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Judgment Title: Desmond v Doyle and others
Neutral Citation:  IESC 59
Supreme Court Record Number: 168/08 & 169/08
High Court Record Number: 1998 4771P & 1998 5045 P
Date of Delivery: 17/12/2013
Court: Supreme Court
Composition of Court: Denham C.J., Murray J., McKechnie J.
Judgment by: McKechnie J.
Status of Judgment: Approved
THE SUPREME COURT
[S.C. No. 168 of 2008]
[S.C. No. 169 of 2008]
Times Newspapers Ltd., Rory Godson and John Burns
Judgment of Mr. Justice William M. McKechnie delivered on the 17th day of December, 2013.
2. In 1997, by resolution of Dáil Éireann and Seanad Éireann, it was resolved to establish a Tribunal of Inquiry, to inquire urgently into the matters covered by its terms of reference and to report to the Clerk of the Dáil on its findings (“the Moriarty Tribunal” or “the Tribunal”). The essence of the inquiry related to alleged payments made to the late Mr. Haughey, a former Taoiseach and to Mr. Michael Lowry, T.D., both in active politics at the time. After its establishment, the Tribunal invited members of the public to furnish to it whatever relevant information they may have in this regard. In that context, Mr. Doyle sent the letter above referred to, which is reproduced in its main terms in the schedule to the statement of claim. It reads as follows:-
“Tom Doyle made a formal proposal to the Department of Finance in 1985.”
“Dermot Desmond was given an option to purchase an office block at the eventual IFSC in Dublin at an attractive price on the basis that he initiated the idea. Dermot Desmond did not produce a report for the Department of Finance during Alan Duke’s time in office.”
“I can prove that I made a proposal to the Department for a similar centre in Shannon in 1985.”
“It was not critical to the intellectual property involved that Shannon be used, and basically the same interpretation of double tax treaties with some enabling legislation has resulted in the IFSC in Dublin.”
“I am concerned that in some way my idea and report was in some way leaked either intentionally or otherwise to a third Party who passed it on to Dermot Desmond who subsequently took credit for it and who appears to have benefited significantly from taking such credit.”
“Mr. Doyle is concerned that the option given to Dermot Desmond may not have been bona fide and perhaps not for his own personal benefit.”
4. As I have said, two sets of proceedings were instituted as a result of the aforegoing, which for convenience I will henceforth refer to as the “Doyle” proceedings and the “Sunday Times” proceedings, respectively.
6. The plaintiff’s cause of action can be simply stated: he claims that the allegations in question were falsely and maliciously published and were in a variety of ways defamatory of him, as a result of which he seeks compensation for reputational damage.
The Doyle Defence:
8. There are also a number of other pleas which are not immediately of relevance.
9. The Reply as filed, seeks to suggest that the occasion of the letter’s sending was not one of qualified privilege, but that in any event, even if capable of being looked upon as so pleaded, the same lost that character or standing, as Mr. Doyle had no bona fides belief as to the truth of the matters which he alleged. Furthermore, the three matters referred to are by law inadmissible as a plea in mitigation, of the plaintiff’s damages.
Sunday Times Defence:
11. The plaintiff’s Reply, which denies the admissibility of the mitigation plea, does not otherwise add legally or factually to the issues thus identified.
12. As can therefore be seen, whilst there are some differences between the cases, both in large measure were considered together in the High Court, and likewise – unless otherwise stated – are so treated in this judgment.
The Affidavit Evidence:
14. The response, whilst denying prejudice at any level, offers as a justification for the delay the belief on the plaintiff’s part, supported by Senior Counsel’s verbal advices, that, given its terms of reference, the Tribunal of Inquiry was likely to make findings on, or at least to explore matters which would be directly relevant to these proceedings: accordingly, a decision – reasonably arrived at – was made to defer their further prosecution until the Tribunal had concluded that part of its brief. However, as by December, 2005 it was self-evident that the work of the Tribunal still had some distance to run, it was decided to proceed with the actions.
15. This explanation, which as a matter of fact was never communicated to the defendants, is also contested by them, in that in their view, on any reading of the Tribunal’s terms of reference, it was highly unlikely that it would ever involve itself in matters relating to the actions in suit. This in turn is rejected by the plaintiff who asserts the contrary position.
