Defamation claim dismissed for want of prosecution due to significant delay and prejudice to defendant.

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] I.E.S.C. 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 I.L.R.M. 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] I.E.S.C. 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 I.R. 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 W.L.R. 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.