Defamation case where court grants amendment and discovery orders despite plaintiff's delay and prejudice claims.

THE HIGH COURT

[2025] IEHC 719

Record Number 2015 No. 5548 P

Between

DANA ROSEMARY SCALLON

Plaintiff

and

THE IRISH TIMES TRUST LIMITED

and

THE IRISH TIMES LIMITED TRADING AS THE IRISH TIMES and

FACEBOOK IRELAND LIMITED

Defendants

JUDGMENT of Ms Justice Nessa Cahill delivered on 12 December 2025

OVERVIEW

1. The Plaintiff's claim is for damages for defamation contrary to section 6 and/or malicious falsehood contrary to section 42 of the Defamation Act 2009 (“the 2009 Act”) arising from publications in the Irish Times newspaper concerning her brother's criminal trial. The Third Named Defendant (now Meta Platforms Ireland Limited, formerly Facebook Ireland Limited, “Meta”) seeks leave to amend its Defence and an order for discovery arising from the proposed amendments.

2. The Plaintiff has no objection to an order amending the title to reflect the change of the Third Named Defendant’s name to Meta Platforms Ireland Limited but opposes the amendment and discovery orders on the grounds that they are brought without adequate explanation for delay, would cause irremediable prejudice to the Plaintiff, and that the proposed amendments are frivolous and bound to fail.

3. In this judgment, the following topics will be considered:

- Background

- Application to amend: legal principles

- Proposed amendments

- Discovery

- Conclusions

BACKGROUND

4. The Plaintiff is a recording artist and former politician. In July 2014, the Plaintiff’s brother was tried in the UK on charges of child sexual abuse. He was ultimately acquitted. Certain articles were published in the Irish Times newspaper on 10 and 11 July 2014 concerning this trial.

5. There is a considerable focus on, and some dispute about, the chronology of events. Accordingly, the chronology, as summarised below, is based on the facts on which the parties appear to agree or, where there is a difference in their position, this is set out.

2 April 2014 Article published in the Irish Sun.

8 July 2014 Jury sworn for trial in Harrow Crown Court in England of Plaintiffs brother on charges of five counts of indecent assault against two girls under the age of 13 and 16 at several locations in Northern Ireland and England during the 1970s.

10 and 11 July 2014 (1) The Irish Times printed two reports consisting of headlines and material concerning the Plaintiff in its print edition and online paper edition, with the first print article containing the headline: "Dana claimed brother was 'cured'

of feelings for children, court tole!' and the second one

having the title: "Dana 'knew of allegations' against brother." (“the Irish Times Articles”)

(2) According to the Plaintiff’s claim, the Facebook account of the Irish Times published a hyperlink on 10 July 2014 to the Irish Time Articles with the headline “Dana Rosemary Scallon 'knew all along' about sex abuse claims against her brother, court told" and contained a photograph of the Plaintiff holding a copy ofBunreacht Na hEireann.

(3) Similar articles were also published in other newspapers such as the Sunday World and Daily Mail (although Meta’s position is that it has not seen these articles).

24 July 2014 Plaintiff's brother was unanimously acquitted by jury verdict of all charges. It is the Plaintiff’s case that the Defendants continued to publish the Irish Times Articles post-acquittal.

6 July 2015 Plaintiff's solicitors first sent a letter to Meta in relation to the Irish Times article. The hyperlink was removed from The Irish Times's Facebook Page shortly afterwards.

9 July 2015 Plenary Summons issued against Meta and the First and Second Defendants (“the Irish Times Defendants”) on the day the limitation period in relation to the online article expired.

The Plaintiff commenced other sets of proceedings against other newspapers, seeking actions for damages in the High Court against News Group Newspapers Ltd t/a The Irish Sun; Sunday Independent/Sunday World/Belfast Telegraph Independent News & Media; and Associated Newspapers Ireland Ltd and related entities.

18 July 2015 The Article on Facebook was removed.

21 Oct 2015 Proceedings served on Meta.

29 October 2015 Entry of appearance by Meta.

4 April 2016 Defence delivered by Meta (including pleas that it was an online platform and not a publisher). November 2018 The Plaintiff settled proceedings in Northern Ireland against the publisher of the Sunday World.

12 April 2019 The Plaintiff lodged a notice of intention to proceed against Meta (Meta does not admit knowledge of same).

14 October 2020 The Plaintiff lodged a notice of intention to proceed against

Meta (Meta does admit knowledge of this notice).

19 October 2020 The Plaintiff lodged a third notice of intention to proceed against Meta (Meta does admit knowledge of same). April 2021 The Plaintiff settled proceedings against Independent News & Media and Sunday Newspapers. 8/31* November 2021 The Plaintiff was granted judgment in default of defence against the Irish Times (Meta was aware of this motion)

*different dates are given in submissions and on affidavit by the Plaintiff.

20 May 2022 The Irish Times Defendants delivered their defence. 23/24* May 2022 Second motion for judgment in default of defence against Irish Times determined (Meta was aware of this)

*different dates are given in submissions and on affidavit by the Plaintiff.

