV3, was engaging in an exercise which involved considerations very similar to those which would apply in this jurisdiction and was operating within a legal framework which, in turn, was very similar. In the circumstances I find the authority persuasive and would propose adopting the tests identified as being the appropriate criteria to be applied for the grant of interlocutory relief in this jurisdiction in circumstances such as this. The matters which need to be considered are, therefore:-
1. A consideration of the context and circumstances in which the impugned methods were employed;
2. Any special public interest considerations in favour of broadcasting the programme; and
3. The adequacy of damages as an available remedy for any wrong proved at trial.
Application to the Facts of this Case
The Court of Appeal in TV3 noted that on the facts of that case that the broadcasting station “may well have had mixed motives in encouraging and assisting X” (X was the person who had conducted the secret filming). The mixed motives included the fact that TV3 was, itself, already the subject of a defamation suit brought by the doctor involved. It was also noted that film of the type available to TV3 (and also RTE in this case) adds drama to any screening of the interview. It also noted that, in particular, where there were public interest issues involved and where there was a significant risk that a programme which contained allegations similar to those shown in a secret film would have its credibility challenged that there may be a public interest in the screening of the film and that the obtaining of surreptitious film may, in those circumstances, be an understandable pre-emptive course of action.
I am satisfied that similar considerations apply in this case. Doubtless the availability of the secret film could be said to add drama to the programme. It is equally true that having regard to the very serious accusations made in respect of the management of the nursing home concerned it would be likely that a programme which contained those accusations, but was not supported by the surreptitious film, would be challenged. In those circumstances it seems to me that it would be appropriate in all the circumstances of this case to also describe the inclusion of surreptitious film in the Leas Cross programme as “an understandable pre-emptive course of action”.
The fact that it may be understandable does not, of course, mean that it necessarily follows that it is justified or that it being understandable is decisive in relation to balancing the rights and interests involved in a prior restraint application. It is next, therefore, necessary to consider the public interest involved. For the reasons indicated above it seems to me that legitimate public interest issues of a very high weight are raised by this programme and that in any balancing exercise very significant weight indeed must be attached to this aspect of the case. It should be emphasised that on similar facts but in circumstances where the material sought to be broadcast did not involve issues of significant public interest the balancing exercise with which I am involved might well result in the balance favouring prior restraint.
Finally it is necessary to consider the adequacy of damages. As was noted in TV3:-
“If TV3 establishes the truth of what is to be published, there could be little room for a significant award of damages for any trespass as such. What is more, in such circumstances, damages would clearly be an adequate remedy. If TV3 fails to prove truth, the circumstances in which the defamatory material, or part of it, was obtained would be relevant to the amount of damages, both compensatory and potentially of an exemplary nature”.
It seems to me that exactly similar considerations apply here. If the accusations contained in the programme which it was intended would be broadcast by RTE are ultimately borne out to be correct then any breach of privacy involved in obtaining confirmatory information which establishes the truth of significant accusations in the legitimate public domain would necessarily give rise to small, or even nominal, damages which damages would clearly be an adequate remedy.
It should be noted at this stage that any publisher or broadcaster who employs such methods and who fails in persuading a court at trial as to the truth of the matters concerned exposes itself to a more significant risk in the event that the material broadcast proves to be defamatory.
Finally I should not leave this judgment without quoting with complete approval the final paragraph in TV3 and indicating that it too represents the position in this jurisdiction. The New Zealand Court of Appeal concluded as follows:-
“Our decision in this case should not be seen as supporting any general proposition that the ends of news gathering justify the means. If information has been obtained in circumstances which are at least arguably unlawful that would be an important factor to weigh in the balancing exercise involved. Such unlawfulness may amount to an offence, or it may constitute a civil wrong. The more serious the breach, the stronger will be the case for restraining use of any material obtained as a result. The courts will be careful to ensure that the rights of others are properly weighed and that the media is not simply provided with an incentive to engage in and benefit from unlawful conduct whenever it claims it is acting in the exercise of freedom of expression”.
I would only add that any claim to an entitlement to broadcast or publish material which has, arguably, been unlawfully obtained, on the basis of a legitimate public interest will necessarily result in the court exercising significant scrutiny over the public interest asserted. I am mindful of the fact that it is all too easy to dress up very many issues with an exaggerated or unreal public dimension. However on the facts of this case and for the reasons which I have set out earlier I am more than satisfied that RTE has shown that there are very real, significant and weighty public interest issues involved. For those reasons I refused to grant an interlocutory injunction which would have the effect of restraining the broadcast.
Trespass
As an additional head of claim in the Aherne proceedings, the plaintiffs sought an injunction to restrain further trespass on the plaintiffs premises. It seems to me that different considerations apply in respect of this aspect of the case. It may be that RTE will be able to persuade a court at trial that there was a sufficient justification for their actions to be able to resist a claim in trespass. It might even be that RTE would be able to persuade the court that no trespass in fact occurred in all the circumstances of the case. However it is clear that the plaintiffs in the Aherne proceedings have made out an arguable case that such trespass occurred. An injunction which would restrain future trespass would not have an effect equivalent to prior restraint. Therefore it seems to me that the ordinary principles for the grant or refusal of an interlocutory injunction should be applied to this aspect of the case.
The starting point must, therefore, be a consideration of whether there is any risk of future trespass. While it was argued by counsel for RTE there was no evidence of any such risk I cannot agree. The fact is that issues such as those raised in this programme have, by virtue of the very fact that they involve an issue of the highest public importance, a tendency to remain matters of active public debate for an appreciable period of time. In those circumstances it is by no means inconceivable that the issue may be revisited in broadcasts by RTE. There would not, of course, be anything inappropriate in such an approach. However it might well be that in the context of such future programme a temptation to use the same methods might arise. Pending the establishment after a full trial of the lawfulness or otherwise of the use of such methods it seems to me that the balance of convenience would favour restraining RTE from engaging in any further trespass on the premises of the plaintiffs in the Aherne proceedings. As is always the case at an interlocutory stage nothing in that determination should be taken as amounting to a final ruling as to the appropriateness or otherwise of any of the actions which have in fact been engaged in.
Approved: Clarke J.
ABC v DEF
[2014] IEHC 680JUDGMENT delivered by Mr. Justice Michael White on the 24th day of June, 2014
1. By ex parte docket of 13th November, 2013, the plaintiff, ABC, applied urgently for an interim injunction preventing the defendant from issuing defamation proceedings which would identify the plaintiff.
2. An interim order in those terms was granted by Hogan J. on 13th November, 2013.
3. The plaintiff issued a plenary summons on 14th November, 2013, and a motion on notice to the defendant the intended plaintiff in the defamation proceedings.
4. The interim order has remained in place pending the interlocutory hearing which took place on 13th and 14th March, 2014. Further legal submissions were invited primarily in respect of a judgment delivered on the morning of 14th March, by Gilligan J. in Mooney v. Commissioner of An Garda Síochána. These submissions were finalised on 9th May.
5. The plaintiff and the defendant are known to each other.
6. The plaintiff in April/May 2013, found it difficult to cope psychologically and was admitted to hospital for psychological and psychiatric care in June 2013.
7. During this prolonged admission in the course of her therapy, the plaintiff alleged that she had been the victim as a child of sexual abuse by the defendant. The defendant denies this.
8. On disclosure to a counsellor at the hospital, the matter was reported by the counsellor to An Garda Síochána and HSE. The plaintiff gave a written statement to gardaí on 17th July, 2013.
9. The HSE in turn informed a designated officer appointed to deal with allegations of sexual abuse within the Catholic Church and the defendant was subsequently suspended from active ministry pending the outcome of the complaint. The defendant alleged that this occurred in a manner which disclosed identity and caused considerable trauma and damage.
10. The designated diocesan officer met with the plaintiff on 28th October, 2013.
11. On 4th November, 2013, the defendant’s solicitor wrote to the plaintiff alleging that the complaint amounted to malicious lies and unless retracted, High Court proceedings for defamation would issue. The letter of 4th November, 2013, stated as follows:-
“I act for (redacted) You have made utterly false and profoundly defamatory complaints against my client (redacted) to a diocesan designated officer for child protection in the diocese of (redacted). She in turn communicated these to (redacted). As a result of your malicious lies my client has been stood down from ministry and your malicious lies have attracted significant media attention.
Unless you immediately retract your baseless complaints against my client and unless you apologise to him on terms to be agreed with this office, which apology shall be disseminated by him as he sees fit, my instructions are to institute High Court proceedings in defamation against you and this letter will be relied on for costs.You must reply to my client’s satisfaction on or before close of business on 7th November next.”
12. The plaintiff’s solicitors replied on 7th November, seeking an immediate undertaking not to name or identify the plaintiff in the intended proceedings. The letter stated:-
“At no time did our client seek to publish her complaints in the public domain thereby seeking to expose and/or defame your client. The complaints were made in private in a manner sanctioned by the Catholic Church.”
13. The letter went on to say:-
“Given the nature of the complaint should your client issue the proceedings referred to in your letter, our client’s constitutional right to privacy will be breached. In light of your correspondence, we are gravely concerned about our client’s right to privacy. We require your client to provide an undertaking that in the event that he issues proceedings, he will not name and/or identify our client and/or in the alternative, your client will take all necessary and reasonable steps to protect our client’s privacy.”
14. The defendant’s solicitors replied on 11th November, 2013, refusing to give the undertaking but postponed the issue of proceedings until 14th November. The plaintiff then applied for the interim injunction.
15. The psychiatric evidence presented to this Court revealed the plaintiff to be a person of fragile mental health, who nevertheless functions well in a demanding career. The psychiatric opinion is stark. Mr. James Morrison, Consultant Psychiatrist, in an affidavit of 11th March, 2014, stated at para. 3:-
“I say that on examination, I found the plaintiff to be depressed, extremely anxious and I noted that she complained of having suffered panic attacks with palpitations, sweating tremors, difficulty in swallowing, weakness in her limbs and pressure on her head, all of which symptoms the plaintiff found very frightening. I further found from my examination of the plaintiff that she has frequent suicidal ideation and she feels that she and everybody else would be better off if she were dead. She has a marked loss of self confidence and self esteem and she also has a good deal of guilt feelings that she did not do something about the abuse to which she alleges she was subjected when it was happening to her.”
16. At para. 7, Mr. Morrison went on to swear:-
“I say further that from my recent examination of the plaintiff, it is clear to me that the plaintiff feels that if her name becomes public knowledge in the context of the childhood sexual abuse which she alleges that she suffered at the hands of the defendant, she would not be able to continue with her career and she is convinced that the only course which would be left open to her in those circumstances would be to commit suicide. I say that it is my professional opinion that there is most unfortunately and regrettably a high probability of such an eventuality occurring in the event that the plaintiff’s name is disclosed in the context of the present proceedings or in any defamation proceedings intimated by the defendant against her and I would earnestly appeal on her behalf to this Honourable Court that her name be withheld and not be publicly disclosed in order to prevent, as far as possible such a high probability eventuating or worst till such an occurrence taking place. I further hereby confirm that it is my professional opinion that the plaintiff is currently clinically depressed and that there is now a real and substantial risk to her life if her name and identity are publicly disclosed in these proceedings or in any proceedings for defamation instituted by the defendant.”
The Legal Principles
Injunctive Relief
17. The court on an application for an interlocutory injunction must be satisfied that the well tried and trusted principles for seeking injunctive relief are complied with.
18. Those were approved in Campus Oil Limited v. Minister for Industry and Energy [1983] I.R. 88 at 110, approving American Cyanamid v. Ethicon Limited [1975] AC 396.
19. Griffin J. at p. 110 of the judgment stated:-
“The principles upon which interlocutory injunctions are granted are well established and a Court will grant one when a case has been made out for the preservation of the property in statu quo pending the trial of the action if it is of opinion that there is a substantial question to be tried.”
20. He went on to state:-
“The question was also considered by the House of Lords some ten years later in American Cyanamid v. Ethicon Ltd. It was there laid down that a court, in exercising its discretion to grant or to refuse an interlocutory injunction, ought not to weigh up the relative strengths of the parties’ cases on the evidence available at the interlocutory stage – that evidence being then necessarily incomplete. Lord Diplock, with whose speech the other members of the House agreed, referred at p. 407 to what he called ‘the supposed rule that the court is not entitled to take any account of the balance of convenience unless it has first been satisfied that if the case went to trial upon no other evidence than is before the court at the hearing of the application the plaintiff would be entitled to judgment for a permanent injunction in the same terms as the interlocutory injunction sought.’
21. Lord Diplock continued at pp. 407 and 408 of the report:-
“Your Lordships should in my view take this opportunity of declaring that there is no such rule. The use of such expressions as ‘a probability’, ‘a prima facie case’, or ‘a strong prima facie case’ in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.”
22. The principles concerned are,
(i) Is there a serious issue to be tried?
(ii) Where does the balance of convenience lie?
(iii) Are damages an adequate remedy?
23. A person has a right to apply anonymously in proceedings to restrict publicity.
24. This was approved in Doe v. Revenue Commissioners [2008] 3 IR 328. It stated at para. 6:-
“That a party was entitled, without revealing its identity, to apply to court for permission to maintain proceedings anonymously or in a manner designed to maintain confidentiality. The nature of the substantive application should only be considered to the extent that it was necessary to enable the court to rule on an entitlement to bring the proceedings in confidence.”
25. The relevant constitutional provisions are Article 34.1 which states:-
“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.”
26. Is it an absolute right of a litigant to have the other party or parties to the proceedings identified, as part of the requirement to have justice administered in public?
27. The relief sought here by the plaintiff is not to have the proceedings heard In Camera or to restrict contemporaneous reporting but to preserve anonymity.
28. There have been developments in this area.
29. In Doe v. Revenue Commissioners already referred to in an obiter dicta remark, Clarke J. stated:-
“That there could be circumstances where publicity attaching to civil proceedings could prevent a court from reaching a just determination and those circumstances might confer on the court a jurisdiction to restrain in a proportionate manner the publicity concerned, such as in proceedings before a jury, where a trial within a trial was possible. It was difficult to envisage similar considerations applying to a trial by a judge alone.”
30. In another judgment, Mooney v. Commissioner of An Garda Síochána & Ors delivered on 14th March, 2014, when this case was at hearing, Gilligan J. at para. 36 stated:-
“This Court accepts that the general trend of the authorities to date is to the effect that the order which is being sought in these proceedings can only be made in exceptional circumstances, to avoid prejudice to the interests of justice which is not capable of being remedied by the trial judge, either by appropriate directions to a jury or otherwise. But this case must be decided on its own unique facts.”
31. At para. 37, he stated:-
“Article 34.1 of the Constitution, while quite clear in its meaning as was indicated by Denham J. at p. 399 of the Irish Times, does not exist in a vacuum and clearly in the present instance there are competing constitutional rights relating to other persons and in addition, the Court has duties under the Constitution. In this instance there is the right of the plaintiff to have his case heard and reported upon in public. There is also, however, the right of An Garda Síochána to carry out their duties for the general welfare of society and to ensure that the law is upheld at times in potentially very difficult circumstances, particularly when dealing with subversives and organised crime. The Programme has been put in place in order to assist with the prosecution of alleged serious offenders. As referred to by Denham J. making reference to The People v. Shaw:-
‘None of the rights in consideration are absolute. Where there are competing rights the court should give a mutually harmonious application. If that is not possible the hierarchy of rights should be considered both as between the conflicting rights and the general welfare of society.’”
32. Gilligan J. went on at para. 40 to state:-
“In my view Clarke J. [Doe v. Revenue Commissioner] was leaving open at least the possibility that in certain circumstances consideration could be given to proceedings being heard otherwise than in public in respect of a civil matter.”
33. The right of a litigant to have the other party or parties to the proceedings identified is not an absolute right.
34. The court has to balance the constitutional rights of the parties and in exceptional cases the court has the right to preserve anonymity.
35. The appropriate test is that set out in X.Y. v. Clinical Director of St. Patrick’s University Hospital [2012] 2 I.R. 355 where at para. 15, Hogan J. stated:-
“As Walsh J. pointed out in In re R. Ltd [1989] I.R.126, the open administration of justice is a vital component of a democratic state. This constitutional value is especially important in the case of Article 40.4.2
, since it is vital that the complaints of those detained – whether justified or not – are ventilated in public. Moreover, as I observed in D.X. v. Judge Buttimer [2012] IEHC 175, (Unreported, High Court, Hogan J., 25th April, 2012), Article 34.1 reflects the Constitution preference for the open administration of justice, so that any exceptions to that rule must be capable of objective justification and must be proportionate in themselves: cf. here by analogy the comments of Denham C.J. in The People (Director of Public Prosecutions) v. Kavanagh [2012] IECCA 65, (Unreported, Court of Criminal Appeal, 24th May, 2012) in relation to any exceptions to Article 40.5.”
36. This is a case which has been referred to the DPP where if the defendant is charged, s. 7 of the Criminal Law Act 1981, as amended, will apply and the complainant cannot be named.
37. The plaintiff does not seek to have an In Camera hearing but to restrict disclosure of name or identity.
38. The court notes that the plaintiff did not publish the identity of the defendant, beyond certain designated persons. Contact was limited to people in authority who had an interest in receiving the complaint, An Garda Síochána and the HSE. It is the court’s understanding that it was the HSE who initially contacted the designated diocesan officer.
39. In weighing up the balance of convenience it is an important factor that the plaintiff did not seek to publish nor was the plaintiff responsible for the decisions which led to the unnecessary publicity for the defendant.
40. I fully understand the defendant’s anger and frustration where innocence is maintained but compromised when suspension from ministry occurred. In the hierarchy of constitutional rights, the undoubted risk to the plaintiff’s life takes precedence.
41. I will continue Hogan J’s order to the hearing of the substantive action.
Tansey v Gill
[2012] IEHC 42, Peart JJudgment of Mr Justice Michael Peart delivered on the 31st day of January 2012:
1. The plaintiff is a well-known solicitor, who, along with many other solicitors in this country, has been the subject defamatory statements being made about him on a website www.rate-your-solicitor.com (hereinafter referred to as ‘the website). Many but not all these defamatory statements are made anonymously or under a pseudonym. He claims that the words used mean in their natural and ordinary meaning that he has committed criminal acts, has engaged in dishonest appropriation of clients’ property, has lied to clients, has engaged in corrupt conduct, has engaged in unprofessional conduct, has engaged in incompetent conduct, and that serious grounds existed for believing that these matters are true.
2. Put briefly, these proceedings are commenced against the defendants in order to put a stop to such defamatory material being posted on the website, and to prevent defamatory material from being posted in the future, including if necessary by an order requiring that the operation of the website be terminated.
3. On the 30th May 2011 this Court granted an order under Order 11, rule 1 RSC permitting the plaintiff to issue proceedings against the third named defendant whose registered office is outside the jurisdiction of this Court and to serve notice of such proceedings on that defendant at that address in the United States of America.
4. On the 22nd July 2011 this Court granted an order pursuant to the provisions of Section 11(2)(c)(ii) of the Defamation Act, 2009 (“the Act”) extending the limitation period in respect of which the plaintiff be entitled to bring these proceedings in order to cover the period between the date of commencement of that Act, and one year prior to the institution of the proceedings, that is to say from the 1st January 2010 to the 12th August 2010. In addition, the plaintiff was given liberty to bring the present application by way of Notice of Motion for injunctive relief pursuant to the provisions of Section 33 of the Defamation Act, 2009.
5. These proceedings were then commenced by way of Plenary Summons on the 3rd August 2011, and notice of same together with copy Statement of Claim and copy verifying affidavit were duly served upon the third named defendant on the 5th August 2011 by ordinary pre-post to its registered office. No appearance has been entered by that company. A Notice of Motion seeking judgment against the third named defendant has been issued and served and is before the Court also for determination.
6. On the same date, the proceedings were served upon the first and second named defendants by pre-paid registered post.
7. The first named defendant served a personal appearance on the plaintiff’s solicitors by letter dated 15th August 2011. He may not have actually entered that appearance in the Central Office as required, but one way or another he has appeared in person before the Court to argue his defence to the plaintiff’s Notice of Motion.
8. The second named defendant instructed solicitors to enter an appearance, and they did so, and she was represented by counsel before me. She swore an affidavit in response to the claims made against her and denies any knowledge of the subject matter of these materials, and the plaintiff appears to accept that. Counsel for the plaintiff informed the Court that no relief is sought against the second named defendant on this application for injunctive relief.
9. However, her daughter, Ann Vogelaar, the fourth named defendant, swore an affidavit in which she stated that she was an unpaid volunteer for the website, and in the light of this averment the plaintiff applied on the 13th October 2011 for an order to join her as a fourth named defendant, and that order was granted on that date. She was duly served with the proceedings. She has not entered an appearance, but she had previously sworn an affidavit before being joined in the proceedings in support of her mother’s response to the application for injunctive relief. That affidavit was prepared by the solicitors acting for her mother. I will come to its contents in due course. In addition, she wrote a letter to the Court dated 14th November 2011 indicating that she did not intend to attend court, and amongst a number of other matters in that letter she states that she has nothing to add to the said affidavit, but asks the Court not to grant the reliefs sought against her.
10. It has taken the plaintiff some years to identify the relevant parties against whom the proceedings should be directed, since he first became aware of it in 2007, given the anonymous or pseudonymous nature of the material posted on the website. By May 2008 he was in a position to write to those parties whom he believed had posted material, or who operated and/or hosted the site, and he called upon them, inter alia, to take down the offending material, apologise, and undertake not to repeat the same or similar material in respect of the plaintiff. Not unexpectedly perhaps these letters did not achieve any useful purpose and no reply was received from any party written to.
11. The plaintiff engaged the services of Dr Mark Humphries, B.Sc. Joint Hons. (UCD), PhD(Cambridge), and who is a lecturer in the School of Computing at Dublin City University to prepare a number of reports in order to assist in the identification of the relevant parties who operate and control the website. Among those identified were the first, second and third named defendants. The parties identified by Dr Humphries, including the first, second and third named defendants were written to and were called upon to withdraw the defamatory remarks, to apologise, to give an undertaking not to publish any further such material and to pay compensation, and were warned that a failure to comply with these requests would lead to the commencement of proceedings. No response was received.
12. The reports from Dr Humphries are extremely technical and thorough. I could not possibly do justice to the comprehensive contents of same by attempting a summary, beyond saying that it is pellucidly clear that the first named defendant runs the website here, and that it is hosted by the third named defendant, and indeed the name of the website was registered by that defendant. He also identified the second named defendant as an operator of the site, but the affidavit of the fourth named defendant and indeed the affidavit sworn by the second named defendant clarifies that the second named defendant has had no real involvement even though her name appears connected.
13. The fourth named defendant’s replying affidavit sets out her involvement in the website. She states therein that her mother, the second named defendant, knows nothing of her use of the internet and does not monitor her use at all. She goes on to state that since June 2010 she has been an unpaid volunteer for the website which she understands is a not for profit website. Her work on the website consisted of answering questions which may be sent to the website by email, and if she is unable to answer the questions she forwards the query to any friend of hers who she thinks may be able to do so. She states that her role is confined to this activity or involvement. She denies that she has ever had any involvement in the process of posting comments on the website, or that she runs, controls or organises the site. It appears that the reason why her mother may have been identified as being involved was that she (daughter) was using her mother’s computer around June 2010.
14. The second named defendant swore a replying affidavit also. She says that she is a stranger to the proceedings, but that she is familiar with the site because her late husband had had some dispute with a certain solicitor and had given publicity to that dispute on the website but by using his full name. But she absolutely denies having had any role or involvement whatsoever with the site.
15. The first named defendant has sworn a replying affidavit also. As I have said, he represents himself in these proceedings. In that affidavit he describes how he first met the plaintiff in March 2001 after a member of An Garda Siochana had recommended the plaintiff to him as a solicitor who would take a case against other solicitors who Mr Gill considered had engaged in what he describes as “wrongdoing, perjury, forgery, bribery, distortion of legal contracts, money laundering and perverting the course of justice to a degree that only the frightened inflicted can understand”. He describes how he was given an appointment for a consultation at the plaintiff’s offices in Sligo on the 6th March 2001, and he attended for that appointment. He states that he had a lengthy consultation when he was able to go into great detail about the case he wanted the plaintiff to handle in relation to his business. Mr Gill believed when he left that the plaintiff would take his case, but a few days later received a letter returning all his papers and stating that regrettably the firm was not in a position to assist him. Mr Gill complains that the plaintiff had undertaken to take on his case, and that he has breached that undertaking.
16. Thereafter, in his affidavit, Mr Gill makes extensive complaint about Mr Tansey and a number of other named solicitors who appear to have had involvement in his affairs, and presumably about which he had wanted the plaintiff to act for him. He makes complaints and allegations about certain court officials connected with Mr Gill’s bankruptcy. Thereafter his affidavit goes into how an organisation he describes as ‘Victims of the Legal profession’ has exposed the plaintiff and others for what he describes as “their part in forgery, theft, and placing illegal charges on the property of vulnerable citizens of Ireland without their knowledge”. He exhibits a considerable amount of documentation in relation to the matters complained of, and says “we have massive Will and Probate fraud, medical negligence fraud, Road Traffic fraud, and many other frauds involving [the plaintiff], his colleagues and others”.
17. Richard Humphries SC for the plaintiff has submitted that there has been no attempt by Mr Gill or the other defendants to substantiate any of the allegations and accusations which have been posted on this website, and that the only evidence put forward against the plaintiff’s application is the affidavit filed by Mr Gill to which I have referred and the exhibits attached. He submits that no effort has been made to have affidavits filed by any of the other persons who have published defamatory material to stand over what they have published, and he submits that the mere assertion of allegations cannot be sufficient to justify that material remaining on public view, when the material is so clearly defamatory, and where the website in question facilitates the posting of such material without any control over what is said.
18. Mr Gill has stated in his oral submissions that there are many people who are available to give evidence of the wrongs which they complain that the plaintiff is guilty of in relation to the matters in respect of which the plaintiff has acted. Indeed, he said that some of these persons were in court during the hearing to support him.
19. Mr Humphries has referred to the judgment of Kelly J. in Reynolds v. Malocco [1999] 2 IR 203 in support of his submission that a bald statement of intention to plead justification was not sufficient to debar a plaintiff who might otherwise be entitled to an injunction from such relief. In his judgment, Kelly J. considered the judgment of Murnaghan J. in Gallagher v. Tuohy [1924] 58 I.L.T.R.134 where the Court refused an interlocutory injunction in circumstances where a plea of justification was made by the defendant, and did so on the basis that the Court should not readily grant an injunction where the material “is not obviously a libel”, and that justification having been raised, the Court should not prejudge that issue on an interlocutory application. Kelly J. referred to a Supreme Court judgment in Cullen v. Stanley [1926] I.R. 73 where a different view was taken in the face of an assertion on affidavit that the material published was true. In that case, O’Connor J. contrasted the affidavit evidence of the plaintiff and the “baldest affidavit” of the defendant, and held that on the evidence before the Court “there was nothing to support the plea of justification”. Kelly J. concluded that he preferred the latter approach, and stated:
“Of these two approaches I prefer the latter. I do not think that a rule which permits a defendant to, in effect, oust the ability of this Court to intervene by way of injunction in an appropriate case by the simple expedient of expressing an intention to plead justification at the trial of the action, is consistent with the obligations imposed on the court under the Constitution. Furthermore, the application of such a rigid rule, without an ability on the part of the court to ascertain whether the plea of justification had any substance or not, would provide a happy hunting ground for unscrupulous defamers.
I am therefore satisfied that it is open to the court to examine the evidence adduced by the defendant in support of the justification plea so as to ascertain whether it has any substance or prospect of success………”.
20. Having concluded thus, the learned judge went on to consider whether the undoubted discretion which exists as to whether or not to grant an interlocutory injunction should be exercised in favour of granting same. Kelly J. had regard to the unlikely prospect on the evidence that the successful plaintiff would be able to recover any damages which might be awarded. In the present case, the nature of the material is such, and the damage it has and would cause to a professional man such as the plaintiff is such that if an award of damages is made it would be substantial. The first named defendant was certainly in the past adjudicated a bankrupt and I have no evidence that this bankruptcy has been discharged or that he is a man of any substantial means. I have no doubt that neither he nor the fourth named defendant would be a mark for any such damages.
21. I have considered all the material exhibited by Mr Gill in his affidavit. It is voluminous. What is evident from it is that he harbours many grievances not only against the plaintiff in relation to his own affairs, but also against a number of other solicitors and other persons. But it is also clear that he has moved from those personal grievances to a point where he has decided to front a generalised campaign against the solicitors’ profession generally, including by establishing the website complained of in order to facilitate other persons in making their similar grievances against their solicitors made known publicly, and where anything and everything can be stated publicly on the website, without any opportunity for such solicitors, including the plaintiff from defending themselves. It can truly be said in the words of Kelly J. that this site has become “a happy hunting ground for unscrupulous defamers”. It provides a facility whereby persons who have a grievance against a solicitor with whose services they are dissatisfied for whatever reason can publish that grievance and say whatever they wish about that solicitor, even anonymously or under a pseudonym, thereby making it almost impossible for any solicitor who feels defamed from seeking any redress against them. Laws exist whereby a person who is named on a site and is the subject of allegedly defamatory material may communicate with the host or operator of the site and request that the material to be taken down. In the present case those attempts were unsuccessful prior to the commencement of these proceedings, and even prior to the application coming on for hearing. I am however informed by Mr Humphries for the plaintiff that the website may now be shut down. I am unsure whether that is so as a matter of fact as I have no evidence as such about it, but I certainly have no knowledge that it has been terminated in a permanent way. In addition, unless restrained, there is no reason why a similar site would be registered for a similar purpose.
22. The grievances which Mr Gill has aired publicly on the website have been repeated in his affidavit, but in spite of the exhibits which accompany his affidavit, I am completely satisfied that no matter how genuinely he believes that he and others have been let down by the plaintiff or other solicitors, the plea of justification which may be put forward at any trial of this action has no prospects of success. The evidence put forward is nowhere near substantiating any wrongdoing of the nature alleged, even though it is clear that the plaintiff harbours many grievances. Apart from his own grievances he relies on the complaints of others, and has concluded for himself that all these matters entitle him to regard not only the plaintiff but others too as fair game for his generalised accusations which include criminal activity, such as fraud, theft, money laundering and so forth.
23. Such accusations are very serious indeed for any person. It is particularly so for any professional person such as the plaintiff to be subjected to this sort of unbridled accusation of criminal activity in relation to his occupation as a solicitor. The material, unless removed and restrained is publicly available for all to see, and is not even confined to this jurisdiction but is available worldwide. If a solicitor has acted negligently, the client has his/her remedy under the law of tort, and these days this is a remedy very often pursued against solicitors, and on occasion successfully. Where a client alleges that a solicitor has wrongfully withheld his/her client’s money, or charged fees which the client feels are overcharged or not justified, there are avenues for redress by means of the disciplinary mechanisms available at the Law Society. Such claims are investigated and if they are decided to be well-founded, sanctions may be imposed and compensation obtained. If a client alleges criminal conduct on the part of a solicitor he, like any other victim of an alleged crime, may make a complaint to An Garda Siochana, who will investigate the matter and if satisfied that the offence may have been committed the DPP may decide that a prosecution should be brought. These are remedies available under the laws of the land whereby the rights of citizens are protected and vindicated. The rule of law applies to a solicitor in just the same way as it does to any person in the State.
24. In older times before the arrival of the Internet, any solicitor who was defamed in a newspaper or in any other public way could sue for defamation, and in an appropriate case could be granted interlocutory injunction pending any trial of the action, as occurred in Reynolds v. Malocco {supra]. The owners of such a newspaper or other media outlet would have been readily identifiable as would the author. Such a remedy was easily availed of as those to be named as defendant in any such action could be readily identified and sued for damages. Life has changed in that regard since the arrival of the Internet as this case demonstrates clearly, and it seems to me that whatever judicial hesitation has existed in the matter of granting an interlocutory injunction to restrain publication pending trial should be eased in order to provide an effective remedy for any person in this State who is subjected to unscrupulous, unbridled, scurrilous and defamatory material published on a website which can, without any editorial control by the host of the website, seriously damage him or her either in his/her private or business life. In my view, the ready availability of such a means of defaming a person by any person who for any reason wishes to do so has such a capacity to cause insult and immediate and permanent damage to reputation means that the Courts should more readily move to restrain such activity at an interlocutory stage of the proceedings in these types of proceedings, particularly where an award of damages is considered likely to provide an empty remedy.
25. The Internet has facilitated an inexpensive, easy, and instantaneous means whereby unscrupulous persons or ill-motivated malcontents may give vent to their anger and their perceived grievances against any person, where the allegations are patently untrue, or where no right thinking person would consider them to be reasonable or justified. By such means, anything can be said publicly about any person, and about any aspect of their life whether private or public, with relative impunity, and anonymously, whereby reputations can be instantly and permanently damaged, and where serious distress and damage may be caused to both the target, children and adults alike, leading in extreme cases to suicide. So serious is the mischief so easily achieved that in my view the Oireachtas should be asked to consider the creation of an appropriate offence under criminal law, with a penalty upon conviction sufficient to act as a real deterrent to the perpetrator. The civil remedies currently available have been recently demonstrated to be an inadequate means of prevention and redress.
26. The present Notice of Motion which was issued on the 24th August 2011 pursuant to leave in that regard being granted on the 22nd July 2011 seeks the following reliefs:
1. An order pursuant to section 33 of the Defamation Act, 2009 prohibiting the publication or further publication of the defamatory material complained of and/or an injunction requiring the defendants and each of them, their servants or agents, to remove from the internet any defamatory material of and concerning the plaintiff and/or restraining the defendants and each of them, their servants or agents, from publishing further defamatory material of and concerning the plaintiff.
2. An order by way of mandatory interlocutory injunction requiring the said defendants, and any person having notice of the making of such order, to terminate the operation of the website upon which defamatory material of and concerning the plaintiff is published.
3. An order by way of mandatory interlocutory injunction directing the said defendants to deliver up to the plaintiff the names and address of all persons involved and concerned in the publication of defamatory material of and concerning the plaintiff, including the author of such material and all persons involved in maintaining the website upon which the material is hosted.
Section 33 (1) of the Act provides:
“(1) The High Court, or where a defamation action has been brought, the court in which it was brought, may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion–
(a) the statement is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.”
27. I am entirely satisfied that the material complained of in these proceedings is seriously defamatory of the plaintiff. I am also satisfied based upon the contents of the replying affidavits and the submissions which have been made by Mr Gill that any defence he wishes to put forward at trial has no reasonable prospect of succeeding. Whatever grievances he has must be addressed by the various lawful means available for so doing, and do not entitle him and others to take the law into their own hands by publishing whatever defamatory accusations and allegations they wish against the plaintiff, or indeed others named, on this or any similar website.
28. I have no hesitation in granting interlocutory injunctions in terms of paragraphs 1, 2 and 3 above against the first and fourth named defendants, and will so order.
29. In respect of the third named defendant, Dotster Inc., there is a Notice of Motion seeking judgment in default of Appearance before the Court. I am satisfied that Dotster Inc. was properly served with the proceedings and the Notice of Motion dated 8th November 2011 and that they have not entered any appearance. I will make final orders in the terms of paragraphs 1, 2 and 3 above against Dotster Inc., and adjourn the question of damages for assessment should the plaintiff wish to pursue that issue against them.
30. In so far as the relief sought at 2 above is for a mandatory interlocutory order, I am satisfied that the facts of this case are such as to overcome the higher threshold for the granting such an order, namely that the plaintiff’s case should have a strong prospect of success at trial. I am satisfied that damages cannot be an adequate remedy for the plaintiff for the reasons stated, and also that in any event the balance of convenience lies squarely in favour of granting such injunctions.
31. I will put the matter back to another date for a consideration of any outstanding issues to be dealt with.
32. I will hear Counsel for the plaintiff as to the need now for any order in relation to relief 3, which is for an order under Norwich Pharmacal principles for the disclosure to the plaintiff of the names and addresses of all persons involved and concerned in the publication of defamatory material on the website.
John Cullen v Colm Toibín and Magill Publications (Holdings) Ltd
1983 No. 8271
1983 No. 353 P
BARRINGTON J delivered his judgment on 2 December 1983 saying: This is an application for an interlocutory injunction to restrain publication in the defendants magazine Magill of an article concerning the plaintiff while his appeal to the Court of Criminal Appeal is pending. The first-named defendant is the editor and the second-named defendants are the publishers of the said magazine. The plaintiff was convicted in the Central Criminal Court of the murder of one Dolores Lynch and of malicious damage to property and was on 17 November 1982 sentenced to penal servitude for life on the first count and to 15 years penal servitude on the second. He applied for a Certificate of Leave to Appeal which was refused. He immediately appealed against this refusal and his appeal is still pending before the Court of Criminal Appeal.
I have not seen the transcript of the procedings in the Central Criminal Court but have been told by Mr Mackey, who appeared for Mr Cullen in the criminal proceedings, and also appears for him in these proceedings, that the only evidence against Mr Cullen was the uncorroborated evidence of an alleged accomplice one Miss Elizabeth Madden. I am also informed by Mr Mackey, and I accept, that the trial judge, in his charge, warned the jury that there was no corroboration for Miss Madden’s evidence and that, while they could convict on her uncorroborated evidence, it would be dangerous to do so.
The grounds of appeal set out in Mr Cullen’s notice of appeal to the Court of Criminal Appeal against the refusal of the certificate are as follows:
*579
1. The uncorroborated evidence of an accomplice is insufficient in law to sustain a conviction.
2. The uncorroborated evidence of an accomplice, of otherwise bad character, whose untrustworthiness as a witness to the truth, has been established in evidence, is insufficient to sustain a conviction.
3. The uncorroborated evidence of an accomplice of otherwise bad character, whose untrustworthiness as a witness to the truth has been established in evidence, and who has been granted immunity from prosecution in relation to the offence as charged against the accused in which she was an accomplice, is insufficient to sustain a conviction.
4. The verdict of the jury cannot be supported by the evidence.
5. The jury failed to give any or any proper consideration to the directions in law of the learned trial judge as to the danger of convicting on the uncorroborated evidence of Elizabeth Madden.
The publishers of Magill entered into an exclusive contract with Elizabeth Madden to publish an article, based on material supplied by her, in the forth-coming issue of Magill magazine. The plaintiff seeks to restrain the publication of this article.
I have read the article which is a lengthy one. It is written with verve, and is, I am prepared to accept for the purpose of this application, a serious piece of investigative journalism written about matters which may be thought to be legitimate objects of public interest and concern. But it is essentially Miss Madden’s story written for her by a talented journalist. It deals with her life and background, her relations with Mr Cullen, issues of guilt or innocence in relation to the offences charged, and with Mr Cullen’s background, character, psychological make-up and mode of living. It contains many serious and prima facie defamatory allegations. It touches on many matters some of which were given in evidence at the trial and some of which, according to Mr Mackey, were not. It purports to enter into Miss Madden’s mind and contains many matters and insights which, be they true or false, would not be capable of proof in a court of law.
The article, if published before the trial in the Central Criminal Court, would clearly have been contempt of court.
My own reaction, having read the article, was, that, if I were subsequently requested to sit on the Court of Criminal Appeal to hear Mr Cullen’s appeal I should ask to be disqualified.
This is not an application to commit for contempt of court but is an application to restrain the publication of material on the grounds that it is likely to interfere with a criminal trial. I am satisfied that the court has jurisdiction to grant such an injunction. See DPP v Irish Press Ltd and Others High Court 1975 No. 403 SS (Finlay P) 15 December 1976. I am satisfied on the basis of the same authority that the onus on the plaintiff in this case is to prove to my satisfaction, on the balance of probability, that the article if published, would be likely to prejudice his trial.
Mr Mitchell, for the defendants, submits that there is no danger of the plaintiff being prejudiced in his appeal by the publication of the article *580 because the appeal will come before three professional judges who are trained to exclude irrelevant or inadmissible matter from their minds. No doubt judges are so trained and for that reason courts have traditionally taken a less serious view of adverse pre-trial publicity where a case was to be tried by a judge or judges alone than when it was to be tried by a judge sitting with a jury. Certainly the courts have taken this view when the adverse publicity consisted of mere general assertions e.g. that an alleged statement was involuntary, but that is not the present case. Speaking for my own part I think it would be unwise to assume that judges are totally immune from frailties commonly held to afflict jurors. This problem was discussed by the English King’s Bench in the case of R v Davies, ex p. Delbert-Evans [1945] KB 435. Humphreys J referred (at pp. 442–443) to the embarrassment caused to a judge who is told matters which he would rather not hear and which make it more difficult for him to do what is his duty. Oliver J agreed with these sentiments and in a dictum which appears at page 445 of the report, he puts the matter as follows:
In my view, on the authorities, contempt of court can be committed, at any time until the case is ended, and it is not ended until after the hearing and decision of an appeal, if there has been an appeal. I fully agree with my Lord, and I share his view as to the importance of the matter, that jurors are not the only people whose minds can be affected by prejudice. [ In my view, it is absurd to suggest that judges’ minds could not be affected by prejudice ].1 One of the evils of inadmissible matter being disseminated is that no one can tell what effect a particular piece of information may have upon his mind. [He cannot be sure himself; his mind is not a thing with regard to which it can be said exactly what material brought it to any particular view at any moment]. Why, as my Lord has asked, and I can think of no better word should a judge be ‘embarrassed’ by having matters put into his mind, the effect of which it is impossible to estimate or assess?
