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.
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.
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.
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.
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.
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.