27 July 2022 Irish Times’ defence furnished to Meta. 2023 Discovery motion against Irish Times (Meta asserts that it was not aware of the discovery motion against the Irish Times Defendants). November 2023 Settlement of Plaintiff’s proceedings against the Daily Mail in Northern Ireland. Claims against Associated Newspapers in Dublin also settled.

21 March 2024 Discovery order against Irish Times Defendants.

24 June 2024 Notice of trial served on all defendants, including Meta.

26 June 2024 Setting down for trial.

10 October 2024 Listed in the jury call-over and application for trial date adjourned on consent as no dates were available.

28 November 2024 Meta sought the Plaintiff’s consent to delivery of an amended defence.

11 December 2024 The Plaintiff’s solicitors responded refusing to so consent (while indicating consent to the application to amend the title to the proceedings).

12 December 2024 Meta issued a request for voluntary discovery, seeking documents related to the proposed amendments.

12 December 2024 Case listed in the jury call-over list. The Plaintiff’s position is that her counsel applied for a trial date, but Meta’s position is that the matter was not ready for a date. In any event, there were no available hearing dates and the matter was adjourned.

23 December 2024 Motion issued and served, returnable to 10 March 2025 (and adjourned from then until the hearing date on 17 September 2025)

3 April and 23 May 2025 Jury call-over lists.

6. By this motion issued on 23 December 2024, Meta seeks to introduce three sets of amendments to the defence originally delivered on 4 April 2016. The motion was grounded on the affidavit sworn by Meta’s solicitor, Mr Gerard Kelly. A replying affidavit was sworn by the Plaintiff’s solicitor, Mr Kevin Winters, on 7 March 2025. Further affidavits were sworn by Mr Kelly and Mr Winters on 7 April 2025 and 7 May 2025, respectively. Written submissions were delivered on 23 July 2025 and 16 September 2025 and the motion was heard on 17 September 2025.

7. Some incontrovertible facts emerge from the chronology. First, a period of almost 12 months lapsed before the Plaintiff communicated with Meta regarding the publication on Facebook.

The proceedings then issued three days later, the date of expiry of the limitation period.

Second, there was no activity by the Plaintiff as against Meta for a period of 3.5 years from the service of the proceedings in October 2015 to the first notice of intention to proceed in April 2019 (which Meta asserts it was unaware of) and a further period of inactivity as against Meta from October 2020 until the notice of trial was served without warning on 24 June 2024.

Accordingly, in the period of over seven-and-a-half years between October 2015 and June 2024, the only steps taken by the Plaintiff as against Meta was the service of three notices of intention to proceed. Meta was however furnished with at least some of the motion papers in motions issued against the Irish Times Defendants in 2021 and 2022. Third, Meta was in receipt of the defence of the Irish Times Defendants since July 2022 and the first settlements with other publishers were publicly disclosed since November 2018, but Meta did not raise the proposal to amend its defence until 28 November 2024. Fourth, there is no apparent dispute that, if it were not for this motion, the case would otherwise have been ready for hearing, and such a hearing date could have been assigned in the jury call-over in April 2025. Certainly, there is no evidence before me to suggest the matter was not otherwise ready for hearing.

APPLICATION TO AMEND: LEGAL PRINCIPLES

8. The legal principles that govern an application for leave to deliver amended pleadings under Order 28, Rule 1 of the Rules of the Superior Courts (“RSC”) are well established. These are summarised in Stafford v. Rice [2022] IECA 47 (at [23]) and are not repeated here. The overarching principles are that the court has a broad power to permit amendments to pleadings and the rule governing amendments is a liberal one.

9. One relevant aspect of the law on this topic concerns prejudice. The Plaintiff asserts that prejudice would be caused by the proposed amendments and that this is a ground to refuse the leave that is sought. The role of prejudice is addressed in Stafford v. Rice and may be summarised as follows: prejudice must be shown to result from the late introduction of the proposed amendments, rather than \having to deal with the new pleadings themselves. Further, if such prejudice can be addressed by appropriate terms (such as costs orders), the amendment should generally be allowed.

10. There are various forms of prejudice that may be weighed, one being substantive prejudice (where it would be impossible or significantly more difficult to deal with the amended case)

and another being logistical or practical prejudice. Collins J. notes in Stafford v. Rice that, “[w]here the effect of allowing an amendment would be to significantly disrupt the management and determination of proceedings, that will weigh – and in some circumstances may weigh decisively – against allowing the amendment” (at [23(8)], Collins J., with McCarthy J. and Ní Raifeartaigh J. agreeing). Given “contemporary ideas of appropriate case management and the increasing emphasis on the need for the efficient use of court resources” (Stafford v. Rice at [23(8)] per Collins J.), it is not to be assumed that such prejudice may be adequately addressed by costs orders. It was noted that the importance of efficient case management may “loom large” when prejudice is being weighed (Woori Bank and Hanvit LSP Finance Ltdv.