Moreover the possibility of a retrial before a jury cannot be eliminated. Mr Mackey, fairly admits, that the nature of his clients appeal is such that a retrial is improbable the more likely outcome being the quashing of the conviction or the dismissal of the appeal. Nevertheless the Court of Criminal Appeal has power to order a retrial and, until the proceedings are over, the possibility of a retrial before a jury cannot be excluded. Mr Mitchell submits that such a retrial, until ordered by the Court of Criminal Appeal, could not be regarded as a pending proceedings in relation to which the crime of contempt could be committed. That may be formally correct. But we are not here dealing with a prosecution for contempt of court. We are however dealing with ongoing criminal proceedings and with the power of the court to restrain the publication of matter likely to interfere with the accused obtaining a fair trial in those proceedings.
Finally Mr Mitchell alleged that Mr Cullen’s case had, since the verdict, and while the appeal was pending, been the subject matter of discussion in the press and on television. If Magill were now restrained from doing what other organs of public opinion had already done this, he alleged, would constitute *581 unfair discrimination and he referred to an argument which found some favour with the English Court of Appeal in The Attorney General v Times Newspapers [1973] QB 710. That was the Thalidomide case and the pending proceedings raised matters of public importance which had been discussed in Parliament and elsewhere. In these circumstances counsel for the Times Newspapers submitted that it was unfair of the Attorney General to move against the Times. In my view Times Newspapers case presents no fair analogy with the present case. For one thing the present case is a criminal case whereas that was a civil case. For another the moving party in the present case is not one of the great officers of State but a man who, having been convicted of murder, is appealing against his conviction. If his case has been discussed in the press or on television it has not I am sure, been of his choosing and is regrettable. He is entitled to have his case tried in accordance with law on the basis of the evidence adduced in court and not otherwise.
On this basis I will grant the injunction and will discuss with counsel the form it should take.
SUPREME COURT
O’HIGGINS CJ
delivered his judgment on 7 December 1983 saying: This is an appeal by the defendants in relation to an article which it is proposed to be published in Magill magazine and which deals in a particular way with the story of a lady who gave evidence in support of the prosecution of Mr Cullen for murder and malicious damage to property and which resulted in his conviction. It can be accepted that many of the views expressed by the writer of the article on behalf of this lady would be capable of defamatory assessment but this is by the way.
Mr Cullen seeks to restrain publication of the article on the basis of prejudice to the hearing of his appeal to the Court of Criminal Appeal. His grounds of appeal are five in number. [ The Chief Justice here set out the grounds of appeal which appear in the judgment of Barrington J, supra, and continued ]: Ground 1 raises important points of law, the other grounds being related to the particular circumstances of the case. Whatever the result of the appeal it seems highly improbable that there will be a new trial.
The basis for the application for the injunction which Mr Cullen has been granted is that the publication of the article would be prejudicial to the conduct of the appeal in that in one way or another the judges hearing the appeal would be biased in regard to the consideration of that appeal. I can see no basis for this suggestion. The Court of Criminal Appeal will be asked to consider pure questions of law relative to the appeal. It cannot be suggested that in considering such questions, publication of this or any number of articles in any number of periodicals would have the slightest effect on the objective consideration of legal arguments. It seems to me that such an argument is unsustainable.
That is not to say that one approves of the publication of this article. I think that better taste might indicate that articles of this kind should not be published during the currency of legal proceedings involving a citizen. There *582 is, however, the matter of the freedom of the press and of communication which is guaranteed by the Constitution and which cannot be lightly curtailed. Such can only be curtailed or restricted by the courts in the manner sought in these proceedings where such action is necessary for the administration of justice.
While I sympathise with the view that anybody reading the article might be affected by the article, that is not the issue. There is not any reason for suggesting prejudice or any form of contempt in relation to the hearing before the Court of Criminal Appeal.
For these reasons I think the appeal ought to be allowed and the order of the High Court discharged and set aside.
HEDERMAN J:
I agree. Two issues arise in relation to the relief to be granted, whether the matter is sub judice and whether the article it is proposed to be printed would prejudice the appeal. I am absolutely satisfied that there is no contempt of the Court of Criminal Appeal and that there would be no prejudice in relation to the hearing.
I wish to emphasise what the Chief Justice has said that this is not to say the court approves of the article or that the plaintiff could not take a course of action on the civil side if it is found to be defamatory.
McCARTHY J:
I agree with the judgment of the Chief Justice. This appears to be an instance of what is called cheque book journalism; to refuse the injunction sought is far from indicating any approval of the content of articles of this kind. Article 40.6 of the Constitution guarantees freedom of speech subject to certain qualifications or restrictions. The judgment of the Supreme Court in In re Kennedy and McCann [1976] IR 382, dealt with an instance of ‘a biased and inaccurate account of guardianship proceedings’ being published in a Sunday newspaper — a contempt of court by reason of its content and a further contempt by the breach of an order prohibiting publication. Such is not the case in the instant appeal.
The courts must be vigilant to protect the citizen who also has the right to be informed — to protect the citizen against any improper prejudice to the due trial of criminal proceedings either of first instance or on appeal. There is no suggestion that the publication of the impugned material would scandalise the Court of Criminal Appeal or undermine, in any sense, the administration of justice or bring it into disrepute. It was suggested that even in the determination of pure issues of law professional judges would, on reading the article, be prejudiced in their objective determination and assessment of the issues of law involved because of extraneous matters of fact referred to in the article. Such a suggestion fails in limine. From a public point of view it would be far worse that the public should think that the judiciary would lose its objectivity in determining a pure issue of law because of some article in a news magazine. My view that nihil obstat the publication is far from being an imprimatur .
Connolly v RTE
[1991] 2 IR 446
Carroll J.
29th July 1991
The plaintiff seeks an injunction to prevent R.T.E. from using film taken in December, 1990, on the Stillorgan dual carriageway at a garda checkpoint during the campaign at that time against drunken driving. It was first broadcast on the six o’clock news and used again a few days later. The portion she objects to shows her car stopped and a guard talking to her as the driver although she cannot be seen. This is intercut with another shot of a woman driver being breathalysed and a voiceover saying this woman was just below the limit. The film shot on that occasion was used twice during the year and the third and fourth time it was used the footage shows a driver handing out a breathalyser from the car followed by a shot of the plaintiff standing at the rear of her car talking to a guard.
The plaintiff didn’t see the transmission but was told about it by people who had seen she was on it. The plaintiff claims that the use of the shots of her on film intercut with breathalysing shots and the commentary about drunken driving is defamatory of her and she sought an undertaking from R.T.E. that they would not use the film again. R.T.E. replied that they have no intention at present of using the film but reserved the right to use it if they want to. The plaintiff is not identified on the film, her face does not appear and the registration number of her car does not appear. Also, since the film was shot at night it is relatively indistinct.
The defence of the case was on the ground that it is not defamatory and that the plaintiff is not identifiable. The argument for the plaintiff was based on the principle in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 namely, that if there is an issue to be tried, and damages are not an adequate remedy, the balance of convenience determines whether the injunction should issue. For R.T.E. it was argued that the decision in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 does not apply and that the established law in defamation cases is that injunctions that to restrain defamation are very rarely granted and never if the defendant claims justification as a defence.
It seems to me that there is no reason why both principles cannot be applied together. So that in considering the balance of convenience, the court must take into account the right to freedom of expression balanced against the plaintiff’s right to a good name and reputation in the light of the law on injunctive relief in defamation cases.
So, given that there is an issue to be tried and the fact that damages are not an adequate remedy for defamation, it comes down to the balance of convenience judged in the light of the case law. The plaintiff claims her reputation was injured and her constitutional right has been attacked, whereas R.T.E. claims there is no defamation and that an injunction would operate to impose a far-reaching restraint on the type of material which they could otherwise legitimately use.
In my opinion the balance of convenience is in favour of not granting the injunction. Despite the plaintiff’s fears, there is no immediate danger of using the footage and R.T.E. has promised to co-operate in bringing the matter to an early trial. It is preferable in the circumstances of this case that the alleged libel which is contested should be tried by a jury rather than that an injunction should issue.
Higgins -v- The Irish Aviation Authority
[2016] IECA 322
Mr. Justice Gerard Hogan delivered on the 4th day of November 2016
1. The Defamation Act 2009 (“the 2009 Act”) introduced many new, worthwhile and long overdue reforms of our law of defamation. The 2009 Act has furthermore re-stated in codified form many aspects of defamation law and practice that heretofore rested simply on case-law and judicial decision. In many of these respects the 2009 Act has helped to provide useful guidance in clarifying various aspects of the law.
2. The present appeal has, however, presented an important issue in respect of which the 2009 Act might well have been clearer. The question is this: where the defendant in a defamation action has made an offer of amends pursuant to s. 22 of the 2009 Act and this offer has been accepted, is the plaintiff nonetheless entitled to have his claim for damages pursuant to s. 23(1)(c) of the 2009 Act determined by a jury where the parties cannot otherwise agree on the appropriate figure?
3. The present claim for defamation arises from three emails sent by a member of the Irish Aviation Authority in June and July 2003. The plaintiff’s claim is entirely based on the contents of these three emails.
4. The plaintiff issued a plenary summons in April 2014 and a statement of claim was delivered in July 2014. On 25th May 2015 the Authority made an unqualified offer to make amends in accordance with s. 22 of the 2009 Act. This offer was accepted by the plaintiff by letter dated 22nd June 2015.
5. As the parties were, however, unable to agree on the terms of any such settlement and, specifically, the amount of damages payable, the plaintiff bought a motion for directions seeking to have a judge and jury determine the issue of damages in accordance with s. 23(1)(c) of the 2009 Act. The defendant maintained that, in the particular context of an offer of amends made pursuant to s. 22, the question of damages should be determined by a judge sitting alone.
6. In a reserved judgment delivered on 10th May 2016, Moriarty J. determined that the plaintiff was entitled to the quantum of damages determined by a jury: see Higgins v. Irish Aviation Authority [2016] IEHC 245. The Authority has now appealed to this Court against that determination.
7. The issue thus presented is at heart one of statutory interpretation – and, specifically, the meaning of the word “Court” as it appears in s. 23(1)(c) of the 2009 Act – and it will be necessary presently to examine the provisions of s. 22 and s. 23 of the 2009 Act in more detail.
The judgment of the High Court
8. In his judgment in the High Court Moriarty J. relied heavily on a recent decision of this Court in Lennon v. Health Service Executive [2015] IECA 92, [2015] 1 I.R. 92 in which, in a judgment delivered by me, the Court held that the common law right to opt for jury trial in defamation cases had been expressly preserved by s. 48 of the Supreme Court of Judicature (Ireland) Act 1877. The Court further noted that, so far as the High Court was concerned, this right had never been abrogated by the Oireachtas and it rejected the idea that the High Court had a discretionary jurisdiction to create exceptions to that right for case management or similar reasons.
9. It was against this background that Moriarty J. concluded that had the Oireachtas intended to dilute the right to jury trial in a case such as this it would have done so in clear language and not just simply obliquely:-
“…. it is clear in light of s. 14(3) [of the 2009 Act] that the Oireachtas assumed that all defamation actions heard in the High Court would be tried by a jury. That is the starting point for any consideration of this issue. It seems to me therefore that if the Oireachtas had intended to remove or dilute the right to jury trial ins. 23, it would have done so expressly. Instead, while the 2009 Act is closely modelled on the United Kingdom Defamation Act 1996, which expressly provides in s. 3(10) that the offer to make amends procedure is to be operated in the absence of a jury, no equivalent provision was included in the 2009 Act; it simply states that matters such as damages “shall be determined by the High Court.” This, it seems to me, confirms that the legislature did not intend to remove the right to jury trial in the context of s. 23. The court must assume that the framing of the sub-section as enacted was purposeful. Further, the rarely invoked but still operative rule of construction “inclusio unius est exclusio alterius” appears in point.
Accordingly, in light of the judgment of the Court of Appeal in Lennon, and in the absence of an express intention on the part of the legislature to abrogate the right to jury trial in s. 23(1)(c), I am satisfied that the plaintiff is entitled pursuant to that section to have his damages assessed by a jury, rather than by a judge sitting alone, should he wish to do so.”
10. The defendants have accordingly appealed to this Court against that decision.
No general definition of the word “court” is contained in the 2009 Act
11. The first thing to note is that the 2009 Act contains no general definition of the word “court”. Different meanings are ascribed to this word by the 2009 Act depending on the particular statutory context. Thus, for example, while s. 13(1) deals with appeals from “a decision of the High Court”, s. 13(2) provides that this term includes “a judgment entered pursuant to a verdict of the jury.”
12. Section 14 allows the courts to give rulings as to the meaning of certain words, s. 14(3) provides that any such application “shall be determined, in the case of a defamation action brought in the High Court, in the absence of the jury.”
13. Section 26 deals with the defence of fair and reasonable publication on a matter of public interest. Section 26(4) provides, however, that in this section, “court” is defined as meaning:
“…in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury.”
14. Section 31 and s. 32 deal with the award of damages and aggravated damages respectively. Both s. 31(8) and s. 32(3) provides that the “court” means the jury in the case of High Court defamation actions where the High Court is sitting with a jury.
15. The absence of any uniform definition of the terms “court” or “High Court” and the fact that these words are used by the 2009 Act in different senses in different contexts means that the determination of the meaning to be ascribed to these words as they are used in s. 23 will depend on the particular context and sense in which these words have been deployed.
Section 22 and section 23: offers of amends
16. Although s.17 of the Defamation Act 1961 provided for an offer of apology to be given as evidence in mitigation of damages and s. 21 of that Act also provided for a defence of unintentional defamation, ss. 22 and 23 of the 2009 Act contain a far more elaborate procedure allowing for offers of amends. In essence, s. 22 allows the defendant to make an offer of amends in writing and s. 22(5)(c) defines such an offer as including an offer:
“.. to pay to the person such sum in compensation or damages (if any) and such costs, as may be agreed by them or as may be determined to be payable…”
17. Section 23(1) then prescribes the procedure which is to be followed in the event that the offer to make amends under s. 22 is accepted. This sub-section provides:-
“(1) If an offer to make amends under section 22 is accepted the following provisions shall apply:-
(a) if the parties agree as to the measures that should be taken by the person who made the offer to ensure compliance by him or her with the terms of the offer, the High Court or, where a defamation action has already been brought, the court in which it was brought may, upon the application of the person to whom the offer was made, direct the party who made the offer to take those measures;
(b) if the parties do not so agree, the person who made the offer may, with the leave of the High Court or, where a defamation action has already been brought, the court in which it was brought, make a correction and apology by means of a statement before the court in such terms as may be approved by the court and give an undertaking as to the manner of their publication;
(c) if the parties do not agree as to the damages or costs that should be paid by the person who made the offer, those matters shall be determined by the High Court or, where a defamation action has already been brought, the court in which it was brought, and the court shall for those purposes have all such powers as it would have if it were determining damages or costs in a defamation action, and in making a determination under this paragraph it shall take into account the adequacy of any measures already taken to ensure compliance with the terms of the offer by the person who made the offer;
(d) no defamation action shall be brought or, if already brought, proceeded with against another person in respect of the statement to which the offer to make amends applies unless the court considers that in all the circumstances of the case it is just and proper to so do.”
Whether the reference to the High Court in s. 23(1)(c) of the 2009 Act can include a jury
18. The question, however, of whether s. 23(1)(c) embraces a jury determination of the amount of damages payable following an offer of amends has never previously been determined. In the one case to date where the amount of damages pursuant to s. 23(1)(c) fell to be determined, Christie v. TV3 Television Network Ltd. [2015] IEHC 694, O’Malley J. sat without a jury and her entitlement to do so was apparently not questioned. The matter is accordingly res integra so far as this court is concerned.
19. The starting point, however, is that, as the decision in Lennon makes clear, prior to the enactment of the 2009 Act a plaintiff had a complete statutory entitlement to have his claim for damages determined by a jury. This was so even where liability was conceded by the defendant and the issue was simply one of an assessment of damages only. In the light of the presumption against unclear changes in the law – a principle of statutory interpretation recently re-affirmed by the Supreme Court in Bederev v. Ireland [2016] IESC 34, [2016] 2 I.L.R.M. 340, 360 – 361 – the issue then becomes one of examining whether this pre-existing statutory right has been displaced – either expressly or by necessary implication – by the language of the 2009 Act.
20. Three principal arguments have been advanced to suggest that this pre-existing right has been either expressly or impliedly negatived by the language and structure of the 2009 Act in general and by s. 23 in particular. Counsel for the defendant, Mr. Quinn S.C., submitted that the reference in s. 23(1)(c) must be to a judge sitting alone. He pointed to the fact that the rest of the section assumed that the reference to the High Court in the section referred to the judge alone. Thus, for example, s. 23(1)(c) also embraced the determination of questions of costs by the “High Court”. But as the question of costs was a matter which was exclusively within the provenance of the trial judge, it was submitted that this provided strong textual support for the argument that the Oireachtas intended that both the determination of damages and costs under s. 23(1)(c) would be done by a judge alone.
21. Mr. Quinn S.C. also submitted that the offer of amends procedure introduced by ss. 22 and 23 was an entirely novel statutory procedure which was designed to encourage the swift resolution of defamation claims and to minimise costs where the defendant recognises a liability to the plaintiff and who wishes accordingly to make reparations. He contended that the Oireachtas never intended that the more complex superstructure of a defamation hearing associated with a jury trial should have to be deployed in a case of this nature. It was finally submitted that given that the provisions of s. 23(1)(c) were ambiguous, it was legitimate to have recourse to the provisions of s. 5 of the Interpretation Act 2005 (“the 2005 Act”).
22. Counsel for the plaintiff, Mr. Doyle S.C., submitted in contrast, however, that in the context of s. 23(1)(c), the reference to “the High Court” and “the court” means the jury, if the High Court is sitting with a jury. At the heart of his argument was that the contention that the assessment of damages by a jury – even in the context of an apology – was integral to a system of trial by jury in defamation cases. By analogy, therefore, with the reasoning of this Court in Lennon, it was submitted that if the Oireachtas had intended to exclude the jury from the determination of this question, clear words would have been required.
23. The issue presented is a difficult and troubling one, with no completely satisfactory or clear-cut answer. This is at least part of the reason why I have concluded that, on balance, the right to jury trial in respect of the s. 23(1)(c) damages issue has been preserved. I have arrived at that conclusion for the following reasons.
24. First, it is true that the offer of amends procedure provided for in s. 22 of the 2009 Act is new. I further agree that this new procedure is designed to encourage the parties to settle their disputes quickly and in a cost effective manner where the defendant is prepared to admit liability and to acknowledge that the plaintiff has been wronged. It is also appropriate to note that, as O’Malley J. explained in Christie, the defendant who makes the appropriate offer of amends is entitled to a substantial discount on the level of damages which might have been awarded had the matter gone to full trial in a contested case. In Christie – which was a mistaken identity case with serious implications for the plaintiff solicitor – O’Malley J. held that the offer of amends was not quite as comprehensive and fulsome as it might have been and that this was a factor which tended to reduce the level of discount which might otherwise have applied to the benefit of the defendant. It is thus possible to envisage other cases where the level of discount might have been greater had the offer of amends been prompt, enthusiastic, fulsome and comprehensive.
25. The real point, however, to emerge from Christie is that the other factors which influenced the level of the damages in respect of the s. 23(1)(c) award are to all intents and purposes the same as if the figure for damages were to have been determined by a jury in the conventional way following a hearing in which liability had been disputed. Indeed, O’Malley J. expressly stated that the factors enumerated by s. 31(4) which a jury was required to consider in assessing damages at a contested hearing also applied in the case of any assessment of damages under s. 23(1)(c). These factors included the nature and gravity of the publication; the extent of the publication; the extent on the reputation of the plaintiff and the making of any offer of amends.
26. All of this suggests that even if the procedure for making amends under s.22 is innovative and novel, it does not fundamentally alter the nature of the task of assessing damages under s. 23(1)(c). This task essentially remains the same which regularly confronts juries in contested defamation actions. The only new element is the level of discount of damages to be granted by reason of the timely and fulsome offer to make amends (if such there be). This, however, is a matter on which a jury functioning in the context of s. 23(1)(c) could readily be instructed.
27. One may thus conclude that the essential novelty of the s. 22 and s. 23 offer of amends procedure does not fundamentally alter the task confronting a jury called upon to assess damages in such cases. In other words, this is not a task which, in the nature of things, could only properly be performed by a judge. Quite the contrary, since s. 23(1)(c) engages a staple and traditional function of a jury in defamation cases (namely, the award of damages), it cannot be said that either the existence of this new procedure or, more specifically, the function which the Court is called upon to perform (namely, to award damages) implicitly displaces the Lennon presumption that a plaintiff is entitled to a jury trial.
28. The other argument strongly pressed by Mr. Quinn S.C. is that the context in which the relevant words (“….those matters shall be determined by the High Court…”) appear in s. 23(1)(c) is such that this could only refer to a judge sitting alone, since it is clear that the reference to “those matters” is to both costs and damages. As the question of costs was, of course, always a matter for the judge alone, this – it was argued – led inevitably to the conclusion that the reference to the High Court in the sub-section necessarily implied that the issue of the s. 23(1)(c) damages was also a matter for the judge alone.
29. What is in issue here is in fact an even more precise sub-rule of statutory interpretation, namely, the presumption that expressions used in a statute bear the same meaning throughout the statutory text. In The State (McGroddy) v. Carr [1975] I.R.275, 285-286 Henchy J. spoke of the “fundamental rule” of interpretation that:-
“…when expressions are repeated in the same instrument and more especially in a particular part of the same instrument, they should be given a common force and effect unless the context otherwise requires.”
30. It is clear that this principle is obviously engaged in the present case. Indeed, the other reference to the High Court in the remainder of the section is obviously to a judge sitting alone. Thus, for example, the power given to the High Court in s. 23(1)(a) to direct a party who made an offer of amends to take certain steps to comply with the terms of that offer is clearly to a judge sitting alone. The same may be said of the power given to the High Court by s. 23(1)(b) to grant leave to the person who made the offer of amends to make a correction and an apology “in such terms as may be approved by the court”. The reference to “the High Court” and to “the court” in these examples drawn from s. 23 is obviously to a judge sitting alone.
31. I cannot, however, agree that it necessarily follows that the reference to the High Court in s. 23(1)(c) insofar as it relates to the award of damages means that this must also be a reference to a High Court judge sitting alone without a jury. As Henchy J. recognised in McGroddy this rule or presumption regarding the uniformity of meaning must itself yield to the particular statutory context. For myself, I see no fundamental inconsistency in concluding that the reference to the High Court in one context (costs) must be to a judge sitting alone, while in another (the award of damages), it must refer to a judge sitting with a jury. I agree, of course, that it might have been better had the Oireachtas taken the opportunity to put the matter beyond doubt by the use of clear and express language in the section, including or excluding (as the case may be) the role of the jury.
32. Yet, as I have already indicated, the failure of the Oireachtas to do just this in this instance compels me to acknowledge that another key principle of statutory interpretation comes into play in this instance, namely, the presumption against unclear changes in the law. For good or for ill, the role of the jury in the award of damages in defamation cases is embedded in the fabric of the common law and that right was expressly preserved by s. 48 of the Supreme Court of Judicature (Ireland) Act 1877 and s. 94 of the Courts of Justice Act 1924. (It is true that the statutory reference in s. 48 of the 1877 Act is simply to the “right of any party to have questions of fact tried by a jury”, but this cannot realistically be understood as other than a reference to all the dimensions of jury trial simpliciter, including the power to award damages).
33. As I pointed out in Lennon, the right to jury trial in what would commonly have been described prior to the Judicature Act as nisi prius actions (i.e., typically, actions at common law heard by a judge and jury) has in practice subsequently been much abridged by statute, both before and after 1922. In every such case, however, the abridgment of that entitlement has been done in express terms. In the absence, therefore, of express statutory words – or, at least, something approaching this – excluding the role of the jury from one of its traditional functions in a jury trial, I find myself compelled to hold that the plaintiff has the right to an assessment of damages by a jury in cases coming within s. 23(1)(c) in the case of disagreement following an offer of amends.
34. Nor can I agree that recourse to the provisions of s. 5 of the 2005 Act mandates a different result. Section 5 of the 2005 Act provides that in construing any provision of an Act (other than a penal statute):-
“(a) That is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of:-
(i) in the case of an Act to which paragraph (a) of that definition relates,.the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”
35. I agree that s. 23(1)(c) of the 2009 Act comes within the definition of a provision that is ambiguous for the purposes of s. 5 of the 2005 Act. I do not accept, however, that it is open to this Court to arrive at a different construction of this statutory provision by reference to s. 5 of the 2005 Act. It may well be that, viewed purely subjectively, the Oireachtas intended to dispense with jury trial in cases coming within s. 23(1)(c) of the 2009 Act. If that was, indeed, the subjective belief of the members of the Oireachtas when enacting the 2009 Act, it presents the difficulty for this Court that such an intention – if it be such – cannot be plainly ascertained from the language of the Act as a whole in the manner required by s. 5 of the 2005 Act itself. The Court must, of course, focus on the words actually used by the Oireachtas to convey its intentions and not seek to construe legislation by reference to the subjective beliefs and understandings of the legislators: see Crilly v. T J. Farrington Ltd. [2001] IESC 60, [2001] 3 IR 267.
36. All of this is really to say that if the Oireachtas wished to abrogate the right to jury trial in respect of the assessment of damages in s. 23(1)(c), then, given the long standing and embedded nature of that right, clear statutory language would have been required for this purpose. It is only in that way that the intention of the Oireachtas to effect such a change – if that was indeed the intention – could have been plainly ascertained from the language of the 2009 Act as a whole. In the absence of such language, I find myself coerced to conclude that the plaintiff’s right to a jury for the purposes of assessing damages in cases coming within s. 23(1)(c) remains unaffected by the changes effected by the 2009 Act.
37. It is for all of these reasons that I would approve the reasoning and conclusions of the High Court, save with one caveat which has no bearing on the ultimate result of the case. I cannot, with respect, agree with Moriarty J. that one may properly contrast the terms of s. 23 of the 2009 Act with the broadly similar reforms brought about in the United Kingdom via the Defamation Act 1996. No proper inference can be drawn from the fact that the Oireachtas did (or did not) follow the guide originally provided by the UK Parliament when enacting the Defamation Act 1996. In this respect it would be difficult to improve upon the reasons given by McWilliam J. in Breathnach v. McC. [1984] I.R. 340, 246 where he rejected the argument that he could interpret Irish legislation by reference to UK legislative developments:
“Although I am aware of what Black J. once described as ‘the scissors and paste penchant of our Legislature’, I am of opinion that I am not entitled, nor should I make any attempt, to interpret a statute of the Oireachtas by reference to the report of an English Royal Commission which led to a similar English statute. I leave open the question of whether I would be entitled to consider a report by a similar Irish commission or not.”
38. In this respect I might also observe that the parties referred us in the course of the hearing to the Report of the Legal Advisory Group on Defamation (March 2003) whose report ultimately paved the way for the Defamation Act 2009. For my part, I did not find it necessary to have regard to the Report in the construction of the 2009 Act. Indeed, in the light of the Supreme Court’s decision in Crilly v. T. & J. Farrington Ltd. [2001] IESC 60, [2001] 3 IR 267, I would prefer to reserve my position as to whether this Court would be entitled to look at such pre-enactment legislative materials as an aid to the interpretation of legislation.
Conclusions
39. For these reasons, therefore, I have concluded that the decision of the High Court was correct and the plaintiff is entitled to a jury trial in respect of the assessment of damages under s. 23(1)(c) of the 2009 Act where the parties cannot agree on the sum payable following the acceptance of an offer of amends. I would accordingly dismiss the appeal.
McNamara -v- Sunday Newspapers Ltd & Anor
[2016] IECA 140JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 11TH DAY OF MAY 2016
1. This is an appeal against an order of Binchy J. dated 12th January 2016 granting judgment to the plaintiff in default of defence on foot of a motion issued on the 25th September 2015 pursuant to the provisions of O. 27 of the Rules of the Superior Courts. This was the second such motion issued by the plaintiff, the first having come before the High Court on 13th July 2015 when by consent it was struck out following an agreement between the parties that the time for delivery of defence be extended by three weeks, with costs of the motion to the plaintiff.
2. Order 27, r. 8 (1) of the Rules of the Superior Courts provides:
“8(1) In all other actions than those in the preceding rules of this Order mentioned, if a defendant being bound to deliver a defence, does not do so within the time allowed, the plaintiff may, subject to the provisions of rule 9, set down the action on motion for judgment; and on the hearing of the first such application the court may give to the plaintiff such judgement as upon the statement of claim it considers the plaintiff to be entitled to, or may make such other order on such terms as the court shall think just; and on the hearing of any subsequent application, the court shall give to the plaintiff such judgment as upon the statement of claim it considers the plaintiff to be entitled to, unless the court is satisfied that special circumstances (to be recited in the order) exist which explain and justify the failure and, where it is so satisfied, the court shall make an order:-
(a) extending the time for delivery of a defence,
(b) adjourning the motion for such period as is necessary to enable a defence to be delivered within the extended time, and on such adjourned hearing:-
(i) if the defence has been delivered within the extended time, the court shall allow the plaintiff the cost of and in relation to the motion at such sum as it may measure in respect thereof,
(ii) if a defence has not been delivered within the extended time the court shall give to the plaintiff such judgement as upon the statement of claim at considers the plaintiff to be entitled to.
(2) In the event of the court giving judgement to the plaintiff as aforesaid, any damages to which the plaintiff may be entitled shall be ascertained by the Judge with a jury, in case any party requires and is entitled to one, but otherwise without a jury, and, if without a jury, either by the Judge or by the Master or by the Examiner, as the Judge may direct, on evidence by affidavit or otherwise” [emphasis added]
3. It is worth drawing attention at this stage to the fact that under this rule, while the Court has an uncircumscribed discretion as to what order it may make on the first such motion, it is constrained on any subsequent such motion by the requirement that the Court shall grant judgment “unless the court is satisfied that special circumstances (to be recited in the order) exist which explain and justify the failure.”
4. When faced with a second such motion the onus is clearly on the defendant to identify some special circumstances which not only explain the delay in delivering the defence but also justify it. The special circumstance if established must be specified in any order which the Court might make. Absent such special circumstances the Court is required to grant the plaintiff’s application.
5. In these proceedings the plaintiff claims, inter alia, damages for defamation and certain related declarations arising from the publication in the Sunday World newspaper on the 21st December 2014 of certain statements and/or photographs. The details of that allegedly defamatory material do not matter for the purposes of the present appeal.
6. Having heard the plaintiff’s second motion for judgment at which both parties made submissions, Binchy J. was not satisfied that the defendants had established any special circumstances which explained and justified the delay. In fact, the defendants had not even filed an affidavit in response to the motion, and therefore did not adduce any evidence which might have enabled the Court to conclude that there were any special circumstances which might explain and justify the failure to deliver a defence.
7. Nonetheless, submissions made by counsel for the defendants referred to the fact that following the service of the second motion upon them, their solicitors had sent a letter to the plaintiff’s solicitor purporting to comprise “an offer to make amends” as provided for in s. 22 of the Defamation Act, 2009, and a copy of that letter was produced to the Court. The sending of this letter of offer to make amends, albeit after the second motion for judgment had been issued and served, was submitted to constitute a special circumstance which both explained and justified the delay in the delivery of a defence since under s.22 of the Act of 2009 any such offer may not be made after the delivery of a defence.
8. A chronology of events following the publication of the material complained of is informative, and is, I believe, uncontroversial. The article and photograph was published in the Sunday World on 21st December 2014. On the following day the plaintiff’s solicitors wrote to the newspaper pointing out the defamatory material and the serious damage done to the plaintiff’s reputation, and called for an admission of liability and an apology. On 4th January 2015, without having made any contact with the plaintiff or his solicitor, the defendants published what purported to be an apology. However, according to the plaintiff at least, this failed to match the prominence of the material complained of, and failed to mitigate the damage caused. These proceedings were commenced on 25th February 2015, and were served along with a statement of claim on 26th February 2015. The defendants entered their appearance on 9th March 2015. Prior to the issue by the plaintiff of his first motion seeking judgment in default of defence, the plaintiff’s solicitor wrote three warning letters on 30th March 2015, 30th April 2015 and on 25th May 2015 each warning that if a defence was not delivered within a time specified in each letter a motion would be issued. I should add that the final letter dated 25th May 2015, as required by the Rules, called for the defence to be delivered within 21 days of that letter, and consented to late delivery within that time. There was no response received to any of these letters. The plaintiff therefore issued his first motion for judgment on 30th June 2015, made returnable in the High Court on 13th July 2015.
9. Prior to that return date the defendants sought an extension of three weeks for the delivery of their defence, to which the plaintiff’s solicitor consented. An order was made by consent to this effect on the return date. While that order refers to a two week extension of time, the parties are agreed that the extension sought and consented to by the plaintiff was three weeks. Nothing turns on that clerical error in the order as drawn up and perfected, since in any event the defendants again failed to deliver a defence prior to 3rd August 2015 (i.e. 3 weeks from 13th July 2015).
10. On 25th August 2015 the plaintiff’s solicitor once again wrote to the defendant’s solicitor, to which a reply was sent the following day which having stated that the solicitor handling the matter was on leave went on to state:
“… we have reminded counsel to finalise the drafting of the Defence in this matter and we shall revert to you within fourteen days and in the circumstances would ask if you could hold off issuing any Motion until such time.”
11. Having once again heard nothing from the defendant’s solicitor within that fourteen days or at all, the plaintiff’s solicitor issued and served a second motion for judgment on the 25th September 2015 returnable in the High Court on 9th November 2015.
12. The next event was that the defendants’ solicitor wrote to the plaintiff’s solicitor by letter dated 30th October 2015. This letter made no reference to either the previous correspondence or the motion which by then had been served, and sought no agreement to a further extension of time for delivery of defence. It simply stated as follows:
“Dear Sir,
We act for Sunday Newspapers Limited in the above entitled action.
Our client hereby offers to make amends pursuant to Section 22 of the Defamation Act 2009 in respect of the article complained of in the Statement of Claim. In accordance with Section 22, our client offers:
(a) to make a suitable correction and a sufficient apology;
(b) to publish that correction and apology in such manner as is reasonable and practicable in the circumstances; and
(c) to pay such compensation or damages (if any), and such costs, as may be agreed or be determined to be payable.
We look forward to hearing your client’s response to our proposals so that we may seek to agree the above matters as soon as possible.
Yours faithfully etc.”
13. According to an affidavit filed by the defendant’s solicitor on this appeal, when the matter came before Mr Justice Gilligan on 9th November 2015 (the return date) the court indicated that if necessary it would fix a date to hear and determine the question as to whether the plaintiff must respond to an offer to make amends prior to the delivery of a defence but went on to indicate that it was desirable that the parties, if possible, could seek to resolve the matter between themselves. The motion was adjourned to another date for hearing. That affidavit went on to state that on foot of the court’s suggestion, the defendant’s solicitor wrote to the plaintiff’s solicitor on 10th November 2015 noting first of all that there had been no reply to the offer to make amends contained in their letter dated 30th October 2015, and that it was considered reasonable for the defendants to await that response prior to delivering a defence. The letter went on to indicate that a defence would be delivered immediately upon receipt of such response to the offer and conceded the costs of the motion.
14. One can note, as did the trial judge, that the letter of offer to make amends lacked any specifics and simply replicated the precise provisions of s. 22(2) of the Act of 2009. It is correct that the plaintiff’s solicitor had not responded to this letter by the time the defendant’s solicitor wrote the letter dated 10th November 2015 which was in the following terms:
“Dear Sir,
We refer to the above matter and to the plaintiff’s application for judgement in default of defence which is listed before Mr Justice Gilligan on Thursday, 12 November. In the interests of the expeditious resolution of the plaintiff’s claim, our client made an offer of amendments under section 22 of the Defamation Act 2009 by letter of 30 October 2015. We note that you have not replied to the defendant’s offer to make amends.
As you will be aware, section 22 (3) of the Defamation Act 2009 provides an offer to make amends under section 22 shall not be made after delivery of the defence. While a person who makes an offer is not required to plead as a defence (section 23 (4)), section 23 (2) provides that it shall be a defence to a defamation action for a person to prove that he or she made an offer to make amends under section 22 and that it was not accepted, unless the plaintiff proves the matters set out in that section. Where the offer to make amends is pleaded, a defendant is not entitled to plead any other defence (section 22 (5)). In the light of the foregoing, we believe it was and is reasonable for the defendant to await the plaintiff’s response to the offer to make amends before delivering a defence. Our client will deliver a defence immediately on receipt of your client’s response to the offer to make amends of 30th of October, 2015. We acknowledge that the offer to make amends was made subsequent to the plaintiff’s application having issued, and under the circumstances, our client will consent to your client receiving the costs of the motion with a stay on execution until the trial of the action.
We await hearing as soon as possible.
Yours faithfully etc”
15. On receipt of this letter the plaintiff’s solicitor replied on the same date as follows:
“Dear Sirs,
We refer to the above-mentioned matter and yours of today’s date and further to your counsel’s appearance in court yesterday, in response to our motion for judgement, and yours of 30th October, we note as follows:
Your letter of 30th rehearses the wording of section 22 (5) of the Defamation Act, 2009.
It would assist us in considering your letter (and specifically, whether our client will accept the same) were you to clarify your clients’ initial proposals as to what is being offered in this specific case. In other words,
(a) What correction is being proposed as being a ’suitable’ one in this case and/or what apology is being proposed as ‘sufficient’?
(b) What are the terms of publication which are being put forward as ‘reasonable and practicable’ in this case?
(c) What compensation is being suggested?
While it is understood that the foregoing matters will be a matter of discussion and/or negotiation between the parties (as contemplated by both section 22 and 23) it would be helpful (and in our contention, is necessary) for the offer to make amends to be in terms which are actually referable to the case and not simply a statement of the general terms contained in section 22.
You will appreciate that this enquiry is without prejudice to any argument which may arise by reason of the offer to make amends being delivered well outside any time period permitted for the defence of this action.
Yours faithfully etc.”
16. In response to that letter, the defendant’s solicitor wrote back on the same date, 10th November 2015, noting that the offer contained in the letter of offer to make amends dated 30th October 2015 was an offer within the meaning of and in compliance with s. 22 of the Act of 2009, and went on to state:
“If the offer to make amends is accepted, the matters that you refer to will either (a) the agreed or (b) will be approved or determined, as the case may be, by the Court.
Respectfully, it is for your client to either accept or not accept the offer to make amends.
Please note that Section 22 (3) refers to the delivery of the defence in the defamation action concerned and not to the time delimited by the Rules for the delivery of the defence.
We await hearing from you as soon as possible.
Yours faithfully etc”
17. The second motion ultimately came on for hearing before Mr. Justice Binchy. Written submissions were directed and were filed in advance of the hearing. Before I refer to his conclusions, it would be helpful to set forth the provisions of s. 22 and s. 23 of the Act of 2009. They are as follows:
“22(1) A person who has published a statement that is alleged to be defamatory of another person may make an offer to make amends.
(2) An offer to make amends shall:-
(a) be in writing,
(b) state that it is an offer to make amends for the purpose of this section, and
(c) state whether the offer is in respect of the entire of the statement or an offer (in this Act referred to as a “qualified offer”) in respect of:-
(i) part only of the statement, or
(ii) a particular defamatory meaning only.
(3) An offer to make amends shall not be made after the delivery of the defence in the defamation action concerned.
(4) An offer to make amends may be withdrawn before it is accepted and where such an offer is withdrawn a new offer to make amends may be made.
(5) In this section “an offer to make amends” means an offer:-
(a) to make a suitable correction of the statement concerned and a sufficient apology to the person to whom the statement refers or is alleged to refer,
(b) to publish that correction and apology in such manner as is reasonable and practicable in all the circumstances, and
(c) to pay to the person such sum in compensation of damages (if any), and such costs, as may be agreed by them or as may be determined to be payable, whether or not it is accompanied by any other offer to perform an act other than an act referred to in paragraph (a), (b) or (c).
