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URL: http://www.bailii.org/ie/cases/IESC/2008/S56.html
Cite as: [2009] 2 IR 737, [2008] IESC 56, [2009] 1 IR 737

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Judgment Title: Desmond -v- MGN Limited

Neutral Citation: [2008] IESC 56

Supreme Court Record Number: 317/05

High Court Record Number: 1998 5813 p

Date of Delivery: 15 October 2008

Court: Supreme Court


Composition of Court: Geoghegan J., Kearns J., Macken J.

Judgment by: Kearns J.

Status of Judgment: Approved

Judgments by
Result
Appeal dismissed - affirm High Court Order


Outcome: Dismiss




THE SUPREME COURT

Geoghegan J.
Kearns J.
Macken J.
[S.C. No. 371 of 2005]

BETWEEN

DERMOT DESMOND


PLAINTIFF/RESPONDENT

AND


M.G.N. LIMITED


DEFENDANT/APPELLANT


JUDGMENT of Mr. Justice Kearns delivered the 15th day of October, 2008


This is an appeal against the refusal of the High Court (Hanna J.) on 11th July, 2005 to dismiss the plaintiff’s claim for want of prosecution either pursuant to Order 27 the Rules of the Superior Courts or pursuant to the inherent jurisdiction of the court.



BACKGROUND

On 8th January, 1998 the defendant’s newspaper, The Irish Mirror, published an article under the heading “Tycoon Desmond ‘picked up tab for Charlie’” which said article comprised the Irish Mirror’s presentation of a lengthy article concerning Charles Haughey’s finances which was published on that date by Magill Magazine.

The article published in the Irish Mirror on 8th January, 1998 commences as follows:-
      “Millionaire financier Dermot Desmond helped fund Charles Haughey’s champagne lifestyle, it was claimed last night.
      The top businessman shelled out several sums of money – including one six figure amount, after Haughey left office in 1992, according to a magazine published today. The cash was paid to offset the shamed former premier’s extravagant household and living expenses, sources claim.
      Current affairs magazine, Mcgill (sic) also claimed Mr. Desmond sought donations for Fianna Fail in the late 1980’s while Mr. Haughey was still head of government.”
The article went on to state that:-
      “The accusations are now likely to be taken up by the new probe into Mr. Haughey’s finances …”
Express references were then made to the Moriarty Tribunal.

The plaintiff issued a statement on 8th January, 1998 in response to the Magill article. On the following day, 9th January, 1998, the defendant followed up with a further front page article in the Irish Mirror, under the headline “I did give cash to Charlie”. This article noted on page 2 that the Moriarty Tribunal was “taking a detailed look at the 71 year old statesman’s financial affairs” (being a reference to Charles Haughey).

The plaintiff’s solicitors wrote to the defendant on 28th January, 1998 seeking an unqualified apology and damages on the basis that the contents of the two articles were defamatory of him. A follow-up letter was sent on 17th February, 1998 and a further letter was sent on 22nd March, 1998 to which a response was sent by the defendant on 13th March, 1998.

The plaintiff instituted proceedings by way of plenary summons on 12th May, 1998. Thereafter a statement of claim was delivered on 25th June, 1998. Following two motions for judgment in default of defence, the defendant delivered a defence on 1st February, 1999. The defence as delivered pleaded, inter alia, no libel, justification and fair comment.

No reply having been delivered within fourteen days of the delivery of the defence, the pleadings were thus deemed to be closed in February, 1999.

Thereafter nothing further occurred until a notice of intention to proceed was served on behalf of the plaintiff in February, 2005. This initiative to reactivate proceedings which had been dormant for six years prompted the present application brought by the defendant on 25th May, 2005 to dismiss the plaintiff’s claim for want of prosecution.

