Supreme Court allows defamation claim despite delay due to defendant's failure to preserve justification evidence.

THE SUPREME COURT

Record No. 317/05

Geoghegan, J.

Kearns, J.

Macken, J.

Between/

DERMOT DESMOND

Plaintiff/Respondent

-and-

MGN LIMITED

Defendant/Appellant

Judgment delivered the 15th October 2008 by Macken, J.

This is an appeal from the judgment of the High Court (Hanna, J.) delivered ex tempore on the 11th July 2005, and

from the order made thereon pursuant to a Notice of Motion dated the 25th May 2005, by which the appellant sought

relief under Order 122, Rule 11, of the Rules of the Superior Courts 1986 as amended, or in the alternative pursuant to

the inherent jurisdiction of the court, seeking to strike out the plaintiff’s proceedings on the grounds of inordinate and

excusable delay.

According to the agreed note of counsel of the decision of the learned High Court judge, he found that while there had

been inordinate delay in the plaintiff progressing his case to a hearing, nevertheless, having regard to the circumstances

surrounding the subject matter of the proceedings, it was “understandably prudent” advice to the plaintiff that he

should stay his hand and that this had generated “just about sufficient excuse” for the delay. Although the learned High

Court judge found the delay excusable, he nevertheless went on to find that, even if inexcusable, in seeking to strike a

balance between the interests of the plaintiff and those of the defendant, that balance was in favour of permitting the

plaintiff to proceed with his claim.

Against that finding the appellant seeks to set aside the judgment and order of the High Court and asks this court to

strike out the proceedings, on the basis that the learned High Court judge failed correctly to apply the law to the facts

arising on the application.

The Facts and the Proceedings

A brief summary of the facts is sufficient for the purposes of this judgment. An article was published in a newspaper

known as the Irish Mirror dated the 8th January 1998 under the headline “Tycoon Desmond picked up tab for

Charlie” and a further article on the following day under the headline “I did give cash to Charlie”, both articles

appearing prominently on the front and immediate inside pages of that newspaper on those dates. The respondent

considered that these articles were defamatory of him, and by a plenary summons dated the 12th May 1998, which

followed an exchange of letters between his advisors and the appellant and/or its advisors, proceedings issued in

respect of the alleged libel. A memorandum of appearance was entered and the statement of claim was delivered on

the 25th June 1998. Following on two motions for judgment brought by the respondent against the appellant arising

from its failure to deliver a defence, in October 1998 and January 1999, the defence was delivered on the 1st February

1999. That defence included, inter alia, the following plea:

“3 The defendant pleads that the words complained of in their true sense, but not in the meanings pleaded

in the statement of claim, are true in substance and in fact. Further in the alternative, the defendant pleads

that the words complained of consist of fair comment on a matter of public interest. If and insofar as

necessary, the defendant will rely on the provisions of sections 22 and 23 of the Defamation Act 1961.”

Nothing further occurred in relation to the proceedings, from the appellant’s point of view, until February 2005. The

appellant, on the evidence, took the view that the respondent had abandoned his claim. On the 15th February 2005

however a letter indicting that a Notice of Intention to Proceed would issue was sent by the respondent’s solicitors,

which generated a relatively speedy response, in that, arising from that letter, the appellant filed the motion dated the

25th May 2005 which is the subject matter of this appeal.

In the grounding affidavit sworn in support of the motion to strike out the proceedings Karyn Woods, a solicitor on

behalf of the appellant swore, an affidavit dated the 24th May 2005 in which she averred, inter alia, as follows:

“7 In its defence, the defendant denied that the words published bore the meanings contended for by the

plaintiff, pleaded that the words in their natural and ordinary meaning were true in substance and in fact and

were fair comment on a matter of public interest, and denied that the plaintiff had suffered any damage or

loss as alleged. Having received the defence the plaintiff did nothing to progress his claim.