“23(1) If an offer to make amends under section 22 is accepted the following provisions shall apply:-
(a) if the parties agree as to the measures that should be taken by the person who made the offer to ensure compliance by him or her with the terms of the offer, the High Court or, where a defamation action has already been brought, the court in which it was brought may, upon the application of the person to whom the offer was made, direct the party who made the offer to take those measures;
(b) if the parties do not so agree, the person who made the offer may, with the leave of the High Court or, where a defamation action has already been brought, the court in which it was brought, make a correction and apology by means of a statement before the court in such terms as may be approved by the court and give an undertaking as to the manner of their publications;
(c) if the parties do not agree as to the damages or costs that should be paid by the person who made the offer, those matters shall be determined by the High Court or, where a defamation action has already been brought, the court in which it was brought, and the court shall for those purposes are all such powers as it would have if it were determining damages or costs in a defamation action, and making a determination under this paragraph it shall take into account the adequacy of any measures already taken to ensure compliance with the terms of the offer by the person who made the offer;
(d) no defamation action shall be brought or, if already brought, proceeded with against another person in respect of the statement to which the offer to make amends applies unless the court considers that in all the circumstances of the case it is just and proper to so do.
(2) Subject to subsection (3), it shall be a defence to a defamation action for a person to prove that he or she made an offer to make amends under section 22 and that it was not accepted, unless that the plaintiff proves that the defendant knew or ought reasonably to have known at the time of the publication of the statement to which the offer relates that:-
(a) it referred to the plaintiff or was likely to be understood as referring to the plaintiff, and
(b) it was false and defamatory of the plaintiff.
(3) Where the defendant in a defamation action made a qualified offer only, subsection (2) shall apply in relation to that part only of the action that relates to the part of the statement or the meaning as the case may be, to which the qualified offer relates.
(4) A person makes an offer to make amends is not required to plead it as a defence in a defamation action.
(5) If the defendant in a defamation action pleads the defence under this section, he or she shall not be entitled to plead any other defence in the action, and if the defence is pleaded in respect of a qualified offer only he or she shall not be entitled to plead any other defence in respect of that part of the action that relates to the part of the statement or the meaning, as the case may be, to which the qualified offer relates.”
18. In his judgment, the trial judge noted that the defendants had filed no affidavit setting out any special circumstances to explain and justify the delay in delivery of the defence since the order on the first motion extending time by three weeks. He referred also to the defendants’ submission that there were in fact two special circumstances which explained and justified the delay – firstly, the fact that the offer to make amends had been neither accepted nor rejected by the plaintiff, and that the defendants had given an assurance that once the offer was either accepted or rejected a defence would be delivered immediately; and secondly, that the first relief sought by the plaintiff, namely a declaration that the statements and/or photograph complained about and published are false and untrue is a relief which may be given only by the Circuit Court as provided for in s. 28 of the Act of 2009, and accordingly that the proceedings are not maintainable in their present form. The trial judge noted also the defendants’ submission that by neither accepting nor refusing the offer of amends, the plaintiff was acting unreasonably, was manufacturing the default of which he complains, and engaging in an impermissible exercise of approbation and reprobation.
19. Having considered these submissions and relevant provisions of the Act of 2009, the trial judge concluded firstly that the fact that certain declaratory reliefs which the High Court could not grant had been included in the claim was not a special circumstance for the purpose of the rule. With that conclusion, I readily agree, and given its obvious lack of merit it is unnecessary to examine it further.
20. As to the second submission based on the plaintiff’s failure to have accepted or rejected the offer to make amends, and the contention that the plaintiff is contriving the defendants’ failure to deliver a defence in those circumstances since the offer to make amends may not be delivered after the delivery of defence, the trial judge stated “that might well be persuasive if that was an end of the matter, but in my view that is not so”. He went on to address the delay by the defendants. He noted that the defendants had purported to publish an apology within days of receiving the complaint from the plaintiff’s solicitors, and therefore, unlike many cases where some time would often be required in order to assemble materials, seek further particulars and take legal advice, these defendants were well aware from an early stage of all the relevant circumstances, and seemed to acknowledge that some error had been made by them in publishing the material. In such circumstances, the trial judge stated:
“… It is clear that from the very outset, the defendants were aware of the circumstances giving rise to these proceedings and of the fact that an error was made in the publication. Arising out of that realisation, the defendants published a correction just seven days later. It seems very likely therefore that in the particular circumstances of this case, the defendants had as much information as they needed to file a defence within the time prescribed by the rules and to formulate an offer of amends for the purposes of section 22 of the Act within the same period.”
21. Again, I agree with this conclusion. Indeed, in fairness to the defendants, they did not seek to say otherwise on this appeal even though it has been argued that time was needed to consider whether or not to make the offer of amends.
22. The trial judge then referred to the three unanswered letters which the plaintiff’s solicitor had written ahead of the first motion for judgment, the consent to an extension of time for delivery of defence which had been given on that motion, the failure to deliver the defence within the time agreed, the further warning letter in August 2015, the second motion that issued towards the end of the September 2015 returnable for the 9th November 2015, and the eventual letter of offer to make amends received on the 10th November 2015.
23. Having considered this chain of events and the delay, the trial judge expressed his conclusions as follows:
“26. No explanation at all has been given to the Court as to why it took the defendants so long to issue the letter of offer to make amends. That being the case, the Court can only infer that there is no explanation for the delay in doing so. The defendants now plead that the plaintiff was preventing them from filing the defence because he has yet to say whether or not he is prepared to accept the offer to make amends. It is certainly arguable, having regard to section 23 of the Act that the fact that a defendant is waiting to hear from the plaintiff as to whether or not an offer to make amends made by the defendant will be accepted by the plaintiff, constitutes a special circumstance for the purposes of Order 27, rule 8 (1) of the Rules of the Superior Courts. However, in considering this question, regard must be had to the conduct of the defendant to date in the proceedings.
27. There can be no doubt at all that the offer to make amends made on the 30th October, 2015 could have been made much earlier, and most probably could have been made within the time for the filing of a defence as prescribed by Order 21, rule 1 and certainly in advance of the issue of the first motion for judgement on 30th June, 2015, not least because the defendants have chosen to make an offer to make amends in principle and not in terms. Instead, the defendants sat on their hands and chose not to make the offer until a month after the issue of the second motion for judgement. The reason for the delay therefore cannot possibly be said to be the failure of the plaintiff to respond to the letter of amends, but rather is the dilatoriness on the part of the defendants in making the offer of amends. That could not be said to be a special circumstance for the purposes of Order 27, rule 8 (1) and accordingly I will grant judgement in favour of the plaintiff and direct that damages be assessed in due course by a judge and jury.”
24. On this appeal, Counsel for the appellants has raised three issues, one of which was not pressed, and in my view rightly so. It is the fact that the warning letter written on the 25th August 2015 threatening a second motion failed to indicate a 21 day period within which the defence should be delivered if a motion was not to follow. In that regard, O. 27, r. 9 of the Rules of the Superior Courts provides that no such motion shall be issued unless such a 21 day letter has been issued, and makes no distinction between a first, second or indeed further motion in this regard. However, as pointed out by Counsel for the respondent, the reality is that following that letter dated 25th August 2015, the defendant’s solicitor wrote on the following day stating that the solicitor handling the matter was on leave, but that counsel had been reminded about the matter, and indicated that they would reply further in 14 days time, and asked that no motion should issue in the meantime. Not only did the plaintiff’s solicitor not issue the second motion within that requested period, but in fact desisted from doing so until 25th September 2015 having heard nothing further at all. For that reason alone, it was not perhaps the defendants’ best point, but there is another reason why it was always a hopeless point on this appeal – namely that it was not raised at all in the court below. I express no view on a submission made by counsel for the respondents that in any event the failure to send a correctly worded letter may be overlooked by the court under the provisions of O. 124 of the Rules of the Superior Courts. He may well be correct, but I make no finding in that regard given the other reason for rejecting the submission made.
25. Another ground argued by the defendants was that the decision to grant judgment in default of defence in the circumstances of this case demonstrates a misunderstanding and misapplication by the trial judge of the purpose of the rules relating to motions for judgment in default of defence, namely, according to counsel, to ensure that proceedings move along at a reasonable pace, and that defendants are not shut out from defending the proceedings by an overly strict or technical application of the rules of court. In support of that argument counsel urges this court to consider the degree of the prejudice that the defendants will suffer by reason of the order made. He submits firstly that there is prejudice from the fact that damages will be now assessed by a jury and not by a judge alone as would otherwise be the case; and secondly that at the hearing before the jury for the assessment of damages the defendants will have no opportunity to put forward any defence to the claim for damages or challenge the plaintiff’s evidence. Again, this argument appears not to have been made in the court below. There is no reference to it in the trial judge’s judgment at any rate. But even if I overlook that difficulty and deal with the ground on its merits, I cannot overlook that this prejudice, if it be such at all, is one entirely of the defendants’ own making. It was within the defendants’ own control to ensure that the plaintiff’s case would be heard before a judge alone. They lost that control, or at least ceded it to the plaintiff by their dilatoriness in the delivery of their defence, and/or their dilatoriness in making a decision that they would avail of the mechanisms provided for in s. 22 of the Act of 2009.
26. In my view this consequence cannot be considered to outweigh the requirement that the defendants must, like any party to litigation, pursue their defence of this litigation with diligence, efficiency and reasonable expedition in accordance with the rules of court which are devised with that worthy objective in mind. In my view the trial judge did not misapply the rule on the facts of this case. I accept, of course, that the rules exist so that proceedings move along at a reasonable pace, and that an inflexible approach or an insistence upon strict compliance with a rule which, for example, delimits the time for the taking of a step in the proceedings, would fail to acknowledge the existence within the rules themselves of a discretion to extend time in appropriate cases. But the present case is governed by a particular rule where that discretion is circumscribed in the manner described, and the defendants have failed to bring themselves within the rule, and therefore have themselves excluded themselves from the availability of the discretion permitted within O.27, r. 8 of the Rules of the Superior Courts.
27. It has been argued that the plaintiff has caused the defendants to be prejudiced in this matter because he neither accepted nor rejected the offer of amends contained in the letter dated 10th November 2015. It is argued in this regard that the prejudice arises in circumstances where, if the offer had been rejected by the plaintiff, it would constitute a full defence unless the plaintiff could prove malice. It is further submitted that if on the other hand the plaintiff had accepted the offer to make amends, matters would have proceeded differently as provided for in the Act. But again, it has to be emphasised that these are consequences which the defendants have brought upon themselves. The plaintiff is in no way to blame for the circumstances in which the defendants found themselves before the High Court. The letter of amends was received on the day after the first return date for the second motion. It was never even hinted as a possibility following the service of the proceedings and the statement of claim as far back as February 2015. All correspondence from the plaintiff’s solicitor was completely ignored. It ill behoves the defendants in my view to seek to cast blame upon the plaintiff for the predicament in which they now find themselves.
28. There has been no explanation for the delay, or even the failure to answer the plaintiff’s solicitor’s letters. No affidavit whatsoever was filed in answer to the plaintiff’s second motion in the High Court. While an affidavit has been filed in this Court for the purpose of this appeal, there is no explanation within it which even approaches an acceptable explanation for what occurred, let alone justifies it. In reality there is no explanation in circumstances where it has to be accepted that from the very outset the defendants accepted that a mistake had been made, and published an apology in a very timely manner. As it happens, the plaintiff did not consider this apology to be adequate, but that is not the point for present purposes. The point is that they knew back in February 2015 everything they needed to know in order to make a timely decision whether or not to avail of s. 22 of the Act of 2009.
29. It has been submitted by the defendants that in fact s. 22 is silent as to the time within which the offer of amends must be made, except that it must be made prior to the delivery of defence. The defendants say that they have complied with the section, and that this constitutes a special circumstance for the purpose of the rule, and that it was reasonable therefore that an opportunity be given for a response to be received to that offer before delivering a defence. I agree with the trial judge’s conclusion that in many cases where a timely offer to make amends is made, it will be reasonable to delay the delivery of a defence until such time as the plaintiff has indicated a response to that offer. Each such case will have to be considered on its own facts. But in the present case, the letter of offer to make amends came very late in the day. In those circumstances, it cannot be considered to be a special circumstance, as it might be in another case where that delay did not occur. The defendants cannot call in aid their own default as a special circumstance.
30. I would add that I am not to be taken as expressing any view on the adequacy or validity or otherwise of the letter of offer to make amends in this case. The plaintiff has made the point that it is simply formulaic and follows precisely the words of the section, but contains no substance to which the plaintiff might give his consideration as to whether to accept or reject same. That question must await another case in which the question arises more directly.
31. For all these reasons I would dismiss this appeal.
McNamara -v- Sunday Newspapers Ltd
[2016] IEHC 4
JUDGMENT of Mr. Justice Binchy delivered on the 12th day of January, 2016.
1. This is an appli
cation of the plaintiff for judgment in default of defence. It is the second such application of the plaintiff, the first having been issued by way of notice of motion dated 30th June, 2015 which resulted in a order (by consent) of Gilligan J. on 13th July, 2015, whereby the time for delivery of the defence was extended for a period of two weeks.
Background
2. In the proceedings, the plaintiff claims damages for defamation of character arising out of an article published by the defendants on 21st December, 2014. The plaintiff also claims other reliefs, including “a declaration that the statements and/or photograph made about the plaintiff and published by the defendants and/or each of them in the Sunday World on 21st December, 2014, were false and untrue”.
3. Following upon the publication of the article, the defendants published a correction on 28th December, 2014, which the plaintiff claims was not of the same size or prominence as the original article and which, by reason of its lack of clarity and detail, and the fact that it was published during the holiday period between Christmas and New Year, did nothing (the plaintiff claims) to alleviate the damage caused to the plaintiff. Proceedings were issued on 25th February, 2015 and a statement of claim was delivered on the same date.
4. The plaintiff’s solicitor sent warning letters regarding to the delivery of a defence to the solicitors for the defendants on 30th March, 2015, 30th April, 2015 and 25th May, 2015. Each of those letters set out a period within which the defence should be received, failing which, each letter says a notice of motion for judgment in default of defence would issue; a different period was specified in each case – fourteen days in the letter of 30th March, seven days in the letter of 30th April and twenty-one days (being the normal period required to be specified in a letter prior to the issue of a notice of motion for judgment in default of defence) in the letter of 25th May, 2015. Since no defence was received, a motion for judgment was issued and made returnable for 13th July, 2015 and a consent order as described above was made on that date.
5. No defence was delivered as agreed by the defendants within the time specified by the order of Mr. Justice Gilligan. A further warning letter issued on 25th August, 2015 informing the solicitors for the defendant that since the defendant was in default of the order of 13th July, 2015, they intended to issue a further motion seeking judgment in default of defence. The solicitors for the defendant replied on 26th August, 2015 stating that “we have reminded our counsel to finalise the drafting of the defence in this matter and we shall revert to you within fourteen days and in the circumstances would ask if you could hold off issuing any motion to such time”. Nothing further occurred until the solicitors for the plaintiff issued a second motion for judgment in default of defence and served the same on 28th September, 2015, returnable for 9th November, 2015.
6. On 30th October, 2015, the solicitors for the defendants sent to the solicitors for the plaintiffs a letter of offer of amends for the purposes of section 22 of the Defamation Act 2009. This letter stated:-
“In accordance with section 22, our client offers:-
(a) To make a suitable correction and a sufficient apology;
(b) To publish that correction and apology in such manner as is reasonable and practicable in the circumstances; and
(c) To pay such compensation or damages (if any), and such costs, as may be agreed or be determined to be payable.”
7. It is clear that this letter of 30th October, 2015 was a letter in principle, and not in terms insofar as no specific offer is made and instead the offer is made verbatim in the terms of section 22(2) of the Defamation Act, 2009.
8. By letter of 10th November, 2015, the solicitors for the defendants wrote to the solicitors for the plaintiff in the following terms:-
“Dear Sir,
We refer to the above matter and to the plaintiff’s application for judgment in default of defence which is listed before Mr. Justice Gilligan on Thursday, 12th November.
In the interests of the expeditious resolution of the plaintiff’s claim, our client made an offer of amends under section 22 of the Defamation Act 2009 by letter of 30th October, 2015. We note that you have not replied to the defendant’s offer to make amends.
As you will be aware, section 22(3) of the Defamation Act 2009 provides that an offer to make amends under section 22 shall not be made after the delivery of the defence. While a person who makes an offer is not required to plead it as a defence (section 23(4)), section 23(2) provides that it shall be a defence to a defamation action for a person to prove that he or she made an offer to make amends under section 22 and that it was not accepted, unless the plaintiff proves the matters set out in that section. Where the offer to make amends is pleaded, a defendant is not entitled to plead any other defence (section 22(5)).
In light of the foregoing, we believe it was and is reasonable for the defendant to await the plaintiff’s response to the offer to make amends before delivering a defence. Our client will deliver a defence immediately on receipt of your client’s response to the offer to make amends of 30th October, 2015. We acknowledge that the offer to make amends was made subsequent to the plaintiff’s application having issued, and under the circumstances, our client will consent to your client receiving the costs of the motion with a stay on execution until the trial of the action.
We await hearing as soon as possible.
Yours faithfully,”
9. The solicitors for the plaintiff replied to the letter of the solicitors for the defendant of 10th November on the same date. Noting that the letter of offer of amends is made in the terms of the precise wording of section 22(5) of the 2009 Act. They asked for particulars of the precise proposals on offer as follows:-
“(a) What correction is being proposed as being a “suitable” one in this case and/or what apology is being proposed as “sufficient”?
(b) What are the terms of publication which are being put forward as “reasonable and practicable” in this case?
(c) What compensation is being suggested?”
10. The solicitors for the defendant replied, again on 10th November, 2015 stating that if the offer to make amends is accepted, the matters referred to in the letter of the solicitors for the plaintiff will either be agreed, or will be approved or determined, as the case may be, by the Court. They stated that (in the first instance) it is for the plaintiff either to accept or not to accept the offer to make amends.
Submissions of Counsel
11. Counsel for the plaintiff relies on Order 27 rule 8 of the Rules of the Superior Courts, as amended by S163 of the Act of 2004, which, after dealing with a first motion for judgment in default of defence, goes on to state:-
“and on the hearing of any subsequent application, the Court shall give to the plaintiff such judgment as upon the statement of claim it considers the plaintiff to be entitled to, unless the Court is satisfied that special circumstances (to be recited in the order) exist which explain and justify the failure and, where it is so satisfied, the Court shall make an order –
(a) Extending the time for delivery of a defence;
(b) adjourning the motion for such period as is necessary to enable a defence to be delivered within the extended time ….”
12. Counsel for the plaintiff argues that no replying affidavit was filed by the defendant in response to the motion for judgment to explain, much less advance special circumstances, to justify the failure to file a defence in the months between March and July, 2015. Furthermore, it is argued that no effort was made by the defendant to explain why the order of this Court made on 15th July was disregarded, or to explain why the solicitors for the defendants in their letter to the solicitors for the plaintiff of 26th August, 2015, indicated that they were reminding counsel to finalise the drafting of the defence. Accordingly, it is submitted on behalf of the plaintiff, that he is entitled to judgment in view of the mandatory nature of the relevant part of Order 27, rule 8(1).
13. The plaintiff denies that the letter of an offer to make amends issued by the solicitor for the defendants is a conciliatory offer, as is contended on behalf of the defendants. It is argued on behalf of the plaintiff that the delivery of the letter of offer of amends is an attempt to obtain a procedural advantage over the plaintiff. This is because if the plaintiff elects to accept the letter of offer to make amends, and agreement cannot be reached upon the terms of the amends, then the quantum of damages payable to the plaintiff will be determined by a Court rather than by a jury. Secondly, if the offer is declined, the plaintiff must then prove malice on the part of the defendant in making the publication, which is clearly a higher standard of proof than would otherwise apply.
Submissions on behalf of the Defendants
14. While it is correct to say that the defendants did not file any affidavit in response to this application, it is submitted on behalf of the defendants that there are two special circumstances which explain and justify the failure of the defendants to deliver a defence:-
1. The plaintiff has not accepted or rejected the offer to make amends made on behalf of the defendants. Since the plaintiff has been informed that a defence will be delivered immediately when he accepts or rejects the offer, and the plaintiff declines to do either, and instead seeks judgment in default. The defendants submit that the plaintiff is acting unreasonably and manufacturing the default of which he complains.
2. The first relief claimed by the plaintiff in both the plenary summons and statement of claim is a declaration that “the statements and/or photograph made about the plaintiff and published by the defendants… were false and untrue.” It is submitted that a declaratory order of this kind cannot be made by this Court because that jurisdiction is expressly conferred upon the Circuit Court only pursuant to section 28 of the Act. That being the case, it is argued that the proceedings are not maintainable by the plaintiff in their present form and that this is a special circumstance which explains and justifies the defendants’ failure to deliver a defence.
15. It is further argued on behalf of the defendants that, having conceded the costs of the motion (because the offer to make amends was made after the issue of the motion for judgment) that the plaintiff is contesting the entitlement of the defendants to deliver a defence at all, while at the same time reserving unto himself, by declining to accept or reject the offer to make amends, the option of conciliation. It is further submitted that, while there is no specific period set out in the Act, within which an offer to make amends must be accepted or rejected, it must be accepted or rejected within a reasonable time. Counsel relied in this regard on the English authority of Tesco Stores Ltd. v. Guardian News and Media Ltd. & Alan Rusbridger [2009] EMLR 5.
16. Counsel for the defendant further submits that the plaintiff is not entitled to “approbate and reprobate”. He relies on the decision of Henchy J. in Corrigan v. Irish Land Commission [1977] 1 I.R. 317 in support of the proposition that the plaintiff cannot have it both ways, which, applied in this case, means that the plaintiff cannot seek judgment in default of defence while preserving the option of accepting or rejecting a statutory offer of conciliation and amends.
Decision
17. I have already set out above the terms of section 22(2) of the Act. Of relevance also, in the context of this application, is section 22(3) of the Act which states:-
“(3) An offer to make amends shall not be made after the delivery of the defence in the defamation action concerned.
(4) An offer to make amends may be withdrawn before it is accepted and where an offer is withdrawn a new offer to make amends may be made.”
18. For the purposes of this application, the following subsections of section 23 are of some relevance:-
“(2) Subject to subsection (3), it shall be a defence to a defamation action for a person to prove that he or she made an offer to make amends under section 22 and that it was not accepted, unless the plaintiff proves that the defendant knew or ought reasonably to have known at the time of the publication of the statement to which the offer relates that –
(a) it referred to the plaintiff or was likely to be understood as referring to the plaintiff, and
(b) it was false and defamatory of the plaintiff.”
[In other words a plaintiff must in those circumstances prove malice on the part of the defendant.]
“(4) A person who makes an offer to make amends is not required to plead it as a defence in a defamation action.
(5) If a defendant in a defamation action pleads the defence under this section, he or she shall not be entitled to plead any other defence in the action, and if the defence is pleaded in respect of a qualified offer only he or she shall not be entitled to plead any other defence in respect of that part of the action that relates to the part of the statement or the meaning, as the case may be, to which the qualified offer relates.”
19. It is apparent from the above that the acceptance or rejection of an offer to make amends has a bearing upon the defence that will be filed by a defendant in the event that the offer is rejected.
20. However, it is also clear that a defendant is obliged to make an offer to make amends before filing his or her defence. In the ordinary course of events, it seems to me that it is not unreasonable for a defendant to insist upon a reply to the offer to make amends before being required to deliver his or her defence. For the purpose of this application, I do not consider it necessary to determine whether or not a plaintiff is entitled to any more detail than is contained in an offer in principle before making a decision in this regard.
21. The defendants, by way of submissions, invite the Court to consider two matters as constituting a special circumstance for the purposes of Order 27, rule 8. The first of these is that one of the reliefs claimed is not a relief which can be obtained in this Court. Insofar as the other reliefs claimed by the plaintiff in the proceedings are clearly reliefs that the plaintiff may obtain from this Court, I do not believe that this could possibly constitute a special circumstance for the purpose of the rule, and in any event it is a matter which can be addressed in the defence itself.
22. The second special circumstance alleged by the defendants is the failure by the plaintiff either to accept or reject the offer to make amends. As stated above, the defendants argue that it is the plaintiff himself who is putting the defendants in default, by failing to do so, and on that basis it is argued that the plaintiff cannot “approbate and reprobate”. That might well be persuasive if that was the end of the matter, but in my view that is not so.
23. Order 21, rule 1, of the Rules of the Superior Courts requires a defendant to deliver a defence within twenty-eight days from delivery of the statement of claim. In this case, that period would have expired on 25th March, 2015. Of course, it goes without saying that in very many cases the defence is not delivered within that time. In such cases, this can be due to unnecessary delay on the part of a defendant, or his legal advisors, in attending to the matter, but more often than not the failure to deliver a defence within the time prescribed by the rules is a reflection of the time that is necessarily required for a defendant to assemble the materials needed to consider the claim against him, to consult with his lawyers, seek further particulars of the claim etc. None of that arises in this case however, because it is clear that from the very outset, the defendants were aware of the circumstances giving rise to these proceedings and of the fact that an error was made in the publication. Arising out of that realisation, the defendants published a correction just seven days later. It seems very likely therefore that in the particular circumstances of this case, the defendants had as much information as they needed to file a defence within the time prescribed by the rules and to formulate an offer of amends for the purposes of section 22 of the Act within the same period.
24. The defendants’ solicitors received three letters of warning in March, April and May 2015, before the solicitors for the plaintiff finally issued the first motion for judgment in default of defence on 30th June, 2015 and the defendants consented to an order extending the time for delivery of the defence within a further period of fourteen days.
25. The defendant having failed to deliver a defence, a further warning letter was sent by the solicitors for the plaintiff to the solicitors for the defendants on 26th August, 2015 and the second motion for judgment did not issue until 28th September, 2015. Eventually, the solicitors for the defendants issued the letter of offer of amends, another month later, on 30th October, 2015.
26. No explanation at all has been given to the Court as to why it took the defendants so long to issue the letter of offer to make amends. That being the case, the Court can only infer that there is no explanation for the delay in doing so. The defendants now plead that the plaintiff is preventing them from filing their defence because he has yet to say whether or not he is prepared to accept the offer to make amends. It is certainly arguable, having regard to section 23 of the Act, that the fact that a defendant is waiting to hear from a plaintiff as to whether or not an offer to make amends made by the defendant, will be accepted by the plaintiff, constitutes a special circumstance for the purposes of Order 27, rule 8(1) of the Rules of the Superior Courts. However, in considering this question, regard must be had to the conduct of the defendant to date in the proceedings.
27. There can be no doubt at all that the offer to make amends made on 30th October, 2015 could have been made much earlier, and most probably could have been made within the time for the filing of a defence as prescribed by Order 21, rule 1 and certainly in advance of the issue of the first motion for judgment on 30th June, 2015, not least because the defendants have chosen to make an offer to make amends in principle and not in terms. Instead, the defendants sat on their hands and chose not to make the offer until a month after the issue of the second motion for judgment. The reason for the delay therefore cannot possibly be said to be the failure of the plaintiff to respond to the letter of amends, but rather is the dilatoriness on the part of the defendants in making the offer of amends. That could not be said to be a special circumstance for the purposes of Order 27, rule 8(1) and accordingly I will grant judgment in favour of the plaintiff and direct that damages be assessed in due course by a judge and jury.
Higgins v Irish Aviation Authority
[2016] IECA 322 JUDGMENT of Mr. Justice Gerard Hogan delivered on the 4th day of November 2016
1. The Defamation Act 2009 (“the 2009 Act”) introduced many new, worthwhile and long overdue reforms of our law of defamation. The 2009 Act has furthermore re-stated in codified form many aspects of defamation law and practice that heretofore rested simply on case-law and judicial decision. In many of these respects the 2009 Act has helped to provide useful guidance in clarifying various aspects of the law.
2. The present appeal has, however, presented an important issue in respect of which the 2009 Act might well have been clearer. The question is this: where the defendant in a defamation action has made an offer of amends pursuant to s. 22 of the 2009 Act and this offer has been accepted, is the plaintiff nonetheless entitled to have his claim for damages pursuant to s. 23(1)(c) of the 2009 Act determined by a jury where the parties cannot otherwise agree on the appropriate figure?
3. The present claim for defamation arises from three emails sent by a member of the Irish Aviation Authority in June and July 2003. The plaintiff’s claim is entirely based on the contents of these three emails.
4. The plaintiff issued a plenary summons in April 2014 and a statement of claim was delivered in July 2014. On 25th May 2015 the Authority made an unqualified offer to make amends in accordance with s. 22 of the 2009 Act. This offer was accepted by the plaintiff by letter dated 22nd June 2015.
5. As the parties were, however, unable to agree on the terms of any such settlement and, specifically, the amount of damages payable, the plaintiff bought a motion for directions seeking to have a judge and jury determine the issue of damages in accordance with s. 23(1)(c) of the 2009 Act. The defendant maintained that, in the particular context of an offer of amends made pursuant to s. 22, the question of damages should be determined by a judge sitting alone.
6. In a reserved judgment delivered on 10th May 2016, Moriarty J. determined that the plaintiff was entitled to the quantum of damages determined by a jury: see Higgins v. Irish Aviation Authority [2016] IEHC 245. The Authority has now appealed to this Court against that determination.
7. The issue thus presented is at heart one of statutory interpretation – and, specifically, the meaning of the word “Court” as it appears in s. 23(1)(c) of the 2009 Act – and it will be necessary presently to examine the provisions of s. 22 and s. 23 of the 2009 Act in more detail.
The judgment of the High Court
8. In his judgment in the High Court Moriarty J. relied heavily on a recent decision of this Court in Lennon v. Health Service Executive [2015] IECA 92, [2015] 1 I.R. 92 in which, in a judgment delivered by me, the Court held that the common law right to opt for jury trial in defamation cases had been expressly preserved by s. 48 of the Supreme Court of Judicature (Ireland) Act 1877. The Court further noted that, so far as the High Court was concerned, this right had never been abrogated by the Oireachtas and it rejected the idea that the High Court had a discretionary jurisdiction to create exceptions to that right for case management or similar reasons.
9. It was against this background that Moriarty J. concluded that had the Oireachtas intended to dilute the right to jury trial in a case such as this it would have done so in clear language and not just simply obliquely:-
“…. it is clear in light of s. 14(3) [of the 2009 Act] that the Oireachtas assumed that all defamation actions heard in the High Court would be tried by a jury. That is the starting point for any consideration of this issue. It seems to me therefore that if the Oireachtas had intended to remove or dilute the right to jury trial ins. 23, it would have done so expressly. Instead, while the 2009 Act is closely modelled on the United Kingdom Defamation Act 1996, which expressly provides in s. 3(10) that the offer to make amends procedure is to be operated in the absence of a jury, no equivalent provision was included in the 2009 Act; it simply states that matters such as damages “shall be determined by the High Court.” This, it seems to me, confirms that the legislature did not intend to remove the right to jury trial in the context of s. 23. The court must assume that the framing of the sub-section as enacted was purposeful. Further, the rarely invoked but still operative rule of construction “inclusio unius est exclusio alterius” appears in point.
Accordingly, in light of the judgment of the Court of Appeal in Lennon, and in the absence of an express intention on the part of the legislature to abrogate the right to jury trial in s. 23(1)(c), I am satisfied that the plaintiff is entitled pursuant to that section to have his damages assessed by a jury, rather than by a judge sitting alone, should he wish to do so.”
10. The defendants have accordingly appealed to this Court against that decision.
No general definition of the word “court” is contained in the 2009 Act
11. The first thing to note is that the 2009 Act contains no general definition of the word “court”. Different meanings are ascribed to this word by the 2009 Act depending on the particular statutory context. Thus, for example, while s. 13(1) deals with appeals from “a decision of the High Court”, s. 13(2) provides that this term includes “a judgment entered pursuant to a verdict of the jury.”
12. Section 14 allows the courts to give rulings as to the meaning of certain words, s. 14(3) provides that any such application “shall be determined, in the case of a defamation action brought in the High Court, in the absence of the jury.”
13. Section 26 deals with the defence of fair and reasonable publication on a matter of public interest. Section 26(4) provides, however, that in this section, “court” is defined as meaning:
“…in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury.”
14. Section 31 and s. 32 deal with the award of damages and aggravated damages respectively. Both s. 31(8) and s. 32(3) provides that the “court” means the jury in the case of High Court defamation actions where the High Court is sitting with a jury.
15. The absence of any uniform definition of the terms “court” or “High Court” and the fact that these words are used by the 2009 Act in different senses in different contexts means that the determination of the meaning to be ascribed to these words as they are used in s. 23 will depend on the particular context and sense in which these words have been deployed.
Section 22 and section 23: offers of amends
16. Although s.17 of the Defamation Act 1961 provided for an offer of apology to be given as evidence in mitigation of damages and s. 21 of that Act also provided for a defence of unintentional defamation, ss. 22 and 23 of the 2009 Act contain a far more elaborate procedure allowing for offers of amends. In essence, s. 22 allows the defendant to make an offer of amends in writing and s. 22(5)(c) defines such an offer as including an offer:
“.. to pay to the person such sum in compensation or damages (if any) and such costs, as may be agreed by them or as may be determined to be payable…”
17. Section 23(1) then prescribes the procedure which is to be followed in the event that the offer to make amends under s. 22 is accepted. This sub-section provides:-
“(1) If an offer to make amends under section 22 is accepted the following provisions shall apply:-
(a) if the parties agree as to the measures that should be taken by the person who made the offer to ensure compliance by him or her with the terms of the offer, the High Court or, where a defamation action has already been brought, the court in which it was brought may, upon the application of the person to whom the offer was made, direct the party who made the offer to take those measures;
(b) if the parties do not so agree, the person who made the offer may, with the leave of the High Court or, where a defamation action has already been brought, the court in which it was brought, make a correction and apology by means of a statement before the court in such terms as may be approved by the court and give an undertaking as to the manner of their publication;
(c) if the parties do not agree as to the damages or costs that should be paid by the person who made the offer, those matters shall be determined by the High Court or, where a defamation action has already been brought, the court in which it was brought, and the court shall for those purposes have all such powers as it would have if it were determining damages or costs in a defamation action, and in making a determination under this paragraph it shall take into account the adequacy of any measures already taken to ensure compliance with the terms of the offer by the person who made the offer;
(d) no defamation action shall be brought or, if already brought, proceeded with against another person in respect of the statement to which the offer to make amends applies unless the court considers that in all the circumstances of the case it is just and proper to so do.”
Whether the reference to the High Court in s. 23(1)(c) of the 2009 Act can include a jury
18. The question, however, of whether s. 23(1)(c) embraces a jury determination of the amount of damages payable following an offer of amends has never previously been determined. In the one case to date where the amount of damages pursuant to s. 23(1)(c) fell to be determined, Christie v. TV3 Television Network Ltd. [2015] IEHC 694, O’Malley J. sat without a jury and her entitlement to do so was apparently not questioned. The matter is accordingly res integra so far as this court is concerned.
19. The starting point, however, is that, as the decision in Lennon makes clear, prior to the enactment of the 2009 Act a plaintiff had a complete statutory entitlement to have his claim for damages determined by a jury. This was so even where liability was conceded by the defendant and the issue was simply one of an assessment of damages only. In the light of the presumption against unclear changes in the law – a principle of statutory interpretation recently re-affirmed by the Supreme Court in Bederev v. Ireland [2016] IESC 34, [2016] 2 I.L.R.M. 340, 360 – 361 – the issue then becomes one of examining whether this pre-existing statutory right has been displaced – either expressly or by necessary implication – by the language of the 2009 Act.
20. Three principal arguments have been advanced to suggest that this pre-existing right has been either expressly or impliedly negatived by the language and structure of the 2009 Act in general and by s. 23 in particular. Counsel for the defendant, Mr. Quinn S.C., submitted that the reference in s. 23(1)(c) must be to a judge sitting alone. He pointed to the fact that the rest of the section assumed that the reference to the High Court in the section referred to the judge alone. Thus, for example, s. 23(1)(c) also embraced the determination of questions of costs by the “High Court”. But as the question of costs was a matter which was exclusively within the provenance of the trial judge, it was submitted that this provided strong textual support for the argument that the Oireachtas intended that both the determination of damages and costs under s. 23(1)(c) would be done by a judge alone.
21. Mr. Quinn S.C. also submitted that the offer of amends procedure introduced by ss. 22 and 23 was an entirely novel statutory procedure which was designed to encourage the swift resolution of defamation claims and to minimise costs where the defendant recognises a liability to the plaintiff and who wishes accordingly to make reparations. He contended that the Oireachtas never intended that the more complex superstructure of a defamation hearing associated with a jury trial should have to be deployed in a case of this nature. It was finally submitted that given that the provisions of s. 23(1)(c) were ambiguous, it was legitimate to have recourse to the provisions of s. 5 of the Interpretation Act 2005 (“the 2005 Act”).
22. Counsel for the plaintiff, Mr. Doyle S.C., submitted in contrast, however, that in the context of s. 23(1)(c), the reference to “the High Court” and “the court” means the jury, if the High Court is sitting with a jury. At the heart of his argument was that the contention that the assessment of damages by a jury – even in the context of an apology – was integral to a system of trial by jury in defamation cases. By analogy, therefore, with the reasoning of this Court in Lennon, it was submitted that if the Oireachtas had intended to exclude the jury from the determination of this question, clear words would have been required.
23. The issue presented is a difficult and troubling one, with no completely satisfactory or clear-cut answer. This is at least part of the reason why I have concluded that, on balance, the right to jury trial in respect of the s. 23(1)(c) damages issue has been preserved. I have arrived at that conclusion for the following reasons.
24. First, it is true that the offer of amends procedure provided for in s. 22 of the 2009 Act is new. I further agree that this new procedure is designed to encourage the parties to settle their disputes quickly and in a cost effective manner where the defendant is prepared to admit liability and to acknowledge that the plaintiff has been wronged. It is also appropriate to note that, as O’Malley J. explained in Christie, the defendant who makes the appropriate offer of amends is entitled to a substantial discount on the level of damages which might have been awarded had the matter gone to full trial in a contested case. In Christie – which was a mistaken identity case with serious implications for the plaintiff solicitor – O’Malley J. held that the offer of amends was not quite as comprehensive and fulsome as it might have been and that this was a factor which tended to reduce the level of discount which might otherwise have applied to the benefit of the defendant. It is thus possible to envisage other cases where the level of discount might have been greater had the offer of amends been prompt, enthusiastic, fulsome and comprehensive.
25. The real point, however, to emerge from Christie is that the other factors which influenced the level of the damages in respect of the s. 23(1)(c) award are to all intents and purposes the same as if the figure for damages were to have been determined by a jury in the conventional way following a hearing in which liability had been disputed. Indeed, O’Malley J. expressly stated that the factors enumerated by s. 31(4) which a jury was required to consider in assessing damages at a contested hearing also applied in the case of any assessment of damages under s. 23(1)(c). These factors included the nature and gravity of the publication; the extent of the publication; the extent on the reputation of the plaintiff and the making of any offer of amends.
26. All of this suggests that even if the procedure for making amends under s.22 is innovative and novel, it does not fundamentally alter the nature of the task of assessing damages under s. 23(1)(c). This task essentially remains the same which regularly confronts juries in contested defamation actions. The only new element is the level of discount of damages to be granted by reason of the timely and fulsome offer to make amends (if such there be). This, however, is a matter on which a jury functioning in the context of s. 23(1)(c) could readily be instructed.
27. One may thus conclude that the essential novelty of the s. 22 and s. 23 offer of amends procedure does not fundamentally alter the task confronting a jury called upon to assess damages in such cases. In other words, this is not a task which, in the nature of things, could only properly be performed by a judge. Quite the contrary, since s. 23(1)(c) engages a staple and traditional function of a jury in defamation cases (namely, the award of damages), it cannot be said that either the existence of this new procedure or, more specifically, the function which the Court is called upon to perform (namely, to award damages) implicitly displaces the Lennon presumption that a plaintiff is entitled to a jury trial.
28. The other argument strongly pressed by Mr. Quinn S.C. is that the context in which the relevant words (“….those matters shall be determined by the High Court…”) appear in s. 23(1)(c) is such that this could only refer to a judge sitting alone, since it is clear that the reference to “those matters” is to both costs and damages. As the question of costs was, of course, always a matter for the judge alone, this – it was argued – led inevitably to the conclusion that the reference to the High Court in the sub-section necessarily implied that the issue of the s. 23(1)(c) damages was also a matter for the judge alone.
29. What is in issue here is in fact an even more precise sub-rule of statutory interpretation, namely, the presumption that expressions used in a statute bear the same meaning throughout the statutory text. In The State (McGroddy) v. Carr [1975] I.R.275, 285-286 Henchy J. spoke of the “fundamental rule” of interpretation that:-
“…when expressions are repeated in the same instrument and more especially in a particular part of the same instrument, they should be given a common force and effect unless the context otherwise requires.”