In the course of the appeal before this Court, Mr. Bill Shipsey, Senior Counsel for the plaintiff, candidly admitted that a decision was taken by his client to “park” the proceedings to await the outcome of the Moriarty Tribunal’s investigations into the matters which were covered by the articles in suit. He said that the plaintiff took this decision following legal advice. Mr Shipsey submitted that the articles contained a series of allegations which were to be the subject of enquiry by the Moriarty Tribunal and that it would clearly have been of assistance to the plaintiff to have the allegations “aired in evidence” in the Tribunal’s proceedings and to be the subject of a report. Such findings and such evidence as might be given would be potentially highly relevant material for the purposes of the preparation and conduct of the libel proceedings. Ultimately, however, due to the protracted nature of the hearings in the Moriarty Tribunal, the plaintiff took the view in February, 2005 that he should re-activate his defamation proceedings. It was acknowledged on the part of the plaintiff that the defendant had not been notified of the decision to “park” the defamation proceedings but it was contended that as the defendant was on full notice of the case which the plaintiff sought to make it had ample opportunity to marshal and preserve any evidence or other material in support of its defence.

Mr. Shipsey submitted that in exercising his discretion to refuse the relief sought, Hanna J. had acted within reasonable parameters for the exercise of that discretion. Once this Court was satisfied that the High Court judge had so acted, he submitted that it should not intervene to interfere with that decision. In this regard Mr. Shipsey placed reliance upon the decisions of this Court given in Martin v. Moy Contractors Limited (Unreported, Supreme Court, 11th February, 1999) and Stevens v. Paul Flynn Limited
[2008] IESC 4.

HIGH COURT DECISION

In the course of an ex tempore judgment in the High Court, Hanna J. found that there had been inordinate delay in this case. He did, however, find the delay was excusable and stated as follows:-
      “I am satisfied that there is just about sufficient excuse in that it was clear in 1998 that the Tribunal known as the Moriarty Tribunal was about to begin and in my view it was understandably prudent advice to give to the plaintiff that he stay his hand until evidence dealing with allegations was formally dealt with before the Tribunal. It is not unfair to take account of the fact there was considerable delay caused to the Moriarty Tribunal by litigation and whilst no criticism attaches to the Moriarty Tribunal, it would have been difficult if not impossible to predict that matters would take the course that they did in relation to the length of the investigation. So it is not surprising that matters lay dormant for a period of years.
      Now there did come a point where the balance had to be struck between waiting for the end of the Moriarty Tribunal and proceeding to vindicate the plaintiff’s good name. It was this step (i.e. service of notice of intention to proceed) that inspired the defendant into action.
      I began by referring to the words of O’Dalaigh C.J. in Dowd v. Kerry County Council [1970] I.R. 27. Of course, the primary onus rests on the plaintiff in pursuing his or her proceedings, and more particularly so in defamation cases where any waiting around may be prejudicial. There is an onus to proceed with speed. But it is not all one way. If there was any seriously perceived prejudice as a result of the delay, this motion should have been brought years ago. The fact that it was not brought until stimulated by the plaintiff’s solicitors causes me to doubt whether there was any prejudice at all. There is nothing to suggest anything but that the delay was entirely justified. There is nothing to suggest that the balance of justice would lie anywhere other than with the plaintiff proceeding with the claim”.

RELEVANT LEGAL PRINCIPLES

The Court’s jurisdiction to dismiss proceedings for delay arises (a) pursuant to Order 27 of the Rules of the Superior Courts 1986 where there has been a want of prosecution on the part of the plaintiff and (b) pursuant to the inherent jurisdiction of the court where it is established that there is a real and serious risk of an unfair trial. In this case the defendants have brought their application by reference to both sources of relief.

In Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561, Finlay P. reviewed the existing authorities to that point and said (at p.567):-
      “From these decisions it is possible to elucidate certain broad principles which are material to the facts of this case and would appear to constitute the legal principles underlying this problem of the dismissal of an action for want of prosecution or that permitting by the extension of time for pleading of it to continue in this country at present.
      (1) Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and even if inordinate has it been inexcusable. The onus of establishing that delay has been both inordinate and inexcusable would appear to lie upon the party seeking a dismiss and opposing a continuance of the proceedings.
      (2) Where a delay has not been both inordinate and inexcusable it would appear that there are no real grounds for dismissing the proceedings.
      (3) Even where the delay has been both inordinate and inexcusable the court must further proceed to 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. Delay on the part of a defendant seeking a dismiss of the action and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution may be an ingredient in the exercise by the court of its discretion.
      (4) Whilst the party acting through a solicitor must to an extent be vicariously liable for the activity or inactivity of his solicitor, consideration of the extent of the litigant's personal blameworthiness for delay is material to the exercise of the court's discretion.”
This Court in Primor Plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459 further clarified the relevant principles of law relevant to an application to dismiss an action for want of prosecution. In the course of delivering the judgment of the court, Hamilton C.J. (at pp. 475 and 476) stated as follows:-
      “(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;
      (b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
      (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.”
It must be stressed that the factors which the courts take into consideration in assessing the balance of justice are not expressed to have been listed in exhaustive terms. Nor is a court precluded from dismissing proceedings where one or more of the factors enumerated above are not present if the circumstances of the case otherwise merit dismissal.