“8 In August 2000 my firm categorised the matter as dormant, no steps having been taken in the

proceedings by the plaintiff for a period of a year and a half, and archived the files. It appeared that the

plaintiff did not intend to proceed with this claim in light of the defence filed.”

By a replying affidavit sworn by John Shaw solicitor on the 22nd June 2005 the following was stated by him, having

acknowledged that no steps in the proceedings had been taken by the respondent from the delivery of the defence to

the service of the above letter dated the 15th February 2005.

“3 … The reason for this lapse of time is that the same matters which arise in these proceedings also form a

substantial part of the subject matter of the Moriarty Tribunal and at an early stage in the proceedings, on

the advice of counsel, it was decided to await the outcome of the Moriarty Tribunal before proceeding to

trial.

“4 While the Moriarty Tribunal has not yet delivered any report, weighing the lapse of time against the fact

that the plaintiff has long since given his evidence, it was decided to proceed in February this year.”

The basis therefore for the failure of the respondent to progress his claim was that he acted on legal advice received

not to progress the proceedings bearing in mind that the same subject matter was also the subject of the Moriarty

Tribunal, a tribunal established to investigate and which was at that time investigating payments made, inter alia, by

the plaintiff and others to the late Charles J. Haughey.

As to Delay:

While it might have been acceptable and even prudent for the plaintiff to have taken advice from his legal advisors as

to overlapping matters which might arise both in the proceedings and before the Moriarty Tribunal, and in certain

exceptional circumstances to have taken a particular approach in relation to the proceedings, I do not consider that the

approach actually taken in this case renders the delay, and certainly not the delay in question, excusable. The case law,

including that invoked by the learned High Court judge, namely Dowd v Kerry County Council [1970] 2 IR 27, makes

its clear that there is an obligation on both parties to proceedings, but in particular on a plaintiff, to progress

proceedings to conclusion within a reasonable period of time. A failure to do so has as its inevitable consequence that

justice may not be capable of being done to the other party. It is, moreover, axiomatic that in the case of a claim to

vindicate the reputation of a person, the rule is that proceedings such as those for defamation must be progressed with

extra diligence. That may mean, in a particular case, moving proceedings with even more speed than is required under

the Rules of the Superior Courts. Such a requirement is well established also in certain types of judicial review

proceedings, for example. On the issue of defamation proceedings in particular, the appellant relies, inter alia, on the

following extract from the English case of Wakefield v Channel 4 Television Corporation and Others [2005] EWHC

2410:

“As it was put by Glidewell LJ in Grovit v Doctor, 28th October 1993 (unreported), CA:

‘The purpose of a libel action is to enable the plaintiff to clear his name of the libel, to

vindicate his character. In an action for defamation in which the plaintiff wishes to achieve

this end, he will also wish the action to be heard as soon as possible.”

I would wholeheartedly endorse such an approach. If a plaintiff in defamation proceedings has decided, even, as here

without any suggestion of mala fides, although the appellant suggests it was a wholly tactical decision, and even on the

recommendation or advice of his legal advisors, not to progress his proceedings at least within the normal time limits

prescribed, the delay thereby caused may not be excusable. It is certainly a telling factor against excusing delay, if a

party retains to himself, as the respondent did here, the right unilaterally to take no further steps in the proceedings for

an indeterminate period into the future without, as a very minimum, notifying the other party of his intention to do so.

That other party has an entitlement to know the stance being adopted, so that he in turn may take all appropriate steps

in his interest in relation to the proceedings. In the present case the appellant was entitled to know after a reasonably

limited period of time, that the respondent had not abandoned his claim, so that it could, if it wished, bring an

application to strike out the proceedings rather than being lured, by inactivity of the respondent, into the natural belief

that the claim was abandoned. It does not seem to me that the appellant has to establish at this stage what steps it

might have taken, and I do not think it of any value to require its counsel to speculate as to what the attitude would be,

it being submitted in the present appeal by counsel on behalf of the respondent that even if he had notified the

appellant, it in turn would or might have done nothing.

