Defamation appeal allowed; court permits retrial after finding publication defamatory despite procedural delays.

THE SUPREME COURT

[Supreme Court Record No. 455/2011]

[Court of Appeal Record No. 2014/326]

[High Court Record No. 2008/11102P]

MacMenamin J.

Dunne J.

Peart J.

BETWEEN:

KEVIN TRACEY

PLAINTIFF/APPELLANT

V. INDEPENDENT STAR LIMITED AND GERARD COLLERAN

DEFENDANTS/RESPONDENTS

Judgment of Mr. Justice John MacMenamin dated the 30th day of July, 2019

Background

1. The general background circumstances to this appeal are very similar to the earlier judgment delivered today, viz. Kevin Tracey,

plaintiff/appellant v. Irish Times Limited, Geraldine Kennedy & Eoin McVeigh, MacMenamin J., Dunne J., Peart J., High Court Record

No. 2008/11101P, Supreme Court Record No. 454/2011.

2. Again, an allegedly defamatory article was published by the defendants, on the 17th September, 2004. On this occasion, it was

headed “Man convicted over ball row assault”. The text of the article read:

“A man who last year took a noise nuisance action against his neighbour, Circuit Court Judge Michael White, was

yesterday convicted of assaulting another neighbour.

However, Kevin Treacey [sic], an engineer from Park Lane, Chapelizod, Dublin, was given the Probation Act because the

assault, a push, was of a minor nature, Judge Michael Connellan ruled. In March last year, Mr. Treacey was ordered to

pay €1,500 legal costs of an aborted noise nuisance action against his next door neighbour, Judge White.

Yesterday’s case arose out of a dispute over local children playing football outside the Treacey home in April last year.

Dublin District Court heard Mr. Treacey went out three times to ask them to move away when the ball hit the wall of his

house. The ball eventually hit one of Mr. Treacey’s windows, though it didn’t break it, and he went up and picked the ball

up. Mrs. Skinner asked for the ball back, and was pushed by Mr. Treacey in a confrontation.”

3. The appellant lays emphasis on the fact that the heading of the article read “Man convicted over ball row assault”, and in the

body of the report, wherein it was stated that the appellant was yesterday “convicted of assault [a neighbour]”.

4. Here, counsel on behalf of the defendants, who are the respondents in this appeal, points out that the proceedings were not

issued until the 23rd December, 2008, and not served until the 18th December, 2009, some five years after the publication of the

article. The oral and written submissions were careful and detailed. They fully set out relevant material, quoting Gatley on Libel &

Slander, 12th Edition. They draw the necessary distinction between an application under Order 19, Rule 28, of the Rules of the

Superior Courts, and the inherent jurisdiction to strike out proceedings. Counsel also draws attention to authorities in this area, such

as Keohane v. Hynes [2014] IESC 66, and the judgment of this Court in Ewing v. Ireland & Others [2013] IESC 44. Counsel submits

that the proceedings herein are not complex, and that by contrast to Moylist Construction Ltd v. Doheny [2016] 2 I.R. 283, the

proceedings are not “of such complexity as would have prevented the High Court from making a determination that the proceedings

were bound to fail”.

5. Counsel has made his arguments in this case clearly and persuasively. But, the observations regarding the balance of rights made in

the Irish Times judgment are likewise applicable here. I am not persuaded that there is any factor in this case which would persuade

this Court that it should depart from the general form of order made in the Irish Times judgment, and the observations contained

therein. I would allow the appeal and remit the motion for rehearing in the High Court.