Of some considerable significance in this context is the fact that the legal landscape with regard to delay has undoubtedly altered following the coming into operation of the European Convention on Human Rights Act, 2003. Section 4 of that Act requires that judicial notice be taken of the Convention provisions. Article 6(1) of the Convention for the Protection of Human Rights & Fundamental Freedoms provides that:-
      “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” (Emphasis added)
Neither party to this appeal has sought to argue that the Convention, even in the form in which it has been incorporated into Irish domestic law, provides horizontal enforceable rights as between private litigants. Both parties, however, accepted that when exercising its discretion the Court must remain mindful of obligations imposed on it by the Convention given that these obligations exist quite independently of the action or inaction of the parties to the litigation. This point was stressed by Hardiman J. in Gilroy v. Flynn [2005] 1 ILRM 290 when in the course of his judgment he stated at pp. 293 and 294:-
      “… the courts have become ever more conscious of the unfairness and increased possibility of injustice which attach to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued …, following such cases as McMullen v. Ireland ECHR 422 97/98, July 29, 2004 and the European Convention on Human Rights Act 2003 the courts, quite independently of the action or inaction of the parties, have an obligation to insure that rights and liabilities, civil or criminal, are determined within a reasonable time. These changes, and others, mean that comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end. Cases such as those mentioned above will fall to be interpreted and applied in light of the countervailing considerations also mentioned above and others and may not prove as easy an escape from the consequences of dilatoriness as the dilatory may hope. The principles they enunciate may themselves be revisited in an appropriate case. In particular, the assumption that even grave delay will not lead to the dismissal of an action if it is not on the part of the plaintiff personally, but of a professional advisor, may prove an unreliable one.”
Subsequently, in Stevens v. Paul Flynn Limited [2005] 1.E.H.C. 148, Clarke J., in dismissing a plaintiff’s claim for want of prosecution said:-
      “Notwithstanding the fact that the Supreme Court in that case i.e. Gilroy v. Flynn permitted the continuance of the action, it seems clear that the court was of the view that there may be a need to reconsider the previously established principles in the light of those recent developments.
      Having considered the matter I am satisfied that the two central tests remain the same. The Court should therefore:
          (1) Ascertain whether the delay in question is inordinate and inexcusable and
          (2) If it is so established the Court must decide where the balance of justice lies.
      However it seems to me that for the reasons set out by the Supreme Court in Gilroy the calibration of the weight to be attached to various factors in the assessment of the balance of justice and, indeed, the length of time which might be considered to give rise to an inordinate delay or the matters which might go to excuse such a delay are issues which may need to be significantly re-assessed and adjusted in the light of the conditions now prevailing. Delay which would have been tolerated may now be regarded as inordinate. Excuses which sufficed may no longer be accepted. The balance of justice may be tilted in favour of imposing greater obligations of expedition and against requiring the same level of prejudice as heretofore.”
This Court agreed with the reasoning of Clarke J. in that case and I therefore am of the view that the requirements of the Convention add a further consideration to the list of factors which were enumerated in Primor as factors to which the courts should have regard when deciding an issue of this nature. Furthermore it is a consideration which operates regardless of the wishes or intentions of one or both parties to the litigation.