16. This was the state of the evidence upon which the trial judge was asked to determine the issues.
Judgment of the High Court:
18. Proceeding on that basis and applying the tripartite analysis set out in Primor plc. v. Stokes Kennedy Crowley  2 I.R. 459 (“Primor”), the Court found that the delay complained of – particularly in a libel action which by its nature imposes an even greater sense of urgency on the plaintiff – was inordinate. Further, when looking at whether the delay was inexcusable or excusable as the case may be, the trial judge referred, with approval, to the High Court’s judgment in Comcast International Holdings Inc. & Ors. v. The Minister for Public Enterprise & Ors.  IEHC 297. However, by the hearing date of this appeal, the Supreme Court in Comcast had taken a view different from that of the learned High Court judge. In addition, Stephens v. Paul Flynn Ltd.  4 IR 31 (“Stephens”) was cited so as to emphasise a viewpoint that delays heretofore defensible, may no longer be so. On such basis, the delay was also inexcusable.
19. The third aspect of the test was then considered – again by reference to Primor – and also having regard to what Fennelly J. had said in Anglo Irish Beef Processors Ltd. v. Montgomery  3 IR 510, at p. 520. Being satisfied that no specific prejudice existed, the learned judge categorised what had been established in that regard as being “marginal or potential”. Accordingly, in all of the circumstances, an order, conditional on terms, permitting the action to proceed, was appropriate. These conditions were (i) that the costs liability should fall on the plaintiff, as and from the 7th April, 2000, being one year after the defence was delivered, as that is when the legal advice might first have been reviewed; (ii) that any outstanding issues on Discovery be listed within 21 days; and (iii) that the case be certified for hearing by the 5th June, 2008.
21. It is also submitted that the trial judge did not give sufficient or appropriate weight to a number of factors when adjudicating on the balance of justice issue. In this regard it is said that the plaintiff should not be permitted, with impunity, to tactically defer the further prosecution of his action, at least without informing the defendant so that such defendant has an opportunity to adjust his position, if he so decides. Such a move, even if supported by legal advice should strongly hold against him. Further, in proceedings involving a cause of action such as libel, it is particularly incumbent on the moving party to process the action with all due expedition and a failure to do so will not be lightly excused: Keane C.J. in Ewins v. Independent Newspapers (Ireland) Ltd. & Anor.  1 I.R. 583 (“Ewins”), at p. 590.
22. In addition it was said that there was a further matter of some significance, which should not be disregarded. It relates to what was alleged to have been “a campaign of litigation”, engaged in by the plaintiff against Times Newspapers Ltd., which has involved the institution of several other libel actions arising out of articles published by it from 1997 to 1999. These actions, like the instant proceedings, were not progressed with any dispatch, such that the High Court in June, 2009 dismissed them for want of prosecution. Although Notices of Appeal were filed in response to such decision, the same were, without explanation, unilaterally withdrawn, in November, 2012. It was alleged that this pattern of conduct, had adversely impacted on the publisher’s right to free expression under Article 40.6.1°.i of the Constitution and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Protocol 1950, more commonly known as the European Convention on Human Rights (“the Convention”), and should decisively tilt the issue of justice in favour of this appeal.
23. Finally, it is also claimed that the High Court’s assessment on the question of prejudice, leading to a finding that it was but “marginal or potential”, did not accurately reflect the evidential situation of the defendants and in any event it was positioned far too centrally within the third limb of Primor. In reality, there was evidence of real prejudice which was somehow overlooked in the analysis.
24. In all of the above circumstances the appeal should be allowed.
(ii) that wherever ultimately the appropriate measure or standard of expedition should be set for and applied to, either a defamatory action such as this, or all cases, the courts – regardless of that outcome – should continue to exercise the dismiss jurisdiction most sparingly and should do so only in the most clear cut of cases (Sun Fat Chan v. Osseous Ltd.  1 I.R. 425);
(iii) that there was a genuine reason for the decision not to proceed, a reason supported by experienced Counsel specialising in this area of law. That fact and a review of that decision in December, 2005 renders the delay excusable. Even however if such reason is not accepted as justifying the delay, the same nonetheless represents a factor favourable to a continuation of the proceedings. Comcast, even though distinguishable on the facts in several ways, is supportive of this general position. See in particular the judgment of Denham C.J.;
(iv) that the Court’s assessment on the prejudice issue was fully in conformity with the evidence and in effect was the only conclusion available.