Quite apart from the specific requirement of a plaintiff in a libel action to progress his claim with real diligence, there

are also, as is recalled by the appellant, obligations to progress proceedings, which may be traced to the provisions of

the European Convention on Human Rights and to certain jurisprudence of the European Court of Human Rights.

While accepting that is undoubtedly so, I do not think it necessary for the resolution of this appeal to invoke that

jurisprudence, there being ample extant Irish jurisprudence on the matter without doing so. The extent to which that

jurisprudence of the European Court of Human Rights supports an automatic striking out of proceedings due to delay

is not, in my view, yet established. Nor am I aware of any jurisprudence of that court which suggests that where

inexcusable delay is found, the balancing exercise established in Irish jurisprudence is inappropriate. I am satisfied that

the tests mentioned by Clarke. J. in Stephens v Flynn Limited, (unrept’d the High Court 28th April 2005) remain those

applicable, namely:

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.

In the circumstances which arise in this appeal, I am satisfied that the delay was wholly inordinate and, having regard

to the above history and the nature of the unilateral decision made, inexcusable. I find that the learned High Court

judge in making the finding which he did, although understandably he found the delay to be “just within the limit of

excusability”, erred in law in failing to have sufficient regard to the fact that, in these defamation proceedings the

decision taken remained entirely undisclosed to the opposing party, thereby depriving it of its entitlement, inter alia, to

apply to the High Court for appropriate relief.

As to the Balance to be Struck Between the Competing Interests:

In light of my finding that the delay was both inordinate and inexcusable, the case law compels me to have regard

nevertheless to the appropriate balance to be struck, having regard to the effect of that delay on, and likely prejudice to

a defendant who seeks to strike out proceedings, and the prejudice which would arise in the case of a plaintiff being

precluded from proceeding further with his claim. I refer in that regard to the long standing jurisprudence enunciated in

Rainsford v Limerick Corporation [1995] 2 ILRM 561 and as further developed in Primor v Plc Stokes Kennedy

Crowley [1996] 2 IR 459 and adopted in several cases since.

In the decision of this court in the case of Primor, supra., Hamilton, C.J. stated:

“The principles of law relevant to the consideration of the issues raised in this appeal may be

summarised 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.

(b) 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 of the defendant referred to in (vi) may arise in many ways and be other than that

merely caused by the delay, including damage to the defendant’s reputation and business.” (emphasis added)

While certain, and even more recent, case law is also referred to by both parties, the above basic principles appear to

me to remain substantially unaltered.

Some of the several factors that are set out in the judgment of the Chief Justice in Primor do not really apply in the

present proceedings, because of the facts of the case. However the appellant quite properly invokes certain specific

matters of prejudice which it claims establish, on balance, that the terms of (i)(ii)(vi) and (vii) all apply to the particular

facts of the present case and ought to have been accepted by the learned High Court judge, but were not, as being

sufficient to support a finding that the respondent’s proceedings should have been struck out.

In particular the appellant relies on the absence of certain named witnesses, on the absence of notes of the journalist in

question, and on the death of the late Charles J. Haughey as being specific matters which would seriously prejudice it

in its defence. The learned High Court judge found that the evidence of one of the witnesses, Craig McKenzie, who

was the editor of the Irish Mirror at the time of publication of the offending articles, was not obviously relevant to the

defence raised by the appellant. On the evidence, he made decisions concerning “the inclusion of content, layout and

positioning of the material published”. He had left the defendant’s employ prior to the motion to dismiss in May 2005.

I agree with the finding of the High Court judge as to the likely effect of this witness’s evidence for the defence of the

case, there being no sufficiently convincing argument on appeal to support any error in that finding.