REVIEW OF DISCRETIONARY ORDERS

In upholding the decision of Clarke J. in Stevens v. Paul Flynn Limited [2008] IESC 4, this Court confirmed, firstly, that where a judge of the High Court makes a discretionary order this Court should not interfere with such order unless it is clear that the discretion is not being exercised within the parameters of what might be described as a reasonable exercise of that discretion. This Court again adopted with approval the views expressed by Lynch J. in Martin v Moy Contractors (Unreported, Supreme Court, 11 February, 1999) in which he stated at p.13:-
      “The High Court has a measure of discretion in these applications to dismiss actions for want of prosecution. Provided that the High Court decision is within the limits of reasonable discretion this Court should not interfere with it. In this case the learned President gave a reasoned judgment and his reasoning is clearly valid. His decision naturally followed from such reasoning and is also therefore clearly valid. There is accordingly no basis on which this court should interfere with the judgment of the learned President….”
That said, an exercise of discretion by a High Court judge must remain reviewable where it is incorrectly premised. Therefore nothing in Martin v Moy Contractors should be taken, nor could it be taken, as overturning the jurisprudence established by the seminal decision of a five judge court in In bonis Morelli: Deceased; Vella v. Morelli [1968] I.R. 11. In that case it was held by this Court that it had an absolute power to substitute its own discretion in place of the discretion of the trial judge, albeit it would give “great weight to the views of the trial judge” (per Budd J. at p 29). However, the context in which these views were expressed must be emphasised. Vella v Morelli was a case where the plaintiff sought the recall of a grant of administration and the condemnation of a will on grounds, inter alia, that it had not been properly executed. The judgment and order of the High Court upheld the will and made no provision for the costs of the plaintiff out of the estate. Section 52 of the Supreme Court of Judicature Act (Ireland) 1877 provided that “No order made by the High Court…being costs which by law are left to the discretion of the Court, shall be subject to any appeal, unless by leave of the Court or Judge making such order”

In the course of his judgment (which allowed the appeal) Budd J observed (at p. 29):-
      “It is manifestly clear …that any provisions in the Judicature Acts or in any other pre-Constitution Act prohibiting an appeal to the Supreme Court from a decision of a High Court judge relating to the manner in which the costs of an action such as this should be borne, or purporting to limit or fetter such an appeal, have been swept away by the provisions of the Constitution”
It may be seen therefore that this decision related, firstly, to the entitlement to bring an appeal which up to that point had been precluded and, secondly, it was a case concerned with costs only and not with discretionary orders generally. I do of course accept that it was a decision which strongly asserted the principle that discretionary orders could be challenged afresh in this Court, albeit, as pointed out by Geoghegan J. in his judgment, that this Court will always give due weight and importance to the views of the trial judge who makes the initial decision. It is really a question of deciding the circumstances in which a discretionary order should be reversed. For my part I prefer the approach outlined by Lynch J as to how this Court should exercise its jurisdiction when determining such appeals: that it should be slow to interfere unless there has been an unreasonable exercise of discretion or the discretion has been incorrectly premised. Such an error would include a failure to take into account a relevant consideration.

DECISION

Applying these general principles to the facts of the present case, it is clear that the defendant has met the requirement to establish that the plaintiff’s delay has been inordinate. Indeed this is not contested by or on behalf of the plaintiff.

Was it inexcusable? In my view it was inexcusable for two reasons. Firstly, there is a particular onus on a plaintiff who brings defamation proceedings to advance those proceedings without delay to restore any alleged damage to his reputation caused by an offending publication. This requirement was underlined by this Court in Ewins v. Independent Newspapers (Ireland) Ltd. [2003] 1 I.R. 583), where in the course of his judgment Keane C.J. stated as follows (at p.590):-
      “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 be otherwise 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 interest in order, at once, to restore the damage that he sees to have been done to his reputation by the offending publication.”
This is not a case where there has been any delay in issuing proceedings. Rather the delay has occurred because the plaintiff elected to park the proceedings pending the determination of certain matters by the Moriarty Tribunal in a particular module of that Tribunal’s work. An approach whereby a litigant in a defamation action opts to await to see which way the ball hops in the course of a tribunal of inquiry is not proceeding with his litigation in the manner outlined in the citation from Keane C.J. In fact the approach adopted by the plaintiff is the complete antithesis of that to which Keane C.J. was referring and I see no distinction between a requirement to institute proceedings speedily and a requirement to prosecute them vigorously and expeditiously. To my mind the excuse offered is not a valid one for the delay which has occurred in this case, amounting to a period of approximately 7 years from the inception of proceedings, a delay which must in turn be referenced to the fact that the matters about which complaint is made occurred as far back as the late 80’s or early 90’s. I also see that period of delay as quite unacceptable having regard to the requirements of the Convention elaborated above. This is not a consideration to which the trial judge appears to have adverted.