(v) that if the action is not permitted to proceed, the pleas in mitigation, which closely resemble a justification plea and which reflect badly on the plaintiff’s character, will remain unchallenged;
(vi) that in several ways the appellants have acquiesced in the delay;
(vii) that the additional urgency spoken of in the context of libel actions must be seen in context;
(viii) that the reference to the plaintiff as being involved in a campaign of litigation against Times Newspaper Ltd. is without fact or substance. No evidence of any description was presented to this effect and the first reference thereto is to be found in the appeal submissions made to this Court. In such circumstances such should be entirely disregarded; and finally
(ix) that in any event, the stark consequences of a dismissal, involving the immediate termination of the proceedings, would be excessive and in the presenting circumstances, not justly warranted.
26. During the course of the hearing, Counsel on behalf of the plaintiff clarified that his client accepted the High Court’s finding of inexcusable delay, having already done so in respect of inordinate delay. Thus, the appeal is a single-issue one only, and falls to be determined in accordance with the third limb of Primor. The sole question therefore is whether justice favours a continuation of the proceedings or their immediate termination with irreversible effect.
27. Before outlining my conclusion on this issue, which must of course be based on the facts specific to this case, there are a number of perhaps general matters which it is convenient to deal with at this stage.
28. As can be seen from the above summary of the submissions, some discussion took place about the desirability or otherwise of readjusting the weight to be attached to various factors commonly found in this type of application. In the process, a number of cases were opened where this point has been judicially commented upon. Whilst it is said that there is some divergence on the issue, it remains unclear what the substance of these differences might be, but in either case, such would be unlikely to have much impact on the balance of justice test. In any event, for the purposes of this case it is in my view not necessary to further consider the issue, as on any approach – broad or narrow – I would adopt the same view and arrive at the same conclusion as I have. Therefore on this basis I do not believe that further debate is required as the appeal can be determined in this manner.
29. As I read the documentation, it seems to me that the applications moved under O. 122, r. 11 of the Rules of the Superior Courts, 1986, were neither set up nor legally advanced in such a way as would require from this Court a consideration of in what circumstances, if any, an action might be dismissed for want of prosecution purely on the grounds of delay, in other words, on “delay” simpliciter. These applications were opened and outlined along traditional grounds and debated by reference to established principles which call into play several matters, including the question of prejudice. Therefore, I would propose to treat the applications as they were presented and to determine them on the basis indicated.
30. The third matter which I wish to refer to, relates to the sense of objection, even grievance, which the Times Newspaper Ltd. purports to have (see para. 22 supra), arising out of the number of legal actions which Mr. Desmond has instituted against it throughout the years. It appears that all such actions – which are based on various articles published from 1997 to 1999 – arose out of the Moriarty Tribunal or else were related to events or personnel associated with its inquiry. Several pages of submissions on this appeal are taken up with a detailed history of those proceedings and with a very definite assertion that their institution had in the first place an ulterior motive.
31. Mr. Desmond entirely disputes what is alleged and, irrespective of where the merits or truth may lie, goes on to make the point that none of the allegations are supported by evidence and moreover, that they have only been raised for the first time in the appeal submissions. Basically it is his contention that in such circumstances he should not have to deal with them, whilst at the same time asserting that he has a good answer, if necessary.
32. I agree with his submission: there is in fact no evidence at all in the affidavits about this matter and neither was it aired in any way in the High Court. Evidently, it does not feature in the resulting judgment. To assert such matters now for the first time in the submissions to this Court is not appropriate. In such circumstances it would be unfair to have regard to them.
33. That leads me back to Primor, whose principles were recently re-affirmed by this Court in Comcast, and in particular to the third limb of the analysis. Insofar as is material, the test under this heading was summarised by Hamilton C.J. at pp. 475 and 476 of the report as follows:
(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;
(d) in considering this latter obligation the court is entitled to take into consideration and have regard to
(i) the implied constitutional principles of basic fairness of procedures,
(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,
(iii) any delay on the part of the defendant - because litigation is a two party operation, the conduct of both parties should be looked at,
(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,
(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,
(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business.”