In his ex tempore judgment the learned High Court judge did not come to an express view as to the relevance or

otherwise of a second person, Piers Morgan, also no longer in the employ of the defendant. He was, according to the

evidence of the appellant, the London based editor in chief of the Mirror Group at the time of publication, received the

initial correspondence and determined the appellant’s attitude to the claim as well as corresponding with the

respondent’s solicitors. The submissions filed state “he had no editorial role as regards the content of the Irish Mirror

and would not have had any input as regards the publication of the article that is the subject of the within

proceedings”. It is said, and accepted, that he was dismissed by the defendant in 2004. According to counsel for the

appellant neither Mr. Morgan nor Mr. McKenzie is within the jurisdiction and the appellant would have to rely on their

cooperation as potential witnesses, which cooperation is considered by the appellant to be unlikely. It is not evident to

me how Mr. Morgan in his above described role would have contributed as a witness to the defence as delivered, nor

is it claimed that he is an essential witness for the defence. In passing, I should say that while I do not rest my

judgment on it, had I considered either of them to be an essential witness for the defence I would have found it

difficult to accept the absence of any evidence as to likely obligations placed on either witness towards the appellant in

the event of proceedings being commenced against it. It must be part and parcel of everyday life of a newspaper that it

will be sued, and equally part and parcel of every editor’s terms and conditions of employment that he make himself

available to his publisher/employer in respect of all actions involving matters, especially libel matters, which occur

during his reign as editor.

The learned High Court judge did not either deal specifically with the absence of the late Charles J. Haughey as a

witness. Senior Counsel for the respondent, Mr. Shipsey, argues that his evidence, if it were available, would

undoubtedly be more favourable to the respondent to the appeal and not evidently or clearly in favour of the

appellant’s defence in the proceedings. The loss therefore to the respondent is far greater than any perceived loss to

the appellant, he contends. The evidence on his lack of availability is limited to the averment by Ms. Woods that in

substance he could have been cross-examined by the defence to its considerable advantage. This is undoubtedly true,

but it is based on the probability that he would be called as a witness for the respondent, and on the possibility, not at

all certain, that the benefit of a cross-examination would far outweigh the likely disadvantages arising from the same.

On balance I am of the view that the respondent’s argument is a more correct reflection of the effect of the absence of

this witness on the proceedings.

In relation to the foregoing witnesses it seems to me that, as to the witnesses other than Mr. McKenzie, although not

dealt with specifically in the ex tempore High Court judgment on the motion, the appellant did not establish before this

court on appeal that the absence of such witnesses in the running of its defence would give rise to a substantial risk

that the defendant could not have a fair trial, or that their absence would cause serious prejudice to it in mounting its

defence, as set out at (b)(iv) of the judgment of Hamilton, C.J. in the Primor case, supra.

I now turn to the last of the witnesses. He is reporter Neil Leslie, and it is unchallenged that he left the appellant’s

employ in August 2000, not long after the close of the pleadings. It appears clear that he is available to the appellant to

give evidence, but the appellant raises an issue of absent materials in relation to him. The evidence is that at the time of

the motion to dismiss in 2005 Mr. Leslie no longer had the shorthand notes in relation to the articles complained of.

It seems to me that there are two factors to be considered in relation to the matter of absent notes. The first is the

likely extent of such possible notes. It is submitted by the respondent to the appeal, and not really challenged by the

appellant, that the material published on the 8th January 1998 was “lifted” from an article in a publication known as

“Magill”. No affidavit was filed by Mr. Leslie but in her affidavit of the 24th May 2005, Ms. Woods confirms having

made inquiries of him, refers to his belief that his notes were left in a filing cabinet at the appellant’s Dublin offices on

his leaving his position, and to his confirmation that the appellant moved to new offices in 2001, and she avers that any

papers that had been left by Mr. Leslie could no longer be found. The extent of such notes is not averred to in any

affidavit sworn on behalf of the appellant, and it is not evident to me what they might consist of other than editorial

amendments of the original article. I do accept that notes probably existed in relation to the article published on the 9th

January 1998, since it seems this article appears to reflect but only in part, a response from the respondent. The

appellant does not, however, set out the criticality to the defence, as filed, of any notes which may have been made by

Mr. Leslie of that response, and given that the first and most serious article complained of is one which, with some

slight modification it would appear, first appeared in the above referred to publication, they do not appear to be critical.