Secondly, the defendant was never informed of the plaintiff’s decision to ‘park’ the case nor was it invited to acquiesce in it. The lengthy delay almost certainly gave them reasonable grounds to believe that this litigation had simply “gone away” and would never be brought before any court.

BALANCE OF JUSTICE

In considering what course a balancing exercise dictates, one must bear in mind a number of factors.

In Anglo Irish Beef Processors Ltd v. Montgomery [2002] 3 IR 510 (at p.519), Fennelly J. said:-
      “One of the authorities cited by Hamilton C.J. [in Primor] was O'Domhnaill v. Merrick [1984] I.R. 151, where Henchy J. said at p. 157:-
          ‘Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the part of the defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent’…
      That statement of the law indicates that the author of delay which is found to be both inordinate and inexcusable will not be absolved of fault unless he can point to countervailing circumstances. If he can, the court may be able to treat him more favourably when it comes to assess the third consideration in the cited passage from the judgment of Hamilton C.J., namely whether "on the facts the balance of justice is in favour of or against the proceeding of the case". As I have already suggested, the plaintiffs were unable to point to any disadvantage or disability affecting them. Nor was there any delay or acquiescence of the defendants, which might redress the balance of fault.
      In such circumstances, when the court comes to strike that balance of justice in application of the comprehensive list of considerations set out in the judgment of Hamilton C.J., it will need to find something weighty to cancel out the effects of the plaintiffs' behaviour. It will attach weight to the character of the claim and to the character of the plaintiffs. When considering any allegation of delay or acquiescence by the defendants, it will be careful to distinguish between any culpable delay in taking any step in the action and mere failure to apply to have the plaintiffs' claim dismissed.
      Ó Dálaigh C.J. said in Dowd v. Kerry County Council [1970] I.R. 27 at p. 41:-
          "… in weighing the extent of one party's delay, the Court should not leave out of account the inactivity of the other party. The rules of court provide for actions being struck out for want of prosecution … the adage about sleeping dogs may be wise, but it is not specifically conceived to advance the cause of justice. In some instances it is acted upon by a defendant in the hope that he will "get by" without having to face the peril of being decreed. Litigation is a two-party operation, and the conduct of both parties should be looked at."
      In my view, the defendant should not be lightly blamed for delay which is the fault of the plaintiff.”
In the same case, Fennelly J. (at p.518) made the following observations which seem of particular relevance to the circumstances of the plaintiff in the instant case when he said:-
      “There may, of course, be cases where the unpredictable hazards of life afflict the course of litigation. Individuals may be handicapped by poverty, illness, ignorance or absence from the jurisdiction. Documents may be mislaid, lost or destroyed. Poor or inadequate legal advice or service may, through no fault of the litigant, impede the progress of a claim. No comparable misfortune has been advanced in the present case. The claim is of a purely commercial character. On the plaintiffs' own version of it, it is perfectly straightforward. The plaintiffs are well-advised, well-known companies and are fully armed with all the means of pursuing their claim to judgment.”
Mr. Shipsey on behalf of the plaintiff does not seek to suggest that the plaintiff, who is a well known and successful businessman, could invoke any of the disadvantages identified by Fennelly J. as countervailing factors. On the contrary, he enjoyed all the positive advantages referred to in the latter part of the cited passage. It is hard to escape a conclusion that the plaintiff’s decision to pursue a path of inaction was based primarily on his own assessment of events rather than any legal advice. It was a purely tactical decision which he was well equipped to make.

It must also be stressed that this is not a case where there was any acquiescence on the part of the defendant who delivered its defence within eight months of the service of the proceedings. Had the decision to do nothing in relation to the claim been notified or communicated to the defendant, it would at least have had reason to challenge the validity of that decision in correspondence or ultimately by application to the court. The defendant was effectively kept in the dark as to the reasons for the delay while the plaintiff kept all his options open. The defendant, having no idea whether anything at all would ever happen was in my view entitled after a silence of 6 years to assume that the proceedings would not be progressing further.

