Supreme Court dismisses appeal on libel delay; inactivity after key dates did not prejudice fair trial.

THE SUPREME COURT

Denham C.J.

Murray J.

McKechnie J.

[S.C. No. 168 of 2008]

Dermot Desmond

Plaintiff/Respondent

And

Tom Doyle

Defendant/Appellant

And

[S.C. No. 169 of 2008]

Dermot Desmond

Plaintiff/Respondent

And

Times Newspapers Ltd., Rory Godson and John Burns

Defendants/Appellants

Judgment of Mr. Justice William M. McKechnie delivered on the 17th day of December, 2013.

Background:

1. The plaintiff in both actions is a well-known and successful businessman, both in Ireland and abroad, and is widely credited as

having been the inspiration behind the concept for the International Financial Services Centre in Dublin (“IFSC” or “the Centre”), the

building of which commenced as far back as 1988. Mr Doyle, the defendant in the first action, does not and never has agreed with

that understanding of Mr. Desmond’s role in initiating the establishment of such a centre, and in a letter of February, 1998, claims

that he himself first thought of the idea back in 1984, albeit with Shannon, Co. Clare as the location. Shortly after he had dispatched

this letter, the defendants in the second set of proceedings published an article in the Irish edition of the Sunday Times which was

essentially based on its contents. The plaintiff took objection to both letter and article, and sued for libel. After the pleadings were

closed and after some subsequent correspondence had passed between the parties, nothing much, if anything, was done for several

years to progress these actions. When eventually the plaintiff gave notification of his intention to press on, the defendants reacted

by issuing separate motions to have such proceedings dismissed, for want of prosecution on the basis of inordinate and inexcusable

delay. They were unsuccessful in the High Court and their appeal to this Court is now the subject matter of this judgment.

2. In 1997, by resolution of Dáil Éireann and Seanad Éireann, it was resolved to establish a Tribunal of Inquiry, to inquire urgently into

the matters covered by its terms of reference and to report to the Clerk of the Dáil on its findings (“the Moriarty Tribunal” or “the

Tribunal”). The essence of the inquiry related to alleged payments made to the late Mr. Haughey, a former Taoiseach and to Mr.

Michael Lowry, T.D., both in active politics at the time. After its establishment, the Tribunal invited members of the public to furnish

to it whatever relevant information they may have in this regard. In that context, Mr. Doyle sent the letter above referred to, which

is reproduced in its main terms in the schedule to the statement of claim. It reads as follows:-

“The original idea for an International Services Centre in Ireland was proposed by Tom Doyle”.

“Tom Doyle made a formal proposal to the Department of Finance in 1985.”

“Dermot Desmond was given an option to purchase an office block at the eventual IFSC in Dublin at an attractive price on

the basis that he initiated the idea. Dermot Desmond did not produce a report for the Department of Finance during Alan

Duke’s time in office.”

“I can prove that I made a proposal to the Department for a similar centre in Shannon in 1985.”

“It was not critical to the intellectual property involved that Shannon be used, and basically the same interpretation of

double tax treaties with some enabling legislation has resulted in the IFSC in Dublin.”

“I am concerned that in some way my idea and report was in some way leaked either intentionally or otherwise to a third

Party who passed it on to Dermot Desmond who subsequently took credit for it and who appears to have benefited

significantly from taking such credit.”

“Mr. Doyle is concerned that the option given to Dermot Desmond may not have been bona fide and perhaps not for his

own personal benefit.”

3. Shortly after this communication, a copy of the letter was obtained by Mr. Burns, the third named defendant in the second set of

proceedings, who at the time was a journalist with the Sunday Times, a newspaper published in this jurisdiction and owned by the

first named defendant, Times Newspapers Ltd.. That newspaper, of which Mr. Godson was the then Editor, printed an article in its

edition published on the 1st March, 1998 under the heading: “Desmond was Not the Man Behind the IFSC Idea, Tribunal Told”. The

article is too lengthy for its reproduction here, and in any event, such is not required, it being sufficient to say that in essence it

repeated what was stated in the letter and, either as background or as context, went on to say that: the official account up to now

of the Centre’s origin was that Mr. Desmond had conceived of the idea in 1986, and when the then Government declined its support

for the project, he went to Mr. Haughey, whose Government, a year later, enacted legislation giving effect to the plan. In addition, it

pointed out that the plaintiff had acknowledged having paid significant amounts of money to members of Mr. Haughey’s family and,

following his political retirement in 1992, to Mr. Haughey himself.

4. As I have said, two sets of proceedings were instituted as a result of the aforegoing, which for convenience I will henceforth refer

to as the “Doyle” proceedings and the “Sunday Times” proceedings, respectively.