KDB Ireland Limited [2006] IEHC 156 (“Woori Bank”) at [4.2]).

11. The question of delay also arises in this case. This was addressed in Stafford v. Rice. In that case, one of the grounds for resisting the introduction of a new unjust enrichment claim was that there was excessive delay. The Court of Appeal rejected that argument on the basis that delay is only relevant to the extent it causes prejudice and that, if the same facts are already pleaded, and “the ‘battleground’ is the same”, the new claim will not “materially expand the scope of the proceedings and there is no reason to believe that it will delay their resolution”

(Collins J. at [42]). In those circumstances, the delay in raising the amendment was found not to cause prejudice and was not a bar to the amendment. It was a significant part of the factual matrix of Stafford v. Rice that, when the amendment application was considered by the High Court, the proceedings were “a long way from trial”, with discovery yet to be made.

12. In this case, Meta contends that the fact that Order 28, Rule 6 expressly contemplates pleadings being amended at the trial of the action, indicates that amendments can be made very late in the day. As against this, the Plaintiff relies on the decision of Clarke J. in Moorview Developments Limited v. First Active plc [2009] 2 IR 788 (at [7], [11]) that “an amendment during the hearing is not a desirable practice and should not frequently be permitted” and that, risk of prejudice is greater, if the amendment is sought to be made during the hearing of the case.

13. Meta relies on DPP v. Corbett [1992] ILRM 674 and Donatex Ltd v. Dublin Docklands Development Authority [2012] IEHC 168 for the proposition that, if case management or costs orders can ameliorate prejudice, the amendment should be permitted. It must be emphasised that each case must be assessed on its particular facts. DPP v. Corbett was a criminal proceeding in which amendments were allowed to ensure the real issues in disputes were determined and Donatex Ltd. was a case involving public law issues in which there was delay, but the case was not close to being ready for hearing. Neither is a good comparator for this case.

14. The principal cases opened by counsel for the Plaintiff at the hearing McFadden v Dundalk & Dowdallshill Coursing Club Ltd [1994] 4 JIC 2201 and Kirwan v. Connors [2025] IESC 21.

15. The position that emerges from the authorities opened to me is that, when hearing a contested application to amend pleadings, it is necessary to interrogate any reliance on prejudice to assess whether the asserted prejudice is owing to the late introduction of the amendment, as opposed to the proposed new pleadings themselves. If the former, it must then be asked whether the prejudice is substantive or more logistical/procedural in nature. If the prejudice is logistical, there must then be a fact-specific analysis as to whether the logistical/procedural prejudice is sufficient (and insufficiently capable of amelioration) to warrant refusing to permit the proposed amendment. The stage the proceedings have reached may be relevant to this question.

It is also relevant to consider whether and what orders can be made to seek to address any prejudice caused by the delay.

16. The Plaintiff here also raises questions about the merits of some of the proposed amendments.

The Court of Appeal in Stafford v. Rice confirmed that “the court is not generally concerned with the merits of any proposed amendment or its prospects of success at trial”. This point was made by Clarke J. in Woori Bank also. It is subject to the caveat that an amendment of a statement of claim should not be permitted if it is “manifest that an amended claim is doomed to fail”. The reason for this approach is that “[r]equiring a defendant to plead to and defend such a claim may be seen as a form of prejudice” (at [23(13)]. The question to ask is whether the new plea, if it had been pleaded originally, would be liable to be struck out as bound to fail.

Meta also relies on Cuttle v. ACC Bank [2012] IEHC 105 to challenge the sufficiency of one of the sets of proposed amended pleadings.

THE PROPOSED AMENDMENTS

17. There are some general grounds relied upon by the Plaintiff to oppose this motion. Particular emphasis is placed on the fact that the case was ready to be assigned a trial date by June 2024 and would have been assigned a trial date in April 2025 but for this motion. It is said that there was delay in the issue of this motion which has caused prejudice and which warrants the refusal of leave to amend. Insofar as Meta points to the inactivity in the proceedings, the Plaintiff emphasises that steps were taken as against the Irish Times Defendants between 2021 and 2024 (including two motions for judgment in default of defence and a discovery motion). It is said that Meta was served with the motions for judgment in default of defence.

18. Meta’s position is that the case as against it was inactive for almost eight years; that the first intimation that the case was proceeding was when the notice of trial was served in June 2024 without forewarning; and that any allegation of delay or prejudice must be weighed in that light. Meta also refers to a change in its counsel team during that time.

19. This argument of delay and prejudice must be considered in the context of each specific set of amendments. There are three categories of amendments proposed by Meta. These amendments, the basis for them, and the Plaintiff’s response to each will be set out.

First set of amendments: adopting the Irish Times Defence

20. The first set of amendments is contained in paragraph 29A of the draft amended defence. By these amendments, Meta seeks to adopt and rely on defences raised by The Irish Times Defendants in the defence which was served on Meta in July 2022. The defences in question are that the Articles were not defamatory, that they were true, and that they were fair and accurate reports of court proceedings and therefore benefit from qualified privilege.