30. It is clear that this principle is obviously engaged in the present case. Indeed, the other reference to the High Court in the remainder of the section is obviously to a judge sitting alone. Thus, for example, the power given to the High Court in s. 23(1)(a) to direct a party who made an offer of amends to take certain steps to comply with the terms of that offer is clearly to a judge sitting alone. The same may be said of the power given to the High Court by s. 23(1)(b) to grant leave to the person who made the offer of amends to make a correction and an apology “in such terms as may be approved by the court”. The reference to “the High Court” and to “the court” in these examples drawn from s. 23 is obviously to a judge sitting alone.
31. I cannot, however, agree that it necessarily follows that the reference to the High Court in s. 23(1)(c) insofar as it relates to the award of damages means that this must also be a reference to a High Court judge sitting alone without a jury. As Henchy J. recognised in McGroddy this rule or presumption regarding the uniformity of meaning must itself yield to the particular statutory context. For myself, I see no fundamental inconsistency in concluding that the reference to the High Court in one context (costs) must be to a judge sitting alone, while in another (the award of damages), it must refer to a judge sitting with a jury. I agree, of course, that it might have been better had the Oireachtas taken the opportunity to put the matter beyond doubt by the use of clear and express language in the section, including or excluding (as the case may be) the role of the jury.
32. Yet, as I have already indicated, the failure of the Oireachtas to do just this in this instance compels me to acknowledge that another key principle of statutory interpretation comes into play in this instance, namely, the presumption against unclear changes in the law. For good or for ill, the role of the jury in the award of damages in defamation cases is embedded in the fabric of the common law and that right was expressly preserved by s. 48 of the Supreme Court of Judicature (Ireland) Act 1877 and s. 94 of the Courts of Justice Act 1924. (It is true that the statutory reference in s. 48 of the 1877 Act is simply to the “right of any party to have questions of fact tried by a jury”, but this cannot realistically be understood as other than a reference to all the dimensions of jury trial simpliciter, including the power to award damages).
33. As I pointed out in Lennon, the right to jury trial in what would commonly have been described prior to the Judicature Act as nisi prius actions (i.e., typically, actions at common law heard by a judge and jury) has in practice subsequently been much abridged by statute, both before and after 1922. In every such case, however, the abridgment of that entitlement has been done in express terms. In the absence, therefore, of express statutory words – or, at least, something approaching this – excluding the role of the jury from one of its traditional functions in a jury trial, I find myself compelled to hold that the plaintiff has the right to an assessment of damages by a jury in cases coming within s. 23(1)(c) in the case of disagreement following an offer of amends.
34. Nor can I agree that recourse to the provisions of s. 5 of the 2005 Act mandates a different result. Section 5 of the 2005 Act provides that in construing any provision of an Act (other than a penal statute):-
“(a) That is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of:-
(i) in the case of an Act to which paragraph (a) of that definition relates,.the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”
35. I agree that s. 23(1)(c) of the 2009 Act comes within the definition of a provision that is ambiguous for the purposes of s. 5 of the 2005 Act. I do not accept, however, that it is open to this Court to arrive at a different construction of this statutory provision by reference to s. 5 of the 2005 Act. It may well be that, viewed purely subjectively, the Oireachtas intended to dispense with jury trial in cases coming within s. 23(1)(c) of the 2009 Act. If that was, indeed, the subjective belief of the members of the Oireachtas when enacting the 2009 Act, it presents the difficulty for this Court that such an intention – if it be such – cannot be plainly ascertained from the language of the Act as a whole in the manner required by s. 5 of the 2005 Act itself. The Court must, of course, focus on the words actually used by the Oireachtas to convey its intentions and not seek to construe legislation by reference to the subjective beliefs and understandings of the legislators: see Crilly v. T J. Farrington Ltd. [2001] IESC 60, [2001] 3 IR 267.
36. All of this is really to say that if the Oireachtas wished to abrogate the right to jury trial in respect of the assessment of damages in s. 23(1)(c), then, given the long standing and embedded nature of that right, clear statutory language would have been required for this purpose. It is only in that way that the intention of the Oireachtas to effect such a change – if that was indeed the intention – could have been plainly ascertained from the language of the 2009 Act as a whole. In the absence of such language, I find myself coerced to conclude that the plaintiff’s right to a jury for the purposes of assessing damages in cases coming within s. 23(1)(c) remains unaffected by the changes effected by the 2009 Act.
37. It is for all of these reasons that I would approve the reasoning and conclusions of the High Court, save with one caveat which has no bearing on the ultimate result of the case. I cannot, with respect, agree with Moriarty J. that one may properly contrast the terms of s. 23 of the 2009 Act with the broadly similar reforms brought about in the United Kingdom via the Defamation Act 1996. No proper inference can be drawn from the fact that the Oireachtas did (or did not) follow the guide originally provided by the UK Parliament when enacting the Defamation Act 1996. In this respect it would be difficult to improve upon the reasons given by McWilliam J. in Breathnach v. McC. [1984] I.R. 340, 246 where he rejected the argument that he could interpret Irish legislation by reference to UK legislative developments:
“Although I am aware of what Black J. once described as ‘the scissors and paste penchant of our Legislature’, I am of opinion that I am not entitled, nor should I make any attempt, to interpret a statute of the Oireachtas by reference to the report of an English Royal Commission which led to a similar English statute. I leave open the question of whether I would be entitled to consider a report by a similar Irish commission or not.”
38. In this respect I might also observe that the parties referred us in the course of the hearing to the Report of the Legal Advisory Group on Defamation (March 2003) whose report ultimately paved the way for the Defamation Act 2009. For my part, I did not find it necessary to have regard to the Report in the construction of the 2009 Act. Indeed, in the light of the Supreme Court’s decision in Crilly v. T. & J. Farrington Ltd. [2001] IESC 60, [2001] 3 IR 267, I would prefer to reserve my position as to whether this Court would be entitled to look at such pre-enactment legislative materials as an aid to the interpretation of legislation.
Conclusions
39. For these reasons, therefore, I have concluded that the decision of the High Court was correct and the plaintiff is entitled to a jury trial in respect of the assessment of damages under s. 23(1)(c) of the 2009 Act where the parties cannot agree on the sum payable following the acceptance of an offer of amends. I would accordingly dismiss the appeal.
Ward v The Donegal Times Ltd
[2016] IEHC 711
JUDGMENT of Mr. Justice McDermott delivered on the 8th day of November, 2016
1. The plaintiffs claim damages for defamation in respect of two articles published by the first named defendant and written by the second named defendant, in his capacity as editor and journalist for the first named defendant, on 25th September and 9th October, 2013.
2. The first named plaintiff, Mr. Daniel Ward, was and is financial controller of Donegal Town Enterprise Scheme Limited which runs and operates an inshore leisure boat, known as the Donegal Bay Waterbus. The second named plaintiff, Mr. Sean Quinn, was and is the CEO of the Donegal Town Enterprise Scheme Limited which operates the Donegal Waterbus.
3. The first named defendant is a limited liability company with registered offices at The Diamond, Donegal Town, County Donegal and is the publisher of The Donegal Times, a newspaper circulating mostly in County Donegal. The second named defendant is a Director and/or Shareholder and/or Manager of the second named defendant for which he works as journalist and editor.
4. Plenary summons’ in respect of both actions issued on 21st May, 2014 and each defendant entered an appearance on 28th May, 2014. The statements of claim were delivered on 16th June, 2014. An offer to make amends pursuant to section 22 of the Defamation Act 2009 (“the 2009 Act”) was made by the defendants in respect of each plaintiff on 11th December, 2014. This offer was accepted by the plaintiffs by letters dated 10th February, 2015.
5. In the absence of agreement between the parties as to the terms and conditions of the offer of amends, the matter came on for trial before this Court on 26th and 27th May, 2016 to assess damages and costs pursuant to section 23 (1) of the 2009 Act. When the matter came on for trial, the Court was informed that a further related action in these proceedings, brought by Donegal Town Enterprises Limited had been resolved. Proceedings were adjourned until 16th June when the matter recommenced. Oral evidence was given and written and oral submissions were received by the Court.
The impugned articles
6. The first article, the subject of these proceedings was published on page 25 of the 25th September, 2013 edition of the Donegal Times in the section entitled “An Editor’s Diary by Liam Hyland”. The text of this article is as follows:
“Friday 13th: A new company has been formed, Donegal National Hostel Limited. Its registered address is c/o Sean Quinn, Killymard, Donegal Town and its named directors are David Kearney, Co. Dublin and William Curran, Co. Dublin; who are also directors of 5,123 other Irish companies, 1,185 of which are now closed. With a purpose to renovate the National Hotel, the newly formed company intends to re-open it as an accommodation establishment. It’s been a great year on the water. Well done to them. Roll on the Annual General Meeting, and a set of figures that members can take home with them.”
7. The second impugned article was published on page 25 of the 9th October, 2013 edition of the Donegal Times again in the section entitled “An Editor’s Diary by Liam Hyland”. The text of this article is as follows:
“Saturday 28th: Well done to the Waterbus boys who are winding down after a very successful year. In the months April to end of September, the vessel carried over 40,000 passengers – at €15 a go – you can work out the math. Then the bar takings. Being easily the most successful voluntary enterprise in town, this Community Scheme, already debt free, should be ready to deliver a fair amount of dosh to local groups, worthy charities, and organisations like Town Chamber and Bosco. With the committee and crew working for nothing, almost all turnover should translate into profit. Maith a gasurí.”
8. The plaintiffs claim that the words published in these articles were defamatory of and concerning the plaintiffs. The first named plaintiff, Mr. Ward’s, statement of claim states that the articles and, in particular, the words set out therein, in their natural and ordinary meaning and/or by way of innuendo meant and were understood to mean that:
a. The plaintiff participated in financial malpractice and mismanagement of monies associated with the Donegal Waterbus;
b. The plaintiff was willing to act as financial controller of an enterprise that was engaging in financial malpractice;
c. The plaintiff acted improperly, unethically and/or corruptly.
The first named plaintiff states that the publication of the words complained of has gravely injured his reputation in his personal and professional capacity and has exposed him to public scandal and contempt and caused him great embarrassment and distress in his job as financial controller that requires the utmost integrity and propriety. I am satisfied on the evidence that this is so.
10. The second named plaintiff, Mr. Quinn, claims that the words set out in the articles in their natural and ordinary meaning and/or by way of innuendo meant and were understood to mean that:
a. The plaintiff did not carry out his function of CEO with due care, diligence and the utmost good faith;
b. The plaintiff was party to financial malpractice and mismanagement of monies associated with the Donegal Waterbus;
c. The plaintiff was willing to act as CEO of an enterprise that was itself engaging in financial malpractice;
d. The plaintiff acted improperly, unethically and/or corruptly in his position as CEO.
He claims that the publication of the articles injured his reputation in both his professional and personal capacity and has exposed him to public contempt and distrust and caused him grave embarrassment and distress. I am satisfied that this is so.
11. The plaintiff’s claim includes a claim for aggravated and/or exemplary damages.
Sequence of events
12. Letters were sent on behalf of Mr. Ward and Mr. Quinn by McCanny & Co. solicitors to the Donegal Times and Mr. Hyland respectively on 4th December, 2013 complaining about the articles. They set out in detail the alleged defamatory nature and effect of the articles.
Mr. Ward’s letter
13. The letter sent on behalf of Mr. Ward to the Donegal Times refers to both articles published by the Donegal Times on 25th September and 9th October, 2013. It states:
“Those articles clearly show the continuous malevolent and malicious publication regarding the Donegal Waterbus and have been motivated by personal vindictiveness and ongoing malice which has continued through numerous articles published by you down the years since February 2009”.
14. It notes that Mr. Ward prepares and calculates the figures for the purpose of preparing the company accounts of Donegal Town Enterprises Limited to be presented by the board of the company to the AGM. It states:-
“This article is an attempt to slur by innuendo Mr. Ward’s personal and professional reputation and the reference to the accounts in this article is clearly libellous of our client.”
15. In relation to the article published on 9th October, 2013, it is claimed that the reader was invited to multiply the figure of 40,000 passengers by €15 to conclude that the turnover of the waterbus business was €600,000 .The letter states:
“You and your paper are well aware that when you say ‘you can work out the math’ that this is factually incorrect as there are substantial discounts given to various types of groups of passengers… The purpose of these articles is to give an exaggerated picture of, in the first instance, the turnover of the business and then, in the second instance, to indicate there is a limited overhead by virtue of ‘with the committee working for nothing – almost all turnover should translate into profit’. Since you are fully aware that the full adult fare is €15, you cannot but be aware of the ‘family friendly discounts’ being advertised several hundred times every year as the van with the PA system advertising this passes your open office window many times every day. Furthermore by your family connection and social connection with past officers of the company, you would be fully aware of the custom and practice to discount coach group tours. Finally, on this point, you would most definitely know that Mr James White, who is bringing 10,000 plus passengers to the waterbus annually since March 2012, is paying substantially less than the full ticket price due to such volume. In any event, DTES Ltd accounts are freely available on the CRO website and you could have accessed this information, as you have previously done and obtained the real level of turnover as opposed to the inflated figure that has been implied by you through your newspaper.
What this article does is to platform the innuendo that the figures that will be presented at the AGM will not accurately reflect the turnover or the expenses, thereby casting a grave and malicious slander on our client in his role as financial controller…
The libellous materials which you have published in the recent past and referred to above have so far not been actioned by our client although we have corresponded with you in this regard. Our client has been extremely patient and did not wish to become involved in further litigation with yourself and the Donegal Times but you have continued to ignore previous requests to cease your disparaging articles about the waterbus, its directors and employees. It is now clear however, that you have ignored these requests and that the publication of the articles referred to in this letter demonstrate clear levels of malice on your part against our client and despite the fact that Mr Bustard successfully sued you and the Donegal Times you have thought it proper and acceptable to publish articles which are libellous, malicious and untrue. Our client is no longer able to accept the continuous attempt to denigrate his personal and professional reputation and that of the company. He and his fellow directors have worked tirelessly to improve and expand this flagship tourism product only to have innuendo thrown out by your paper to the general public in an attempt to create a frenzy of concern regarding the financial probity of our client, the employees, the directors and the company itself.
Our client has suffered much hurt, distress and embarrassment and damage to his professional reputation as a financial controller given the fact that it is a job which requires the utmost integrity and propriety.
Unless an apology in the terms attached is published on the front page of the Donegal Times in its next edition, and an undertaking is given not to publish any further material suggesting financial impropriety on the part of our client, and that further you pay damages in a sum to be assessed, then High Court proceedings will be issued against you without further notice… these proceedings will include a claim for punitive and exemplary damages based on the clear malice that you have evinced through the articles referred to above and our clients will of course seek the full costs of these proceedings against both the newspaper and the editor personally as joint defendants.”
Mr. Quinn’s letter
16. The solicitor’s letter sent on behalf of Mr. Quinn sets out in similar terms the defamation as alleged by him against Mr. Hyland. This letter also refers to the articles of the 25th September and 9th October, 2013 and states that “[t]hose articles carried serious innuendos in relation to the financial aspects of the business and the management thereof”. It sets out the contents of the articles sequentially, dealing first with the paragraph that indicated that Mr. Quinn was involved in a new company and speculating as to the financial dealings of the Waterbus. The article states:
“a new company has been formed Donegal National Hostel Limited. Its registered address is c/o Sean Quinn, Killymard, Donegal Town and its named directors are David Kearney, Co. Dublin and William Curran, Co. Dublin who are also directors of 5,123 other Irish companies, 1,185 of which are now closed… It’s been a great year on the water. Well done to them. Roll on the Annual General Meeting, and a set of figures that members can bring home with them.”
The letter states that “[i]t is clear from this assertion that…either Mr. Quinn intends to run an unsuccessful business or that he will in some way strategically allow the business to close thereby benefiting himself in some financial way”. It goes on to assert that there is then a “reference to the AGM of the Donegal Waterbus Company….with a scandalous suggestion that a set of figures would be presented to the members which would not bear scrutiny outside the room of the AGM”. The plaintiff, through his solicitor states that “the totality of this article is again an attempt to slur by innuendo Mr Quinn’s reputation and the whole tenor of this article is clearly libellous of our client.”
17. The letter also sets out the misleading figures regarding the Waterbus’ profit as implied by the article of the October, 2013. It refers to the invitation extended in the article for the reader to “work out the math” stating that “you and your paper are well aware that when you say [this], that this is factually inaccurate as there are substantial discounts given to various types of groups of passengers.” The letter goes on to make the point that:
“[w]hat this article does is to platform the innuendo that the figures that will be presented at the AGM will not accurately reflect the turnover or the expenses, thereby casting grave and malicious slander on our client, by hinting that he would stand over any such impropriety. The reality is that the accounts are audited and are filed in the Companies Registration Office”.
18. The letter then makes reference to previous alleged libellous materials published in the past and the fact that these “have so far not been actioned by our client although we have corresponded with you in this regard”. It goes on to say:
“[o]ur client is no longer able to accept the continuous attempt to denigrate his personal and professional reputation and that of the company… Unless an apology in the terms attached is published on the front page of the Donegal Times in its next edition, and an undertaking is given not to publish any further material suggesting financial impropriety on the part of our client, and that further you pay damages in a sum to be assessed, then High Court proceedings will be issued against you without further notice. We would advise that these proceedings will include a claim for punitive and exemplary damages based on the clear malice that you have evinced through the articles referred to above…”
19. In response to these letters, RDJ Glynn, solicitors for both defendants, wrote to the plaintiffs by letters dated 21st January, 2014. These letters, though worded slightly differently, set out in similar terms, the defendants’ position. The letters stated that the defendants “denie[d] that the articles carried any innuendos in relation to the financial aspects of the business or that there has been a continuous malevolent and malicious publication regarding the Donegal Waterbus”. The letters went on to state that their:
“clients are willing to offer the publication of a reasonable clarification in words to be agreed with your client explaining that in fact, as a standard procedure, when a new company is incorporated it is often done through professional company formation agents who because of the nature of their work are directors of multiple companies, many of whom ultimately cease trading or “are closed” but in circumstances where those professional company formation agents have no part in the operation of the company.”
They further stated that they were willing to receive a draft clarification for consideration from the plaintiffs with suggestions as to the position in the newspaper where it should be placed and a date of publication to be agreed upon. An apology was not at this stage forthcoming.
20. By letters dated the 7th March, 2014 to both plaintiffs, the defendants repeated their offer to publish a clarification and, “if appropriate and wording can be agreed, a form of apology for any misunderstanding caused by the article, which can be published on a date to be agreed and, should your client require it, on the front page of the required edition of the newspaper.”
21. In response to these two letters the plaintiffs’ solicitors wrote two similar letters to the defendants’ solicitors on 21st March, 2014. These letters stated “we note from your letter that there is no attempt to make an offer of an apology to our client”. The letters state in respect of the offer to publish a clarification, “we feel that this offer is merely an attempt to thinly massage the damage done to our client’s reputation”. In response to the suggested apology to the plaintiffs as formulated, the plaintiffs’ solicitors stated that they “were at a loss to comprehend [the] wording of misunderstanding as there is total clarity that [our clients’] professional and personal reputation[s] were lacerated by your client’s venomous article.”
22. The letters also state that the defendants’ offer of clarification and a form of apology for any misunderstanding caused by the article seemed to suggest that the plaintiffs “would be satisfied with this, in total satisfaction in respect of the damage to our client(s’) reputation and the outrageous libel caused to [them]”. This letter clearly rejects the proposal put forward by the defendants in their letters dated 21st January, 2014 and 7th March, 2014 as entirely inadequate.
23. On 23rd May, 2014, Plenary Summons’ issued and Statements of Claim were delivered on 16th June, 2014.
24. The defendants’ solicitors wrote to the plaintiffs’ solicitors on 22nd July, 2014 to suggest that the issues between their respective clients be referred to mediation, pursuant to the Rules of the Superior Court (Mediation and Conciliation) 2010, No. 502 of 2010 and S.I. 209 of 2011 European Community (Mediation) Regulation 2011.
25. This suggested mediation never came to fruition and a motion for judgment in default of defence issued against the defendants on the 14th October, 2014.
26. On the 11th December, 2014 the defendants’ solicitors again wrote to the plaintiffs’ solicitors to make an offer of amends pursuant to section 22 of the Defamation Act 2009. The offers to both Plaintiffs were “in respect of the entire of the statement”.
27. On the 10th February, 2015 the plaintiffs indicated their willingness to accept this offer to make amends and requested details of the defendants’ offer concerning:
“1. The retraction and apology
2. Damages in respect of the two publications”.
Offers of amends
28. On the 3rd March, 2015 the defendants’ solicitors wrote to the plaintiffs’ solicitors making the following offer:
“(a) Our client proposes to publish the following apology
‘DONEGAL TOWN ENTERPRISE SCHEME LIMITED, SEAN QUINN AND DANIEL WARD – APOLOGY
In the Donegal Times on 25 September 2013 and 09 October 2013 we published two editorials about the Donegal Bay Waterbus. We accept that the editorials were misleading in terms of the inferences to be drawn in relation to the finances of the Donegal Bay Waterbus. We wish to retract the statements made in the said editorials and also wish to apologise to Donegal Enterprise Scheme Limited and to Sean Quinn and Daniel Ward, the CEO and Financial Controller of Donegal Town Enterprise scheme Limited respectively, which runs and operates the Donegal Bay Waterbus, for any upset and distress caused.’
(b) Our client proposes to publish the apology noted at (a) in the next available edition of the Donegal Times, subject to your client’s agreement, on page 3.
(c) Our client is prepared to pay your client a sum of €25,000 in compensation together with the costs to be taxed in default of agreement. As you are aware, there are related proceedings involving Mr Ward and Donegal Town Enterprise Scheme Limited. The three sets of proceedings are virtually identical. While we are agreeing to pay your client’s costs to be taxed in default of agreement, we respectfully submit that there would be significant duplication across the three matters and therefore there should not be three full sets of costs.”
29. By letter dated the 10th July, 2015 the plaintiffs’ solicitors wrote to the defendants’ solicitors to advise that the offers were not accepted by the plaintiffs.
30. A notice of motion subsequently issued on 23rd July, 2015 and the matter came on for trial before this Court on 26th May, 2016.
Evidence
31. The nature and effect of the defamatory statements contained in the articles as outlined in the extracts from the initiating letters set out above were largely confirmed by the evidence of Mr. Ward and Mr. Quinn which was in its essential features unchallenged.
32. Mr. Ward, a native of Donegal, qualified as a civil engineer and was first employed on a project in Donegal Town in 1979. Thereafter, he worked in New York from 1985 for a period of approximately ten years following which he returned to Ireland. He married in 1992 in Glenties and he and his wife returned to New York but intended to return home if the opportunity arose. In 1994 they returned home and purchased a bar and he developed it as a business until it was sold in or about 2004.
33. He became involved in the waterbus venture for Donegal Town in or about 1997 and contributed to the project with others. He became friendly with Mr. Quinn. He devoted himself on a full-time basis to the waterbus project under and within Donegal Town Enterprise Limited which appointed him as financial controller in or about 2009. He also carried out a wide variety of jobs as required on the waterbus during its operational season.
34. Mr. Ward described the devastating effect of the publication of these articles on his standing and reputation in the community. He could not understand how Mr. Hyland could write the material contained in the articles. He and his family were extremely embarrassed by the articles which circulated in his home town, surrounding towns and Donegal Town. He considered himself to be sociable and outgoing but he felt people were now “looking the other way” on his approach. He considered that his good name had been blackened. There was a cloud over his reputation personally and in his work which required probity and honesty. He had behaved correctly in his professional and business life. His financial work with the waterbus was subject to audit and was fully recorded and a matter of record.
35. He withdrew socially. He continued to golf but went out early in the morning to avoid people. He had been involved in training with his local football club which he stopped. He restricted his involvement in the club because of the articles and decided not to seek any club position because he was fearful that the club’s interests or fundraising might be tarnished by his involvement. He suffered many sleepless nights as a result of the personal distress and that of his family caused by the articles and the damage they inflicted on his reputation. He believed that Mr. Hyland wrote the articles knowing that they were untrue and felt that he had been wrongfully accused of embezzlement.
36. Mrs. Ward fully corroborated the serious effect which the damage caused to her husband’s reputation in the community had on her husband and his social and personal life. In particular, she noted his reluctance to become involved in fundraising events in the community in case they might become tainted by association with him because of the articles.
37. Mr. Quinn gave evidence of the effect of the articles on his personal and professional reputation. He also was a native of Donegal. Following the early death of his father, he was reared with his three siblings by his mother in Donegal. He obtained a scholarship and having qualified as a mechanical engineer, he embarked on a very successful career with a major supplier and manufacturer of machine tools and lifting equipment. He was one of the group’s youngest directors. In or about 1990 he took the opportunity to move with his family to Donegal where he invested in and ran a bar, large bed and breakfast and other business interests. He became involved in the waterbus company in or about 1997 as did Mr. Hyland. There were originally twenty members of the scheme who funded it with subscriptions of 500 each. In 2005 he and Mr. Ward were elected as directors of the company. He became chief executive officer.
38. In 2005/6 a new waterbus was commissioned and entered service profitably providing tours around Donegal Bay for considerable numbers of tourists. It provided a badly needed attraction to increase tourist numbers in the town. Mr. Hyland was said to have commenced “uncomplimentary” coverage of the company in or about February 2009.
39. Mr. Quinn states that he was well known throughout Donegal where he has many relations and friends. He was motivated on his return to Donegal with his family to become involved in the community. He had established in his business life a good reputation based on honesty and integrity. He found the allegations contained in the articles to be devastating, hurtful and offensive. He was being portrayed as a person engaged in large scale embezzlement of the profits of the community enterprise company. He had four school-going children who heard their father described as a person “on the take” as a result of these articles. He was trying to hide his embarrassment from his wife and children. It was physically upsetting and caused him sleepless nights of worry. He found that ordinary engagement with people was affected by the articles. When he entered his local barber shop a silence would descend. He has curtailed socialising and does not go out for a drink very often. He feels restricted to his own home by reason of the embarrassment caused to him by the contents of the articles. He attends early mass to avoid a greater crowd at a later one.
40. I am satisfied on the evidence that the publication of these articles brought the plaintiffs into public ridicule and contempt and damaged their good names and reputations personally and professionally for which they are entitled to damages. I am also satisfied that I must in fairness to the defendants take proper account of the fact that the Donegal Times is a local newspaper which has a limited circulation in Donegal, where most of its interested readership resides. Its circulation was said to be approximately 5,000 copies and it had an internet presence at the time, though no formal evidence was adduced to support that figure which was offered by counsel.
41. The assessment of damages must be calculated on the basis of common law principles and the 2009 Act.
The 2009 Act
42. Section 22 of the 2009 Act provides that:
“22. (1) A person who has published a statement that is alleged to be defamatory of another person may make an offer to make amends.
(2) An offer to make amends shall—
(a) be in writing,
(b) state that it is an offer to make amends for the purposes of this section, and
(c) state whether the offer is in respect of the entire of the statement or an offer (in this Act referred to as a “ qualified offer ”) in respect of—
(i) part only of the statement, or
(ii) a particular defamatory meaning only.
(3) An offer to make amends shall not be made after the delivery of the defence in the defamation action concerned.
(4) An offer to make amends may be withdrawn before it is accepted and where such an offer is withdrawn a new offer to make amends may be made.
(5) In this section “ an offer to make amends ” means an offer—
(a) to make a suitable correction of the statement concerned and a sufficient apology to the person to whom the statement refers or is alleged to refer,
(b) to publish that correction and apology in such manner as is reasonable and practicable in the circumstances, and
(c) to pay to the person such sum in compensation or damages (if any), and such costs, as may be agreed by them or as may be determined to be payable,
whether or not it is accompanied by any other offer to perform an act other than an act referred to in paragraph (a), (b) or (c).”
43. S. 23 of the 2009 Act concerns the “Effect of offer to make amends”; sub-s. (1) (c) states that:
“if the parties do not agree as to the damages or costs that should be paid by the person who made the offer, those matters shall be determined by the High Court or, where a defamation action has already been brought, the court in which it was brought, and the court shall for those purposes have all such powers as it would have if it were determining damages or costs in a defamation action, and in making a determination under this paragraph it shall take into account the adequacy of any measures already taken to ensure compliance with the terms of the offer by the person who made the offer”.
44. Section 24 of the Act concerning “Apology” provides :
“(1) In a defamation action the defendant may give evidence in mitigation of damage that he or she—
(a) made or offered an apology to the plaintiff in respect of the statement to which the action relates, and
(b) published the apology in such manner as ensured that the apology was given the same or similar prominence as was given to that statement, or offered to publish an apology in such a manner,
as soon as practicable after the plaintiff makes complaint to the defendant concerning the utterance to which the apology relates, or after the bringing of the action, whichever is earlier.”
45. Section 31 of the Act sets out the factors which the Court must address and take into account when assessing damages:
“(1) The parties in a defamation action may make submissions to the court in relation to the matter of damages.
(2)….
(3) In making an award of general damages in a defamation action, regard shall be had to all of the circumstances of the case.
(4) Without prejudice to the generality of subsection (3), the court in a defamation action shall, in making an award of general damages, have regard to—
(a) the nature and gravity of any allegation in the defamatory statement concerned,
(b) the means of publication of the defamatory statement including the enduring nature of those means,
(c) the extent to which the defamatory statement was circulated,
(d) the offering or making of any apology, correction or retraction by the defendant to the plaintiff in respect of the defamatory statement,
(e) the making of any offer to make amends under section 22 by the defendant, whether or not the making of that offer was pleaded as a defence,
(f) the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement,
(g) the extent (if at all) to which the plaintiff caused or contributed to, or acquiesced in, the publication of the defamatory statement,
(h) evidence given concerning the reputation of the plaintiff,
(i) if the defence of truth is pleaded and the defendant proves the truth of part but not the whole of the defamatory statement, the extent to which that defence is successfully pleaded in relation to the statement,
(j) if the defence of qualified privilege is pleaded, the extent to which the defendant has acceded to the request of the plaintiff to publish a reasonable statement by way of explanation or contradiction, and
(k) any order made under section 33 , or any order under that section or correction order that the court proposes to make or, where the action is tried by the High Court sitting with a jury, would propose to make in the event of there being a finding of defamation.
(5) For the purposes of subsection (4) (c), a defamatory statement consisting of words that are innocent on their face, but that are defamatory by reason of facts known to some recipients only of the publication containing the defamatory statement, shall be treated as having been published to those recipients only.
(6) The defendant in a defamation action may, for the purposes of mitigating damages, give evidence—
(a) with the leave of the court, of any matter that would have a bearing upon the reputation of the plaintiff, provided that it relates to matters connected with the defamatory statement,
(b) that the plaintiff has already in another defamation action been awarded damages in respect of a defamatory statement that contained substantially the same allegations as are contained in the defamatory statement to which the first-mentioned defamation action relates.
(7) The court in a defamation action may make an award of damages (in this section referred to as “special damages”) to the plaintiff in respect of financial loss suffered by him or her as a result of the injury to his or her reputation caused by the publication of the defamatory statement in respect of which the action was brought….”
46. Section 32 entitled “Aggravated and punitive damages” provides:
“32. (1) Where, in a defamation action—
(a) the court finds the defendant liable to pay damages to the plaintiff in respect of a defamatory statement, and
(b) the defendant conducted his or her defence in a manner that aggravated the injury caused to the plaintiff’s reputation by the defamatory statement, the court may, in addition to any general, special or punitive damages payable by the defendant to the plaintiff, order the defendant to pay to the plaintiff damages (in this section referred to as “aggravated damages”) of such amount as it considers appropriate to compensate the plaintiff for the aggravation of the said injury.
(2) Where, in a defamation action, the court finds the defendant liable to pay damages to the plaintiff in respect of a defamatory statement and it is proved that the defendant—
(a) intended to publish the defamatory statement concerned to a person other than the plaintiff,
(b) knew that the defamatory statement would be understood by the said person to refer to the plaintiff, and
(c) knew that the statement was untrue or in publishing it was reckless as to whether it was true or untrue,
the court may, in addition to any general, special or aggravated damages payable by the defendant to the plaintiff, order the defendant to pay to the plaintiff damages (in this section referred to as “punitive damages”) of such amount as it considers appropriate.
(3) In this section “court” means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury.”
47. It is submitted by the plaintiffs that the defendants merely accept that the editorials were misleading, but not defamatory and that the nature, and extent of the apology offered was disingenuous and hollow. They submit that the Court should have regard to the genuineness of the apology and that the defendants intentionally published defamatory material concerning them which could have been verified or clarified with ease.
48. It is further submitted that the failure by the second named defendant to attend at any point in the trial is a further expression of his lack of remorse or regret. Although counsel for the defendant expressed an apology to the plaintiffs, it is submitted that this was simply an attempt to garner credit before the Court.
Damages
49. The Supreme Court decision in Leech v. Independent Newspapers (Ireland) Limited [2014] IESC 79 considered the factors to be taken into account when determining an award of damages. The Court in Leech quoted the decision of Hamilton CJ. in De Rossa v. Independent Newspapers [1999] 4 IR 432 – which applied the principles set out in John v. MGN Ltd. [1997] QB 586 – with approval. The Court in de Rossa stated:
“ The factors to be taken into account in determining the damages to be awarded are clearly set out in many cases and in particular in the judgment of the Court of Appeal in John v. MGN Ltd. [1997] QB 586 at page 607 of the report where it is stated as follows:
‘The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation, the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation; but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way’.”
This is the starting point in determining the appropriate level of damages to be awarded.
In Christie v. TV3 [2015] IEHC 694, O’Malley J. reviewed the authorities concerning the assessment of damages in this jurisdiction.
Aggravated damages
50. A number of factors were advanced as evidence upon which the court should make an award in respect of aggravated damages. These were the lateness of the apologies offered, the content of the apologies and the subsequent publication of two further articles by the defendants which were said to have repeated the defamatory statements. Gatley on Libel and Slander (12th ed.) considered aggravated damages in the context of subsequent publications at para 9.19 :
“The question whether, and if so in what circumstances, a claimant in a libel action is entitled to increase the damages recoverable in respect of the single publication complained of by relying on subsequent publications which are not themselves sued on as separate causes of action has been considered in two important cases: Collins Stewart Ltd v The Financial Times (No. 2) [2005] EWHC 262 and Clarke t/a Elumina Iberica UK v Bain & Prolink Holdings [2008] EWHC 2636 (QB). The effect of these two decisions is, it is suggested, as follows. First, subject to general case management principles, evidence of subsequent publications in respect of which no claim is brought is admissible in so far as the later publications substantially repeat the same imputation and shed light on the motive or state of mind of the defendant in making the imputation in respect of which the claim is brought. Thus where the subsequent publications help to prove the existence of a malicious motive or establish the existence of malice they may be led in evidence. Second, where the evidence also establishes another cause of action, then the jury must be cautioned against giving damages in respect of that cause of action. Moreover, in such a case the defendant is entitled to plead matters which would afford him a defence to that cause of action, if it had been pleaded as a separate cause of action, including issues of meaning.”
51. In the case of Turner v. MGN [2005] EMLR 25, Eady J. states, at para. 71 that the court should:
“…as well as looking at the nature of the defamation and the extent of the publication, take into account relevant aspects of the conduct of the defendant from the time of publication up to the conclusion of the case, including such matters as the absence of an apology or persisting in a plea of justification not supported by evidence. These could be considered under the heading of compensatory damages or, as appropriate, aggravated damages.”
52. In the Supreme Court decision in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305, it was held that damages in tort may be assessed under three possible headings:
“(a) Ordinary compensatory damages…
(b) Aggravated damages: being compensatory damages increased by reason of
(i) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or
(ii) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or
(iii) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff up to and including the trail of the action.
(c) Punitive or exemplary damages…”
The Court should have regard to these principles in considering the level of damages to be awarded to each of the plaintiffs, in particular the manner in which the wrong was committed. It is the plaintiffs’ case that the publications were a deliberate attempt by the defendants to lower them in the eyes of society and in particular, their readership. However, these principles must be applied with due regard to the provisions of the 2009 Act already quoted.
53. The court must also consider whether the amount of general damages appropriate in these cases should be reduced or mitigated because of the offers of amends made as set out above. They contain two elements, the correction or apology offered and the amount of compensation proposed.
Compensation and Offers of Amends
54. The defendants offered the sum of €25,000 in compensation to each of the plaintiffs in the offers of amends of 3rd March 2015. The offers were unacceptable to each of the plaintiffs as they were considered to be inadequate.
55. There is no authority in this jurisdiction as to whether the court should be informed of the amount or figure contained in the declined offer of amends when determining the amount of damages to be awarded. In England, it is considered to be inappropriate, under similar legislation, to reveal the amount of compensation offered to the trial judge. In that jurisdiction where an offer has been made and accepted, but the quantum of damages remains in issue, the judge must engage in a two-stage process, outlined by Eady J. in Turner:
“The first stage is to identify the figure I should award at the conclusion of a hypothetical trial in which the defendant had done nothing to aggravate the hurt to the claimant’s feelings (e.g. by pleading justification or by insulting cross-examination) and nothing to mitigate (e.g. by the publication of an apology). At the second stage, I must consider to what extent, if at all, that figure should be discounted to give effect to any mitigating factors of which this defendant is entitled to take advantage.”
The Court should first identify a figure in advance of applying mitigating factors or aggravating factors. Eady J., stated that it would ordinarily be preferable if the amount of compensation contained in such offers were not disclosed to the trial judge. As Leggatt L.J. in Kiam v. Neil & Another [1995] EMLR 1 stated:
“Obviously they cannot be permitted to disclose that amount, otherwise a defendant could always make an offer, and if it was refused he would then be at liberty to reveal the amount of it whilst studiously avoiding any submissions relating to the merits of the sum offered. That would circumvent all the rules of practice which prohibit counsel from canvassing specific figures with the jury in order to avoid what Lord Denning MR regarded as ‘an auction”.
56. The plaintiffs in this case sought the disclosure to the Court of the figure offered to demonstrate the negligible and/ or minimal value that the defendants placed upon the plaintiffs’ reputations. While no serious objection was raised by the defendants and the court was made aware of the sum contained in the letter making the offer of amends, I do not consider that the amount contained in the letter should be considered a significant factor in determining the amount of damages to be awarded. In many cases the parties place a much higher value on the furnishing of an apology than an amount of money that may accompany such an offer. A defendant may well be constrained for financial or other reasons from making a higher offer. Furthermore, I do not consider that introducing a figure previously offered but rejected assists in the proper assessment of damages for the reasons given by Leggatt L.J. The assessment of damages is made having heard all the evidence and submissions. It is not a process that lends itself to exact calculation or prediction. There is a range of damages within which a client may be advised that a successful claim may fall. In particular, I am not satisfied that a jury should be informed of the figure offered and since this trial must be conducted on the same principles as a jury trial, I see no basis upon which to factor that figure into the ordinary process of assessment or when considering whether to make an award of aggravated damages. In this regard I am persuaded by the English authorities relied upon.
57. The only other possible relevant basis for considering the amount of the offer is in respect of the degree of mitigation to which the defendants may be entitled in respect of an offer of amends. It might be claimed that the amount offered is so low as to be derisory or to constitute a further aggravating factor. The offer of amends is directed towards the restoration of damaged reputation at an early stage. The main emphasis of the provisions lies on the correction and/or apology which it contains. The definition in s.22 (5) states that an offer to make amends means an offer to make a suitable correction and a sufficient apology and to publish that correction and apology in such a manner as is reasonable. S.25(c) then provides that an offer also includes “an offer to pay such sum in compensation or damages (if any)…as may be agreed by them or as may be determined to be payable…”. Of course the making of an offer of amends must be taken into account under s.23 (4) but the amount set out in the offer should not be imbued with an exaggerated significance thereby permitting the mischief which the English authorities seek to avoid. In addition, the assessment of damages should not become an inquiry as to why a particular amount was offered, why it was refused, what would have been acceptable as an offer or within what range it ought to have been made or might reasonably have been accepted. The section envisages the assessment of damages by the court if agreement cannot be reached but the other elements of the offer are accepted.
58. I do not consider that the offer of compensation in this case should inform the level of damages or any mitigation thereof to which the defendants may be entitled.
Aggravating factors
59. Sections 22 and 23 of the 2009 Act were enacted to facilitate an easier and more expeditious means of settling disputes, without the need for recourse to the court. In Christie it was argued, inter alia, that the apology proffered did not admit defamation. It was further argued that any reduction for the purposes of section 22 should be modest, given that the section envisages an offer of compensation before proceedings are issued. The plaintiffs submit that the apology must be adequate and the actions of the defendant throughout the action, from publication to the offers to make amends should be considered in determining whether the failure to make or offer an adequate apology or delay in doing so entitles the plaintiffs to aggravated damages.
60. It is submitted that the fact that the defendants failed to make an offer of amends until one year after the initiating letter was received is relevant. In Angel v. Stainton [2006] EWHC 637 the English High Court was satisfied that a delay in making an offer of amends could be treated as aggravating conduct. In that case an unqualified offer to make amends was left until the day before the defence was due. Eady J. did not consider this to be “early” in the case and concluded that a lesser reduction than might otherwise apply when the offer was early should be made.