35. It will be recalled that the offending publications took place in February and March, 1998. Proceedings were instituted pretty much immediately with the reply to the defence having been filed within 12 months. From April, 1999 until October, 2000 there was some correspondence between the parties regarding Discovery. No point is therefore taken on this period.
36. From October, 2000, to December, 2005 when a Notice of Intention to Proceed was served, is the 1st period in issue: a further eight months passed before Discovery was sought in the Doyle proceedings on the 21st of August, 2006. After several reminders and also after having had some correspondence with the C.S.S. (para. 51 infra), the defendants eventually replied to this request on the 9th of January, 2007: so this period, which is largely common to both sets of proceedings can be discounted. However, the six months inactivity which then followed until the issue of the Discovery Motions in July, 2007 cannot; rather, it exacerbated further the above periods of delay. For completeness, the Motions to Dismiss were issued on the 23rd/24th October, 2007 and nothing turns on what happened thereafter. So in all, there are three periods: five years, eight months and six months.
37. Against the backdrop of these delay periods, there are several factors in this case which must be looked at in the balance of justice test. These are as follows.
The Decision to Defer:
38. The explanation offered for this decision does not arise for consideration as excusing the delay, as it is conceded that the delay is inexcusable. See Macken J. in M.G.N. and Fennelly J. in Comcast. However, I see no reason in principle why it is not a relevant matter on this aspect of the case. All matters which are material and probative should be considered. Surely a plaintiff facing an application of this nature, who has a genuine explanation for the delay, even one which has limited legal effect, is in a position different to that of a fellow plaintiff who can offer nothing but indifference, apathy or the like. Therefore, in my view, it is a relevant factor.
The Added Obligation in Libel Actions:
39. It is said, supported by authority, that where defamation is the cause of action, expedition is all the more incumbent on the moving party. Keane C.J. in Ewins at p. 590 applied this proposition to the institution of proceedings and Macken J. in M.G.N. at p. 759, did so to the prosecution of such proceedings. Grovit v. Doctor & Ors. (Unreported, Court of Appeal, Civil Division, Glidewell J., 28th October, 1997) was cited in support.
40. The reason why a defamation action is peculiar in this regard seems to be based on two grounds: firstly, that unless the plaintiff moves rapidly, the significance which otherwise he would wish to attach to his reputation may seem less than what he asserts; and secondly, one would expect that in any event he would wish to undo the damage to his reputation as soon as possible, and to restore its standing to its pre-publication position.
41. Even though these grounds appear more relevant and probative to the substance of the action itself rather than to an application of this nature, nonetheless it seems to have been accepted that some added urgency is required in this type of action.
The Mitigation Issue:
42. The three matters pleaded under this heading, in both defences, are set out at para. 7 supra. It is clear that by putting them in issue, the defendants will seek to counter the effects of any defamatory finding against them by suggesting that in any event, the plaintiff was a person of poor character, and thus his reputation is not further affected by the publications in issue.
43. It is correct, in my view, for the plaintiff to suggest that this is a serious plea which he has to face, and is one which to some degree can be considered analogous to the defamatory allegation itself (if established), or where pleaded, to a defence of justification. So it is understandable why he is concerned that unless he has an opportunity of contesting these matters before a court/jury, they will remain as part of the official record.
44. However, in the circumstances, this can also be seen as somewhat of a double-edged sword, in that the weight to be attached to it from the plaintiff’s point of view will necessarily be affected by the period(s) of delay for which he is responsible.
The Question of Prejudice:
45. The nature and extent to which the defendants have been prejudiced by the delay must next be considered. On this question the appellants have failed to establish any arguable basis for suspecting that their ability to defend the action – either at a general or at a specific level – or to advance the mitigation plea, has been compromised by reason of delay. There is no suggestion that any potential witness will be unavailable; the reference to Mr. Godson having left Times Newspaper Ltd. being, without more, immaterial. Whilst undoubtedly at a general level it can be taken that over time one’s memory of past events and the circumstances in which they occurred will diminish, nonetheless, at the particular level, the precise consequences will depend on a number of more individual variables. The allegation of prejudice in this case is pitched at the former and has not been argued at any more specific level.