21. Meta’s explanation for not including similar pleas in its original defence is addressed in the grounding affidavit of Mr Kelly and hinges on Meta not being the author or publisher of the Articles. Meta’s position is that it could not assess whether the content was true or false, or whether it is a fair and accurate court report, and it was for the Irish Times Defendants to raise and prove those defences and the defence of qualified privilege. It is said that Meta could not establish those defences but equally could not be liable for defamation if those defences succeeded. The amendments are said to be required to make clear, for the avoidance of doubt, that Meta would have a full defence if the Irish Times Defendants succeeded in these defences.

22. Meta emphasises that these amendments would not raise new issues, as the defences will need to be determined in any case.

23. The Plaintiff opposes these amendments on the ground that Meta has delayed excessively in seeking their introduction. It is contended that, as Meta had the defence of the Irish Times

Defendants from July 2022, there was no justification for waiting until seven weeks after the matter appeared in the jury list to fix dates in October 2024 to issue this motion. The Plaintiff also contends that the proposed amendments are “superfluous and/or frivolous”. The Plaintiff points to the fact that the Meta Defence already includes denials that Meta was the publisher of the Articles or the maker of any allegedly false and/or defamatory statements. It is asserted that a new specific defence of truth is unnecessary.

24. With regard to the adoption of the Irish Times defence of qualified privilege under section 18 of the 2009 Act, the Plaintiff’s points are that the defence cannot be invoked by Meta, given its primary defence that it was not a publisher or maker of the statements. It is also contended that the privilege is particular to each defendant and hinges on proof that the persons to whom the statement was published had an interest or duty in receiving that information and on proof that the publisher believed on “reasonable grounds” that the persons had that duty or interest.

Another point made by the Plaintiff is that there was no justification for waiting for the Irish Times Defendants to plead the defence of qualified privilege: it could have been included in the original Meta defence.

25. Meta’s response in turn is that it does not accept the Plaintiff’s analysis of the defence of qualified privilege. It maintains the position that the claim against Meta is predicated upon a finding of defamation against the Irish Times Defendants and, if those defendants succeed in the defence of qualified privilege, it would also constitute a defence for Meta.

Assessment

26. Applying the necessary liberal approach to proposed amendments, I am satisfied that it is, at first glance, appropriate to permit these amendments. They are defences which are within the scope of the proceedings and are largely already part of the case (having been so pleaded by the Irish Times Defendants). However, it is necessary to assess the objections of prejudice and delay advanced by the Plaintiff and the specific legal points raised with regard to the defence of qualified privilege.

27. The case of McFadden v. Dundalk and Dowdallshill Coursing Club Limited (Finlay C.J.

(Blayney and Denham JJ. agreeing), ex tempore 22 April 1994) is the authority most heavily relied upon by the Plaintiff. The context was that the plaintiff issued personal injury proceedings in December 1990 arising from an accident in December 1987. The proceedings were ready for trial in December 1993. One trial date was lost (for reasons unrelated to the parties) and an application was made by the defendants three days before the next hearing date to amend the defence by introducing a plea that the plaintiff, being a member of the unincorporated defendant, could not sue. The Supreme Court characterised this as “a purely technical point particularly on the facts of this case” and upheld the view of the High Court Judge that it was too late to be raised. It was noted that there was no explanation on affidavit for not pleading the point in the defence as originally delivered or for the delay in making the amendment application. There was “no suggestion” on affidavit as to when, how or with what difficulty the facts were discovered and the Court ruled that it would be unjust to permit the amendment and face the Plaintiff with a delay, given it was already approximately seven years since the accident in question.

28. It can readily be understood why the Plaintiff deploys that judgment. However, there are some plain distinctions, including the absence of any explanation in McFadden for the delay or for the timing of the application, and the fact that the trial of the case was due to commence a matter of days after the proposed amendment was first mooted. The facts of this case are different. Here, there are explanations for why these proposed amendments were not originally pleaded: they are said to be premised on, and arise as a result of, the Irish Times defence which was received by Meta in July 2022. Unlike in McFadden, the timing point has been explained on affidavit by reference to the prolonged inactivity in the proceedings as against Meta. It is also manifest that the proposed amendment in McFadden introduced a new claim that was not otherwise part of the proceedings, by contrast with the issues raised by these proposed amendments. In short, each case must be decided on its own specific facts, and I regard those in McFadden to be quite distinct from this case.