In assessing where the balance of justice lies as between the parties, I consider also that the scope and ambit of the

defence as filed by the appellant is a factor which, in an appropriate case, may be taken into account. The defence

includes, according to the appellant itself, a plea of justification. In the above affidavit of Ms. Woods, she swears at

paragraph 7, also set out above, inter alia, that the defendant “pleaded that the words in their natural and ordinary

meaning were true in substance and in fact”. Further, in the outline submissions filed as late as the 16th June 2008 the

appellant refers to the defence delivered on the 1st February 1999 and describes it as “defence delivered pleading inter

alia no libel, justification and fair comment”. During the course of exchanges before this court, however, Senior

Counsel for the appellant, Mr. O’Braonain, suggested that the justification plea was in some sense a modified plea, or

might be amended to a modified plea of justification, but a consideration of the defence as filed, and bearing in mind

the foregoing matters, makes it more than evident that justification is pleaded in some form or other. Tellingly,

although prudently, counsel was not prepared to concede that justification was no longer part of the defence of the

appellant. A plea of justification it is particularly important, having regard to the nature of the obligations imposed in

that regard, for the law makes it very clear, as Kelly, J. stated in Cooper Flynn v Radio Telefis Eireann citing Lord

Denning M.R. in Associated Leisure v Associated Newspapers [1970] Q.B. 450 at 456:

“Like a charge of fraud, (counsel) must not put a plea of justification on the record unless he has clear

and sufficient evidence to support it.”

I am satisfied that counsel would not put a plea of justification other than in accordance with their obligations in that

regard, since the case law also makes it clear that a plea of justification, simpliciter, is a mere repetition of a libel, and

ordinarily, material facts supporting a plea of justification should be included in the defence as delivered (McDonagh v

Independent Newspapers, unrept’d the High Court 10th May 2005).

Even allowing for a modified form of justification which counsel for the appellant now appears to contend for, it is

axiomatic that there is an obligation on a party pleading justification to remain at all times in possession of all the

evidence, including notes, which go to support the plea, as well as all the meanings contended for, at the time of the

delivery of the defence. A failure to do so in my view may well constitute, depending on the circumstances,

negligence, even gross negligence, on the part of the party invoking such a plea who fails to ensure that the evidence is

in fact maintained, at least to the expiry of a limitation period.

As for the respondent, a plea of justification now lies against his claim for damages for libel. The libel, according to the

statement of claim, is serious in that it is said to consist, inter alia, of offences under the Prevention of Corruption Act

1906. In the ordinary course of events, if the proceedings are struck out his claim for defamation falls. However, the

plea of justification included in the defence, although it will never be litigated, remains unchallenged. That is, on any

view, a serious injustice to a person seeking to vindicate his good name and reputation, even after a delay. If he is

prevented from doing so where a defence of justification is pleaded, and the pleader successfully relies on an absence

arising from his own fault, of the very notes it claims would support the plea, the taint of clear wrongdoing of a very

serious nature, would remain.

Balancing the interests of each of the parties, having regard to the above principles, it seems to me that that balance

lies in favour of the respondent being permitted to vindicate his name. Although I have applied the above principles in

Primor, supra., even if I were to follow the principle of “countervailing circumstances” found in some of the other

jurisprudence cited, such as was applied in the case of Anglo Irish Beef Processors Ltd v Montgomery [2002] 3 IR

510, I would nevertheless consider that, although not falling within the very limited range of examples there described,

these have been established by the respondent, in the very unusual circumstances of the present case, such that the

respondent should be permitted to continue to prosecute his claim.

In the circumstances, I reject the appeal, and affirm the order of the High Court.