Timeline:

5. As with all applications of this nature the timeline of the most material events is of much importance; it runs in both proceedings as

follows:

The Doyle Proceedings:

31st October, 1997 Moriarty Tribunal commenced sitting;

February, 1998 Offending letter sent by Mr. Doyle to the Tribunal;

1st March, 1998 Article in question published in the Sunday Times;

22nd April, 1998 Plenary Summons issued;

20th May, 1998 Statement of Claim delivered;

29th May, 1998 Defendant’s Notice for Particulars delivered;

21st July, 1998 Particulars delivered;

14th December, 1998 Defence filed;

7th April, 1999 Pleadings closed by delivery of Reply;

18th March, 1999 Defendant sought Voluntary Discovery;

20th May, 1999 Voluntary Discovery agreed, but timeframe for completion

not addressed;

6th August, 1999 Notice of Change of Solicitor served: Beauchamps Solicitors

now appear for the defendants in both actions;

6th September, 2000 Defendant’s solicitors wrote to plaintiff’s solicitors, regarding

Discovery matters;

10th October, 2000 Plaintiff’s solicitors replied;

28th February, 2001 The first of three letters were exchanged between the

defendant and the Department of Enterprise, Trade and

Employment (“Department of Enterprise”), questioning

whether certain alleged documents ever existed, and

demanding, if they did, copies thereof;

12th December, 2005 Notice of Intention to Proceed issued and served under

cover of letter dated 16th December, 2005;

25th August, 2006 Plaintiff’s solicitors sought specific categories of Discovery

from the defendant;

25th August, 2006 Plaintiff’s solicitors wrote to the then Minister for Finance

seeking Third Party Discovery;

21st September, 2006 Plaintiff’s solicitors reissued the letter of the 25th August

seeking inter partes Discovery;

24th October, 2006 Plaintiff’s solicitors issued a reminder letter;

6th November, 2006 Chief State Solicitor (“C.S.S.”), through a number of letters,

notified the defendant’s solicitors of the plaintiff’s pursuit of

Third Party Discovery, and said that subject to their views

such would be granted;

6th December, 2006 Plaintiff’s solicitors issued a second reminder letter;

9th January, 2007 Beauchamps responded to the plaintiff’s discovery request,

saying that since the proceedings were dormant, such

requests must have been sent in error;

9th January, 2007 Beauchamps responded to the C.S.S.: they declined to

furnish consent and suggested that Discovery should not be

made, as in their view the proceedings were dormant;

2nd July, 2007 The Discovery Motion issued;

24th October, 2007 The Dismiss Motion issued.

The Sunday Times

Proceedings:

29th April, 1998 Plenary Summons issued;

18th May, 1998 Statement of Claim delivered;

29th May, 1998 Defendants’ Notice for Particulars delivered;

21st July, 1998 Particulars delivered;

14th December, 1998 Defence is delivered;

18th March, 1999 Defendants sought Voluntary Discovery;

7th April, 1999 Pleadings closed by delivery of Reply;

20th May, 1999 Plaintiff agreed to make Voluntary Discovery on condition

that the defendants likewise agree to make such Discovery;

6th August, 1999 Notice of Change of Solicitor served: Beauchamps Solicitors

now appear for the defendants in both actions;

25th July, 2000 Reminder letter sent regarding Discovery;

6th September, 2000 Defendants’ solicitors wrote to Plaintiff’s solicitors regarding

Discovery matters;

12th December, 2005 Notice of Intention to Proceed issued and served under

cover of letter dated the 16th December, 2005;

18th October, 2006 Plaintiff’s solicitors sought specific categories of Discovery

and reissued said request on the 6th December, 2006;

9th January, 2007 Beauchamps responded to the plaintiff’s Discovery request,

saying that since the proceedings were dormant, such

requests must have been sent in error;

3rd August, 2007 The Discovery Motion issued;

23rd October, 2007 The Dismiss Motion issued.

The Cause of Action:

6. The plaintiff’s cause of action can be simply stated: he claims that the allegations in question were falsely and maliciously published

and were in a variety of ways defamatory of him, as a result of which he seeks compensation for reputational damage.

The Doyle Defence:

7. In reply, Mr. Doyle admits sending the letter but pleads the occasion as being one of qualified privilege, which he says was not

infused by malice on his part. Further, he denies any defamatory imputation or that the plaintiff’s character was adversely affected.

In support of the latter plea, the defendant relies on three matters in mitigation of damages: firstly, the plaintiff’s involvement in an

earlier controversy relating to the Johnson, Mooney and O’Brien site; secondly, the fact – confirmed by his own admission – of having

made substantial payments to the Haughey children and later to Mr. Haughey personally; and thirdly, an assertion that he sought to

dissuade Mr. Ben Dunne from giving evidence to the Moriarty Tribunal.

8. There are also a number of other pleas which are not immediately of relevance.

9. The Reply as filed, seeks to suggest that the occasion of the letter’s sending was not one of qualified privilege, but that in any

event, even if capable of being looked upon as so pleaded, the same lost that character or standing, as Mr. Doyle had no bona fides

belief as to the truth of the matters which he alleged. Furthermore, the three matters referred to are by law inadmissible as a plea in

mitigation, of the plaintiff’s damages.