The defendant has also invoked considerations of specific and general prejudice arising from the delay. At the outset let me say that I am not very impressed by the complaints of specific prejudice. The defendant claims that it is deprived of possibly useful evidence from Mr Haughey but while Mr Haughey has since died, it is difficult to see how he could have assisted the defendant in any meaningful way. The defendant further asserted in the High Court that it anticipated calling a number of witnesses to give evidence as to the circumstances surrounding the publication of the material complained of. In this regard the Court was told that Mr. Craig McKenzie was editor of the Irish Mirror at the time of publication in January, 1998. He left the defendant’s employ in May, 2005 and is now residing in the United Kingdom. It is stated that he is unlikely to co-operate with the defendant for the purpose of giving evidence. Mr. Piers Morgan was London based editor and chief of Mirror Titles at the time of publication. He received the initial correspondence and determined the defendant’s attitude to the claim and thereafter corresponded with the plaintiff’s solicitors. However, he had no editorial role as regards the content of the Irish Mirror and would not have had any input with regard to the publication of the article that is the subject of the within proceedings. He is no longer in the roles he occupied at the time.

It is difficult to see how either of these witnesses would have been of assistance to the defendant even if available and willing to give evidence at trial, notably in circumstances where the article complained of was effectively lifted from Magill Magazine.

The reporter who wrote the piece complained of, Mr. Neil Leslie, left the defendant’s employ in August, 2000. It is stated that at the time of the motion to dismiss he no longer had the shorthand notes from which he had written the piece and despite searches those notes could not be found. I would agree with the findings of the learned High Court judge and specifically with his finding that it was very much open to question whether these notes had any material relevance in this case having regard to the fact that the articles were, in the words of Hanna J., “just … a rehashing of material published elsewhere.”

However, insofar as general prejudice is concerned, I think the defendant is correct in the contention that any jury hearing the case at this remove would be significantly disadvantaged by the lapse of time as the matters described in the material complained of occurred in the late 1980’s and early 1990’s. The events of Mr. Haughey’s career have receded into history. This turns a stale case like this one into something of a lottery. Part of that lottery is the fact that jury awards of damages have increased very significantly since 1998 when the material complained of was published. Some recent awards have, by way of contrast, been of such dimensions as to provide a basis in fact for grave apprehensions on the part of any defendant who elects to contest a defamation case. The current turmoil in financial markets adds a further element of uncertainty to this mix. Delay may thus be seen as being capable of far greater prejudice to a defendant than to a plaintiff.

While these various considerations persuade me that on a balance of justice test the defendant’s appeal should succeed there is one other matter to which I wish to refer. The defendant appears to have raised the defence of justification in its defence, a step which is never lightly undertaken in defamation proceedings and one which undoubtedly heightens the obligations and responsibilities on a defendant. I say ‘appears to have raised the defence’ because when pressed by this Court to indicate clearly if justification was in reality being relied upon, counsel for the defence prevaricated to some considerable degree, adopting the position that the words complained of did not have the meanings pleaded in the statement of claim. The Court was left in an uncertain state as to whether justification would ever ultimately have been relied upon, particularly as counsel indicated that if matters proceeded further an application would be made to the court for an amendment to the defence to incorporate a plea of qualified privilege as elucidated in Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010.

However, while I recognise that it is most unsatisfactory that the plea of justification is left hanging in the air (even if it is in a watered down version) I am also of the view that the inclusion of this plea equally imposed a particular obligation on the plaintiff to prosecute his claim vigorously and expeditiously if it was his intention to avail of these particular proceedings to vindicate his reputation.

I would allow the appeal and dismiss these proceedings for want of prosecution.


JUDGMENT of Mr. Justice Geoghegan delivered the 15th day of October 2008




I find myself in complete agreement with the judgment of Macken J. and the reasons which she gives. In particular, I am in agreement with her and indeed with Kearns J. in his judgment that the delay at issue was both inordinate and inexcusable. I take the view, however, as does Macken J., that the balance of justice favours, nevertheless, the action being allowed to proceed.



There are three aspects of the case on which I would like to make some observations of my own.