61. The relevance of the adequacy of the apology was briefly considered by O’Malley J. in Christie, who stated that “it does not seem appropriate to allow further mitigation in the absence of a more comprehensive apology”. It was submitted that this suggests that the Court may have regard to the content and nature of the apology and I am satisfied that this is so. At common law the absence of an apology may support an application for aggravated damages. However, when an offer of amends is made under s.22 one must have careful regard to the timing and content of any purported correction or apology. The section is not to be abused by the advancement of artfully drawn but nevertheless hollow or ineffectual corrections or apologies accompanied by very low offers of compensation cloaked in the formality and terminology of section 22 to secure a significant reduction in damages for an egregious wrong. The plaintiffs claim that the defendants in this case have not offered a real apology and certainly not one for which any significant mitigation should be allowed. On the contrary, they seek aggravated damages for the fact that it is entirely inadequate.
62. Initially the defendants denied that the articles were defamatory. Offers of correction were made to Mr. Ward, who, it was said was not mentioned, in either article. An opportunity to clarify the respective fares charged to various categories of passenger was made on 21st January, 2014. This was followed on the 7th March by an offer to publish a “clarification” and “if appropriate and wording can be agreed a form of apology for any misunderstanding” caused by the article of the 9th October on the front page of the newspaper. In default of accepting this offer the defendants stated that they would defend the proceedings fully. There was an offer of mediation following delivery of the Statements of Claim. An offer of amends was finally made “in respect of the entire of the Statement” which was then accepted, the full terms of which proved unacceptable as outlined above.
63. It seems to me that when delay occurs in offering an apology but one is then tendered by the defendants, the court must be mindful of the intention of s.22 to facilitate settlement and avoid further court process and hardship for the defamed plaintiff. In this case there was a complete failure to accept the fact of defamation until the offer of amends. I do not regard the terms of the letter of 7th March as an acceptance of the defamatory nature of the publications which required an apology. The delay therefore continued until at the earliest 11th December, 2014 over a year later.
64. The terms of the apology finally offered to the plaintiffs on the 3rd March are regarded by them as equivocal because they refer to the editorials as “misleading in terms of the inferences to be drawn in relation to the finances of the Donegal waterbus”. However, this is followed by a proposed retraction of the statements and an apology for any upset and distress caused. One can appreciate why the terms of the proposed apology were deemed insufficient but it was nevertheless an apology tendered at a late stage. In my view its inadequacy (if any) is more properly to be considered under the provisions of s.22 rather than as an event requiring an award of aggravated damages.
65. The plaintiffs also submit that two further articles published by the first named defendant, on 24th June, 2015 and 27th January, 2016 are relevant aggravating factors that should be taken into consideration for the purposes of assessing damages. The plaintiffs complain that the articles reflect the state of mind of the defendants in relation to these proceedings. Both are published post the offers to make amends. The first article was published after the making of the offers but before they were declined. The second was published in the knowledge that apologies had been offered and declined and that the proceedings in which the defendants would seek to rely upon them were continuing. The defendants were clearly aware that they sought to mitigate the damages that might be awarded in respect of similar material which was for that purpose accepted by them as defamatory of and damaging to the plaintiffs. The first in particular, refers to threats to bring the newspaper to court “for daring to question ticket money declarations” and company registration files. This is a clear reference to the acknowledged defamatory material contained in the articles in suit.
66. I accept the defendants’ submission that these articles, if defamatory, may be the subject of a separate cause of action against the defendants. If such proceedings were taken they would be subject to pleading. The defendants would be liable for any further damage caused to the plaintiffs. They would also be entitled to plead any defence which they might consider open to them in the circumstances. It is therefore submitted that it would be unfair to the defendants to allow the Plaintiffs to introduce these articles as a basis for seeking aggravated damages in these proceedings. It is submitted that such repeat publications are relevant to malice which is not pleaded (Collins Stewart v. Financial Times (No.2) [2006] EMLR 5). Furthermore, it is claimed that when an offer of amends is made and accepted the issue of malice does not arise (Bowman v. MGM [2010] EWHC 895). I have considered the two articles in the context of the claim for aggravated damages. I am not satisfied in the circumstances of this case to rely upon them in relation to a claim of malice or of conduct that would justify an award of aggravated damages. The plaintiffs adduced these articles during the course of the hearing. It would have greatly assisted the case if the matter had been the subject of pleadings and particulars and made part of the cause before the court, a course which was open to the plaintiffs. I am not satisfied that aggravated damages are recoverable in this respect. However, I am satisfied that these two articles are relevant to an understanding of the nature and extent of the apologies advanced as part of the offers of amends. They must be read in the context of the dynamic of the proceedings at the time of their publication which the court is entitled to consider as part of the overall circumstances of the case.
67. The disparagement of the plaintiffs’ case is relevant to the question of whether mitigation ought to apply in respect of the offers to make amends. Mr. Ward and Mr. Quinn are once again specifically identified and subjected to sustained critical comment especially in the second article which refers to the generation of €1 million in profits by the company since 2005 with the added comment that “where it all went can only be explained by the two boys”. The plaintiffs claim that the two articles are evidence of subsequent post publication conduct in respect of the two articles in suit and justify a reduction to a low level or zero of the amount in mitigation which the plaintiffs ought to be granted under s.22.
68. I am satisfied that the later articles are evidence of behaviour that tends to undermine the supposed purpose of the offers to make amends namely, the prompt restoration of character and the reduction for the plaintiffs of the stress of litigation. Clearly, the evidence of the plaintiffs was that they considered these further publications which occurred following the making of offers of amends which contained apologies and accepted that they had been defamed and entitled to damages to be insincere and dishonest. The later articles are contrary to the spirit and intention of the s.22 process invoked in this case and undermine the purported basis upon which they were advanced. They assist the court in understanding the defendants’ attitude to the plaintiffs’ claim. The apologies offered have a hollow ring. I am satisfied that they are a factor to be considered in exercising the court’s jurisdiction under s.22. I am satisfied that the apologies made were late in coming, inadequate in addressing the central core of the defamatory statements by stating that the editorials were simply “misleading” and advanced with little sincerity in the light of the timing and content of the subsequent articles.
Offers to Make Amends as Mitigation
69. Eady J. in Nail v. Jones and News Group Newspapers Ltd. [2004] EWHC 647 states at para.35:
“The offer of amends regime provides, as it was supposed to, a process of conciliation. It is fundamentally important that when an offer has been made, and accepted, any claimant knows that from that point on that he has effectively “won”. He is to receive compensation and an apology or correction. In any proceedings which have to take place to resolve outstanding issues, there is unlikely to be any attack upon his character. The very adoption of the procedure has therefore a major deflationary effect upon the appropriate level of compensation. This is for two reasons. From the defendant’s perspective he is behaving reasonably. He puts his hands up, and accepts that he has to make amends for his wrongdoing. As to the claimant, the stress of litigation has from that moment at least been significantly reduced. Whereas juries used to compensate for the impact of the libel down to the moment of verdict, once an offer of amends has been accepted the impact of the libel upon the claimant’s feelings will have greatly diminished and, as soon as the apology is published, it is also hoped that reputation will to a large extent be restored…”
The plaintiffs claim that the offers should not have any deflationary effect on the level of compensation as the defendants published the two later articles reiterating the defamation and referring to these ongoing proceedings.
70. The Court in Nail noted at para. 41 that damages are to be assessed “as of the date of assessment, not the date of publication. The conduct of the defendant after publication can, therefore, aggravate or mitigate the damage and the award.” Leech and Christie are also authority for the proposition that compensatory damages may cover additional injury after the original publication and that a court could take into account the conduct of the defendant from the time of publication up to the conclusion of the case.
71. O’Malley J. in Christie examined the percentage reduction to be applied due to the existence of mitigating factors under s. 22. The learned judge stated that the court may look at the nature of the defamation and the extent of the publication. In addition, it may take into account relevant aspects of the conduct of the defendant from the time of publication up to the conclusion of the case, including such matters as the absence of an apology. The learned Judge further stated that these factors could be considered under the heading of compensatory damages or, as appropriate, aggravated damages.
72. Pursuant to s. 23 (1) the Court “shall take into account the adequacy of any measures already taken to ensure compliance with the terms of the offer by the person who made the offer”. The plaintiffs submit that the wording “shall take into account” enables the Court to look beyond the mere existence of a section 22 offer and examine the circumstances surrounding that offer. I am satisfied that this is correct. Therefore I am satisfied that the court ought to have regard to all the circumstances of the case including the post- offer publications by the defendants concerning the plaintiffs.
Percentage reduction, if any
73. O’Malley J. in Christie stated that in determining the appropriate sum to award under s.22, the following should be taken into account:
i. The fact that an unqualified offer of amends has been made.
ii. The measures taken in compliance with the offer (s. 22 (1) (c)).
iii. The matters set out in s. 31 (4) of the Act.
O’Malley J. in that case reduced the award by one third on the basis of aggravating and mitigating factors, considering the conduct of the defendants and the apology offered as mitigating factors. O’Malley J. stated, in that case:
“I consider it appropriate to allow a discount in the region of one third, to take account of the offer to make amends and the apology, and a failure, in the running of the action, to take responsibility for the fact that the plaintiff was damaged in his reputation as a result…”
It is submitted that a reduction of one third in this case would be overly generous in consideration of the aggravating factors in the present case. The plaintiffs submit that the defendant has failed to acknowledge that the articles were defamatory or untrue and furthermore that the disingenuous apologies, in addition to the post offer of amends publication of defamatory statements should be also be taken into account.
The defendants’ submissions
74. The defendants submit that there are a number of reasons that damages awarded in this case should be modest and discounted to a significant degree.
75. The defendants also rely on Christie in their submissions on the appropriate approach to assessing damages where an offer of amends has been made. O’Malley J. in that case observed that the matters to which a court should have regard in making an award of general damages could be grouped together within the common law headings of gravity, extent of publication, impact of the defamation and the conduct of the defendant.
76. O’Malley J. reviewed the English case-law concerning a similar provision and concluded that, the same principles apply to the assessment of defamation damages as apply to the determination of compensation pursuant to an offer of amends as was made clear in the cases of Abu v. MGN Ltd [2003] 1 WLR 2201 and Cheese v. Clark and Associated Newspapers [2003] EWHC 137. O’Malley J. added that:
“ 80. Since the principles to be applied in a hearing of this nature are precisely the same as those applicable to conventional libel proceedings, account must be taken of issues such as mitigation, aggravation and causation of loss”.
77. The two-stage process, as identified in the judgment of Eady J in Turner was affirmed as “settled practice” in the case of Bowman v. MGN Ltd [2010] EWHC 895. This judgment quoted the two-step process as summarised in Duncan & Neill on Defamation (3rd edition) as follows:
“19.12 If the court determines compensation under the offer to make amends procedure, the assessment is on the same principles as in a defamation action. The usual principles on the elements of compensatory damages, mitigation, aggravation and causation apply; and there is no reason why exemplary and/or special damages should not be recoverable in an appropriate case. To determine the appropriate amount of compensation, the courts have adopted a two-stage process: first, to arrive at a figure which would have been awarded after trial (assuming no aggravation or mitigation of damages); secondly, to decide to what extent that figure should be discounted to give effect to any mitigation. The fact that the offer to make amends procedure has been adopted by the defendant is, of itself, a mitigating factor. Indeed, if an early offer to make amends is accepted and an agreed apology published, there is ‘bound to be substantial mitigation’. There is, however, no standard percentage discount where the offer to make amends procedure is used; each case must be assessed on its own facts.”
78. As already noted, the approach adopted by Eady J. in Nail is approved by O’Malley J. in Christie when dealing with the issues of quantum of damages and discount in the context of an offer of amends. In Nail the mitigating factors, concerning the offer of amends and the published apology led to a reduction of 50% in relation to quantum.
79. O’Malley J. observed, regarding the approach taken in the Court of Appeal’s decision in Nail [2004] EWCA Civ 1708 that:
“97. In concluding that there had been no error of principle in the approach taken by the trial judge, the Court of Appeal stressed that there could not be a conventional or standard percentage discount when an offer to make amends is accepted and an agreed apology published. “Each case will be different and require individual consideration”. However, most such cases will exhibit substantial mitigation.”
80. The defendants therefore acknowledge that damages, as well as a discount or reduction of damages are case specific. However, the defendants underline that the approach of the English courts is to allow a discount of up to 50% when there are mitigating factors present.
81. The defendants submit, by reference to s. 31 (4) of the 2009 Act, in relation to the nature and gravity of the alleged defamation in the articles, that the alleged defamatory words cannot bear the meanings contended for in their natural and ordinary meaning and that the meanings contended for rely on innuendo. It is argued that where the plaintiffs have to rely on innuendo to advance their case, a conservative approach to damages is appropriate, and that this was a relevant consideration in the case of Bowman v. MGN Ltd. [2010] EWHC 895 where a 50% discount was made.
82. The defendants also contend, in relation to the means of publication of the defamatory statements and the extent to which it was circulated, that the Donegal Times is a small print publication. Although they maintain a website, it is little more than a front page and the Donegal Times is no longer providing selected articles from the print edition online. They submit that the Donegal Times is a local newspaper that covers issues relating to Donegal Town and its immediate surroundings and its circulation is primarily within that area. Its circulation is in the region of under 5000 copies a fortnight.
83. Regarding the offer of an apology, correction or retraction the defendants contend that, through their lawyers, they have engaged with the plaintiffs and made genuine efforts to resolve the situation. However, they submit that the plaintiffs made no attempt to advance an apology in a form of wording agreeable to them, and instead rejected the proposed apology set out by the defendants in correspondence. The defendants submit that the plaintiffs’ non- engagement with the defendants should affect the quantum of damages.
84. In relation to the offers to make amends under s. 22 of the 2009 Act, the defendants submit that their unqualified s. 22 offers made in December 2014, are relevant to the Court’s consideration. The defendants submit, having regard to the dicta of O’Malley J. in Christie where she stated that a Court may take into account “all of the circumstances of the case”, that the following matters are relevant:
i. There is an issue as to identification. In the passages set out in the Statements of Claim, Mr. Ward is not named. Mr. Quinn is named in one passage, regarding the registered address of the newly formed company.
ii. Both articles appear towards the back, on page 25 of approximately 30 pages.
iii. A significant period of time elapsed between the publication of the articles and the issuing of proceedings. A period of two months elapsed between the defendants’ offer of amends and the plaintiffs’ acceptance. A further period of four months elapsed before the plaintiffs’ rejected the defendants’ proposed terms.
iv. The plaintiffs did not engage with the defendants’ suggestion of mediation and instead requested delivery of the plaintiffs’ defences.
85. The Defendants also reject the plaintiffs’ submission that they are entitled to aggravated damages because of two articles published after the articles the subject matter of these proceedings. They submit that:
(a) It remains unclear whether the plaintiff says that these publications go to malice or aggravation.
(b) There is no question of alleging malice in a case where an offer of amends has been accepted; Bowman v. MGM [2010] EWHC 895 at para. 19. This is because, if a plaintiff wants to allege malice, then he should not accept the offer of amends in the first place.
(c) Malice was not pleaded.
(d) Subsequent publications may be admissible as to malice, but not as to aggravation (Gatley (12th ed.) 32.57 and Collins Stewart v Financial Times (No. 2) [2006] EMLR 5.)
(e) Section 32 of the 2009 Act provides that aggravated damages may be recoverable where the defendant “conducted his or her defence in a manner that aggravated the injury caused to the plaintiff’s reputation by the defamatory statement”.
(f) A claim for aggravated damages was not pleaded ( I am satisfied that it was).
(g) Aggravated damages are not recoverable in respect of these subsequent publications.
(i) The defendants do not accept that these subsequent publications simply repeat the material of which complaint was made, or that the plaintiffs would be entitled to damages on account of those publications. Those publications have to be seen in context.
86. The defendants submit that the Court must approach the question of damages as if they were to be assessed in a fully contested defamation action heard without a jury and that the damages should be relatively modest and the discount which the Court should apply generous.
Conclusion
87. Having regard to all the evidence as outlined above and based upon the principles as helpfully set out and elaborated upon by O’Malley J. in Christie, the court is satisfied that each plaintiff suffered very serious damage to their respective personal and professional reputations as set out earlier in the judgment. They have suffered in their communities which they sought to serve by bringing in employment and tourism. These two articles have had a very significant effect on their day to day lives and social engagement within the community. The circulation of the Donegal Times is limited but in a small rural area a newspaper can have a very large effect on local views and the regard and esteem that neighbours will have for each other. This attack on the plaintiffs’ character amongst their extended family, friends, neighbours and colleagues in their local community has had and continues to have devastating and longstanding consequences which are clear from the evidence which I have heard and accept. Though the nature of the claims set out in the respective statements of claim is slightly different in each case, it seems to me that the same false allegations of dishonesty and misappropriation of the waterbus monies is laid clearly against them without any basis whatsoever. The defamatory meaning is accepted following the making of the offer to make amends. I am satisfied that a sum of €120,000 as general damages, is appropriate as compensation for the defamation of Mr. Ward and Mr. Quinn, contained in the two articles penned by Mr. Hyland and published by the newspaper edited by him. The tone of the articles was calculated to diminish their standing and their contents were untrue.
88. I must also consider the offers to make amends in both cases. I do not consider that an apology was offered early in this case. Indeed the defendants maintained initially that there had been no defamation. They insisted that if the defendants wished to correct matters that were misleading they would be given the opportunity to do so. There was little or no appreciation demonstrated that an egregious wrong had been done to the plaintiffs in these articles. This stance was maintained until the offers of amends were made and accepted. However, the contents of the apologies offered have been rightly criticised for their emphasis on an acceptance that the editorials were “misleading in terms of the inferences to be drawn in relation to the finances of the Donegal Bay Waterbus”. The statements were then withdrawn in the proposed apology. There was no reference to the central allegation and core element of the defamatory allegations of which legitimate complaint had been made in the statements of claims and initiating letters, namely clear allegations and innuendos concerning the misappropriation and mishandling of waterbus money. This was then followed by the surprising publication of the two further articles rehashing the same material described above while these proceedings were pending. In those circumstances the defendants claim mitigation of the amount of damages to be awarded on the basis of the principles set out above. I note that the discount that may be awarded in England may extend to up to 50%. However, each case depends on its own facts. In Christie, 33 ⅓ % only was allowed because of the manner in which the proposed apology was framed. I am conscious that in certain circumstances the publication of the two later articles might constitute a basis to consider an award of aggravated damages. However, in this case the publication occurred in the course of the proceedings while the offers were under consideration in one instance and the proceedings pending in the second. Therefore I consider the articles to be more relevant to the mitigation issue. I do not consider that the defendants engaged adequately with the concept of an apology within the spirit and intention of s.22. For the reasons set out above I am satisfied that a much reduced level of mitigation should be allowed in all the circumstances. I will allow a reduction of 20% on the general damages awarded in each case in recognition of the offers to make amends, as I am obliged to do under the case-law. There will be a reduction of €24,000 in respect of the offers to make amends in each case. Therefore, each plaintiff is entitled to a sum of €96,000 in damages against the defendants.
Christie v TV3 Television Networks Ltd CA
[2017] IECA 128
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 4th day of May 2017
1. The plaintiff, David Christie, is a highly respected solicitor of good standing in the profession. He was, unfortunately, unintentionally defamed by an evening television news bulletin broadcast by the defendant, TV3 Television Networks Ltd. (“TV3”) on the 11th November 2013. TV3 promptly broadcast an apology to Mr. Christie. When the plaintiff commenced the present proceedings for defamation, TV3 made an offer of amends pursuant to s. 22 of the Defamation Act 2009 (“the 2009 Act”). It did not seek to defend the proceedings other than to make submissions as to how the court should assess the quantum of damages.
2. In the High Court O’Malley J. assessed the starting point of the level of damages in a fully contested case of this kind as being a sum in the region of €200,000. She nevertheless thought that it was appropriate to allow a discount in the region of one third in the light of the offer of amends and an apology. She accordingly awarded Mr. Christie the sum of €140,000: see Christie v. TV3 Television Network Ltd. [2015] IEHC 694. TV3 has now appealed to this Court, saying that the starting point of an award of €200,000 damages in a case of this kind is just too high and that appropriate weight had not been given to the nature of the apology and the offer of amends. TV3 contends that the level of the discount should be higher and it has suggested a figure of 50%.
3. The present appeal accordingly raises the questions of how the court should assess damages in cases of unintentional defamation of this kind and, furthermore, what the appropriate level of discount in cases of this kind where an offer of amends has been made pursuant to s. 22 of the 2009 Act should be. It is understood that this is, in fact, the first case where this aspect of the offer of amends procedure has fallen for consideration at appellate level. Before assessing the difficult legal questions which arise in the course of this appeal, it is, however, necessary to detail the backgrounds facts.
The defamatory publication
4. Mr. Christie had been representing a Thomas Byrne in the course of a long running criminal trial which had run for several weeks in October and November 2013. Mr. Byrne was a former solicitor who had been charged with a multiplicity of fraud related offences and his case had received widespread media coverage. Mr. Byrne, who was on bail throughout the trial, was eventually convicted on all charges and was sentenced to a term of imprisonment.
5. As the trial neared its conclusion TV3’s news bulletin broadcast the following account on the evening of 11th November 2013:
“The jury in the trial of solicitor Thomas Byrne will resume its deliberations tomorrow morning. It has already spent several hours considering its verdict. The 23-day trial ended this morning with a summing-up from Judge Patrick McCartan. Thomas Byrne has pleaded not guilty to 50 counts of theft, forgery, using forged documents and deception. The total amount involved is almost €52m.”
6. These words were, however, accompanied by footage of Mr. Christie making his way, into the Criminal Courts of Justice building in Parkgate Street, Dublin 8, albeit unaccompanied by his client, Thomas Byrne. Mr. Christie was not mentioned by name in the course of the broadcast which lasted for approximately nine seconds. The members of the Court have had an opportunity of seeing the broadcast and, indeed, the subsequent apology as broadcast by TV3. It seems clear that the footage showed Mr. Christie rather than Mr. Byrne and that this was as a result of human error.
7. On the 14th November 2013, the plaintiff’s solicitor wrote to the defendant. The broadcast was described as “wholly untrue, false and malicious and grossly and seriously defamatory”. The writer claimed that a variety of defamatory assertions were identified as having been made by the broadcast, beginning with an assertion that the plaintiff had been struck off and ending with the assertion that he was a convicted criminal. The letter sought an “immediate, unequivocal and suitable” retraction and apology, and the furnishing of proposals for “substantial” compensation.
8. The defendant’s solicitor replied immediately in the following terms:
“TV3 accept that your client was featured on the news item dealing with the trial of Mr. Thomas Byrne. This was an innocent mistake that arose due to an editing error and for which our client offers their sincere apologies to Mr. Christie. They are prepared to broadcast a clarification and apology on their news bulletins and on TV3.ie in terms to be agreed and you might please let us have your proposed wording. TV3 have taken immediate steps to ensure that the footage cannot be rebroadcast at any time in the future and have also removed it from their online content.
In respect of your claim for substantial compensation TV3 denies that the piece was grossly and seriously defamatory of Mr. Christie or that they accused him of the matters set out in your letter. Thomas Byrne’s image has featured extensively in television and print media over the last number of weeks and is readily recognisable by the general public as a result. At no point during the piece was your client identified by name. Anybody who visually recognised him would be well aware that he was David Christie and not his/your client, Thomas Byrne.
TV3 once again accept that a mistake was made and they are more than willing to apologise for that mistake but they do not accept the allegation that the matter merits substantial compensation as demanded by you.”
9. Mr. Christie’s solicitor responded by enclosing a draft apology which was to be broadcast on the upcoming 5.30 news bulletin and on the internet. The draft was in the following terms:
“On our 5.30 News Bulletin on Monday, 11th November 2013 and in subsequent rebroadcasts on various platforms, we published lengthy video images and footage of Mr. David Christie with voice-over wrongly identifying him as solicitor Thomas Byrne, who is on trial for fifty counts of theft, forgery and related serious offences.
TV3 acknowledges that the unintended reference to Mr. David Christie was wholly untrue, false and grossly defamatory of him. TV3 is happy to clarify this matter and apologises to Mr. Christie and to his family for the distress and embarrassment caused. An agreed sum in compensation has been paid to Mr. Christie, together with a contribution to his legal costs.”
10. The defendant replied in turn and it offered to broadcast the following apology:
“On our 5.30 News Bulletin on Monday, 11th November 2013 and in subsequent rebroadcasts on various platforms, we broadcast footage of Mr. David Christie with voice-over wrongly identifying him as solicitor Thomas Byrne who is on trial for fifty counts of theft, forgery and related serious offences.
TV3 acknowledges that the unintended reference to Mr. David Christie was wholly false and untrue. TV3 are happy to acknowledge that Mr. Christie is a well respected solicitor. We apologise to Mr. Christie and to his family for the distress and embarrassment caused. TV3 has agreed to make a donation to a charity nominated by Mr. Christie.”
11. The sum proposed by way of charitable donation was €1,000, which sum was to be paid as a gesture of goodwill and without any admission of liability. Mr. Christie’s solicitor rejected this latter proposal, saying that it displayed “a continuing determination to belittle our client’s concerns and to trivialise your client’s outrageous behaviour and its consequences.”
12. An apology was, however, broadcast later by TV3 on the 15th November 2013 as follows:
“On our 5.30 News Bulletin on Monday, 11th November 2013 we broadcast footage of Mr. David Christie during a news item relating to the ongoing trial of former solicitor Thomas Byrne. Mr. Byrne is on trial for a number of serious offences.
TV3 would like to clarify that there is absolutely no suggestion that Mr. Christie has been on trial for any such offences. TV3 are happy to acknowledge that Mr. Christie is a well respected solicitor and would like to apologise to Mr. Christie and his family for any distress and embarrassment that may have been caused.”
13. There then followed an exchange of correspondence between the parties which ultimately gave way to litigation. TV3 adhered to its position that it had made an innocent mistake for which it had duly apologised. One letter is, however, of particular interest because it echoes the argument which counsel for TV3, Mr. McCullough S.C., was to press strongly during the course of the appeal to this court:
“It is worth repeating that Thomas Byrne is an almost uniquely identifiable individual owing to the extraordinary amount of coverage he has received on television and print media over the past six years. Mr. Christie was never named or identified by TV3 during the piece in question. We do not see how any ordinary person would have confused Mr. Christie with his client, Thomas Byrne. It is also quite clear that anybody who knows Mr. Christie and saw him on the 5.30 News broadcast in question would have known full well that he was not Thomas Byrne… …unfortunately, in all of the circumstances our client does not believe that ‘substantial compensation’ is warranted.”
14. A plenary summons was issued by the plaintiff on the 4th December 2013, to which the defendant entered an appearance following service. The plaintiff delivered a statement of claim on the 21st January 2014. On the 5th March 2014 TV3 made a formal offer of amends pursuant to s. 22 of the 2009 Act. The offer was in the following terms:
“Our client’s offer to make amends means that it will, again, if required by your client, make a suitable correction of the statement and broadcast published and apologise to your client. As you are aware, TV3 already apologised to Mr. Christie and corrected the broadcast that is the subject matter of these proceedings on its 5.30 news programme of Friday, 15th November 2013. We believe that the correction and apology published by TV3 was reasonable and practicable in the circumstances. However, our offer now includes a proposal to re-publish this apology should your client require it to be done for a second time. Our client’s offer to make amends also means that it is prepared to pay such damages and costs as may be agreed by our respective clients or as may be determined by the Court. If you accept our offer you are required to specify what damages and costs your client is seeking.
If you refuse to accept this offer of amends then our client shall rely upon your failure to accept the offer as a defence to these proceedings.”
15. There then followed further correspondence whereby TV3 clarified that its offer extended to any rebroadcasts on the internet. By letter dated the 2nd May 2014 TV3 expressed the hope that:
“On that basis we trust that our client’s offer to make amends has been accepted by your client.
In our letter of 5th March 2014 we confirmed that we would republish the original correction and apology and called on you to specify what damages and costs your client is seeking. We believe this constitutes a valid offer to make amends in accordance with s. 22 of the Defamation Act 2009, but we note that your client has declined to specify his demands and instead called on our client to set out further details of their offer…..
Our client now repeats their offer to re-broadcast the original correction and apology, or such other correction and apology as may reasonably be agreed between the parties, and confirms that they are prepared to make a payment of [redacted] to your client by way of compensation together with costs to be taxed in default of agreement.”
16. By letter dated the 13th June 2014, Mr. Christie’s solicitor confirmed that the offer to make amends had been accepted. The view was expressed that “agreement could be reached” about the apology. It was also considered that taxation would probably resolve the costs aspect. The sum which had been offered by way of compensation was, however, rejected as being “derisory”.
The evidence before the High Court
17. The matter ultimately came before O’Malley J. in the High Court. The only evidence before the Court was that of the television broadcast itself and the oral evidence of Mr. Christie.
18. In his evidence Mr. Christie said that he qualified as a solicitor in 1992 and had been a partner in Christie & Gargan since 1997. In late 2007 he had agreed to represent Mr. Byrne. This originally involved dealing with the Law Society on his behalf, when moves to strike Mr. Byrne off the roll of solicitors were in train. The plaintiff subsequently agreed to defend him in the criminal proceedings.
19. On the morning of the 13th November 2013, the plaintiff was waiting to cross the street on his way into the Criminal Courts of Justice. He noticed two photographers and a cameraman pick up their equipment and run towards him. He said that he was “a little embarrassed” by this. He was quite certain that the cameraman knew that he was not Thomas Byrne, because he had previously objected to that particular individual’s behaviour to Mr. Byrne. The cameraman was still filming as he went in the door of the building, and the plaintiff said to him something to the effect that he was on his own, or that he did not have his client with him.
20. Mr. Christie did not see the defendant’s news bulletin that evening. When he went in to the office the next morning his partner told him that he should check it out. Another member of Mr. Byrne’s legal team showed it to him online during the course of the day, and he felt shocked. Later that evening he left court with Mr. Byrne. As they walked up the street together a man spat in the plaintiff’s face and called him “a thief” and used other abusive language.
21. Mr. Christie described his upset with this incident. That evening he fielded a number of telephone calls from former clients wanting to know if he had returned their deeds to the bank and similar questions. One man asked what had happened to his wife’s settlement cheque in a personal injury claim, although the case was still with the Personal Injuries Assessment Board and no cheque had issued. On another occasion when the plaintiff was socialising with some colleagues, a man approached him, grabbed him by his jacket and invited him outside for a fight, addressing him as a thief.
22. Mr. Christie also recounted how on another social occasion a man said to him “I thought you were locked up”. Mr. Christie told him he was mistaken, whereupon the man threw his drink over Mr. Christie’s coat. Mr. Christie also stated that he and his wife had stopped going out for dinner because people stared at them. He maintained that there is still an effect on his solicitor’s practice and as of the date of the High Court hearing (5th May 2015) he was still getting calls from clients asking what he has done with their documents.
23. Mr. Christie said that he thought that the proposed apology and donation to charity was insulting. Charitable donations were a personal matter for himself and his wife. The proposal belittled his position as a solicitor.
24. Counsel on behalf of the defendant, Mr. O’Callaghan SC, commenced his cross-examination by apologising to the plaintiff for what was described as “the mistaken footage”. Mr. Christie accepted when it was put to him that some members of the public found it difficult to distinguish between the client and the lawyer, but he also noted that none of these unpleasant incidents had occurred before the broadcast. He did not, however, accept that the apology was either fulsome or genuine, in particular because it did not say that the broadcast had been untrue and defamatory.
25. Mr. Christie further agreed that Mr. Byrne’s image had been widely portrayed both before and during the criminal trial. It was suggested to him that his own clients knew what he looked like, and that people following the trial knew what Mr. Byrne looked like. Mr. Christie responded that people did not even hear the name – they just heard the words fraud and theft. While Mr. Christie felt that his practice had been affected, he acknowledged that this might also have been because of the economic downturn.
26. In the course of a very careful and thorough judgment O’Malley J. analysed the novel provisions of the 2009 Act and considered some of the contemporary English case-law dealing with offers of amends. She concluded thus:
”In the hypothetical scenario of the case being dealt with as a fully contested defamation action heard without a jury, with no mitigating aspects, I would be inclined to award a sum in the region of €200,000. I consider it to be appropriate to allow a discount in the region of one third, to take account of the offer to make amends and the apology. It does not seem appropriate to allow further mitigation in the absence of a more comprehensive apology and a failure, in the running of the action, to take responsibility for the fact that the plaintiff was damaged in his reputation as a result of the broadcast.”
27. It is next necessary to examine the relevant statutory provisions contained in the 2009 Act.
The relevant provisions of the 2009 Act
28. The 2009 Act effects the most far-reaching reform in the law of defamation in the history of the State. Section 6 of the 2009 Act provides that the torts of libel and slander have ceased to be described as such and are instead collectively described as defamation. A “defamatory statement” is defined in s.2 of the 2009 Act as a statement that tends to injure a person’s reputation in the eyes of reasonable members of society. It includes “visual images, sounds, gestures and any other method of conveying meaning”. Section 6(3) provides that a defamatory statement concerns a person if it could reasonably be understood as referring to him or her.
29. The offer of amends procedure introduced by s. 22 of the 2009 Act is one of the most significant changes effected by this legislation. Section 22 of the Act provides as follows:
“(1) A person who has published a statement that is alleged to be defamatory of another person may make an offer to make amends.
(2) An offer to make amends shall:
(a) be in writing,
(b) state that it is an offer to make amends for the purposes of this section, and
(c) state whether the offer is in respect of the entire of the statement or an offer (in this Act referred to as a “qualified offer”) in respect of:
(i) part only of the statement, or
(ii) a particular defamatory meaning only.
(3) An offer to make amends shall not be made after the delivery of the fence in the defamation action concerned.
(4) An offer to make amends may be withdrawn before it is accepted and where such an offer is withdrawn a new offer to make amends may be made.
(5) In this section “an offer to make amends” means an offer:
(a) to make a suitable correction of the statement concerned and a sufficient apology to the person to whom the statement refers or is alleged to refer,
(b) to publish that correction and apology in such manner as is reasonable and practicable in the circumstances, and
(c) to pay to the person such sum in compensation or damages (if any), and such costs, as may be agreed by them or as may be determined to be payable, whether or not it is accompanied by any other offer to perform an act other than an act referred to in paragraph (a), (b) or (c).”
30. Section 23 of the 2009 Act sets out the procedure to be adopted where there is an offer to make amends. If the parties are agreed as to the measures to be taken, the court may, on the application of the person to whom the offer was made, give a direction under s. 23(1)(a) that those measures be taken. If the parties do not so agree, the party who made the offer can seek the leave of the court pursuant to s. 23(1)(b) to make a correction and an apology by way of a statement before the court. By virtue of s. 23(1)(c), where the parties do not agree as to the damages or costs payable by the person making the offer, those matters shall be determined by (in this instance) the High Court,
“…and the court shall for those purposes have all such powers as it would have if it were determining damages or costs in a defamation action, and in making a determination under this paragraph it shall take into account the adequacy of any measures already taken to ensure compliance with the terms of the offer by the person who made the offer.”
31. Section 24 of the 2009 Act deals with the effects of an apology. Subsection (1) provides that a defendant may give evidence in mitigation of damage of an offer of, or publication of, an apology where, inter alia, the offer or publication happened as soon as practicable after a complaint is made by the plaintiff. An apology does not constitute an express or implied admission of liability and is not relevant to the determination of liability. This section is applicable to all defamation actions, and not only those heard by a jury.
32. Section 31(3) of the 2009 Act provides that in making an award of general damages, “regard shall be had to all of the circumstances of the case.” Section 31(4) then enumerates a list of factors to which regard must be had in the assessment of damages:
“(a) the nature and gravity of any allegation in the defamatory statement concerned,
(b) the means of publication of the defamatory statement including the enduring nature of those means,
(c) the extent to which the defamatory statement was circulated,
(d) the offering or making of any apology, correction or retraction by the defendant to the plaintiff in respect of the defamatory statement,
(e) the making of any offer to make amends under section 22 by the defendant, whether or not the making of that offer was pleaded as a defence,
(f) the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement,
(g) the extent (if at all) to which the plaintiff caused or contributed to, or acquiesced in, the publication of the defamatory statement, and
(h) evidence given concerning the reputation of the plaintiff.”
The level of damages
33. As the Supreme Court has frequently stated, the law of defamation involves the striking of a balance by the Oireachtas of two potentially competing constitutional rights, namely, the protection of the right of a good name (Article 40.3.2) and right of free speech and expression (Article 40.6.1): see, e.g., Hynes-O’Sullivan v. O’Driscoll [1988] I.R. 436; de Rossa v. Independent Newspapers Ltd. [1999] 4 IR 432.
34. This constitutional balance necessarily implies that an award of damages for defamation must be measured and proportionate. An excessive award plainly impacts on the right of free speech and the special role which Article 40.6.1 ascribes to the organs of public opinion in the respect of “their rightful liberty of expression” and the “education of public opinion.” This might be thought to be especially true in the present case, since commentary on an important criminal trial is all part and parcel of this education of public opinion which is constitutionally designated as a core function of the media generally. On the other hand, an award of damages which did not adequately compensate the party defamed for injury, personal hurt and damage would amount to a failure to give effect to the substance of the guarantee of good name contained in Article 40.3.2.
35. This point was emphasised by Henchy J. in his judgment in Barrett v. Independent Newspapers Ltd. [1986] I.R. 13. Here the plaintiff was a member of Dáil Éireann of whom it had been alleged that after an unsuccessful attempt to unseat his party leader, he had accosted a particular journalist, and then “leaned over and pulled at my beard and said: ‘You thought you’d dance on his grave’.” The jury awarded a sum of IR£65,000 or about €80,000. This was, however, was some thirty years ago, so that allowing for the conversion from Irish pounds to Euro and inflation in the meantime, this represented a sum in the region of perhaps €160,000 – €170,000. The Supreme Court held that the award was simply too high. As Henchy J. explained ([1986] I.R. 13, 23-24:
“A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of, namely, that in an excess of triumphalism at his leader’s success the plaintiff attempted to tweak the beard of an unfriendly journalist. The jury might then have been asked to fit that allegation into its appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected. Had they approached the matter in this way, I venture to think that having regard to the various kinds of allegations of criminal, immoral and otherwise contemptible conduct that might have been made against a politician, the allegation actually complained of would have come fairly low in the scale of damaging accusations. The sum awarded, however, is so high as to convince me that the jury erred in their approach. To put it another way, if £65,000 were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exaltation, the damages proper for an accusation of some heinous and premeditated criminal conduct would be astronomically high. Yet, a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.”
36. The present case is admittedly more serious than the defamation at issue in Barrett. The casual viewer of the programme might well confuse Mr. Christie with Mr. Byrne. Those who knew Mr. Christie simply to see might think that he was actually Mr. Byrne. In the wake of the transmission of the newscast the potential for confusion, distress and embarrassment was admittedly considerable. It is also possible that some existing – and perhaps especially potential – clients would have been tempted to give him a wide berth in the light of the broadcast.
37. At the same time, there is, I think, much force to Mr. McCullough’s fundamental submission, namely, that it had been (wrongly) assumed in the course of the High Court judgment that all the viewing public would confuse Mr. Christie’s identity with that of Mr. Byrne. Those closest to Mr. Christie – his immediate family, his colleagues, friends and clients – would all know that this was simply not so and that the broadcast was obviously mistaken in showing images of Mr. Christie while speaking about Mr. Byrne.
38. It should also be recalled that Mr. Christie was not identified by name in the course of the broadcast and it is easy to see how errors of a different category would have made the defamation far worse. Had, for example, the broadcast stated in error that Mr. Christie was on trial for fraud offences and implied that he was a disgraced solicitor the defamation would have been infinitely more serious than what actually occurred.
39. None of this is to say that it was not a serious defamation, because it was. As I have already observed, the potential for confusion, distress and embarrassment was considerable and should not be minimised. It is rather to say that it was not a defamation of such a character as would merit a starting point in the region of €200,000 in terms of the assessment of damages. If that were indeed the starting point in a case of this kind, then, adapting the language of Henchy J. in Barrett, the damages in respect of a deliberate, calculated accusation of serious wrongdoing by the plaintiff in which he had been mentioned by name would be “astronomically high.”
40. For my part, taking account all relevant factors – a once-off nine second broadcast, the fact that the plaintiff was not named, the very limited range of viewers who might think that the news item referred to Mr Christie, the absence of any animus towards the plaintiff, coupled with the fact that it was plainly a case of mistaken identity – I consider that these mitigate the otherwise very serious nature of the defamation. In the light of these factors, therefore, it is sufficient to state that this is not a defamation which would warrant a starting point in damages of €200,000 identified by the trial judge and that in these circumstances a starting point of €60,000 is appropriate and proportionate.