29. Turning then to the delay in this case, Meta had the information it needed to introduce these amendments since July 2022, almost two-and-a-half years before the issue of this motion. This is certainly a lapse of time that may fairly be characterised as delay. However, an alternative period to consider is the period from June 2024 (the first step against Meta in the proceedings since 2020) to the issue of the motion, which is a period of some six months. This is because Meta could with some justification have regarded the proceedings as dormant by that point (and the affidavit of Mr Kelly indicates that was the view of Meta). I am also mindful of the approach of the majority of the Supreme Court in Kirwan v. Connors [2025] IESC 21, as summarised in the judgment of O’Donnell C.J.:

“On the separate question of the relevance of defendant inactivity, I agree with Hogan and Murray JJ. and respectfully disagree with Collins J. The courts must hold the scales equally between the plaintiff and the defendant, but that does not mean that they are to be treated as the same when they are not. In particular, they are not co-adventurers in litigation with the same interest in bringing it to conclusion. The essential structure of proceedings involves a plaintiff invoking the jurisdiction of the court to summon the defendant requiring them to answer a claim. In my view, the plaintiff has an interest in, and responsibility for, bringing that claim to trial. The same cannot be said of a defendant who will obtain nothing from success in the proceedings other than being restored to the position they were in prior to the commencement of those proceedings. Furthermore, it is a well-known feature of litigation, that many more actions are commenced than proceeded with. Litigation is an expensive activity, and not just in financial terms. There are many reasons why a plaintiff may commence proceedings but not proceed with them. I think a defendant is not required to spend time, energy and resources on a claim which may never be heard and defendants should not be criticised for doing no more than is required to respond to a claim, and to be ready to meet it if and when it is prosecuted” (at [14]).

30. The motion before me is not a motion to strike out (as arose in Kirwan), but the general view of the role of a defendant in progressing proceedings is instructive. Meta did not take proactive steps to amend its defence promptly after July 2022 but, given the inactivity as against Meta at that time, I do not believe Meta can be criticised for not so expending its time, energy or resources, unless and until it was apparent the case against it was going to proceed.

Furthermore, regardless of where responsibility for the overall delay in these proceedings rests, the lapse of time up to June 2024 is plainly not the responsibility of Meta. I do not believe Meta can be faulted for not proposing an amendment to its defence before the unforewarned receipt of the notice of trial in June 2024, given the inactivity in the proceedings against it over the preceding years.

31. Nonetheless, there plainly was delay by Meta in bringing forward this motion and it needs to be assessed whether and what prejudice was caused to the Plaintiff by the passage of time. In the context of the first set of amendments, there is no substantive prejudice, as the battlefield is the same (applying Stafford v. Rice). The primary prejudice asserted by the Plaintiff is delay to the trial of the proceedings. It must be recalled that the first date on which it appears the proceedings could have obtained a hearing date was April 2025. By that stage, the motion had issued. While the motion does appear to be responsible for the case not being assigned a hearing date after April 2025, the complaint of prejudicial delay should be viewed in light of the fact that these proceedings were issued almost ten years previously.

32. It is important to point out that the crux of this point is not any culpability of the Plaintiff for the overall delay in the proceedings. This is not a motion to strike out the proceedings for delay.

Instead, the relevance of the overall significant lapse of time in these proceedings is that it contextualises the assertions of prejudice by the Plaintiff. Viewed this way, I am not satisfied that the Plaintiff has shown how Meta’s delay in issuing this motion gives rise to such prejudice as to warrant the refusal of leave to amend, given the extensive time that lapsed between the service of Meta’s defence and the receipt of the notice of trial. No particular facts or circumstances which render it more difficult or onerous for the Plaintiff to meet the proposed new defences have been pointed to. I prefer the position of Meta which is that the receipt of the notice of trial was a prompt and a reasonable basis to renew engagement with the proceedings, particularly given that Meta is in the position of a defendant. I am also satisfied that, given the same or similar defences are already part of the proceedings, and given the history of these proceedings and the lack of engagement in the proceedings as against Meta over a period of some seven-and-a-half years, it would be unfair to refuse leave to make the first set of amendments on the grounds of delay.

33. I note the position of the Plaintiff that the defence of “truth” does not need to be pleaded, as it is encompassed in the defence already. I am not persuaded that the specific defence of “truth”

has been pleaded with clarity and I do not see a good reason to refuse the proposed amendment.

Turning to the qualified privilege defence, I do not propose to analyse the interpretation, components or effect of that defence under section 18 of the 2009 Act. This defence is part of the case of the Irish Times Defendants and has been since May 2022. While the Plaintiff undoubtedly will wish to contest the right of Meta to rely on such a defence, these are points that can be raised by way of reply and by way of submission in due course. There is no question of deciding that the defence of qualified privilege is bound to fail and I do not consider the merits of this plea further.

34. While I am satisfied that the discretion conferred by Order 28, Rule 1 should be exercised in favour of allowing the first set of amendments, there is undoubtedly prejudice caused to the Plaintiff by Meta’s delay, particularly the ongoing delay in getting the proceedings to trial. It is necessary to take steps to ameliorate that prejudice. I consider that stringent case management directions are required to ensure the case is progressed now expeditiously to trial and will hear the parties as regards these directions and the allocation of costs.

Second set of amendments: delay in communicating with Meta about the Articles

35. The second set of proposed amendments seek to introduce the defence that Meta cannot be liable owing to delay by the Plaintiff in failing to request the removal of the Articles for almost a year.

