Supreme Court allows defamation appeals despite inordinate delay due to covert corruption evidence and state inaction.

THE SUPREME COURT

Appeal No: 213, 215, 216 of 2007

Denham C.J.

Hardiman J.

Fennelly J.

McKechnie J.

Clarke J.

Between/

Comcast International Holdings Incorporated, Declan Ganley, Ganley International Limited and GCI Limited

Plaintiffs/Appellants

and

Minister for Public Enterprise, Michael Lowry, Esat Telecommunications Limited, Denis O’Brien, Ireland, and the Attorney

General

Defendants/Respondents

Between/

Comcast International Holdings Incorporated, Declan Ganley, Ganley International Limited and GCI Limited

Plaintiffs/Appellants

and

Minister for Public Enterprise, Michael Lowry, Esat Telecommunications Limited, Denis O’Brien, Ireland, and the Attorney

General

Defendants/Respondents

Between/

Persona Digital Telephony Limited, and Sigma Wireless Networks Limited

Plaintiffs/Appellants

and

Minister for Public Enterprise, Ireland and the Attorney General

Defendants/Respondents

JUDGMENT of Mr. Justice Fennelly delivered the 17th day of October 2012.

1. I agree that the appeals in these cases should be allowed. I agree with the reasoning in the statements of reasons given by the

Chief Justice and by McKechnie J and Clarke J. However, on the question of the treatment of the delivery of a 21 day letter by the

Office of the Chief State Solicitor in the Persona case, seeking delivery of a statement of claim within 21 days under threat of a

motion to strike out in default, I prefer the reasons of the Chief Justice and of McKechnie J.

2. More generally, I would emphasise that the delay of both plaintiffs was, as is accepted, on any view, inordinate. That delay was,

however, in the special and unique circumstances of this case, excusable. In the vast majority of cases, this Court would regard it is

quite unacceptable that a party should take a deliberate decision to delay indefinitely in the pursuit of his or her claim, certainly

where no fair notice is given to the opposing party.

3. The case of Desmond v. M.G.N. Limited [2009] 1 I.R. 737 indicates the approach that will normally by taken by this Court. The

plaintiff issued proceedings for libel against a newspaper in January 1999. He took no further step until February 2005, when he

notified the defendant that he would give notice of intention to proceed. The defendant issued a notice of motion seeking an order

striking out the proceedings on the grounds of inordinate and inexcusable delay. The plaintiff claimed that the reason for the delay

was that he had acted on legal advice not to progress the proceedings, given that the matters to which the proceedings related

formed a substantial part of the subject matter of the Moriarty tribunal. This decision was not communicated to the defendant, who

had taken the view that the proceedings were dormant.

4. Although the three members of the Court were divided on the question of where the balance of justice lay and the fact the action

was for defamation in which a plea of justification had been filed was the determining consideration for the majority, the Court was

unanimous in its view that the delay had been both inordinate and inexcusable. All three judges strongly criticised the plaintiff for

“failing to proceed with his action for his own tactical reasons….. without giving any notice of his intention to the defendant…”

(Geoghegan J page 741); for the fact that “the defendant was never informed of the plaintiff's decision to "park" the case nor was it

invited to acquiesce in it.” (Kearns J page 752). Macken J said at page 759:

“It is certainly a telling factor against excusing delay, if a party retains to himself, as the plaintiff 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.”

5. Ordinarily, I would have been strongly disposed to dismiss the claims of all the plaintiffs on the ground of inordinate and inexcusable

delay. However, the present case is distinguishable for the reasons given by the other members of the Court. I refer, in particular, to

paragraph 66 of the Judgment of McKechnie J. I would mention three matters. Firstly, the plaintiffs have convincingly argued that the

material upon which they wish to found their claims was, of necessity and in its nature, such as was likely to be concealed and that it

was most unlikely that any private litigant, who would not have the advantage of the investigate powers of the Moriarty Tribunal,

would have been able to uncover it. As Hardiman J says in hus judgment, “the corruption alleged in this case was covert, devious and

concealed.” Clarke J says that “it is clear that establishing the series of transactions which, in the view of the Moriarty Tribunal,

demonstrated monies being paid to Mr. Lowry, involved a significant degree of forensic disclosure from financial institutions and others

with the benefit of the significant powers of compellability which are available to a tribunal of inquiry.” Secondly, there is strong

evidence to suggest that the defendants, in particular the representatives of the State, were fully aware and conscious of the fact

that the plaintiffs were awaiting the investigations of the Tribunal, but took no action to compel the plaintiffs to proceed with their

claims or to have them dismissed for want of prosecution. Thirdly, in the Persona case, the State Solicitor wrote a letter seeking

delivery of a statement of claim, which must be read as consenting to the action proceeding to that stage.

6. Thus, I concur in the decision to allow the appeals.