What reduction should be given in view of the offer of amends?
41. It is reasonable to suppose that the new offer of amends system was introduced by the Oireachtas so that fully contested defamation actions might be avoided where this was possible by means of a swift apology to the injured party, the publication of a suitable apology and correction and the payment of compensation where this was warranted. Since it is very much in the public interest that the parties engage in what amounts to a conciliation process, it is only appropriate that the level of damages be reduced appropriately in acknowledgment of the defendant’s willingness to accept it’s wrong-doing. This has certainly been the experience in the United Kingdom since the enactment of the Defamation Act 1996: see, e.g., Cleese v. Clark [2003] EWHC 137, Nail v. Jones [2004] EWCA Civ 1708 and KC v. MGN Ltd. [2013] EWCA Civ 3. A similar approach was adopted by McDermott J. in his comprehensive judgment in Ward v. Donegal Times Ltd. [2016] IEHC 711.
42. In the present case TV3 not only swiftly acknowledged its wrong, but it offered to apologise and did apologise to the plaintiff on its main evening television bulletin within a few days of the first publication. This is all greatly to its credit and it should accordingly be rewarded by a suitable discount by reason of the fact that it also offered to make amends under s. 22 of the 2009 Act. In the High Court O’Malley J. measured that discount at approximately 33%, but for my part I would go further: I consider that TV3 should receive a discount of 40% in recognition of the swiftness of the apology and the general prominence given to the apology.
43. In this regard, one cannot but be impressed by the prominence given to the apology in the present case, since all too often in the past media outlets- while publicly professing a willingness to place corrections and to apologise for defamatory comment – have nonetheless sought effectively to hide corrections and apologies by ensuring that such are not given appropriate prominence. The level of discount in s. 22 cases where the apology is grudging or not given appropriate prominence will obviously be a lot less than where the apology is fulsome, generous and given the prominence which it deserves. As McDermott J. observed in Ward, the level of the discount will be lower where the defendant has failed to engage “adequately with the concept of an apology within the spirit and intention of s. 22”.
44. One may indeed further observe that but for a number of aspects of the apology offered and suggested the level of discount would have been even higher again. I would itemise the following factors as reducing somewhat the level of discount which might otherwise have obtained in the present case.
45. First, the apology did not state in terms that Mr. Christie had been defamed and, indeed, as his counsel, Mr. Ó Tuathail SC noted, the first time that the term was used by TV3 was in its submissions to this Court. The failure to acknowledge this obvious fact takes from the completeness of the apology.
46. Second, Mr. Christie objected – and, in my view, quite rightly – to the level of compensation which TV3 originally offered, namely, an offer to make a payment of €1,000 to a charity of his choice. As Mr. Christie pointed out in his evidence, this was virtually to trivialise the nature of the defamation which took place. He was entitled to say that not only was his reputation worth far more than that, but also that such an offer failed to recognise the seriousness of the defamation which had occurred.
47. Third, the apology simply stated that TV3 apologised “to Mr. Christie and his family for any distress and embarrassment that may have been caused” (emphasis supplied). In this context, however, the use of the indefinite (“any distress and embarrassment”) rather than the definite article (“the distress and embarrassment”) is more than a grammatical or linguistic quibble. The use of the indefinite article rather suggests on the contrary a level of mental reservation about the nature of the defamation concerned and its seriousness. It implied that Mr. Christie might not have suffered any personal distress and embarrassment when this was obviously not so.
48. All of this is to say that while the apology published was satisfactory and that it did in its own right attract a significant discount, it might have been more complete and fulsome for the reasons I have just ventured to state. Had it been more complete and fulsome, then the level of the discount would have been even higher than the 40% indicated in this judgment.
Conclusions
49. In summary, therefore, I would summarise my conclusions thus.
50. First, while this was a serious defamation of the plaintiff, it was not at the level which would merit a starting point of €200,000. Factors such as the one-off nature of the broadcast, the relatively short duration of the broadcast, the failure to name the plaintiff, the lack of animus towards the plaintiff and the fact that it was an obvious error which those closest to Mr. Christie – his family, friends, work colleagues and clients – would surely know all take from the seriousness of the defamation. The appropriate starting point is, accordingly, a figure of €60,000.
51. Second, while the apology published was satisfactory so that TV3 are entitled to a substantial discount, that discount figure could itself have been higher had, for example, the apology acknowledged that he had been defamed and had apologised for the distress and embarrassment which the publication had caused.
52. Third, in these circumstances I would allow the appeal to the extent that I would reduce the starting figure of €200,000 to €60,000 and increase the level of discount from one-third to 40%. I would accordingly substitute a figure of €36,000 for the award of €140,000 made by the High Court as the sum to be paid to Mr. Christie by way of damages for defamation.
Philpott v Irish Examiner Ltd
[2016] IEHC 62, Barrett J.
JUDGMENT of Mr Justice Max Barrett delivered on 8th February, 2016.
Part 1: Overview
1. The essence of the within application is simply stated: the Irish Examiner newspaper has published certain articles on its website; Mr Philpott wants them removed. He seeks to achieve this by having the court grant interlocutory orders prohibiting the Irish Examiner, its servants or agents, from continuing to publish the impugned articles on-line.
Part 2: A Brief Aside
2. Before proceeding with its judgment proper, the court pauses to address a specific concern that, it is claimed, presents for Mr Philpott at this time. A married man with two young children, he maintains that as a result of the articles that remain on the Irish Examiner website, it is proving difficult for him to get employment. To the extent that this is so, if it is so, it may assist Mr Philpott if the court briefly sets the record straight insofar as it can:
Mr Philpott is the former CEO of Marymount University Hospital and Hospice Limited. During the course of his employment as CEO, he sought to draw attention to what he perceived to be serious shortcomings in the operation of Marymount. Subsequently, there was a parting of the ways between himself and Marymount. This parting resulted in employment-related court proceedings between Mr Philpott and Marymount. However, the parties eventually settled their differences and the Board of Management of Marymount has given Mr Philpott a positive reference and publicly wished him well in his future career. The within application involves an attempt by Mr Philpott to have certain articles that he alleges are defamatory of him removed from the website of the Irish Examiner. Mr Philpott was entitled to bring the proceedings that he has settled. Moreover, while this Court is of the view that it cannot, as a matter of law, grant him the reliefs that he now seeks, he was fully entitled to bring the within application.At this time, there is nothing more to matters than that.
Part 3: The Nature of the Application Now Made
3. The within application is brought pursuant to s.33 of the Defamation Act 2009. That provision allows the court to make an order prohibiting the publication of a defamatory statement. So far as relevant to the within application, it provides:
“33. – (1) The High Court…may upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which application was made if in its opinion –
(a) the statement is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.
(2) Where an order is made under this section it shall not operate to prohibit the reporting of the making of that order [so no ‘super-injunctions’] provided that such reporting does not include the publication of the statement to which the order relates.
(3) In this section ‘order’ means
(a) an interim order,
(b) an interlocutory order, or
(c) a permanent order.”
4. Notably, the premium placed by our society on freedom of speech is such that our elected lawmakers provide merely that the High Court “may” grant a s.33 order even when the court is of the opinion that an indefensible defamatory statement presents. That the High Court “may” grant such an order, but need not do so, indicates that our elected lawmakers contemplated that there will be instances when a court is of the opinion that an indefensible defamatory statement presents but may nonetheless elect not to bring the hammer of a s.33 order to bear in all the circumstances arising.
5. Notable too is the fact that the High Court need merely be of the opinion that the factors identified in s.33(1) present. In Reynolds v. Malocco [1999] 2 IR 203, Kelly J. indicated the position at common law as regards the granting of injunctions in situations of a type now governed by s.33 was that there should be no doubt but that the words complained of were defamatory. By reducing the test to a matter of judicial opinion, our elected lawmakers, in enacting s.33, appear to have lowered the bar for plaintiffs in this regard. Even so, a court in a liberal democracy such as ours that places a high premium on freedom of speech, may be slow in any event to issue a s.33 order, notwithstanding that the court is of the opinion that an indefensible defamatory statement presents. Indeed the profound importance of free speech – a freedom inextricably linked to the freeness of our nation -is such that it is arguable that a court ought to be slow to do so. One possible situation that occurs to the court in which the s.33 criteria might be satisfied but where, nonetheless, a s.33 order might not issue, would be where a court was possessed of the necessary opinion but not sufficiently confident of that opinion, whether on the facts presenting or otherwise, to wield the hammer of injunctive relief.
6. What does “defamatory” mean for the purposes of s.33? The term is defined in s.2 of the Act of 2009 as meaning “a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and ‘defamatory’ shall be construed accordingly”. The term “statement” is also defined in s.2 and includes (a) a statement made orally or in writing, (b) visual images, sounds, gestures and any other method of signifying meaning, (c) a statement that is (i) broadcast on the radio or television, or (ii) published on the internet, and (d) an electronic communication. There is no doubt but that the on-line articles published by the Irish Examiner and which are the focus of the within application either comprise two statements and/or are two publications comprised of multiple statements.
7. Counsel have been unable to identify any previous Irish case-law that examines the precise nature of the test to be applied before a s.33 order will issue in circumstances such as those now presenting and have effectively invited the court to arrive at some formulation of the relevant test, and to determine whether, for example, a Campus Oil or Maha Lingham-style test applies. However, it seems to the court that the tapestry of law woven by the Oireachtas does not invariably or even generally require additional embroidery by the courts. The Act of 2009 posits simply that there are three criteria which must be satisfied before an order can issue under s.33, viz:
In the opinion of the court:
(1) is the statement complained of defamatory?
(2) does the defendant have a defence to the claim of defamation?
(3) is that defence reasonably likely to succeed?
8. The great strength of the common law is that so many judges have said so much; the great weakness of the common law is that so many judges have said so much. Either way, to borrow from Sati, there comes a time for everybody when words and reason become a great weariness. To add more to the plain words of statute, to afford those words a meaning other than what ordinary English requires, seems to this Court to be unnecessary.
9. The court is conscious that Kearns P. in Lowry v. Smith [2012] IEHC 22 did seek to define, in the context of s.34 of the Act of 2009, what was meant by the phrase “no defence to the action that is reasonably likely to succeed” which appears in that section also. However, that was a case dealing with s.34 of the Act and the very different scenario of summary disposal. Our courts are generally especially careful as regards exercising a power of summary jurisdiction because of the inherent potential for unfairness that arises. Consequently Kearns P. (in this Court’s respectful opinion, rightly) sought to pitch the test for summary judgment under s.34 in such a way as to favour defendants as much as possible, and thus reduce, so far as possible, the risk of a summary judgment issuing inappropriately. The same concerns do not present in the context of a s.33 application. The judgment of Kearns P. in Lowry, a case concerned with s.34, is clearly not binding in any way upon the court in the context of an application under s.33. Nor does it appear to this Court to be appropriate to apply, by analogy, the principles identified in Lowry to the very different form of relief established by s.33.
Part 4: A Chronology of Events
10. The court sets out a summary chronology of events below. It then proceeds to consider the substance of the three documents that are central to the within application, namely the judgment of Judge O’Donohoe on 12th June, 2015, and the Irish Examiner articles of 13th June, 2015, and 5th December, 2015. The key events arising are as follows:
06/05/2014. Mr Philpott commences employment as CEO of Marymount University Hospital and Hospice Limited.
02/02/2015. Mr Philpott’s employment with Marymount ceases.
12/06/2015. Judge O’Donohoe of the Circuit Court issues a written judgment determining in effect that certain disclosures made (‘whistleblowing’ done) by Mr Philpott during his tenure as CEO are not ‘protected disclosures’ for the purposes of the Protected Disclosures Act, 2014.
– Prior to that judgment issuing, application was made on behalf of Mr Philpott that Judge O’Donohoe recuse himself. This application was refused.
– Mr Liam Heylin, a reporter with the Irish Examiner seeks to make contact with a solicitor for Marymount. By the time the solicitor returns his call on the same day, Mr Heylin has already written up an article by reference to Judge O’Donohoe’s written judgment. Mr Heylin advises the solicitor that he does not require anything from her. Their conversation ends.
13/06/2015. The Irish Examiner publishes an on-line article entitled “Former CEO loses case against hospice”. The author of the article is identified as Mr Heylin.He was not in attendance at the Circuit Court on the previous day.
16/06/2015. Mr Philpott attempts at 11:29 and 12:32 to e-mail Mr Heylin asking that the Irish Examiner publish a paragraph of text outlining Mr Philpott’s motivation for doing as he did. Both e-mails are sent to the wrong address and never received by Mr Heylin.
19/06/2015. Mr Philpott speaks with and thereafter e-mails Mr John O’Mahoney, a news editor with the Irish Examiner, raising his concerns regarding the article of the 13th.
04/12/2015. Appeal against Circuit Court decision called on for hearing before High Court (Noonan J.). The dispute is settled between the parties and the orders and findings of fact of the Circuit Court are set aside by the High Court. (There was some dispute between the parties at the hearing of the within application as to whether the findings of fact were in fact set aside. The High Court order, as perfected on 9th December last, orders “that this Motion be struck out with no further order and the Court noting that the orders of finding of fact in the Circuit Court be set aside”. The most natural reading of the order, this Court considers, is that the entirety of what happened in the Circuit Court is being struck out on consent, the court noting, in particular, that the embrace of that strike-out extends to such findings of fact as were made in the Circuit Court. The court is buttressed in this finding by certain submissions made to it by Mr Harty, SC, who appeared for Mr Philpott at the within application and also represented him at the High Court proceedings on 4th December last).
05/12/2015. Irish Examiner publishes an on-line article entitled “Ex-Marymount Hospice executive’s legal case resolved”. The author of the article is identified as Mr Heylin.
07/12/2015. Mason Hayes and Curran, the then solicitors for Mr Philpott, issue a letter to the Irish Examiner claiming the article of the 5th is defamatory, skewed, not fair and accurate, malicious and unprivileged. The letter, inter alia, seeks the removal of the articles from the internet.
10/12/2015. Ronan Daly Jermyn, solicitors for the Irish Examiner, issue a letter to Mason Hayes and Curran disputing that the articles are defamatory and declining to remove them from the internet.
14/01/2016. Successful ex parte application made to the Master of the High Court seeking leave to issue notice of motion seeking, inter alia:
“1.An interlocutory order prohibiting the [Irish Examiner]…its servants or agents from any further republication of an article on its on-line newspaper dated the 13th June 2015 titled ‘Former CEO loses case against hospice’
2. An interlocutory order prohibiting the [Irish Examiner] its servants or agents from any further republication of an article on its on-line newspaper dated the 5th December 2015 titled ‘Ex-Marymount Hospice Executive’s Legal Case Resolved’…”.
05/02/2016. Application for above ordersis heard by the High Court (Barrett J.).
Part 5: The Judgment of Judge O’Donohoe
11. Judge O’Donohoe’s judgment of 12th June last is divided into four parts. The first part (headed “Facts”) briefly outlines Mr Philpott’s employment history and the essence of the dispute arising. The second part (headed “The Law”) outlines the content of applicable sections of the Protected Disclosures Act, 2014.The third part (headed “Analysis”) considers the various allegations made by Mr Philpott as ‘whistleblower’.Judge O’Donohoe rejects the allegation that there was an improper use by Marymount of charitable funds that were given in good faith; rejects the suggestion that there are significant health and safety issues with the Marymount building, describing it as “a state of the art facility in a wonderful peaceful setting”; and rejects various contentions concerning the mismanagement of financial resources. Finally, in part 4 of his judgment (headed “Decision”), despite finding on all grounds against Mr Philpott, Judge O’Donohoe states that “[T]he Court accepts without reservation the sincerity of the plaintiff[i.e. Mr Philpott]”, an observation that was referenced in the subsequent Irish Examiner article.
Part 6: The First Irish Examiner Article
A. The text of the article
12. It is necessary to quote this article in full. The square-bracketed numbers that appear in the quoted text are cross-references to the court’s numbered notes below, which notes in turn refer to and consider certain contentions made for Mr Philpott at the hearing of the within application. The article reads as follows:
“Former CEO loses case against hospice
Saturday, June 13, 2015
by Liam Heylin
The former chief executive officer of Marymount Hospice in Cork who was dismissed from his post in February after seven months for ‘significant interpersonal difficulties’ between him and other staff members[1]failed in his application for a court injunction against the hospice yesterday.
Dan Philpott was appointed as CEO of Marymount University Hospital and Hospice Ltd in May 2014 and dismissed in February of this year and the reason given for the termination of his contract was “significant interpersonal difficulties between the applicant (Mr Philpott) and other members of staff, in particular the executive team”.[2]
Judge James O’Donohoe said in his judgment at Cork Circuit Court yesterday on Mr Philpott’s application for injunctive relief against Marymount that it was based on the applicant’s claim that he had made allegations against the employer.
The judge said that in legal terms an employee was outside the protection of the Unfair Dismissals Act if his contract was terminated before 12 months had passed but he said that if the allegations of wrongdoing made by the employee against the employer, referred to as ‘protected disclosures’, were accepted by the court then the employee could get the protection of the Act.
Judge O’Donohoe ruled against Mr Philpott on these key allegations.
“This court has only to satisfy itself that the beliefs and disclosures were reasonable and although the court accepts without reservation the sincerity of the plaintiff, objectively on the facts, in the court’s view, he had not satisfied that test. Accordingly, the court refuses interim relief.”
Firstly, Mr Philpott alleged that charity funding was being used for needs other than palliative care and was being used to fund administration, portion of salaries, expenses of board members and other staff and that this was an improper use of funds given in good faith.
“The court rejects this assertion out of hand. It is patently clear that the Marymount Hospice is a registered charity for a considerable length of time and any further money spent from donors is for the good of the community and is fully compliant. Furthermore, there have been no complaints made to any authority,” Judge O’Donohoe said.[3]
He also said that the assertion of a lack of transparency on fundraising and spending was not borne out by the evidence from the Marymount witnesses.
Secondly, the former CEO complained of a possible Legionnaire’s contamination of water and the evacuation of patients from a ward in 2014.
This was challenged by Marymount witnesses as alarmist and completely overstated for what they described as a water leak.[4]The judge accepted the hospice evidence on this issue.
Judge O’Donohoe found against the applicant’s criticism of the building noting that the building passed two Hiqa registrations and was, according to the judge, ‘a state-of-the-art facility in a wonderful peaceful setting’.
The third issue raised by Mr Philpott was alleged mismanagement of financial resources at the hospice.
Judge O’Donohoe noted in his judgment: ‘He (Mr Philpott) cautions against an over-reliance on charity funding as a working capital source and labels the executive committee as disengaged and that the hospice financial control procedures are ad hoc and an inadequate budget planning approach. Again there was no financial information tendered to support these contentions.’
The judge acceded to an application by Lucy Walsh BL representing Marymount for an award of legal costs in the three-day action in their favour. He refused an application by David Kent BL to put a stay on the order for costs.
* Mr Philpott is appealing the court decision and is also seeking a judicial review.[5]”
13. Re. [1] and [2].The introductory line to the Irish Examiner article – the line that, in effect, lures the reader into reading the balance of the article – states: “The former chief executive officer of Marymount Hospice in Cork…was dismissed from his post in February after seven months for ‘significant interpersonal difficulties’ between him and other staff members.” Counsel for Mr Philpott noted at the hearing of the within application that the Irish Examiner article commences by stating as a fact what Judge O’Donohoe indicates in his judgment is merely an assertion by Marymount. Per Judge O’Donohoe, at para. 1 of his judgment: “The Respondent [Marymount] asserts that the Applicant [Mr Philpott]was dismissed by reason of significant interpersonal difficulties between the Applicant and other members of staff”. Notably, however, the next succeeding line to that just quoted from the Irish Examiner article correctly states that: “Dan Philpott was…dismissed in February of this year and the reason given for the termination of his contract was “significant interpersonal difficulties between the applicant (Mr Philpott) and other members of staff, in particular the executive team” ”.This was, at least, the reason asserted in court.
14. To the extent that the Irish Examinerarticle contains an inaccuracy, the court would simply note that sometimes the best and nicest of people do not get on. This is a common feature of life. That such a difficulty was represented by the Irish Examiner as having existed in the case of Mr Philpott, instead of having merely been asserted to exist, does not seem to this Court, in its opinion, to involve a statement that would or does injure Mr Philpott’s reputation in the eyes of reasonable members of society. Indeed, this Court would hazard that reasonable members of society would be only too aware that (a) there are few managers who are universally beloved by all of the staff in their charge, and (b) if a manager enjoys a completely un-fractious relationship with all other staff, that may well point to that manager being a weak leader who consistently puts personal popularity ahead of organizational efficiency.
15. Re. [3].As indicated above, the Irish Examiner article states:
“Firstly, Mr Philpott alleged that charity funding was being used for needs other than palliative care and was being used to fund administration, portion of salaries, expenses of board members and other staff and that this was an improper use of funds given in good faith.
“The court rejects this assertion out of hand. It is patently clear that the Marymount Hospice is a registered charity for a considerable length of time and any further money spent from donors is for the good of the community and is fully compliant. Furthermore, there have been no complaints made to any authority,” Judge O’Donohoe said.”
16. It was contended by counsel for Mr Philpott at the hearing of the within application that, in fact, the assertion rejected by Judge O’Donohoe was an assertion that the diversion of charitable donations represented an improper use of funds given in good faith. What Judge O’Donohoe stated in his judgment is as follows:
“1. Charity funding being used for needs other than Palliative Care.
[The allegation is that the charity funding]…is being used as a working capital fund, to fund administration, portion of salaries, expenses of board members, executives and employees etc. This diversion of charitable donations represents an improper use of funds given in good faith. This court rejects this assertion out of hand on the evidence as such expenditure is not contrary to the provisions of the Charities legislation 2009 and updated provisions which came into force in 2014. It is patently clear that the Marymount Hospice is a registered Charity for a considerable length of time and any money spent from donors is for the good of the community and is fully compliant. Furthermore there have been no complaints made in this regard to any authority.”
17. The court struggles to see that there is much divergence of real substance between the text of the Irish Examiner and the above-quoted portion of Judge O’Donohoe’s judgment, certainly not to the extent as to convert the text of the Irish Examiner article into a statement that, in the Court’s opinion, would tend to injure Mr Philpott’s reputation in the eyes of reasonable members of society.
18. Re. [4].The Irish Examiner article states:
“[T]he former CEO complained of a possible Legionnaire’s contamination of water and the evacuation of patients from a ward in 2014.
This was challenged by Marymount witnesses as alarmist and completely overstated for what they described as a water leak.”
19. It was contended by counsel for Mr Philpott at the hearing of the within application that it was the usage of the term ‘evacuation’ that was found to be alarmist, not the possibility of contamination. What Judge O’Donohoe has to state in this regard is as follows:
“2.Significant issues with the building which posed and continued to pose critical risk to the health and safety of patients, staff and public.
[Mr Philpott’s]…assertions in this regard refer inter alia to possible Legionnaires contamination due to failure to monitor water temperatures and the necessity to install contingency hot water tanks and other measures to offset a potential explosion risk adjacent to the busy palliative care wards. He refers in particular to an incident on September 14th 2014 which resulted in critically ill patients having to be evacuated. This was entirely refuted in cross examination as completely overstated as the occurrence involved a few patients being transferred to a nearby ward for a short time until the situation came under control and was not anything as grave as was portrayed by the Applicant. This court was of the view that the use of the term evacuation in this context was alarmist and not reasonable terminology to describe this water leak.”
20. Mr Philpott did make ‘complaint’ as regards the contamination of water and the evacuation of patients. It is true that the word “alarmist” appears, at least from the text of the judgment, to have been used by the judge only, not by the witnesses, though it is difficult to see what substantive significance any error in this regard is seen to present if the facts as posited by Mr Philpott in his assertions were “entirely refuted in cross-examination”. Again, the court sees nothing in any of this that, in its opinion, constitutes a statement that would tend to injure Mr Philpott’s reputation in the eyes of reasonable members of society. That he would make certain assertions based on an understanding of the facts that was later refuted by others, is an everyday occurrence: honest people often see things one way, even though the truth of matters is later found to lie in another direction. Such is life.
21. Re. [5].The asterisked text “* Mr Philpott is appealing the court decision and is also seeking a judicial review” is the sole amendment that has been made to the article since it was published and appears to have been added sometime after the interaction between Mr Philpott and the Irish Examiner on 19th June.
B. Key Learnings
22. The above dissection of the Irish Examiner article represents a highly unnatural manner of reading. What are the key learnings that someone viewing the above-mentioned article would likely glean? First, that there was an employment-related dispute between Mr Philpott and his onetime employers. Second, that Mr Philpott had been dismissed, ostensibly because of some sort of difficulties between him and other staff. Third, that Mr Philpott had made various allegations about how Marymount was run – and, perhaps implicitly, that this might have been the real reason for his dismissal. Fourth, that a Circuit Court judge had gone through Mr Philpott’s allegations in some detail and did not find them credible, though he did not doubt that they were sincerely made. In short, the reader would have garnered the truth of matters, as this Court did on its first reading of the article. Anyone who elected to run a fine tooth-comb over every element of the article would have ended up with the same understanding.
Part 7: The Second Irish Examiner Article
A. The text of the article
23. It is necessary to quote the second Irish Examiner article in full:
“Ex-Marymount Hospice executive’s legal case resolved
Saturday, December 05, 2015
Liam Heylin
Legal proceedings between the former chief executive officer of Marymount Hospice in Cork and the hospice board were resolved amicably yesterday at the High Court sitting in Cork.
The case which arose out of proceedings at Cork Circuit Court earlier this year was listed for hearing before Mr Justice Seamus Noonan yesterday.
However, the parties sought time to discuss the issues outside the court and returned shortly before lunchtime to tell Mr Justice Noonan that those discussions had borne fruit.
Mark Harty, counsel for the plaintiff, Dan Philpott who was formerly CEO of Marymount University Hospital and Hospice Ltd, thanked the judge for allowing the parties time and said that thankfully it had borne fruit.
‘By consent the orders of the Circuit Court hearings are set aside,’ Mr Harty said.
‘Thereafter all matters have been resolved. The board of management of Marymount wishes him well in his future career.
Mr Justice Noonan congratulated barristers and solicitors on both sides on resolving matters in this fashion.
‘It is not an easy case to come to grips with. I am glad the parties have been able to resolve their differences,’ the judge said.
In June, this case was dealt with at Cork Circuit Court where Mr Philpott had failed in injunctive proceedings against Marymount.
Mr Philpott was appointed as CEO of Marymount University Hospital and Hospice Ltd in May 2014 and dismissed in February of this year and the reason given for the termination of his contract was ‘significant interpersonal difficulties between the applicant [Mr Philpott] and other members of staff, in particular the executive team.’
Judge James O’Donohoe said in his judgment at Cork Circuit Court in June on Mr Philpott’s application for injunctive relief against Marymount – a judgement that was in effect set aside by mutual agreement of the parties yesterday – that it was based on the applicant’s claim that he had made allegations of wrongdoing against the employer.
Judge O’Donohoe ruled against Mr Philpott on these key allegations.
‘This court has only to satisfy itself that the beliefs and disclosures were reasonable and although the court accepts without reservation the sincerity of the plaintiff, objectively on the facts, in the court’s view, he has not satisfied that test,’ said Judge O’Donohoe. ‘Accordingly the court refuses interim relief.’
In the June case, Mr Philpott alleged that charity funding was being used for needs other than palliative care and was being used to fund administration, portion of salaries, expenses of board members and other staff and that this was an improper use of funds given in good faith.
‘The court rejects this assertion out of hand,’ Judge O’Donohoe said. ‘It is patently clear that the Marymount Hospice is a registered charity for a considerable length of time and any further money spent from donors is for the good of the community and is fully compliant.
‘Furthermore, there have been no complaints made to any authority.’”
24. The court must admit to being somewhat mystified by Mr Philpott’s concerns regarding this article. The whole thrust of the article is that peace has broken out between the parties, that all has been resolved, that Marymount wishes Mr Philpott well, that a line has been drawn under past events and that everybody is now moving on. It seems thata good day’s work was done on the 4ththat ended with an amicable resolution of matters to the satisfaction of everyone involved.
25. Counsel for Mr Philpott argued at the hearing of the within application that the article does not make expressly clear that all findings of fact in the Circuit Court had been set aside. It does not, but that does not, in this Court’s opinion, convert the article or any part of it into a statement that tends to injure Mr Philpott’s reputation in the eyes of reasonable members of society. If anything, it suggests Mr Philpott to be a practically-minded gentleman who is capable of finding an amicable means of resolving a difficult situation. That, this Court would suggest, is precisely the type of skill that one would expect to find in a competent manager.
26. Mr Philpott also complains that the text from “In June…” to the end of the article is a recitation of what had gone before even though Judge Donohoe’s findings of fact had been set aside. The court sees nothing in this text but an abridged, condensed or summarised account of the trial and appellate proceedings. That this is what the Irish Examiner intended to, and in this Court’s view, did achieve is clear from the affidavit evidence of the author of the articles, Mr Heylin, who avers, inter alia, as follows:
“With respect to the second article, it was clear to any reader of such article that the proceedings had resolved amicably and that the Circuit Court orders had been set aside. It would have been an incomplete article if the reader was not then informed about what precise Circuit Court Orders had been made or what in fact the Circuit Court case was about…”.
Part 8: Some Applicable Law
27. Counsel for the respective parties have, between them, brought the court on something of a ‘whistle-stop’ tour of the law applicable to the within application, not least, though not only, by opening to the court various helpful extracts from the recentl earned treatise by Dr Cox and Mr McCullough, SC, Defamation Law and Practice (2014). The key points arising from this ‘tour de loi’ can be summarised as follows:
A. Existence of defamatory statement
(1) At common law, for injunctive relief to be granted, the court had to be satisfied that the material complained of was unarguably defamatory.(Mercury Engineering and Others v. McCool Controls and Engineering Ltd and Others [2011] IEHC 425; Cogley v. RTÉ [2005] IEHC 180). If anything, this Court would note, the position appears even stronger under s.33. Under that provision, the court must be of the opinion that an impugned statement “is defamatory”, not that it is arguably or even unarguably so, but that, in the court’s opinion, it “is” so. This is a high threshold for a plaintiff to satisfy. Indeed it is so high that the court would suggest that (a) the very height of that threshold, coupled with (b) the present cost of coming represented to court, may yet have the result that for many, if not most, people,(i) the financial risk involved in seeking s.33 relief, and (ii) the fact that the court need not issue a s.33 order even where it is of the opinion that an impugned statement “is defamatory”, will colour the initial attractiveness that such a line of action might be perceived to entail, ensuring perhaps that, more often than not, applications will be brought only (I) by the very rich and/or (II) those who have been so demonstrably and disgracefully defamed that the justice of their case cries out for injunctive relief.
B. Burden and nature of proof regarding defamatory statement
(2) At common law, the burden of proving the defamatory nature of the material complained of rested on the plaintiff. That position has not expressly been displaced by statute and it would seem thoroughly illogical were some other arrangement to apply. How could it possibly make sense that a party would come to court complaining that a statement “is defamatory” – a most powerful assertion to make – and seek the hammer of injunctive relief, but not be subject to the burden of proving matters to the extent that the High Court comes to be of the opinion that the assertion so made is correct? Notably, it was accepted for Mr Philpott at the hearing of the within application that the burden of proof in this regard fell to him to discharge.
(3) At common law, the plaintiff had to prove not merely that there was a serious question to be tried but that her/his case is absolutely clear. (See, for example, Cogley, op. cit.). A similar but not identical position appears now to present under s.33 of the Act of 2009. As noted above, under s.33 the court must be of the opinion that an impugned statement “is defamatory”. This is a high threshold for a plaintiff to satisfy (and, again, even when it is satisfied, an order need not issue under s.33).
(4) The jurisdiction to make a s.33-type order involves a jurisdiction of a delicate nature and should only be exercised in the clearest cases (Sinclair v. Gogarty [1937] I.R. 377). Obviously the decision in Sinclair long preceded the Act of 2009. However, a constant societal and legal standard, in the near-80 years since, has been our national commitment, as a liberal democracy, to free expression, free speech, and a free press. This constancy has the result that the principle identified in Sinclair falls to be applied with the same rigour and vigour today, as in yester-year.
C. No defence reasonably likely to succeed
(5) When it comes to determining that a defendant has no defence that is reasonably likely to succeed, courts should be careful not to intrude upon a factual determination that a jury might later make at trial. (Cox and McCullough, para.12-26). This carefulness would appear to have as its natural corollary that the benefit of any doubt as to the potential for success of a defence ought generally to be resolved in favour of the defendant.
D. Burden of proving defence
(6) The burden of proving the existence of a defence that is reasonably likely to succeed rests with the defendant. This was the position at common law (see, for example, the judgment of Kelly J. in Reynolds, op. cit.) and, perhaps even more significantly, it is consistent with the general and still-extant rule that once publication of defamatory material is established, the law presumes a plaintiff’s good name and the falsity of the publication, with it being for the defendant to prove any defences pleaded.
E. Absence of presumption
(7) A question arises whether certain presumptions extant at common law in the context of interlocutory injunctive relief also apply under s.33, e.g., presumptions as to (i) the truth of facts (if honest opinion is pleaded), (ii) the presence of the elements of qualified privilege (if qualified privilege is pleaded and no malice presents), or (iii) the possibility of nominal damages being a bar to relief under s.33. Although s.33 does not expressly suggest that these presumptions have been displaced, this Court must admit that it would be hesitant to graft onto the unvarnished wording of a statutory provision which creates a new basis for relief, the application of difficult-to-overcome presumptions which our elected lawmakers could so easily have included, expressly or by reference, in the Act of 2009. Indeed, the fact that they did not do so may represent a re-drawing of the line as regards the protection of the good name of citizens. Fortunately, this is not an issue that needs to be resolved in the context of the within application and thus the court’s observations in this regard are entirely obiter. Suffice it to note that even if these presumptions do not apply, a plaintiff seeking relief under s.33 is still faced with a difficult up-hill task: s/he must come to court and lead the court to form the opinion that an impugned statement “is defamatory”, not that it is arguably or even unarguably so, but that it “is defamatory” – and even when that high threshold is met, a s.33 order need not issue.
F. Internet publications
(8) There is nothing in the technology-neutral wording of s.33 to suggest that internet publications fall to be treated differently from other publications when it comes to the granting of a s.33 order. To the extent that the decision in Tansey v. Gill[2012] IEHC 42 suggests that the opposite may apply, this Court’s instinctive preference is to look to the plain wording of statute as the key determinant of matters -and there is nothing in s.33 to suggest that the opposite applies. As a society, we were well into the Internet Age when the Act of 2009 was enacted. If our elected lawmakers had wanted to make some differentiation in this regard, they would surely have done so, and they did not. That said, s.33 remains ultimately an equitable discretion and this Court does not mean in the foregoing to tie the hands of any later court coming to an application of the type now presenting.
Part 9: The Reporting of Court Proceedings
A. Overview
28. Court reports are not just of interest to the public; they meet a great public interest. In a liberal democracy that prizes individual freedoms, all branches of government are rightly subject to the scrutiny of an ever-watchful public. Reporters perform an essential role in ensuring that members of the public learn of what is being done in their courts and why. In this regard, Burke did not exaggerate when he reputedly observed in the House of Commons that there were three estates in Parliament but that in the Reporters’ Gallery sat a ‘Fourth Estate’ that was more important than all. It is by and through the media that a critical eye is so often brought to the work of all branches, offices and officers of government. This is so important a task that – except insofar as is necessary to ensure that the right of every citizen to her or his good name is protected and capable of vindication – the media must go relatively unconstrained in their efforts. Our individual freedoms are more fully assured in the collective freedom of journalists to discharge the role so eloquently identified for them by the late President Kennedy, in a speech to the American Newspaper Publishers Association back in 1961, being “not primarily to amuse and entertain, not to emphasise the trivial and the sentimental, not to simply ‘give the public what it wants’ – but to inform, to arouse, to reflect, to state our dangers and our opportunities, to indicate our crises and our choices, to lead, mould, educate and sometimes even anger public opinion”, and, it might be added, not just to report, but to comment. A court must bring a consciousness of this great public interest to the adjudication of private proceedings such as the application now presenting.
B. Privilege afforded Court Reports
29. Privilege is either absolute or qualified. When it is absolute, a defendant is entirely protected in respect of any statements made, regardless, e.g., of any malice presenting. When privilege is qualified, a defendant is protected, except for statements made maliciously. So great is the protection given by absolute privilege, that the occasions which give rise to it are greatly limited in number. Section 17 of the Act of 2009 identifies various occurrences to which absolute privilege attaches. Section 17(1) establishes the overriding principle that any defence of absolute privilege recognised by the Irish courts before commencement of the Act of 2009 continue to be privileged thereafter. But it is s.17(2) of the Act that is of the greatest interest in the context of the within proceedings. It provides as follows:
“Subject to [a statutory provision that is not of relevance to the within application]…and without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was…
(i) a fair and accurate report of proceedings publicly heard before, or decision made public by, any court –
(i) established by law in the State…”.
30. Clearly, the Circuit Court is a court established by law in the State.
31. The effect of s.17 is that the statutory privilege contained in s.17(2) is additional to the privilege which historically attached to fair and accurate reports of judicial proceedings at common law. A case could conceivably present in which the differences between the ambit of the statutory privilege under s.17(2) and the still-continuing privilege that exists at common law would be of relevance. However, in the within application, that distinction does not arise to be considered. Matters can be decided by reference to s.17(2). The public/in camera dichotomy that presents ins.17(2) is also not of relevance to the within proceedings.
32. So, are the impugned Irish Examiner articles capable of attracting absolute privilege? Or to put matters otherwise, do they appear to this Court, in its opinion, to be court reports that are “fair and accurate”?
C. “Fair and Accurate”
33. The privilege attaching to court reports under s.17(2) of the Act of 2009 (and the related privilege arising at common law) only applies to court reports that are “fair and accurate”. What exactly does this phrase embrace? The court has been referred to various statements of principle in the renowned English textbook, Gatley on Libel and Slander (12th edition), pp. 310-320, and considers the principles identified below to be good law in this jurisdiction also:
(1) It is not necessary that a court report should be verbatim.
(2) An abridged or condensed court report will be privileged, provided it gives a correct and just impression of what took place in court.
(3) It is sufficient to publish a fair, summarised account of court proceedings.
(4) If the whole of a court report is a substantially accurate account of what took place, the fact that there are slight inaccuracies or omissions is immaterial. Fair and reasonable latitude must be given by the courts; trifling slips do not deprive a court report of privilege.
(5) A report in a daily newspaper is not to be judged by the same strict standard of accuracy as a report coming from the hand of a trained lawyer.
(6) Where an inaccuracy is of a substantial kind, a report is not privileged.
(7) An abridged or condensed court report must be fair and not garbled so as to produce a misrepresentation.
(8) A court report must not by deliberate suppression of some portion of the evidence give an entirely false and unjust impression to the prejudice of one of the parties involved.
(9) It is not enough to report part of the proceedings correctly, if by leaving out other parts, a false impression is thereby created.
(10) Reports assuming a verdict are not privileged.
(11) A report which accurately sets out the summing-up or judgment of a judge is privileged, even though the summing-up or judgment may contain statements that are defamatory.
(12) Gatley suggests that in a protracted trial a newspaper could be liable if it reported, e.g., Days 1-3 of a trial but failed to report what happened on the conclusion. This point does not fall to be decided in the within proceedings. However, this Court would be of the view that Irish law may well depart from what Gatley states in this regard. Why, for example, should a newspaper prove ultimately liable for publishing what, in and of themselves, are separate, fair and accurate reports? And why should the law dictate to editors what the contents of tomorrow’s newspapers or news programmes should be?
(13) A more liberal view of the immunity of reporters is taken now than in former times. Common-sense is allowed a larger share in determining any liability that may arise on their part.
34. There was some criticism voiced at the hearing of the within application that certain aspects of the proceedings before Judge O’Donohoe (specifically, the application that he recuse himself) were not witnessed, and hence not reported, by the Irish Examiner or its agents. To the extent that it is suggested that a court reporter needs to be present for any, let alone every, aspect of court proceedings on which s/he reports, this proposition is entirely rejected by this Court. Provided the above principles are observed, it is perfectly possible, reasonable and lawful for a court reporter to rely solely on the written judgment of a court as the basis for formulating a court report that later appears in print, ‘on-air’ or on-line, and for that report to be “fair and accurate”.
35. The court notes in passing that it considers that a court report about appellate proceedings, even settled appellate proceedings that are the subject of a court order regarding or pursuant to the settlement, does not cease to be a court report because it refers to matters that were addressed before the court of trial. Such a form of court report falls rightly to be treated as a court report that comprises an abridged, condensed or summarised account of the relevant trial and appellate proceedings.