The first relates to the plea of justification. I entirely agree with Macken J. that as she puts it “in assessing where the balance of justice lies as between the parties,…the scope and ambit of the defence .. is a factor which, in an appropriate case, may be taken into account.” The plea of justification in a defamation action has always been considered to be a most serious plea and certainly not one to be made likely. In this case, the appellant pleaded that the words in their natural and ordinary meaning were true in substance and in fact. Macken J., in her judgment, refers to the fact that during the course of exchanges before the court, senior counsel for the appellant suggested that in some way it was not a full justification plea and that at any rate it might be amended to a modified plea of some kind. In my view, no significance can be attached to that submission. If the action was to be struck out now the plea of justification would remain on the record and it could never be disproved. There was also a suggestion coming from counsel that the pleadings might be amended to include what has become known in England as “the Reynolds defence” deriving from the libel action brought against the Sunday Times by the former Taoiseach, Mr. Albert Reynolds. Again, I think that that is entirely irrelevant to the weight to be attached to the plea of justification in considering the balance of justice.



Further significance can be attached to it in the light of the respondent’s submissions before the Moriarty Tribunal. At all material times, the newspaper report complained of was being disputed by the respondent albeit before that tribunal. I am satisfied that the respondent could not be excused for failing to proceed with his action for his own tactical reasons (I would not really call them legal reasons) without giving any notice of his intention to the appellant and that is why I agree that the delay was not only inordinate but also inexcusable. On this point I therefore disagree with the views of the learned trial judge. But, for the reasons which I have indicated and especially in the light of the plea of justification, I am satisfied that there are just reasons for allowing the action to go ahead in the absence of serious prejudice to the defence. I do not think that the reasons put forward for such alleged prejudice are valid. I adopt the views in this regard of Macken J.



The second matter on which I wish to comment relates to the views expressed by Kearns J. in his judgment that the jurisprudence well established by two Supreme Court decisions in relation to when an action should be struck out for delay have somehow now to be modified having regard to the European Convention on Human Rights incorporated into domestic law by the 2003 Act. This view which has been expressed in one or two other judgments exclusively derives, as far as I am aware, from the dicta of Hardiman J. in Gilroy v. Flynn
[2005] 1 ILRM 290 as set out in the judgment of Kearns J. On my reading of that case, these dicta can be regarded as obiter dicta. Macken J., in her judgment, expresses the view with which I fully agree that the basic principles as set out in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 and Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 remain substantially unaltered. I do not think that the case law of the Court of Human Rights relating to delay justifies reconsideration of those principles or in any way modifies those principles. I do not know of any relevant case of the Court of Human Rights dealing with when an action should be struck out for delay.



The dicta of Hardiman J. to which I have already referred indicate that his view is that application of those principles should now change or indeed that the principles themselves might have to be “revisited”. I am not convinced that that would be either necessary or desirable. It would seem to me that those principles have served us well. Unless and until they are altered in an appropriate case by this court, I think that they should still be treated as representing good law and in that respect, I entirely agree with Macken J.


The third matter is something which has arisen in a peripheral way in this case and is the approach which this court should adopt on an appeal from a discretionary order. Traditionally the common law view was that a discretionary order should not be interfered with by an appellate court unless the judge at first instance made an error of law in the exercise of the discretion. In a landmark case cited by Kearns J. in his judgment in Bonis Morelli: deceased; Vella v. Morelli [1968] I.R. 11. It was pointed out by this court that an appeal lay from every decision of the High Court to the Supreme Court unless otherwise provided for by law. Any rule by which the court was inhibited from interfering with a discretionary order was not therefore compatible with the Constitution. However, in the Morelli case as Kearns J. points out, Budd J. indicated that the court would have to give “great weight to the views of the trial judge”. I think that that is the true legal principle in the light of the Constitution now. But there is an added factor in my opinion. The expression “discretionary order” can cover a huge variety of orders, some of them involving substantive rights and others being merely procedural in nature including mundane day to day procedural orders such as orders for adjournments etc. I think that in reality over the years since Morelli this court has exercised common sense in relation to that issue. The court would be very slow indeed to interfere with the High Court judge’s management of his or her list, but in a case such as this particular case where much more substantial issues are at stake the court, while having respect for the view of the High Court judge, must seriously consider whether in all the circumstances and in the interests of justice it should re-exercise the discretion in a different direction.



As indicated, I would dismiss the appeal.



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