The amendment that is proposed is the introduction of the words underlined below in paragraph

43 of the defence:

“Further, and/or in the alternative, if the Plaintiff has sustained any loss, she has failed to mitigate it. Without prejudice to the generality of the foregoing. the Plaintiff delayed for a period of almost one year before requesting that the Third Named Defendant remove the material.”

36. Meta’s position is that this is a complete defence to the claim as any harm caused was during the period when Meta was not informed of the alleged defamation.

37. Both parties agree that this point may be or is “arguably” captured by the general plea of failure to mitigate. Meta wishes to make the amendment proposed “for the avoidance of doubt”. The Plaintiff opposes this as an unnecessary amendment.

38. As with the first set of amendments, there has been delay in proposing this amendment but, by contrast with the first set of amendments, there is no explanation for the failure to plead this point in the original defence. Nonethless, I do not see how prejudice is caused in the circumstances of this case by this relatively net amendment, particularly as the primary objection is that the amendments are unnecessary as they are already encompassed by the proceedings, not that they will add to, complicate or elongate the trial.

39. I do have some sympathy with the view of the Plaintiff that amendments which are unnecessary or which are proposed “for the avoidance of doubt” are not ones which should lightly or universally be permitted by way of amendment, particularly coming years after the issue of proceedings. However, when leave is being given for other amendments (as here), I do not see how this additional net amendment can be said to cause any negative consequences or prejudice and I can see the merit of ensuring clarity on the points being pleaded. I will therefore allow the amendments proposed to paragraph 43 of the Meta defence.

Third set of amendments: the “concurrent wrongdoer” amendments

40. The third and most contentious set of amendments arise from the settlements which the Plaintiff has entered with other publishers of defamatory material regarding the trial of the Plaintiff’s brother. According to Meta, it appears that the Plaintiff has apparently already been paid hundreds of thousands of euros in compensation for substantially the same damage, arising from substantially similar articles, published by at least four other newspapers at the same time.

41. It is said that the settlements could not have been pleaded in the original defence, as they occurred between November 2018 and November 2023. The new pleadings (all of them pleaded in the alternative) are contained in a new paragraph 43A and are to the effect that

(a) If the statements the subject of these proceedings are wrongful and caused damage, the Plaintiff has already been wholly or partly compensated and any damages payable by Meta must be extinguished or reduced;

(b) If Meta is guilty of defamation or another wrong, Meta is a concurrent wrongdoer with the other defendants from whom the Plaintiff has recovered substantial sums by way of settlement for substantially the same defamation within the meaning of the Civil Liability Act 1961 (“the 1961 Act”);

(c) Pursuant to section 17(2) of the 1961 Act, the release of the other concurrent wrongdoers discharged Meta or leads to the Plaintiff being identified with the settled defendants and any damages against Meta must be reduced;

(d) Pursuant to section 16(1) of the 1961 Act, satisfaction of the claims by the other parties has discharged Meta (wholly or partially).

42. The final line of the proposed new paragraph 43A is that Meta “reserves the right to provide further particulars following receipt of discovery.”

43. The Plaintiff opposes these amendments on the ground that they are bound to fail and that the concurrent wrong-doer defence does not apply to defamation cases. It is also asserted that the new pleadings would lengthen the trial; radically alter the nature and scope of the trial; convert the trial into a “complex multi-jurisdictional comparative analysis”; require expert evidence as to the scope and range of the publications; necessitate the disclosure of confidential settlements;

and delay the trial.

44. It is also said by the Plaintiff that, if this amendment was pleaded “at the outset” or when the other proceedings were pending, she could have considered joining the other publishers to these proceedings or joining Meta to those other proceedings. The Plaintiff relies on the fact that it is now impossible to take those steps or revisit the terms of the settlements entered. It is said that Meta knew or could reasonably have known of the existence of the other proceedings and that delay in pleading these settlements is not justified.

45. In reply, it is Meta’s position that no relevant prejudice would be caused to the Plaintiff by the

introduction of these amendments. It is said that the proposed amendments will not significantly change the issues in dispute or cause delays and that the prejudice being asserted arises from having to deal with the new defences, rather than from the late introduction of same. The allegation of delay and the challenge to the merits of the amendments are refuted.

Assessment

46. The first objection by the Plaintiff to these amendments is that of delay. The Plaintiff asserts that Meta should have pleaded the third set of amendments at the outset. I find this point is hard to understand, given the case as proposed to be pleaded hinges on the settlements. The most recent settlement was in November 2023. One year later, the amendment of the defence was raised by Meta. There was delay by Meta in this regard, but that can be viewed in light of the significant passage of time since the issue of the proceedings and the apparent dormancy of the proceedings against Meta for the seven-and-a-half years prior to June 2024. These facts and their relevance have already been assessed in the context of the first set of amendments. However, there is a different assessment to be carried out under this heading, as these amendments (unlike the first set of amendments) are not currently part of the case. On the contrary, as the Plaintiff emphasises, these new proposed pleadings will introduce new issues of law and fact into the proceedings. The motion for discovery demonstrates this to be so. Nonetheless, the inconvenience or undesirability of having to deal with the new pleas is not relevant prejudice (Woori Bank and Stafford v. Rice).