36. The court does not consider that either of the impugned articles that are the subject of the within application offend against or, as appropriate, ought not to benefit from, the liberality and latitude that is afforded court reporters and court reports pursuant to, and consistent with, the above-identified principles.
Part 10: Publication and re-publication on the Internet
34. An issue that was suggested to arise in the within application was the date on which the Irish Examiner’s two on-line news articles are to be treated as having been published. In this regard, the court understands the issue to be that (1) the articles were published first on the internet on the respective dates shown on the articles, (2) they have been accessible ever since, and (3) each time one or both of the articles is now communicated to a third party this, it is claimed, amounts to a new publication giving rise to a fresh cause of action.
37. This aspect of matters, it seems to the court, is addressed by the technology-neutral provisions of s.11 of the Act of 2009, which is concerned with what it refers to as instances of “multiple publication”. Section 11(3) of the Act defines a “multiple publication” as “publication by a person of the same defamatory statement to 2 or more persons (other than the person in respect of whom the statement is made) whether contemporaneously or not.” When it comes to electronic publications, could there, at this time, be any better example of a “multiple publication” than the same on-line newspaper article being accessed over time by two or more people other than the person in respect of whom a statement in that internet article refers? Probably not. So what does s.11 state in respect of such a “multiple publication”? Section 11(1) states that “Subject to subsection (2), a person has one cause of action only in respect of a multiple publication.” Section 11(2) empowers the court to grant leave to a person to bring more than one defamation action in respect of a multiple publication in circumstances “where it [the court] considers that the interests of justice so require.” So s.11(1) sets the general position, and s.11(2) allows for what seem likely to be exceptional instances.
38. What is not expressly answered in the foregoing is what date is to be treated as the date of publication of a multiple publication that is accessed on-line on different dates over time. It seems to this Court that, at least in the context of on-line publications, and despite such longstanding decisions as Duke of Brunswick v. Harmer [1849] 14 Q.B. 185 – a decision which, the court would hazard, with some confidence, was not made with an eye to the Internet Age – it must, logically, be the case that it is the date of first publication that is to be treated as the date of publication of a multiple publication that is accessed on-line at different times and/or on different dates. Were this not so, on-line news providers would be under a never-ending duty at all hours of every day to re-visit constantly each and all of their archived articles and reports and repeatedly up-date them so that those archived articles and reports reflected any changes of relevance that might have occurred between the moment the articles initially went up on-line and each time those articles might be freshly accessed thereafter. Such an end would be a complete nonsense, commercially, practically and legally. Logically, sensibly, and properly, the only way to read s.11 when it comes to on-line publications – a type of publication that had long existed by 2009 and which our elected lawmakers can be presumed to have had within their contemplation when enacting that Act -is that (if only to avoid the nonsense just identified) it is the date of first publication that is to be treated as the date of publication of a multiple publication that is accessed on-line at different times and/or on different dates over time. The court proceeds on this basis when approaching the three-pronged test that arises under s.33. And it sees some support for its conclusion as to the centrality of the date of first publication in the insertion into the Statute of Limitations 1957, by s.38 of the Act of 2009, of a new s.11(3B) whereby the date of accrual for a defamation action in respect of an on-line publication is “the date on which it is first capable of being viewed or listened to through that medium.” Any potential for unfairness that the approach favoured by this Court may entail seems to it, and appears also to have seemed to our elected lawmakers, to be met by the power accorded the court by s.11(2) of the Act of 2009.
Part 11: Conclusions
39. The court proceeds now to apply the three-pronged test arising under s.33 of the Act of 2009.
40. Q. In the opinion of the court, are the statements complained of defamatory?*
* As noted above, s.2 of the Act of 2009 defines the phrase “defamatory statement” as meaning “a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and ‘defamatory’ shall be construed accordingly.”
A. In the opinion of the court: (1) (i) neither of the two articles published by the Irish Examiner, however viewed, and (ii) no statement contained in either of those two articles, contains or constitutes a statement that tends to injure Mr Philpott’s reputation in the eyes of reasonable members of society; and (2) none of the statements complained of is therefore defamatory.
41. Q. In the opinion of the court, does the defendant have a defence to the claim of defamation?
A. Yes. For the reasons stated above, the court is of the opinion that the defence of absolute privilege is open to the Irish Examiner in respect of both impugned articles.
42. Q. In the opinion of the court, is that defence reasonably likely to succeed?
A. Yes. For the reasons stated above the court is of the opinion that the defence of absolute privilege is likely to succeed in respect of each of the impugned articles and any statements therein contained.
43. In light of the above conclusions, the court is coerced by law into declining all of the reliefs sought by Mr Philpott in the within application.
Egan v Fenlon [2016] IEHC 566, O’Connor J.
JUDGMENT of Mr. Justice Tony O’Connor delivered on the 12th day of October, 2016
Introduction
1. The Court has a particular reason which will become apparent later in this judgment to set out the specific reliefs now sought by way of interlocutory application on behalf of the plaintiff:-
(i) “An injunction restraining the defendant his servants or agents or any person acting in concert with him, or having knowledge of the making of this order, from uttering or publishing any words to the effect that the plaintiff had breached the terms of the mediated settlement of proceedings involving the National Association of Regional Game Councils (“NARGC”) of 31st March, 2016;
(ii) An injunction restraining the defendant, his servants or agents or any person acting in concert with him, or having knowledge of the making of the order, from circulating, publishing or proposing resolution 6 as listed in the NARGC annual report or words to the like effect;
(iii) An injunction restraining the defendant, his servants or agents or any person having knowledge of the making of the order from publishing or circulating in any way whatever the annual report of the national association of regional game councils for so long as it contains the text of the said resolution 6.”
Dramatis personae
2. The NARGC is an unincorporated body made up of local gun clubs from parishes throughout the country. The plaintiff who has at least 33 years knowledge of the NARGC and its constitution explained on affidavit how those local gun clubs affiliate with the regional game councils on a county basis. The regional game councils constitute the membership of the NARGC. Two nominated delegates from each individual regional game council form “the governing body” which in turn elects an executive committee of fifteen including officers to run the affairs of the NARGC when the governing body is not in session. The governing body and the executive committee have the ability to appoint sub-committees to deal with matters as fall within their jurisdictions. They may also delegate work to them.
3. The plaintiff (“Mr. Egan”) has practised as a solicitor for over 35 years. He terminated his long standing retainer with the NARGC with effect from its 2015 annual general meeting (“AGM”) held on 17th October, 2015.
4. There is no controversy between the parties that the defendant (“Mr. Fenlon”) is the chairman of the NARGC. The plaintiff referred to the constitution of the NARGC when outlining how the defendant has overall responsibility for the day to day functioning of the association including the management of staff.
Chronological summary
31.03.2016 – Following a confidential mediation process the plaintiff’s professional fees and outlays including fees due to counsel for 22 cases were agreed to be discharged by the NARGC within 28 days. The mediated agreement included the following term which the parties agree refer to the plaintiff:-
“6: Cessation of any professional involvement with NARGC”.
June \ July, 2016 – Murphy J. in her judgment on Friday, 29th July, 2016 in proceedings between NARGC, Mr. Fenlon and three others as plaintiffs versus seven defendants from six regional game councils vacated interim ex parte orders granted by this Court to the claimants in those proceedings and refused the orders sought restraining the holding of an extraordinary general meeting (“EGM”) of NARGC among other reliefs. The transcript of the judgment discloses the court’s description of the NARGC as being “a very unhappy organisation…” with the following excerpts as particularly noteworthy:-
“The members are concerned by the executive committee’s handling of the affairs of the organisation… – the amount of their money being spent on multiple legal proceedings in which the association is embroiled…whether or not these concerns prove to be well founded they are there and members are entitled to express them”.
Ultimately, Murphy J. found that those claimants including the defendant in these proceedings could not establish the claim that those seven named defendants had acted unlawfully in convening an EGM of NARGC on Tuesday 28th June, 2016 for Saturday 2nd July, 2016 given the provisions of the NARGC’s rules and constitution and particularly r. 2(j) thereof. The learned judge discharged the interim order made by the Court on Friday 1st July, 2016 upon the ex parte application of counsel for those five claimants which had prevented the holding of the EGM on the following day when refusing the other reliefs sought by the claimants.
The Law Society
5. By letter dated 21st July, 2016 with a NARCG address and signed by Mr. Fenlon as chairman, the Law Society was advised that Mr. Egan had agreed that he “would not act for the association” going forward and that Mr. Egan had “an intimate knowledge of the association’s affairs”. The letter complained that:-
(i) Mr. Egan had failed to respond to the assertion made on behalf of the NARGC on 1st July, 2016 that he had a conflict of interest in representing a former employee of NARGC in a claim against the NARGC;
(ii) Mr. Egan acted unethically in taking instructions from the successful defendants in the application determined by Murphy J on 29th July, 2016.
6. The complaints and client relations committee of the Law Society by letter of 6th October, 2016 notified Mr. Egan that the committee was of the view that he did not have unique special knowledge in the proceedings in which Murphy J. gave judgment while pointing out that there may be situations in the future whereby there could be a potential conflict of interest. Mr. Fenlon averred at para. 18 of his replying affidavit of 10th October, 2016 that it was now for the executive committee to decide whether to appeal that decision.
These proceedings
7. Last Thursday evening (6th October, 2016) counsel for Mr. Egan on an ex parte basis outlined to this Court how the annual report for 2015-2016 of the NARGC included as an ordinary resolution proposed by the Wicklow regional council for consideration at the 47th AGM of the NARGC scheduled for Tullamore on Saturday 15th October, 2016 the following:-
“That because of the agreement reached at mediation with William Egan of William Egan and Associates Solicitors and his failure to honour that agreement {underlining inserted by the Court for ease of reference} the following shall apply:-
– No Associate Member, Regional Game Council or any Sub-Committee of the NARGC shall engage the legal services of William Egan and Associates in any dealings with the NARGC;
– If they do they shall immediately be referred by the National Executive to the Disciplinary Committee and if the complaint is upheld those who are the subject of the complaint shall cease to be members of the NARGC and their membership of the Compensation Fund shall not be renewed.
– All NARGC indemnities shall be null and void from the date William Egan and Associates were engaged.”
8. It was explained that the said annual report had been sent to the regional councils for distribution to their members and Mr. Egan was anxious to prevent further circulation of what he termed as the defamatory statement about his breach of the mediated agreement. Among the papers made available to the Court was the exchange of correspondence between Mr. Egan, the NARGC and the solicitors on record for Mr. Fenlon who also acted for the NARGC after Mr. Egan had terminated his retainer.
9. The Court directed that Mr. Fenlon be put on notice for last Friday morning in regard to the most pressing issue concerning the further circulation of the annual report with the impugned proposed resolution.
10. In accordance with the further order of this Court last Friday, the Notice of Motion seeking the interlocutory reliefs sought by Mr. Egan was made returnable for Tuesday 11th October, 2016 with directions for the delivery of legal submissions and replying affidavits to be exchanged and filed during the course of Monday 10th October, 2016.
11. Senior counsel for Mr. Fenlon undertook on behalf of Mr. Fenlon last Friday, without prejudice to any rights of the parties, to inform the regional councils of the existence of these proceedings and to request them not to circulate copies of the annual reports to their constituent gun clubs. The said communication which was sent asserted that Mr. Fenlon and I quote “would be fully contesting these proceedings both in respect of the alleged defamatory nature of the material and even more cogently in respect of any responsibility for the material”.
Most relevant submissions
12. Senior counsel for Mr. Egan submitted that the clear import of the impugned proposed resolution is that Mr. Egan breached a mediated settlement and he was thereby unethical. It was an extremely gross defamation of a professional person and it was submitted that Mr. Fenlon’s suggested defence of justification or honest opinion does not stand up to scrutiny. It was urged upon the Court to decide that Mr. Fenlon had adopted a well thought out course to attack the constitutional right of Mr. Egan to his good name and professional reputation.
13. It was suggested in oral submissions also that Barrett J. in Philpott v. Irish Examiner [2016] IEHC 62 while acknowledging the high barrier for a claimant like Mr. Egan to overcome in establishing defamation in an application under s. 33 of the Defamation Act 2009 (“the 2009 Act”), was content to leave it to the opinion of the Court as to whether that was established.
14. “Disingenuous charade” was a term used to characterise Mr. Fenlon’s averments that he was unaware of the proposed impugned resolution by Wicklow regional game council and the absence of any discussion at the executive committee of the NARGC of that same proposed resolution when the annual report had been considered on 27th September, 2016.
15. It was also emphasised that the Gorey and District rifle and pistol club had notified its intention to consider action concerning Mr. Egan having regard to his behaviour.
16. There were exchanges between both counsel and the Court about the relevance to the Court’s consideration of the application, of damages, adequacy of damages and the wide scope of the orders sought.
Mr. Fenlon’s submissions
17. Mr. Fitzgerald, senior counsel for Mr. Fenlon, urged the Court to consider following an opportunity given to him to narrow the issues after senior counsel for Mr. Egan had outlined the nature of the application initially:-
(i) The open offer made to Mr. Egan’s counsel which on Tuesday 11th October, 2016 was made to Mr. Egan and then disclosed to the Court as follows and I quote:-
“I, Michael Fenlon exercising my power as chairman of the NARGC will call for a meeting of the executive committee to be held on Thursday 13th October next at which I will propose that:-
1. That resolution number 6 will be redacted from the annual report;
2. That all delegates be requested to bring with them to the AGM (to be held on 15th October next) all copies of the report;
3. That a separate page will be printed for distribution at the AGM in lieu of that page upon which resolution number 6 appears.
4. I will be urging that all members of the executive committee will pass that resolution.
5. If that resolution is passed relevant delegates will be notified without delay.
a. I repeat that I will be urging all members of the executive to pass the resolution.” [ end of quote]
(ii) The inability of Mr. Fenlon to guarantee that the executive committee will agree the redaction proposals despite his urging in the interest of all parties to save further expense and angst.
18. Senior counsel for Mr. Fenlon when the opportunity came to make his submissions in full reply went on:-
(i) To bring the Court’s attention to a letter dated 11th October, 2016 addressed to Messrs. Connellan solicitors to confirm that:-
1. Wexford regional game council intended to distribute the annual report with the impugned proposed resolution redacted and;
2. Wexford Regional Game Council’s assertion that the level of esteem in which Mr. Egan is held remains unchanged.
(ii) Address the futility of making orders which no one, including the Court, could supervise or enforce ultimately, given the terms of the reliefs sought in the Notice of Motion which were set out at the beginning of this judgment.
(iii) Refer to the traditional availability and adequacy of damages criteria which should be taken into account by the Court if Mr. Egan established at trial that Mr. Fenlon uttered words or caused to be published words which were defamatory of Mr. Egan.
Reply of Mr. Egan
19. Despite the open offer, senior counsel for Mr. Egan highlighted the right of Mr. Egan to his good name under Article 40.3.2 of the Constitution which he said may not be vindicated by an award of damages. Furthermore, the unascertained nature of future reputational damage ought to be considered by the Court. As for the reference to “servants, agents” etc. in the reliefs sought, Mr. Egan was merely adopting a long established fashion of the reliefs sought in such notices of motion which allowed for ease of use.
The Court’s determination
The law
20. Section 33 of the Defamation Act 2009 provides as follows:-
“(1) The High Court, or where a defamation action has been brought, the court in which it was brought, may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion—
(a) the statement is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.
(2)…
(3) In this section “ order ” means—
(a) an interim order,
(b) an interlocutory order, or
(c) a permanent order.”
21. The Court quotes subs. (3) in order to show that the Oireachtas recognised the various stages at which orders could be made by the Court. The Oireachtas in that way acknowledged that courts have the discretion to determine such different types of orders as the courts choose and may have been established at common law.
22. Undoubtedly, the first hurdle which Mr. Egan must tackle is the proof that the impugned statement is defamatory. Section 6(2) of the 2009 Act provides:-
“(2) The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person)…”
23. The publication is not disputed although Mr. Fenlon has averred that he did not draft or propose the publication. Mr. Fenlon accepts that he was a member of the executive committee which authorised the publication of the annual report but he has sought to put distance between such membership of an executive committee which did not consider the impugned resolution and the actual fact of publication. The extent to which Mr. Fenlon bears personal responsibility at law for the publication remains to be determined and for the reasons which follow the Court declines to make any such determination at this interlocutory stage.
24. Despite the cogent argument of Mr. Egan’s counsel that the Court should consider malice and forethought on the part of Mr. Fenlon, the Court is not prepared to decide these issues on foot of affidavit evidence and speculation which have not been tested on cross-examination. It may yet be decided by a judge or jury that Mr. Fenlon has acted unlawfully or disingenuously before or since the impugned proposed resolution first appeared in writing and throughout the limited number of days during which these proceedings have existed. However, proof of malice or machiavellian chicanery on the part of Mr. Fenlon is difficult, if not impossible, to determine without having the benefit of oral examination with cross examination. This Court is disinclined to make such an adverse finding.
25. Furthermore, the Court is mindful of the potential consequences in this regard for the consideration of damages when the plenary trial of these proceedings comes before a jury or the Court. In those circumstances, it could be invidious to make any further comment on what may or may not be pursued at trial following the exchange of detailed pleadings which are required for such proceedings before the plenary trial.
26. It could be contended and will probably be pleaded in any Statement of Claim on behalf of Mr. Egan that Mr. Fenlon’s participation in the executive committee’s decision to publish the annual report amounted to publication by Mr. Fenlon. In view of the further consideration of issues arising, the Court repeats that it is not necessary to make a definitive decision at this point on Mr. Fenlon’s contribution to the publication that Mr. Egan has breached a mediated agreement.
Is it defamatory?
27. The relevant term of the mediated agreement envisaged that Mr. Egan would cease to have any professional involvement with the NARGC. On its face, representation of other parties who may be involved with litigation involving NARGC does not immediately fall within the meaning of that term. The Court does not see the necessity to recite case law relating to the parol evidence rule but merely says that it again finds itself unwilling to get involved with deciding definitively the meaning of the term when the Court, for all the reasons which it now seeks to explain, does not need to be determined at this stage.
28. All that the Court can observe now is that it appears Mr. Egan was not precluded from representing parties other than the actual NARGC. Again, it is not necessary now for the Court to find that NARGC did not include its constituent regional game councils or members of committees. The Court’s hesitancy in this regard is supported by its consideration of the reliefs sought which it will outline.
Potential other defences
29. Apart from the reluctance of the Court to determine the extent of Mr. Fenlon’s contribution or acquiescence to the publication and whether there is any merit to an ambiguous interpretation of the relevant mediated term, the Court is further troubled by the effect on the potential overriding right to express an opinion which is based on empirically true and accessible facts, having regard in particular to the opinion expressed by Murphy J. in her judgment delivered on 29th July, 2016 relating to the general authority of the NARGC to discuss issues affecting the well being of the organisation.
30. The Court, in view of the open offer to redact the impugned resolution (which according to Senior Counsel for Mr. Fenlon) is being implemented irrespective of this decision of the Court on this interlocutory injunction application, does not find it necessary to interfere any further in the running of the AGM next Saturday. Mr. Fenlon and other members of the NARGC may be chastened, if not by their own sense of decency, by the effects of a full blown defamation action to which other parties may now be joined as the Court has yet to hear a motion to join other defendants.
31. Whether the fostering of improved relations or the reduction of potential liability in damages dictate, it seems that it behoves Mr. Fenlon and any party who contributed to the publication of the impugned proposed resolution to assist Mr Egan in his efforts to limit the reputational damage which he anticipates. The Court is not prepared however to grant the wide reliefs sought in the Notice of Motion set out at the beginning of this judgment.
32. The Court appreciates the assistance of counsel for both parties when the Court sought views on the potential supervision difficulties for the orders now sought and the adequacy of a remedy in damages if Mr. Egan succeeds at trial based on pleadings which have yet to be exchanged.
33. Even if the Court was minded to make some order to restrain further publication, which it is not now prepared for the reasons outlined, the Court adds that it was not satisfied that the Plaintiff has established the need for the wide ranging interlocutory orders sought in the Notice of Motion dated 6th October. Despite the Plaintiff’s scepticism of Mr. Fenlon’s replying affidavit sworn on 10th October 2016 and specifically paragraph 24 thereof, the Court cannot ignore the sworn averment of Mr. Fenlon that he has done what he can to limit further circulation of the Annual Report in advance of the AGM next Saturday. It is asking too much of the Court to infer now that Mr. Fenlon lacks candour or lies when he makes that averment.
34. I am reminded by the simple proposition of Denham CJ in Derrybrien Development Society Ltd v Saorgus Energy Ltd [2015] IESC 77 that “There is a element of futility in seeking an order to restrain the deforestation” in circumstances where the relevant forest has been cleared and that “the Court does not make futile orders”. Therefore, any publication which can ultimately be attributed to Mr. Fenlon has occurred and irrespective of this awaited judgment, he is implementing his offer to assist in mitigating the damage which Mr. Egan fears.
35. Moreover, and despite the submission of Senior Counsel for Mr. Egan, this Court does not accept that it is customary or right for the Court to make orders which:
(i) Restrain persons who on the evidence before the Court can act in defiance of Mr. Fenlon;
(ii) Restrain persons who are not now represented in Court and who ordinarily and in view of the judgment of Murphy J. on 29tth July, 2016, have a right to consider and express views;
(iii) Place a potentially intolerable burden and potential conflict on a defendant in plenary proceedings such as Mr. Fenlon, given his role as Chairman of NARGC and the effects of these proceedings on his own private circumstances;
(iv) Ignores the implementation of the open offer for redaction measures which indicates that Mr. Fenlon will not be party to any further publication of defamatory material. In other words, the Court is not satisfied that Mr. Fenlon will commit a wrong which should be restrained. It will be open to Mr. Egan to return to the Court for interlocutory injunctive relief if there is evidence of non compliance by Mr. Fenlon with the open offer that is akin to an undertaking often given to the Court to avoid the necessity to make orders.
36. The Court will be slow to grant injunctions which may cause confusion for those affected including those seeking to enforce. There are occasions when orders may need to be clarified or modified when the wording is imprecise or circumstances change. Every effort should be made by all parties, including the Court, to craft orders which will not give rise to further disputes. In this application, despite the request of the Court, there was a persistence to apply for orders restraining not only the Plaintiff but his servants, agents and more particularly “any person acting in concert with” Mr. Fenlon “or having knowledge of the making of” the order. The Court disapproves of applications for such wide ranging orders and specifically when, as in this case :
(i) the Court only has the sworn and uncontradicted evidence of Mr. Fenlon denying the control alleged by Mr. Egan (despite the scepticism expressed by Senior Counsel for Mr. Egan) that Mr. Fenlon does not control those who are responsible for initiating the alleged defamatory proposed resolution.
(ii) It may be impossible for either of the parties to supervise the order against any party other than Mr. Fenlon whatever about seeking to use the executive arm of the State to enforce. In this regard, the Court notes the judgment of O’Hanlon J. in Lennon v. Ganly [1981] I.L.R.M. 84.
Damages in lieu
37. In view of the submission that Mr. Egan’s constitutional right to his good name may not be vindicated by an award of damages, the Court has not been satisfied in this case that an award of damages will not be an adequate or recoverable remedy for the alleged breach of his right to a good name. S 2 of the Chancery Amendment Act 1858 (commonly called Lord Cairns’ Act) provides:
“In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against … continuance of any wrongful act …. It shall be lawful for the same Court, if it shall think fit to award damages to the party injured, either in addition to or in substitution for such injunction.”
38. The case law before and since the Supreme Court’s judgment in Campus Oil Ltd v Minister for Industry and Energy (no 2) [1983] I.R. 88 is replete with references to the fact that adequacy of damages is one of the most important factors in the analysis of whether or not to grant an interlocutory injunction. Suffice to say that Mr. Egan has expressed fears about his professional reputation but, in fairness, he did not exaggerate to the extent that he would not be able to explain his position to those who may be influenced by the alleged defamation or that damages which are awarded in defamation cases would not compensate him ultimately. Presently, the Court cannot infer anything other than that the parties will proceed to a plenary hearing which will be focused on matters that are specifically pleaded unlike the situation which faced this Court over the last few days.
39. For all of those reasons, the Court refuses the reliefs sought in the Notice of Motion issued on 6th October and which were limited during the hearing to paragraphs 1 to 3 of the Notice of Motion.
Jones v Coolmore Stud
[2016] IEHC 329,
of Ms. Justice Costello delivered on 14th day of June, 2016
Introduction
1. The plaintiff is a former employee of Coolmore Stud, the defendant. The defendant is one of the largest commercial thoroughbred breeding and racing operations in the world and has a wide range of operations in Ireland, the United States and Australia. Its principal place of operations is from a stud farm in Co. Tipperary. Subsequent to the termination of his employment, which I shall explain more fully below, the plaintiff wrote and published a book about the operations and business of the defendant entitled “The Black Horse Inside Coolmore”(“the book”). These proceedings relate to the plaintiff’s book.
2. The plaintiff seeks four injunctions against the defendant as follows:-
“(i) Preventing the defendant and/or its representatives from threatening any bookshops or websites with legal action for defamation relating to the book, ‘The Black Horse Inside Coolmore’;
(ii) Compelling the defendant and its representatives to immediately withdraw in writing all threats of legal action previously made to bookshops and Amazon in relation to ‘The Black Horse Inside Coolmore’;
(iii) Declaring that ‘The Black Horse Inside Coolmore’ is not defamatory on the face of it and may be sold in outlets where books are sold; and
(iv) Instructing the defendant to provide the plaintiff in this action all evidence without exception relating to their claim that ‘The Black Horse Inside Coolmore’ is defamatory and if they refuse to do so they will pay the plaintiff’s costs unless the court decides the refusal is reasonable”.
3. The plaintiff commenced the proceedings by way of plenary summons issued on 13th April, 2016, and by an ex parte motion docket dated 8th April, 2016, he sought reliefs in precisely the same terms as the general indorsement of claim. No interim relief was granted but instead the matter has proceeded before me as an application for interlocutory injunctions as set out above.
4. The plaintiff was an employee of the defendant for nine years. In 2014 he brought a claim arising from his employment before the Labour Relations Commission. The claim was compromised, with the assistance of a Rights Commissioner, and the agreement was reduced to writing on 12th December, 2014. The agreement provides as follows:-
“1. It is agreed the claimant will retire on Friday 16 January ’15 as per his normal retirement date and all staff of the respondent will be informed accordingly.…
3. The claimant accepts he was provided with the opportunity to get professional advice prior to signing this agreement but he declined this offer and that he was happy to sign this as written.
4. The claimant accepts he has no further claim against the respondent under any other relevant employment legislation (including, but not limited to, Unfair Dismissals, Employment Equality and Protected Disclosures Acts), Personal Injuries or common law whatsoever.
5. He withdraws his claim r 147483-ir-14 which is before the Rights Commissioner.…
7. This agreement is strictly private and confidential to the parties involved except where called upon by the statutory bodies or by law. Confidentiality is an essential term of this agreement on both parties.
8. It is a term of this agreement that no records relating to animals or clients will be disclosed by claimant.
9. Both parties agree they will not make any derogatory comments about each other at any time in the future.…
12. The respondent will pay to the claimant the sum of €30,000 (net) as a gesture of appreciation (which shall be inclusive of redundancy) and no further sums are due to the claimant.”
5. The agreement was signed by both the plaintiff and Mr. David Gleeson on behalf of the defendant. The agreement has been performed by both parties: the plaintiff has vacated the property where he resided upon his retirement and has surrendered keys, equipment, and other property to the defendant. The plaintiff has withdrawn his claim before the Rights Commissioner. The defendant has paid the plaintiff €30,000.00.
6. On 23rd November, 2015, the plaintiff published the book. Prior to its publication by letter dated 8th June, 2015, the defendant’s solicitors, Arthur Cox, reminded him of his contractual obligations, in particular clauses 7, 8 and 9 of the agreement of 12th December, 2014. The plaintiff replied by e-mail dated 8th June 2015. He stated:-
“In writing my book I have already received barrister’s advice about what I can and can’t refer to and I have, accordingly, complied with the terms of the Agreement.”
7. On 29th July, 2015, Arthur Cox wrote asking if he would send them a copy of the manuscript of his book so that their client could satisfy itself that no breach of the agreement would arise by reason of the publication of the book. The plaintiff responded by e-mail dated 30th July, 2015, stating that he was under no obligation to show Arthur Cox a copy of the manuscript before the book went on sale. In reply, by letter dated 13th August, 2015, Arthur Cox stated:-
“We did not suggest that you were under any obligation to share your manuscript. Our client is however seeking assurance that its contents uphold and abide by the confidentiality agreement signed by both parties, and to ensure the privacy and confidentiality of clients and staff is upheld, and also that it does not contain any defamatory material. …
Please note that our client is committed to and has upheld its responsibilities under the confidentiality agreement.
Furthermore, after the lengthy exchange of correspondence and allegations made by you prior to your retirement, there are reasonable grounds for serious concern that individuals connected to and employees of Coolmore Stud may be defamed by your book.
We would be grateful if you could notify us of the distributors / sales outlets you intend for the publication of your book. We consider that it is reasonable and fair for them to be made aware of their liability in law if any defamatory material is contained in the publication, and it will advise them of same accordingly.”
8. The plaintiff replied by e-mail dated 14th August, 2015, stating:-
“I refer to your email dated 13 August 2015. I have previously stated my position and I believe your email is an attempt to harass and intimidate me. I have considered your reference to a liability in law for anyone connected with my book and your misplaced belief that you should be able to advise them accordingly. It will not be for you or your clients to decide if I defame anyone either now or in the future and whether connected to Coolmore Stud or a completely separate situation. It would be decided by an Irish court [sic].
I take this opportunity to remind you of point 7 of the agreement between your clients and myself dated 12 December 2014. ‘This agreement is strictly private and confidential to the parties involved except where called upon by the statutory bodies or by law.’ I am not impressed at all by your intimidation tactics. I will be more than happy to argue the toss with you in open court if that is what you want. It would be great publicity for my book. I also point out that I have an investigative journalist with RTE now shadowing my story, so please don’t think I am on my own.”
9. Arthur Cox wrote again on 19th August, 2015, reminding the plaintiff that the relevant terms of the agreement were not limited to clause 7 but also they would be relying upon clauses 8 and 9. The plaintiff replied by e-mail of 21st August, 2015, complaining that they were trying to harass and intimidate him and that they had already received his answer.
10. The defendant’s solicitors corresponded with Amazon EU Sarl, UK Branch, in advance of the publication of the book. The letter of the 19th August, 2015, was addressed to Amazon UK Services Ltd., Legal Department, and was headed “Re: NOTICE OF DEFAMATORY CONTENT ‘The Black Horse Inside Coolmore’ by William Jones”. The letter stated:-
“Our client is concerned that the Book could contain material which could be defamatory of our client and/or its customers, owners and staff. This letter therefore constitutes a Notice of Defamatory Content under your Conditions of Use and Sale.”
The letter outlined the concerns of the defendant in relation to the book and the potential reputational damage and damage to relationships of confidentiality with their clients which could arise from the publication of the book. The letter went on to state:-
“Having regard to all of the foregoing, we are seeking confirmation from you that Amazon will not distribute the Book until:
1. Mr Jones sends the Book to us for review on behalf of our client; and
2. our client is satisfied that Mr. Jones has not breached his obligations of confidentiality to our client and that the Book does not contain any defamatory material.
In this regard, we undertake on our client’s behalf that our review will be completed within 14 days of receipt of the Book. Please note that our client does not wish to prohibit the distribution of the Book outright, however it does wish to protect its rights and reputation, as well as those of its client.”
11. Amazon replied by letter dated 25th August, 2015, indicating that while it understood the defendant’s concerns it would be merely one of many potential retailers of the book and accordingly it suggested that the proper remedy lay with the author and/or publisher of the book.
12. Thus, prior to the publication of the book the defendant had made clear to the plaintiff that:
i. It was intending to rely upon the terms of the agreement of 12th December, 2014, and in particular clauses 7, 8 and 9 of the agreement.
ii. If the book contained any defamatory material it would make distributors and sales outlets aware of their potential liability in law arising from the distribution by them of defamatory material.
iii. It was not seeking to prohibit the distribution of the book outright, but it was prepared to protect its rights and the reputation of the defendant, its clients, employees, and persons associated with the defendant in reliance both upon the agreement and the law of defamation.
In addition, it is to be noted that the plaintiff stated that he had taken legal advice with regard to the contents of his book.
13. On 23rd November, 2015, the plaintiff published the book. It is the defendant’s case that in publishing the book the plaintiff is in breach of the agreement of 12th December, 2014. The book breaches the undertaking as to confidentiality, it discloses records relating to animals or clients of the defendant and it is replete with derogatory comments about the defendant. In addition they complain that the book contains material which is defamatory both of the defendant and other parties and contains material which infringes the copyright of a number of third parties. The plaintiff denies all of these allegations as I shall discuss more fully below.
14. However, the defendant elected not to sue the plaintiff, the author of the book, or his company, Gold Rush Publications Ltd., the publisher of the book. Instead it wrote to various distributors of the book, advising them of the fact that the book contained material which breached the defendant’s legal rights and which was defamatory. On 26th November, 2015, Arthur Cox wrote to Amazon, stating:-
“Our client and its legal advisors are reviewing the [book] but it is already clear that the [book] breaches our client’s legal rights causing serious damage to our client, its employees and other persons associated with our client. Our client considers that by this publication, Mr Jones has breached confidentiality obligations which Mr Jones owes to our client, secondly, that the content of the [book] is defamatory and damaging to the reputation and good name of our client and its employees and thirdly, it breaches the intellectual property rights and privacy of our client, its employees and persons associated with our client by the publication of photographs and personal information without permission or consent.…
We are obliged to put you on notice that if the [book] is not removed from sale on the Amazon website having been put on notice of its defamatory content, our client may be obliged to hold Amazon liable for the damage caused by any ongoing sales that are made through its website.”
15. This letter was followed up the following day by a further letter sent by email on 27th November, 2015, which stated, inter alia:-
“We have also spoken directly with customer service of Amazon today in order to emphasise the necessity that this issue is dealt with as a matter of urgency and have been informed that your legal department has been contacted to notify them that this is a matter to be dealt with as a matter of priority. Our client is extremely concerned that the [book] remains listed for sale through your website despite the fact that you have been on notice of its defamatory content since yesterday and were put on prior notice since 19 August 2015. We also confirm that the Irish book stores and online retailers that we are aware of that were stocking the book have on being contacted by ourselves on behalf of our client confirmed that they have removed it from sale immediately.”
The letter drew the reader’s attention to seven matters which the solicitors stated were false and seriously damaging to the defendant’s reputation and its relationship with its clients, breaches of copyrights and disclosure of commercially sensitive information and straightforward factual inaccuracies. The letter continued:
“This list is not exhaustive but there have clearly been a serious [sic] breach of our client’s rights which we are pursuing on its behalf directly with Mr. Jones.… You are also on notice that given the steps that we are taking on behalf of our client to notify any book stores that are selling this publication that Amazon may be the only retailer selling the [book].”
16. The defendant’s solicitors wrote to independent retailers in similar terms stating that the defendant considered that the book contained material which was defamatory of it and/or its customers, owners and staff, stating:
“We are hereby putting you on notice of the defamatory content of this publication. Our client also believes that the Book is a breach of confidentiality obligations owed by Mr. Jones to our client and breaches other legal rights including intellectual property rights and privacy rights.”
The letter went on to describe the business of the defendant and the relationship between the defendant and the plaintiff, and went on:-
“Having regard to all of the foregoing, we are seeking confirmation from you that [the retailer] will not sell or distribute this book in the absence of Mr Jones complying with his legal obligations on confidentiality to our client and ensuring that the Book does not contain any defamatory material.…
Please note that if you fail to provide this confirmation, our client may hold [the retailer] liable for any damage suffered by sales of the book through your stores or your website and will rely on this letter to show that you were put on notice of these matters.”
17. Four such letters addressed to four different retailers dated 30th November, 2015, 11th January, 2016, 2nd February, 2016, and 11th March, 2016, were exhibited. The response of Amazon and each of the booksellers was to withdraw the book from sale.
18. The defendant’s solicitors wrote to the plaintiff on 26th November, 2015, stating that the following issues arose:-
“1. The book is defamatory of our client, its employees and individuals associated with our client and the defamatory content is such as may cause enormous reputational damage and a breach of our client’s relationship of confidentiality with its clients. This arises despite the assurances provided by you in previous communications that it would not contain defamatory material.
2. There is clearly a breach of the agreement dated 12 December 2014 between you and our client and in particular, clauses 7, 8 and 9 therein.
3. There is a breach of other rights of our clients, its employees and individuals associated with our client, including a breach of their right to privacy by the publication of personal details in relation to certain individuals and the reproduction of photographs without their permission or consent.”
The letter called upon the plaintiff immediately to cease distributing and selling the book and to recover any copies that had already been distributed and reserved the rights of the defendant to take such legal action as it considered necessary in order to protect and vindicate its reputation and the reputation of its employees and individuals associated with the defendant.
19. In response, on 27th November, 2015, the plaintiff complained that the letter gave him no specific details of what the complaint was about and asked the defendant’s solicitors to provide those details. The e-mail continued:-
“I will point out at this stage, as you will know only too well, that the main defence as far as an accusation of defamation is concerned is the defence of truth. I have not included anything in my book which I am unable to show as the truth.
You are perfectly entitled to commence whatever legal action you want, but please be assured that I am primed and ready to defend what I have written, line by line if necessary.”
20. The defendant’s solicitors responded by letter dated 4th December, 2015, stating that the book contained content which was seriously defamatory of the defendant and which was inaccurate and untrue. It also stated:-
“A further issue which you consistently chose to ignore in your communications with this firm, is that the contents of this book are also in breach of the agreement which you reached with our client on 12 December 2014….
You are clearly in breach of these obligations owed to our client. Your book also infringes other rights including intellectual property rights and privacy rights of our client, its employees and persons associated with our client by the publication of photographs and personal information without permission or consent.”
The letter set out the seven matters that were set out in the letter to Amazon in relation to allegations which were said to be false and seriously damaging and which amounted to a breach of copyright or breach of confidentiality obligations or were simply inaccurate. The letter explained why the defendant’s solicitors had written to the retailers of the book in the following terms:-
“We are entitled on behalf of our client to draw to the attention of any third party who may be involved in the distribution or sale of this book, the fact that this book contains defamatory content, which is untrue, breaches your obligations of confidentiality to our client and also infringes other rights of our client, its employees and other person [sic] associated with our client. Once those parties are on notice of this content, they have a potential liability to our client if they decide to continue selling the book. That liability is independent of any liability that you may have to our client in respect of being the author and publisher of the book. That is a matter between ourselves and the book sellers and our client has no intention of changing that position.”
21. It is clear therefore that the plaintiff had been plainly informed of the defendant’s position and of its justification for the manner in which it chose to deal with this book. The plaintiff does not accept that the defendant is entitled to act as it has done and continues to act. The plaintiff is of the view that his book is not defamatory because he says he can prove the truth of the contents of the book. He objects to the fact that the defendant would not sue him for defamation but instead instructed its solicitors to write to the various booksellers stating that the book contained defamatory material and, as he saw it, threatening them so that they were bullied into withdrawing the book from sale. He said that they were wrong to threaten the bookshops and that they should have gone to court and sued him. Furthermore, they had failed to specify fully what they say was defamatory. He therefore instituted these proceedings seeking the relief I have set out above. Initially he sought it on an ex parte basis but the matter has proceeded before this Court on an interlocutory basis.
The Law
22. Since Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88 the test for the grant of a prohibitory interlocutory injunction has been that the applicant must establish:
i. that there is a fair question to be determined at trial concerning the existence of the right which he seeks to protect or enforce by injunction;
ii. that damages are not an adequate remedy;
iii. that the balance of convenience lies on the side of the granting of the injunction.
However, where a party seeks a mandatory injunction the Supreme Court held in Maha Lingham v. Health Service Executive [2006] 17 E.L.R. 137 that the moving party must establish that he has a strong case in order to obtain a mandatory injunction. In Bank of Ireland & Anor. v. O’Donnell [2015] IECA 73, at para. 105 of the judgment, the Court of Appeal held that where:-
“the substance of respondents application for the interlocutory relief sought was mandatory it required to be considered in accordance with what has been referred to a variation of the ‘pure’ Campus Oil test where the courts have required the plaintiff not just to establish a fair or arguable case but rather the higher standard of a strong case in accordance with the Supreme Court judgment of Fennelly J in Maha Lingam.”
23. The first relief sought by the plaintiff is a prohibitory interlocutory injunction. The second and fourth reliefs in substance are mandatory injunctions in that they seek to compel the defendant to do something. I am thus satisfied that in respect of the first relief, the appropriate threshold to apply is the Campus Oil test of whether the plaintiff has established that he has a fair or arguable case. In respect of the latter two reliefs, he must establish that he has a strong case. It is not open to the court to grant a declaration at an interlocutory stage and the plaintiff has not advanced any basis for such relief at this stage in the proceedings.