46. In any event the weight of this complaint from the defendants’ point of view can be evaluated by looking at the most important issues which might call for oral evidence. These, regarding Mr. Doyle, will include the occasion upon which he wrote the letter, as the circumstances of such will be of importance so as to advance his claim for qualified privilege and/or to defend against the allegation of malice, which in this context is not malice in law but malice in fact: Clarke v. Molyneaux (1877-78) L.R. 3 Q.B.D. 237 and Hynes-O’Sullivan v. O’Driscoll  I.R. 436. As regards all of the defendants, it may be that a factual controversy could arise regarding the third matter pleaded in mitigation; namely an assertion that the plaintiff tried to dissuade Mr. Ben Dunne from giving evidence at the Tribunal of Inquiry. The other points made as part of this plea can be disregarded, as the Johnson, Mooney and O’Brien controversy is one of record and as by his own acknowledgement, the plaintiff has in fact in the past made substantial payments to the Haughey family and to Mr. Haughey himself.
47. It has not been established to any real extent that the defendants will be prejudiced in any way beyond the general. Mr. Doyle presumably will be the key witness as to the circumstances in which he came to send the letter: he has not suggested any memory frailty or recollection debility in this regard due to the passage of time. In respect of the Dunne allegation it must be assumed that at the time of the defence plea, each defendant had possession of information, viewed as being adequate, which enabled them to make the allegation in the first instance. There is no suggestion that such information does not continue to exist. Therefore, this aspect of the alleged prejudice cannot be considered weighty.
48. The question of documents does not arise in the case of the Sunday Times proceedings and the position in which Mr. Doyle has left the evidence regarding his contact with the Department of Enterprise in 2001 is entirely unsatisfactory. It is by no means clear that the alleged documents which he refers to ever actually existed – a possibility which he expressly acknowledges in correspondence. In fact he relies upon this uncertainty as a basis to call for their production. In any event, to date, no further effort has been made by him to clarify the position and accordingly the High Court’s finding that any prejudice could only be “potential or marginal” is, in my view, at the highest level of what on the evidence was available to the trial judge.
49. It has been accepted for many years that, in the face of a plaintiff’s delay in progressing the proceedings, the conduct of a defendant in failing to move to have such proceedings dismissed for want of prosecution is a factor to be considered in the balance of justice test. In Dowd v. Kerry County Council & Anor.  I.R. 27, at pp. 41 and 42, Ó Dálaigh C.J. said the following by way of a general observation:
51. On the facts of this case the defendants never moved until the within Motions were issued in October, 2007. That was evidently after the first period of delay had ended. It was however also after a number of further opportunities arose, which they may have been expected to react to, but failed to so do. For example, on the service of a Notice of Intention to Proceed in December, 2005, on the Discovery request made in August, 2006, and on the occasion of any one of the several reminder letters sent thereafter. In addition, they became aware in November, 2006 of the plaintiff’s attempt to obtain Discovery from the Minister for Finance. That correspondence with the C.S.S. continued until the 9th January, 2007, on which date and notwithstanding the inter partes correspondence, they responded by suggesting that the Minister should not accede to such request as in their view the proceedings were dormant. That was a calculated position to take, particularly in view of the then recent inter partes correspondence. In any event that opportunity to move was also passed over.
52. In these circumstances I consider their inactivity until October, 2007, which was after the plaintiff’s Motion for Discovery had issued, to be of measured significance.
53. Having thus considered the most important of the relevant factors in this regard, I am not satisfied that the defendants’ capacity to meet the claims and to advance any defence which they have asserted has been compromised by the delay, and certainly not to such an extent that a fair trial is in peril. I do not believe that it is unfair on the defendants to ask them to defend these proceedings, whereas an injustice, readily more recognisable, could be inflicted upon the plaintiff if the actions were dismissed. Accordingly, I would uphold the findings of the trial judge and dismiss this appeal.
54. This conclusion also applies to the alternative basis upon which these applications were moved. See: Toal v. Duignan & Ors. (No. 1)  I.L.R.M. 135 and Toal v. Duignan & Ors. (No. 2)  I.L.R.M. 140, O Domhnaill v. Merrick  I.L.R.M. 40 and Manning v. Benson and Hedges & Ors.  3 IR 556. No additional observation further to those above made is required in this context.
55. Finally, as the first condition imposed by the order of the High Court has not been appealed, I would also affirm the order in this regard. The other conditions specified by the trial judge do not arise at this point in time.