It is only prejudice arising from the lateness of their introduction that may be weighed when deciding whether to allow the amendments (as opposed to the orders that may be made to seek to redress or lessen that prejudice).

47. Turning then to the various forms of prejudice asserted by the Plaintiff, the objections regarding the impact on the length, scope, nature of the trial and the evidence that will be required, are related to the nature of the amendments and are not proper grounds to refuse leave to amend. The fact that responding to the proposed amendments may be burdensome in terms of evidence and duration of the trial, is not a reason not to permit those amendments. It has not been said, for example, that witnesses relevant to the proposed amendments are not available or that a longer trial will mean significant delay in obtaining a hearing date.

48. The other point advanced was that the Plaintiff could have named additional defendants in these or other proceedings or taken a different approach to the settlement of the other proceedings, if these new pleadings were included in the original defence. There is nothing of which I am aware which prevents the Plaintiff seeking to join additional parties to these proceedings. Insofar as the Plaintiff relies on other proceedings and settlements reached in other proceedings, I am not satisfied that speculation as to what the Plaintiff could have done differently in other proceedings against other defendants is sufficient or relevant prejudice for the purpose of amendments proposed to these proceedings. No authority was opened to me which indicated that the impact on separate proceedings could be a good ground to refuse leave to amend a defence.

49. In short, there is no indication of any specific substantive prejudice caused by the passage of time or late amendment which will make it unfair for the Plaintiff to have to deal with the proposed new pleadings regarding the 1961 Act in these proceedings. While there is a reference to the disruption of orderly case management, this is a case in which there was inactivity as against Meta for some seven-and-a-half years and it seems strained to attribute responsibility to Meta for the less than optimum progress of this matter to date. The loss of trial dates is over a period (from

April 2025 to date) which is limited when compared to the period that has lapsed since the issue of the proceedings. This does not detract from the fact that Meta has been responsible for delay in bringing forward these amendments, but rather that the prejudice asserted must be viewed through the prism of the overall delay and inactivity as against Meta in the proceedings. That does weaken and undermine the argument that Meta is responsible for the delay in the matter getting to hearing. I am also conscious that, while the Plaintiff points to the notice of trial in June 2024 and the call-overs since then as evidence of readiness for trial, that notice of trial was issued unilaterally to Meta with no forewarning or prior engagement after a long period of silence and against a backdrop of inactivity against Meta since the issue of the proceedings in 2015 (other than notices of intention to proceed in 2020). The Plaintiff disputes the obligation to provide any such prior notice, but the point is that, had there been any engagement with Meta prior to June 2024, the question of these amendments may well have been raised sooner and the loss of trial dates may have been avoided. I consider it just to allow the amendments, but to seek to ameliorate the undoubted prejudice being caused to the Plaintiff now by appropriate directions and orders.

50. The third ground relied upon to resist these amendments concerns the merits of the proposed new pleadings. The Plaintiff’s position is that the amendments are bound to fail, although it was accepted that the issues are complex and novel in nature. There are sharp differences between the parties as to the correct interpretation of provisions of the 1961 Act, their application to defamation proceedings, and as regards the nature of the evidence that would need to be led.

They are sharply divided as to the interpretation of section 11(5), for example, and Meta accepts that there may be complicated legal issues as to the meaning of “the same damage” in the context of defamation proceedings for the purpose of that provision.

51. Given the accepted complexity and novelty of these questions, I cannot decide that Meta is bound to fail on these issues such as to warrant a refusal of the application before me. The Plaintiff did not advance a real basis to find otherwise.

52. Instead, the Plaintiff’s counsel focussed on an assertion that Meta has failed to sufficiently substantiate its case on these amendments. Emphasis is placed on Meta’s reservation of the right to deliver further particulars. The Plaintiff relies on statements in Cuttle v ACC Bank plc [2012] IEHC 105 about the evidence required to plead fraud and says there is no factual evidence to support the allegations here and that there does need to be some factual matrix beyond referring to the settlement agreements. However, Cuttle was a case in which it was sought to introduce a new pleading of fraud by way of amendment. Kelly J. formed the view that there was a factual basis laid to make that allegation, noting that the application to amend “requires a low threshold of proof to be achieved” (at [54]). In this case, no allegation of fraud is made and I do not share the view that there are bare assertions only or that some necessary threshold of proof has not been met. I do, however, note the terms on which the order granting leave to amend was made in Cuttle: if the plaintiff pursued the amendments and failed in that newly pleaded case, the plaintiff was to be liable for all costs associated with that aspect of the case, regardless of the outcome of the case overall.

53. I am satisfied that the low threshold that applies to this application has been met by the proposed amended pleadings. However, I am mindful of the delay by Meta and the undoubted prejudice caused to the Plaintiff by the additional ongoing deferral of the resolution of these proceedings and orders will be made to seek to address this.