Has the plaintiff established an arguable case?
24. The plaintiff alleges that the writing of letters to booksellers by the defendant’s solicitors is wrongful on a number of grounds. Firstly, he says it is incorrect to state that the book is defamatory as the book cannot be defamatory unless and until a court of law holds that it is defamatory. Secondly, he has a good defence to the allegation that the book is defamatory as he is in a position to establish that the book is true and therefore it cannot be defamatory. Thirdly, he says that the defendant ought to sue him in defamation rather than threaten booksellers. Fourthly he says the defendant should give details of what the defendant says is defamatory in the book. None of these arguments establishes an arguable case.
25. Even if a party has a cause of action against another party, there is no obligation on that party to sue. Therefore, the fact that the defendant has chosen not to institute defamatory proceedings against the plaintiff cannot constitute a wrongful act on the part of the defendant giving rise to a cause of action by the plaintiff against the defendant.
26. The defendant has written to third parties complaining about the book on various grounds as set out above. These letters were not improper letters to write. Still less, do they establish an arguable cause of action against the defendant. If a party has been defamed, it is appropriate to write a letter asserting that the publication was defamatory and calling upon the publisher of the defamatory material to withdraw the publication before instituting proceedings. Inevitably such a letter would have to assert defamation prior to the fact of defamation being established at trial. It simply cannot be correct that a party cannot protect his rights by asserting that he has been defamed and calling upon a party to remedy the alleged wrong on the grounds that a court has yet to hold whether or not the material is defamatory of the plaintiff. The argument is circular and means that a party defamed can never seek a retraction or apology prior to succeeding at trial. This is clearly not so.
27. The right to send such a letter is inherent in the right of access to the courts. Furthermore, it is implicit in the Defamation Act 2009. Section 27 affords a defence of innocent publication. It provides as follows:-
“27.— (1) It shall be a defence (to be known as the ‘defence of innocent publication’) to a defamation action for the defendant to prove that—
(a) he or she was not the author, editor or publisher of the statement to which the action relates,
(b) he or she took reasonable care in relation to its publication, and
(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.
(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if—
(a) in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,
(b) in relation to a film or sound recording containing the statement, he or she was responsible for the processing, copying, distribution, exhibition or selling only of the film or sound recording,
(c) in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.
(3) The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did caused or contributed to the publication of a defamatory statement, have regard to—
(a) the extent of the person’s responsibility for the content of the statement or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the person.”
28. The seller of defamatory material is potentially liable to a defamed person for publishing defamatory material separately from the liability of the author of the defamatory material. Section 27 of the Act was inserted to afford a defence to a person, such as a retailer, who did not know and had no reason to believe that what he did caused or contributed to the publication of the impugned statement. It is inherent in this section that the person claiming to be defamed may notify any such third party publisher of his belief that the statement is defamatory of them. It is then a matter for the third party publisher to make his or her own assessment as to whether or not to publish the statement. This means that the person alleged to be defamed may be protected against further unwitting- and unintentional- publication of defamatory material on the one hand, and that publishers of potentially defamatory material are given a fair opportunity either to withdraw or cease the publication concerned, or to proceed, but in the knowledge that the defence of innocent publication may no longer be available to them. I do not accept that it was wrong, much less an actionable wrong, for the defendant to instruct its solicitors to write in the terms of the letters quoted above to the retailers of the plaintiff’s book.
29. The plaintiff says that he can prove the truth of the contents of the book and accordingly the letters in dispute are wrong and the defendant’s solicitors had no right to send the letters on behalf of the defendant. The fact that a party may have a full defence to a letter threatening proceedings does not mean that the writing of such a letter itself ,whether to the party concerned or a third party, gives rise to a cause of action. It is possible that a letter written without any justification, mala fide and with a view to causing damage to another party rather than a bona fide defence of the rights of the letter writer, could give rise to a cause of action but that is very far from the case here. The evidence establishes that the defendant has at all times been anxious to rely upon the agreement of 12th December, 2014, and to defend itself, its staff and persons associated with it from defamation. This is entirely legitimate and in the circumstances the writing of the letters in question does not give rise to a cause of action by the plaintiff against the defendant.
30. Finally, it is not necessary to set out in such a letter the entire case in defamation as it will be pleaded if the matter goes to court. Therefore the plaintiff’s complaint that the defendant has not detailed every matter which it says is defamatory cannot give rise to a cause of action by him against them.
31. The matter might well be different if the publisher of material said to be defamatory was genuinely anxious to remove offending material from a publication so that the work could be published without defaming anyone. That is not the case here. The plaintiff’s correspondence with the defendant’s solicitors and his submissions to court shows that he does not admit that any of the contents of the book is defamatory and he will, if necessary, seek to prove the truth of everything he has said in the book. As the plaintiff does not wish to engage with the defendant to try to agree what he may or may not publish, the request for particulars, for such in effect it is, is not made with a view to resolving the dispute between the parties. It follows that no useful purpose would be served by the defendant detailing each and every item which they allege ought not to be published on the grounds that it is defamatory. In any event, this argument also overlooks the fact that the defendant says that the plaintiff is not entitled to publish the book on the grounds that it breaches the terms of the agreement of 12th December, 2014.
32. In summary, the plaintiff has not established that he has an arguable cause of action against the defendant and on that basis he is not entitled to an interlocutory injunction against the defendant. As I have held that the plaintiff has not established an arguable case and therefore is not entitled to the first relief he seeks, it follows that he also has failed to establish that he has a strong case for relief as required by Maha Lingham and therefore he is not entitled to reliefs 2 and 4 of his notice of motion on this basis also.
Are damages an adequate remedy?
33. It is well established law that a plaintiff will be refused an interlocutory injunction if, were he to succeed at full trial, the financial loss suffered by him between the date of the refusal of the interlocutory relief sought and the date of judgment would be quantifiable in money terms. It is clear that this is the case in respect of the plaintiff’s claim. In his e-mail of 7th December, 2015, he stated that he would hold the defendant “responsible for any lost sales of my book from the date the book was withdrawn from any shop or website and I will be taking legal action for damages as a result.” He concluded by stating that if the defendant did not retract its communications with bookshops and websites he would “pursue a claim for damages for any losses and costs I incur as a result.” He followed with a further letter on 4th January, 2016, stating that he would make “a substantial claim for damages as a result of [the defendant’s] actions”. Quite apart from the fact that this correspondence suggests that the plaintiff himself believes that the damage he may suffer will be measured by loss of sales of the book and therefore is quantifiable, in a letter of 11th March, 2016, written to the defendant’s solicitor, the plaintiff stated that he had “now all but sold out of the first edition of [his] book”, so the substance of his claim is open to question.
34. The nearest he comes to making a claim that his losses do not sound in damages is to be found in para. 15 of his affidavit when he stated that as a result of an article appearing in the Sunday Times on 3rd April, 2016, he had an opportunity of a deal with “the largest book wholesaler in the UK to have my book distributed anywhere in the world.” He gave no detail in respect of this possible deal other than to say that he would be unable to secure the deal “with the threats made by the Defendant’s solicitors hanging over bookshops and websites.”
35. While I acknowledge that the plaintiff is representing himself, nonetheless I may only act upon the evidence put before me. The plaintiff has had a number of weeks in which to present his case and in which to reply to the affidavits filed on behalf of the defendant in opposition to his application. There is no evidence before the court which would justify me in concluding that damages would not fully satisfy the plaintiff’s claim were he to succeed at the trial of the action. Accordingly, on this ground also his claim to relief must be refused.
Equitable relief
36. Injunctive relief is equitable relief and a court will not grant equitable relief where the party seeking the relief has himself behaved in an inequitable fashion. In this case the defendant’s primary objection is that the plaintiff has acted in breach of the agreement of 12th December, 2014, in publishing the book. It submits that the plaintiff is not entitled to equitable relief which has as its object and effect the protection of breaches of negative covenants binding upon him. Mr. David Gleeson swore the principal affidavit on behalf of the Defendant. At para. 6 he avers:-
“The Book contains multiple references to records relating to animals or clients of Coolmore and contains numerous derogatory comments about Coolmore, its employees and persons associated with Coolmore.”
37. In para. 10 of his affidavit he quotes comments which are derogatory of Coolmore, its employees and persons associated with Coolmore at pp. 70, 113, 121, 123, 137, 147, 148 and 270 of the book. He states that these are illustrative but not exhaustive. Having read these comments, I am in no doubt that they are derogatory of the defendant and persons associated with it and prima facie constitute breaches of the agreement.
38. At para. 9 of his affidavit Mr. Gleeson gives two examples from the book of material relating to animals and clients of the defendant which he says was published in breach of the agreement. Pages 89 – 90 of the book discloses information regarding an operation carried out on the stallion Galileo, information regarding Galileo’s daily routine, his foals and the defendant’s breeding practices. At p. 116 the book discloses information regarding certain clients of the defendant who entered into a foal sharing deal with the defendant in relation to the stallion Sadler’s Wells.
39. In answer to the allegation that the publication of the book constituted a breach of the agreement of 12th December, 2014, quite apart from any issue of defamation, the plaintiff asserted that he was not bound by the terms of the agreement as the agreement had been procured by duress. This cannot provide an answer to the clear express terms of the agreement. In the first place, the plaintiff has received benefit under the agreement. He cannot now ignore it and he has not sought to set it aside. Accordingly he remains bound by it. Secondly, in correspondence with the defendant’s solicitors he himself purported to rely upon the agreement and made no assertion that the agreement was void for duress until 7th December, 2015, one year later. Thirdly, he has given no sworn testimony to this Court to support the assertion that the agreement was procured by duress. The sole reference to duress is in the letter of 7th December, 2015. On the other hand he confirmed in oral submissions what is recorded in the agreement: that he had the opportunity to obtain legal advice at the time and declined to accept it.
40. In addition the plaintiff submitted that he was entitled to refer to information that was in the public domain despite the terms of the agreement of 12th December, 2014. It is no answer to the obligations set out in clause 8 to state that the information in respect of world renowned horses is already in the public domain. The use of the material is in breach of this agreement regardless of the fact that the information may or may not be readily available to other persons.
41. As things stand I must proceed on the basis that there is an existing valid agreement and quite clearly the actions of the plaintiff in publishing this book amount to grave breaches of that agreement.
42. The defendant also adduced evidence that the book breaches the copyright of four individuals who have sworn affidavits in support of the defendant in these proceedings. The affidavits establish that there was considerable plagiarism of the book “Northern Dancer: the Legend and His legacy” by Ms. Muriel Lennox. The plaintiff was aware of the fact that he was required to obtain her permission prior to using her material as he submitted that he had contacted her and asked for her permission to use the material but had received no reply. It would appear that he did not attempt to contact the other three individuals who have shown in their affidavits that their writings in respect of which they asserted copyright were copied verbatim or virtually verbatim by the plaintiff in his book. The plaintiff has not produced any evidence controverting this evidence.
43. It follows, that if the plaintiff were to obtain the injunctive relief he seeks, the court would be assisting him in relation to clearly established breaches of an agreement which has been performed by both parties and under which the plaintiff received a benefit. It would also involve affording protection to a work which itself infringes the copyright of four individuals. Even if the plaintiff satisfied the tests required in Campus Oil and Maha Lingham, which he has not, in my judgment it would not be appropriate for a court to grant equitable relief in these circumstances.
44. Finally, it is relevant to note that the plaintiff has chosen not to avail of the opportunities afforded to him to resolve any issues between himself and the defendant outside of court. The correspondence both prior and post publication reveals that the plaintiff had little interest in abiding by the terms of the agreement of 12th December, 2014. On the contrary, it indicates that if anything, he was anxious for the defendant to sue him. He clearly welcomed the opportunity to argue a defence of truth in defamation proceedings which he anticipated the defendant would bring against him in respect of his book. In the event, his wish was not fulfilled due to the approach adopted by the defendant as I have outlined in this judgment. In the circumstances, it is open to the Court to conclude that these proceedings were brought because the plaintiff was frustrated by the failure of the defendant to sue him for defamation and not because he had a genuine belief that the defendant had acted wrongfully towards him. It is of course important to note that it is not open to the plaintiff to sue the defendant in respect of any wrongs allegedly perpetrated by the defendant to third parties such as Amazon or the various booksellers contacted by the defendant.
45. For these reasons, I refuse the application.
[2017] IECA 164 Ryan P
1. This is an appeal by Mr. William Jones from a decision of Costello J. in the High Court refusing a declaration and interlocutory injunctions in proceedings against his former employers, Coolmore Stud (“Coolmore”). He worked at Coolmore over a period of nine years until late 2014. After he resigned, he wrote a book and privately published it in November 2015. Coolmore’s solicitors corresponded with distributors and booksellers endeavouring to prevent them disseminating the book. They first alleged, before they saw the book, that it might be defamatory or in breach of an agreement between the parties. When they read it, they confirmed those protests and also claimed that it infringed the good name and interests of the Stud and the rights of employees, clients and others. Coolmore did not, however, sue Mr. Jones for libel; he said that if it did, he would defend his book line by line, which is probably just what Coolmore did not want to happen. Mr. Jones brought High Court proceedings seeking injunctions restraining Coolmore from adopting these measures to prevent or restrict dissemination of the book. He also wanted the court to declare that his book was not defamatory. His case was that Coolmore was not entitled to adopt those measures in relation to third parties when there had not been any determination of libel.
2. The High Court refused the reliefs that Mr. Jones sought in an interlocutory application. Costello J. held that Coolmore was entitled to take the steps it did to protect its interests. Specifically, it was legally permissible to write in the terms of the solicitors’ letters to distributors and sellers with a view to closing those avenues of dissemination. She said that the court could not in any case make the declaration of non-defamation that he wanted. In the circumstances, Mr. Jones had not made out a fair case to be tried, which was required for an injunction, much less a strong case which he would need for a mandatory order. Neither had he shown that damages were not an adequate remedy for any wrong he might establish. And finally, the court held that Mr. Jones, by his conduct in regard to an agreement he had made with Coolmore, had disentitled himself from equitable relief, even if the other proofs had been present.
3. Against these orders Mr. Jones appeals to this Court. He appears before the court as a litigant in person who is possessed of considerable literary and presentational skills as well as an impressive capacity for legal research. At the same time, his unfamiliarity with legal procedures and the way courts operate has also been evident. This would be a difficult case for an experienced lawyer and the challenge is so much greater for somebody not versed in the ways of courts, lawyers and judges.
4. The central question, although not the only one for determination, is whether it was legally permissible for the solicitors acting for Coolmore to correspond as they did with distributors and booksellers alleging possible or actual defamation and other wrongs with a view to dissuading them from dealing with Mr. Jones’s book. The judgment appealed against and the submissions of Coolmore rely heavily on s. 27 of the Defamation Act 2009, and the implications that are said to arise from its provisions in relation to innocent dissemination. Because this statutory defence is open to a person who only distributes or sells a book and who does not know that it is or might be defamatory, it is legitimate as Coolmore argues for a person who apprehends that he may be libelled to notify the distributor. The section provides as follows: –
“27.—(1) It shall be a defence (to be known as the “defence of innocent publication”) to a defamation action for the defendant to prove that—
(a) he or she was not the author, editor or publisher of the statement to which the action relates,
(b) he or she took reasonable care in relation to its publication, and
(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.
(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if—
(a) in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,
(b) in relation to a film or sound recording containing the statement, he or she was responsible for the processing, copying, distribution, exhibition or selling only of the film or sound recording,
(c) in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.
(3) The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did caused or contributed to the publication of a defamatory statement, have regard to—
(a) the extent of the person’s responsibility for the content of the statement or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the person.
5. The facts of the case are set out in detail in the judgment of the High Court including details of the correspondence between Coolmore and Mr. Jones and Coolmore and Amazon and other distributors or sellers. It is unnecessary for the purpose of the appeal to repeat this history. Although Mr. Jones is very critical of the High Court judge and the judgment – a matter which I will address at a later stage – he does not challenge any of the facts that are central to the dispute. They are in truth relatively simple in their essential facts.
The Agreement of 12th December 2014
6. The appellant was an employee of the defendant for nine years. In circumstances that are not before the court, in 2014, he brought a claim arising from his employment to the Labour Relations Commission. The matter was compromised and parties reached agreement with the assistance of a Rights Commissioner and made a written agreement in the following terms:
“1. It is agreed the claimant will retire on Friday 16 January ’15 as per his normal retirement date and all staff of the respondent will be informed accordingly.…
3. The claimant accepts he was provided with the opportunity to get professional advice prior to signing this agreement but he declined this offer and that he was happy to sign this as written.
4. The claimant accepts he has no further claim against the respondent under any other relevant employment legislation (including, but not limited to, Unfair Dismissals, Employment Equality and Protected Disclosures Acts), Personal Injuries or common law whatsoever.
5. He withdraws his claim r 147483-ir-14 which is before the Rights Commissioner
…
7. This agreement is strictly private and confidential to the parties involved except where called upon by the statutory bodies or by law. Confidentiality is an essential term of this agreement on both parties.
8. It is a term of this agreement that no records relating to animals or clients will be disclosed by the claimant.
9. Both parties agree they will not make any derogatory comments about each other at any time in the future.…
12. The respondent will pay to the claimant the sum of €30,000 (net) as a gesture of appreciation (which shall be inclusive of redundancy) and no further sums are due to the claimant.”
7. On 23rd November 2015, the appellant published the book. It was advertised on Amazon.com before publication and Coolmore became apprehensive that its contents might be defamatory of the Stud and its personnel. They believed that Mr. Jones was severely restricted in what he could write because of the agreement and its confidentiality provision, and also the term prohibiting the making of derogatory comments about Coolmore. Arthur Cox Solicitors on behalf of Coolmore wrote to Mr. Jones asking to see an advance copy to clear it for offending material, but he refused. By letter dated 8th June 2015, Arthur Cox reminded him of his contractual obligations, in particular clauses 7, 8 and 9 of the Agreement of 12th December 2014. The plaintiff replied by e-mail stating that he had “received barrister’s advice about what I can and can’t refer to and I have, accordingly, complied with the terms of the Agreement”.
8. The solicitors also wrote to Amazon and other distributors and booksellers with a view to dissuading them from dealing with the book because of Coolmore’s apprehensions about the likely contents. Following publication, the Stud became even more concerned and redoubled its efforts, this time giving some details about the matters that it considered to be defamatory in the book. The solicitors now told their correspondents that they had instructions from their clients to consider suing for defamation in the event that they went ahead with distribution or sales. These efforts proved successful. Although Mr. Jones published the book himself and was able to achieve some level of distribution, Amazon and other distributors and booksellers declined to stock or market the book. Coolmore did not sue anybody; its solicitors’ letters were effective in substantially restricting the circulation of the book through normal sales channels. Mr. Jones’s plans for his book to be widely available were thus thwarted.
9. Coolmore did not sue Mr. Jones; he has maintained at all times and continues to do so that his book is not defamatory and that if sued, he will defend it line by line on the basis that it is true. This is the very thing that Coolmore seeks to avoid happening and which Mr. Jones may indeed welcome as an opportunity to vindicate his position and justify his allegations. In this action, he challenges the entitlement of Coolmore to circumvent suing him and avoid a libel action and yet succeed in restricting the circulation of his book and inhibiting references to the material in it. In response to the activities of Coolmore, through its solicitors, Mr. Jones instituted High Court proceedings seeking various reliefs, including injunctions restraining Coolmore from approaching third parties in the manner in which it did so and ordering it to undo the results of its efforts. Following an application for an interim injunction, he moved on notice to Coolmore for interlocutory injunctions to undo what he perceived as the harm that had been done to him.
The High Court Proceedings
10. The appellant sought four injunctions against the defendant as follows:-
“(i) Preventing the defendant and/or its representatives from threatening any bookshops or websites with legal action for defamation relating to the book, ‘The Black Horse Inside Coolmore’;
(ii) Compelling the defendant and its representatives to immediately withdraw in writing all threats of legal action previously made to bookshops and Amazon in relation to ‘The Black Horse Inside Coolmore’;
(iii) Declaring that ‘The Black Horse Inside Coolmore’ is not defamatory on the face of it and may be sold in outlets where books are sold; and
(iv) Instructing the defendant to provide the plaintiff in this action all evidence without exception relating to their claim that ‘The Black Horse Inside Coolmore’ is defamatory and if they refuse to do so they will pay the plaintiff’s costs unless the court decides the refusal is reasonable”.
11. The appellant commenced the proceedings by way of plenary summons issued on 13th April 2016, and by an ex parte motion docket dated 8th April 2016, he sought reliefs in the same terms as the general endorsement of claim. No interim relief was granted, but instead, the matter proceeded before Costello J. as an application for interlocutory injunctions.
Judgment of Costello J.
12. Costello J. applied the standard tests for injunctive relief and held that Mr. Jones had failed to satisfy any of them. She decided that he had not shown that there was a fair case to be tried or that damages would not be an adequate remedy or that the balance of convenience lay in his favour. The judge had regard to the serious complaints made in the affidavits filed on behalf of Coolmore as to the nature of the defamatory material, which it alleged was in Mr. Jones’s book. She considered that there was evidence that he was in breach of the agreement in respect of confidentiality by revealing information about clients and animals of the Stud. In addition, as she found, Coolmore had put before the court allegations of plagiarism and breach of copyright supported by affidavit evidence of authors and publishers.
13. The judge held that a person was entitled to protect his rights by asserting that he had been defamed and calling on the party to remedy the alleged wrong before a court ruled whether the material was defamatory or not. The right to send a letter of that kind was inherent in the right of access to the courts. It was also implicit in s. 27 of the Defamation Act 2009. The section gives publishers of potentially defamatory material a fair opportunity either to withdraw the publication or to proceed, but in the latter case, in the knowledge that innocent publication may not be available as a defence: “I do not accept that it was wrong, much less an actionable wrong, for the defendant to instruct its solicitors to write in the terms of the letters quoted above to the retailers of the plaintiff’s book”.
14. The fact that Mr. Jones claimed that he could prove the truth of everything in the book did not give rise to a cause of action on his part against Coolmore for having their solicitors write the letters. It is possible that a letter written in bad faith in order to damage another person, rather than in defence of rights, might give rise to a cause of action, but that was not the case here. Coolmore sought to defend itself and others associated with it from defamation and to rely on the Agreement of 12th December 2014, which were legitimate grounds for writing the letters. The High Court also found it unnecessary for the complaining party to set out exhaustively all the matters in the publication that they claimed to be defamatory or otherwise wrongful.
15. These determinations by the High Court meant that Mr. Jones had not established an arguable cause of action against Coolmore and he was therefore not entitled to an interlocutory injunction as he sought. A fortiori he did not have a strong case which outruled mandatory orders in reliefs 2 and 4 of the motion.
16. The judge also held that Mr. Jones had not established that damages were not an adequate remedy, which was another reason why injunctive relief should be denied.
17. Finally, Costello J. held that Mr. Jones had behaved in a manner that disentitled him to equitable relief because his book appeared to be a breach of the Agreement of 12th December 2014, as well as giving rise to other complaints including breach of copyright and plagiarism.
Mr. Jones’s Appeal
18. In his notice of appeal, Mr. Jones lists as his grounds breach of rights and rules under the Irish Constitution and European Convention on Human Rights. He made extensive arguments in a lengthy affidavit, but as a result of a Directions hearing, he produced a concise list including bias; breach of the right to freedom of speech and expression; promoting censorship and various errors of law.
The Appellant’s Written Submissions
19. Mr. Jones submits that the trial judge did not allow him to present his full narrative in a way he would have liked, thereby breaching his rights to natural justice under Article 40-44 of the Constitution along with Article 6 of the ECHR. In BOI v. O’Donnell [2015] IECA 73, the Court of Appeal was happy to rely on written and oral submissions alone. Affidavits and replying affidavits were not necessary. Mr. Jones submits that he was subject to undue criticism by the judge and opposing Counsel on the basis that he attempted to allude to facts not sworn on affidavit, but which were the subject of his book.
20. He had sought injunctive relief based on the respondent’s sending of letters to booksellers and its failure to provide full details of alleged defamation. He wanted a declaration that his book was prima facie compliant with the law on defamation, which he said was legally possible because such relief was given in a case where there was a positive finding of defamation: Watters v. Independent Star Ltd (trading as Irish Daily Star on Sunday) [2010] IECC 1.
21. He alleged that Coolmore attempted to frustrate his application with reference to the Rights Commissioner’s Agreement and alleged breaches of copyright which are unrelated to the defamation suit. The agreement as to confidentiality amounted to an attempted gagging order regarding Coolmore’s alleged breaches of employment law. In Tillery Valley Foods v. Channel Four Television, Shine Ltd [2004] Chd 18, the court did not allow a claim of confidentiality to be used to support an application for injunctive relief which was in reality one of defamation. The alleged copyright breaches are similarly side issues in disguise. In Service Corporation International PLC v. Channel Four Television, Shine Ltd [1999] ChD EMLR 83, the court rejected an attempt to restrain the broadcast of material on the basis that the copyright claim was little more than an attempt to get around the difficulties in a defamation action. The question is not whether these are legitimate claims of themselves, but rather if they are parallel claims that should have no impact on the defamation action. They must be the subject of separate proceedings.
22. Mr. Jones submits that he was not bound by the Rights Commissioner’s Agreement as he signed it under duress through “the realisation that there [was] no other practical choice open to him”, as articulated by Lord Scarman in Universe Tankship v. International Transport Workers Federation, the Universe Sentinel [1983] AC 366.
23. He claims that Coolmore’s refusal to give particulars of the defamatory material is problematic in circumstances where it has been tacitly accepted that the material is defamatory and letters have been sent to booksellers alleging same. Costello J’s judgment does not leave open the possibility that defamation may not have occurred or that Mr. Jones may have a defence in law. Mr. Jones argues that the failure to provide particulars is grounded on an illogical assumption on Coolmore Stud’s part that as the author of the material, he knows what is defamatory.
24. Mr. Jones submits that the effect of the judgment is that someone can allege defamation, but the originator of that purportedly defamatory statement cannot challenge it, unless the alleging party sues them directly. In allowing that to happen, the learned trial judge effectively decided the case outright by holding that Mr. Jones has no case against Coolmore Stud in respect of alleged wrongs against third party retailers. In Bonnard v. Perryman [1891] 2 Ch 269, Lord Coleridge emphasised the importance of upholding free speech up until the point when there had been a ruling that libel had, in fact, been committed.
25. He argues that allowing letters to act as the solution to a disagreement concerning defamation is to go against the principles outlined in American Cynamid Co v. Ethicon Ltd [1975] AC 396. Coolmore has made it clear that it has no intention of taking a case against Mr. Jones to prove the defamation. It is suggested that the balance of convenience lies in reverting to the position when the book was first published and before the letters were sent.
26. Mr. Jones submits that the High Court was wrong to dismiss his action as lacking a serious question to be tried. The learned trial judge held that truth, in defamation proceedings, is a defence and not grounds for a legal action in and of itself. However, it would be inconceivable if someone claiming the defence of truth could not bring an action where their freedom of expression was being unconstitutionally infringed.
27. Turning to the adequacy of damages, Mr. Jones notes that the respondent is attempting to use its own privileged position against him. It is submitted that by its own admission, Coolmore has sought to limit circulation of Mr. Jones’s book, despite there being no injunction prohibiting its sale. It takes this position because its expenses and prospective damages would be more than that of a lay litigant. In doing so, it has engaged in conduct contrary to the spirit of Barron J’s statement in Currust Financial Service v. Loewe-Lac-Werk [1994] IR 450, “a rich man has never been entitled to buy out the rights of a poor man just because he wishes to do so”.
Oral Submissions
28. Mr. Jones began by noting that the disputed work had been published and was out in the world for those who could find it. Coolmore has not taken any direct defamation action against him personally; instead, it has opted to allege defamation to would-be distributors of the material. The attempt by the respondent to restrict the sale of his book amounts to unlawful censorship.
29. The appellant submitted that the trial judge had acted in a biased fashion, contrary to constitutional justice, in circumstances where he was a lay litigant taking on a powerful company. Mr. Jones suggests bias because of the way the judgment is written. He complained about interruptions by the trial judge, attempting to direct his submissions temporally and substantively, contrary to his right to run the case his own way. Mr. Jones also claimed that more time and deference was given to Mr. Paul Gallagher SC, Counsel for the respondent. It is emphasised that all that is required is the perception of bias in order for it to be successfully invoked.
30. Mr. Jones submits that the judge did not give due credit to his defence of truth. In cases alleging defamation, the burden of proof lies with the defendant to prove they have not committed such an act. However, as no defamation proceedings have been brought against him, this does not apply. Mr. Jones sought a declaration that there had been no ruling that he committed defamation. He also wanted the particulars of the alleged defamatory statements which the trial judge denied him.
31. Mr. Jones suggests that Costello J. mistook his passion for a frustration with the tactics employed by Coolmore i.e. its failure to sue him personally. He submitted that the respondent engaged in DIY defamation by sending letters threatening legal action if retailers sold the book in question. No legal action has been taken to date because it would fail.
Respondent
32. It is submitted that Mr. Jones was allowed to make his submissions as he saw fit, but he was restricted where appropriate when he went outside the scope of the affidavits. The interjections from the learned trial judge were there for the purpose of clarity and procedure. It was inappropriate for the appellant to criticise Costello J’s allocation of time. As a lay litigant, Mr. Jones may not have fully understood the trial judge’s role. Where there is a lay litigant and a fear of imbalance, the court endeavours to assist them to bring focus to their submissions.
33. In the case of Orange Communications, it was emphasised that the judgment itself cannot be the basis for an allegation of bias. It had to be something external to the process. It would be contrary to principle to hold otherwise. If there are errors in a judgment then the appropriate response is to appeal those errors of law or fact, rather than alleging bias. If bias becomes apparent during a hearing, a litigant may ask the judge to recuse themselves, this was not entered into.
34. The respondent submits that the declaration sought by Mr. Jones could not be given at the interlocutory stage, particularly in circumstances where the evidence given by Mr. David Gleeson indicates that the book was highly defamatory. It would be defamatory even if it was true. It is suggested that Mr. Jones misunderstands the law as truth is merely a defence to legal action in defamation; it does not make the statement less defamatory.
35. Coolmore argues that it is entitled to protect its interest in any way it deemed necessary and appropriate. Notification is an implicit remedy, particularly where the maker of the defamatory statements is not a mark for damages. It allows for the notified party to consider the position themselves and assess whether or not they wanted to defend the claim. In circumstances where Amazon and other conglomerates were among those served with these notices, it is unlikely they were intimidated by the letter. Coolmore did not engage in threatening tactics, it merely protected its good name in the manner it thought best. One cannot be forced to issue proceedings and damages would not be an adequate relief for the respondent. In contrast, damages for loss of sales would be an adequate remedy should Mr. Jones ultimately succeed in his claim.
36. With respect to freedom of expression, Coolmore notes that the law of defamation acts as a limiter on publication and speech. It is accepted that Mr. Jones, through self-publication, has already sold out the book’s first printing, but it does not follow that he must be assisted in expressing his view or distributing it further. Putting the booksellers on notice is legitimate where it is done bona fide as it has been in this case.
37. It is submitted that any allegation of bias or a breach of fairness is unfounded. The trial judge only interjected to ask relevant questions. Furthermore, no objections or suggestion of bias was brought up during the course of the hearing itself.
38. In order for a claim of bias to succeed, there must be an external element that impacts the decision maker’s judgment and Mr. Jones fails to allege any such extraneous factor. Hogan and Morgan emphasise that neither the conduct of the proceedings or the “perversity” of the decision itself are grounds for a claim of bias. The locus classicus, Orange Communications Ltd v. Director of Telecommunications Regulation (No.2) [2000] 4 IR 159 outlines the two-step test that must be proven on the balance of probabilities:
“First, that the adjudicator is affected by some factor external to the subject matter of his decision and, secondly that in relation to the particular decision the external factor operated as to tilt the judgment in favour of the successful party. The distinction is crucial…” [At p.241]
39. The alleged errors of law stem from a misunderstanding of the nature of an application for interlocutory injunctions. There is a distinction between Costello J. noting that he was not entitled to assert the contents of his book as established fact when they were not included in an affidavit.
40. Bank of Ireland v. O’Donnell [2015] IECA 73 does not hold that a litigant may introduce oral evidence in a hearing by affidavit, rather that oral submissions may assist an application for relief.
41. Nothing in Costello J’s judgment amounts to a finding that Mr. Jones has committed defamation; it was not a hearing of the substantive issue, but rather one for interim reliefs which were rejected. The court’s interjections were aimed at ensuring same. The trial judge simply stated that for the purposes of the application that an arguable case had not been put forward.
42. The central issue is whether or not the respondent can take pre-emptive measures to protect its good name before the material is declared defamatory in a court of law. Section 27 of the Defamation Act 2009, through the creation of a defence of innocent publication, provides an inherent entitlement to notify third party publishers of potentially defamatory material, prior to the outcome of a court case. Coolmore was within its rights to issue such letters to various book retailers.
43. It is argued that damages are more than adequate a remedy for addressing Mr. Jones’s claims should he prove successful, particularly in circumstances where he himself did not deny the adequacy of damages, but merely noted that they would be difficult to calculate.
44. Coolmore suggests that Mr. Jones’s motivation in seeking interim relief is “the legitimisation of breaches of negative covenants” found in the Rights Commissioner’s Agreement. In such circumstances, Costello J. would have been entitled to deny equitable relief by virtue of Mr. Jones’s conduct i.e. issuing derogatory statements against the company or persons associated with it. Additionally, Mr. Jones’s book prima facie infringes the copyright of a number of individuals.
45. The respondent highlights that Mr. Jones cannot claim duress so as to void the agreement when he has derived benefits from it. Furthermore, no sworn evidence was given alleging duress on his part and Mr. Jones accepted he was given the opportunity to seek legal advice before signing the agreement. In short, he cannot take the good and disregard that which does not suit him.
46. Finally, it is not open to the court to declare Mr. Jones’s book non-defamatory at this stage. The reliance on Watters v. Independent Star Ltd [2010] IECC 1 is misguided as this is not a defamation action, but rather an attempt to restrict Coolmore’s ability to send letters of notification pursuant to s. 27 of the Defamation Act 2009. Even if it was defamation action with respect to the contents of the letter, then the respondent has a defence in that the contents are true.
Discussion
47. The High Court held that Mr. Jones was not entitled to an injunction or injunctions restraining Coolmore from communicating with booksellers with a view to preventing them from selling his book. The court was satisfied on a prima facie basis that Coolmore had established a contract with Mr. Jones to the restrictive effect, as above outlined, and also that the book was prima facie defamatory, at least in some respects, and that it was derogatory of the Stud, at least to some extent or in some respects, and that it was or might be revelatory of confidential information about the owners of horses being trained at Coolmore. Moreover, the court was impressed to some extent by the fact that Coolmore had enlisted a number of writers of other books who complained that Mr. Jones had plagiarised their works in writing his own book. Mr. Jones’s major complaint that gave rise to his proceedings and is the central plank of his application for injunctive relief was that Coolmore did not sue him as he contends they ought to have done. They did not allege defamation, as to which he says that he can defend his book line by line. Neither did the Stud sue him for breach of the agreement that the parties executed, as to which he said that he signed it under duress. His central point is that Coolmore was not and is not entitled to approach booksellers, bypassing him and for the purpose of suppressing the distribution of his book.
48. The decisive question in the case is whether Coolmore was entitled to write to distributors and booksellers warning or threatening them with legal action in the event that they proceeded to deal with Mr Jones’s book. If it was legitimate for Arthur Cox to communicate the concerns of their client and its possible intentions as to litigation in the event of refusal to abide by Coolmore’s wishes, it is impossible to see how Mr. Jones could have succeeded in obtaining the relief he sought in the High Court or how he could now have the orders made by Costello J reversed.
49. Section 27 of the Defamation Act, 2009 affords a statutory defence of innocent publication. Coolmore has sought to exploit this provision by putting potential distributors and retailers on notice of their claim that the book is defamatory so as to make it clear to those parties that they will not be able to avail themselves of the defence in the event that the matter proceeds to a determination of an action for defamation. Also material is the entitlement of a person or body claiming to be defamed to proceed directly against distributors and sellers and to do so without making the author a defendant. He or she may not be a mark for damages or the potential plaintiff may think it less likely that their protests will be contested by commercial entities with no personal interest in the truth of the contents of the publication.
50. A party is not obliged to sue any particular person such as the author of allegedly libellous material before taking steps in relation to other persons to protect his reputation. In this case, Coolmore’s solicitors, by notifying the relevant parties of their client’s concerns, put them in the position of having to elect between abandoning the further distribution of the book or going ahead with publication thus jeopardising their ability to successfully claim the defence of innocent publication available to a secondary disseminator under s. 27 of the Defamation Act 2009. That was a legitimate legal manoeuvre in the circumstances and the trial judge was correct in so holding. The result followed that Mr. Jones was not entitled to injunctions in restraint. As to the declaration of non-defamation, the High Court could not have made that order on the motion, as the judge said in her judgment.
51. Mr. Jones is wholly mistaken on the question of bias. There is simply no basis for his allegations that the trial judge was biased in either of the senses of the term. The law on this topic is correctly set out in the respondent’s submissions. Although he could not be faulted for the courteous manner that he displayed towards this Court, Mr. Jones’s criticisms of the trial judge were extreme and intemperate, going far beyond anything that could be considered necessary or appropriate for an argument that the judge was in error in her decision. It is perhaps possible that he believes that for an appeal to succeed, it is necessary to demonstrate that the trial judge was biased, in either of the legal senses in which the concept exists, which could perhaps account for some of the imputations that Mr. Jones makes. In his submissions, Mr. Jones sets out the correct test and notes the distinction between objective and subjective bias, but it is in the application of the tests that Mr. Jones embarks on a wholly unwarranted, unjust and frankly irrational attack on the trial judge. I do not think that this is done wilfully or maliciously, but is, rather, the result of a serious misunderstanding on the part of a lay litigant. It may indeed be the case that Mr. Jones’s unfamiliarity with the processes of the court and the way judges interact with Counsel and litigants, as well as the outcome of the case and his study of the transcript of the proceedings in the trial court, has led him to make this argument, but it is wholly groundless and mistaken.
52. I should perhaps add a comment on a point raised by Mr. Jones in his enumerated points and in the submissions. He says that the behaviour of Coolmore interferes with his constitutional right of freedom of expression. I do not agree. In the first place, he is free to express his views and to publish them, subject of course to the law of defamation and other lawful inhibitions on expression. The fact that he is unable to insist on distribution in a particular manner is not a restriction on his freedom. It is also the case that other parties are entitled to their rights including their reputations and they may legitimately take steps to vindicate those rights or to inhibit attacks on them.
53. My conclusions may be summarised as follows.
54. The defence of innocent dissemination is now been embodied in statutory form in s. 27 of the Defamation Act, 2009 set out above. It is implicit in the defence that a person who apprehends that a publication may contain defamatory material about him is entitled to communicate that to the distributor or seller or other person involved who is not the author, editor or publisher. The protection afforded to a person for his reputation would be seriously reduced if he was not entitled to head-off publication or distribution by putting such person in the position of knowing the complainant’s allegations about the material.
55. The fact that it has not been established in a court that the publication is defamatory is irrelevant. There is no obligation on a person claiming to have been defamed to sue any particular defendant. He is free to choose between persons having liability so as to proceed against one or more and not against others. There are obvious practical reasons why this should be so but it is also available as a matter of principle. An author cannot insist that a person claiming to be defamed in his work has to sue him as well as others or instead of others. This is the mistake that Mr. Jones is making in this case.
56. The complainant’s protest about publication and endeavours to prevent it or to restrict distribution is no more than an allegation. The person to whom the letter is directed does not have to comply with the request or demand. He may proceed to distribute and the only thing the complainant can do in those circumstances is to sue for damages for defamation unless he can bring himself within the very restricted class of cases in which an injunction will be granted.
57. The distributor on receipt of correspondence alleging libel has a choice to make. He can proceed to distribute or follow the path of prudence and comply with the request to desist. If it subsequently transpires in an action against him that the publication was indeed defamatory, as claimed by the injured party, he will be in real difficulty in seeking to invoke the defence of innocent distribution in view of the explicit notice that the complainant gave. That, of course, is the purpose behind writing the letter but it is a legitimate legal purpose.
58. It follows, therefore, that there is no valid objection in law to a person seeking to protect his good name by notifying a distributor or other secondary disseminator of his complaint of defamation with a view to preventing distribution. Decided cases focus on the means of knowledge of the defendant claiming innocent dissemination. The defence will be jeopardised if the distributor has been expressly informed of a claim by a person alleging defamation and yet he has proceeded with distribution.
59. I am also satisfied that the other subsidiary grounds of appeal are unsustainable.