DISCOVERY MOTION

54. As leave is being granted to amend the defence to introduce the third set of amendments, the next question is whether discovery should be ordered. Meta is seeking one category of documents, which was originally sought by way of a request for voluntary discovery on 12 December 2024:

“Copies of the following documents relevant to each of the Proceedings (as defined below):

(a) Any settlement agreement· (or, if no settlement agreement exists, other documents recording the terms of settlement).

(b) The Statement of Claim or claim form or equivalent document.

(c) The article or post or other documents containing the defamatory statements the subject of the Proceedings.”

55. The proceedings referred to in the request are defined as five different claims which were issued by the Plaintiff against various defendants in Ireland and Northern Ireland, including against the publisher of the Sunday World (which Meta understands were settled in or about 2018); against Sunday Independent I Sunday World / Belfast Telegraph Independent News & Media t/a Irish Independent (which Meta understands were settled in or about 2021); against DMG Media Ltd trading as the dailymail.co.uk (which Meta understands were settled in or about 2023); against Associated Newspapers Ireland Ltd t/a www.mailonline.ie, Associated Newspapers Ltd t/a www.mailonline.co.uk, Daily Mail and General Trust Pie and DMG Media Ltd (which Meta understands were settled in or about 2023); against News Group Newspapers Ltd t/a The Irish Sun and subject to a strike out order dated 8 November 2021.

56. The discovery is said by Meta to be relevant to the “concurrent wrongdoer” pleas and to be proportionate and necessary. The only grounds advanced by the Plaintiff to oppose the request are prematurity and the confidentiality of the documentation sought.

57. With regard to prematurity, it is not technically appropriate to request discovery when the issues to which the discovery is asserted to be relevant are not part of the pleaded case at the date of the request. However, there is a need to be pragmatic in this respect and to take such steps as may minimise any further delay in these proceedings. Further, it is accepted by the Plaintiff that issue will be joined with the pleadings in question in the event they are introduced by amendment into the proceedings. Another material consideration is that the Plaintiff has raised no challenge to the relevance, necessity or proportionality of the documentation sought (this is subject only to the caveat that the Plaintiff disputes the relevance of an article published in the Irish Sun on 2 April 2014 before the trial of the Plaintiff’s brother). In these circumstances, I am satisfied that it would engender avoidable delay if Meta was required to await the outcome of the amendment motion and then issue a request for voluntary discovery. I therefore consider it appropriate in the very particular circumstances of this case to consider the discovery motion on its merits, based on the nowpermitted amendments.

58. Turning to the discovery category that is sought, I am satisfied that it is evidently relevant to the third set of amendments and necessary for their fair resolution. This is subject to the qualification that, as the Plaintiff contends, the relevance of the article published in the Irish Sun on 2 April 2014 has not been shown. I am not persuaded by the justification that this article is sought so as to ascertain its relevance (which is the position of Mr Kelly in his second affidavit). This is redolent of fishing and this one aspect of the discovery request is refused. As regards the remainder of the request, it is narrow and finite in its terms and there is no basis to assert a lack of proportionality or undue burden in its production. The only substantive opposition advanced by the Plaintiff relates to confidentiality and privilege.

Meta asserts that the public statements that have been made contradict the assertion of confidentiality, to which the Plaintiff responds that there has been no waiver of the confidentiality or privilege that attach to settlement agreements. The Plaintiff relies on Purcell v. Central Bank [2016] IECA 50. Meta’s position (in light of the privilege claims being made by the Plaintiff) is that the claim to privilege should be deferred until discovery is made.

59. Having considered the parties’ positions, I am satisfied that the documentation sought is relevant and necessary and I will order that discovery be made of the category of documentation that is sought. If and insofar as the Plaintiff wishes to assert litigation privilege, it is open to the Plaintiff to assert that privilege and/or to make the redactions that she (and her legal advisers) consider to be strictly necessary to protect that privilege or to assert the need to protect confidentiality. However, without prejudging any such question that may arise in the future, I would make two observations. First, the parties should now do their utmost to engage proactively to ensure these proceedings are prepared and advanced to trial without any avoidable delay or further procedural disputes. Second, on the basis of the evidence presented to me and the public disclosures that have been made regarding the settlements with other publishers, I find it difficult to see how the entire content of the settlement agreements could be privileged. Further, the passage from Purcell relied upon in the Plaintiff’s submissions concerns correspondence leading to settlement, which is not sought by the discovery request here.

CONCLUSIONS

60. For the reasons given in this judgment, I will grant the orders sought by the notice of motion issued on 23 December 2024 (subject to one amendment to the discovery category to be ordered). In making these orders, I wish to emphasise that it is incumbent on the parties to now proceed expeditiously to ensure these proceedings are prepared for hearing without any further delay.

61. I wish to hear submissions from the parties as regards the most appropriate means of ensuring the ongoing delay in the resolution of these proceedings, and prejudice to the Plaintiff, are minimised to the greatest extent consistent with the rights of the parties and will list the matter before me at 10 am on 18 December 2025 for this purpose.