Sunday Times Defence:

10. The Sunday Times admits the fact of publication but denies that such was either falsely or maliciously so occasioned: it asserts

that when read and properly understood in context, the article as a whole did not bear the suggested, or indeed any defamatory

meaning. Further and in line with the Doyle defence, it denies any damage to the plaintiff’s reputation, and likewise in that regard,

relies on the mitigation factors above outlined.

11. The plaintiff’s Reply, which denies the admissibility of the mitigation plea, does not otherwise add legally or factually to the issues

thus identified.

12. As can therefore be seen, whilst there are some differences between the cases, both in large measure were considered together

in the High Court, and likewise – unless otherwise stated – are so treated in this judgment.

The Affidavit Evidence:

13. The factual conflict upon which the applications were moved and the legal assertions which this gives rise to, are narrowly

focused and can easily be stated: it is said on behalf of all of the defendants: firstly, that the delay was inordinate and that in the

absence of justification, is also inexcusable; and secondly, that each defendant suffers not only general prejudice by a dimming of

memories, but also specific prejudice, which in the case of Mr. Doyle relates to certain documents, allegedly in the possession of the

Department of Enterprise in 2001, but which are not now available. In the case of the Sunday Times it is stated in this regard, that

the then Editor is no longer with the company. Thus, in these circumstances, justice demands that the proceedings should be

terminated.

14. The response, whilst denying prejudice at any level, offers as a justification for the delay the belief on the plaintiff’s part,

supported by Senior Counsel’s verbal advices, that, given its terms of reference, the Tribunal of Inquiry was likely to make findings on,

or at least to explore matters which would be directly relevant to these proceedings: accordingly, a decision – reasonably arrived at –

was made to defer their further prosecution until the Tribunal had concluded that part of its brief. However, as by December, 2005 it

was self-evident that the work of the Tribunal still had some distance to run, it was decided to proceed with the actions.

15. This explanation, which as a matter of fact was never communicated to the defendants, is also contested by them, in that in

their view, on any reading of the Tribunal’s terms of reference, it was highly unlikely that it would ever involve itself in matters

relating to the actions in suit. This in turn is rejected by the plaintiff who asserts the contrary position.

16. This was the state of the evidence upon which the trial judge was asked to determine the issues.

Judgment of the High Court:

17. In a combined judgment dealing with both applications, the learned trial judge commenced his judgment by making a number of

general observations and findings. He held: that no inference could be drawn from the correspondence to the effect that the

defendants had agreed to either a deferral or a reactivation of the proceedings; that it was not reasonable for the plaintiff to expect

that the Tribunal would make findings relevant to the issues in the proceedings; that the issues calling for resolution involved matters

both of fact and law; and that no substantial prejudice in the “classical sense”, had been established by the defendants. He further

noted, evidently in the context of memory recollection, that there was no plea of justification or fair comment in either action.

18. Proceeding on that basis and applying the tripartite analysis set out in Primor plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459

(“Primor”), the Court found that the delay complained of – particularly in a libel action which by its nature imposes an even greater

sense of urgency on the plaintiff – was inordinate. Further, when looking at whether the delay was inexcusable or excusable as the

case may be, the trial judge referred, with approval, to the High Court’s judgment in Comcast International Holdings Inc. & Ors. v.

The Minister for Public Enterprise & Ors. [2007] I.E.H.C. 297. However, by the hearing date of this appeal, the Supreme Court in

Comcast had taken a view different from that of the learned High Court judge. In addition, Stephens v. Paul Flynn Ltd. [2008] 4 I.R.

31 (“Stephens”) was cited so as to emphasise a viewpoint that delays heretofore defensible, may no longer be so. On such basis, the

delay was also inexcusable.

19. The third aspect of the test was then considered – again by reference to Primor – and also having regard to what Fennelly J. had

said in Anglo Irish Beef Processors Ltd. v. Montgomery [2002] 3 I.R. 510, at p. 520. Being satisfied that no specific prejudice existed,

the learned judge categorised what had been established in that regard as being “marginal or potential”. Accordingly, in all of the

circumstances, an order, conditional on terms, permitting the action to proceed, was appropriate. These conditions were (i) that the

costs liability should fall on the plaintiff, as and from the 7th April, 2000, being one year after the defence was delivered, as that is

when the legal advice might first have been reviewed; (ii) that any outstanding issues on Discovery be listed within 21 days; and (iii)

that the case be certified for hearing by the 5th June, 2008.

Appellants’ Submissions:

20. The appellants, whilst wholly supportive of the inordinate and inexcusable delay findings, take issue with the trial judge’s

conclusion on the balance of justice test, alleging that a failure to take any step in the action for over five years, nor any meaningful

step for over eight years, justified an unconditional dismissal of the proceedings. They agree that the Primor test remains appropriate

but urge that in the application of its criteria, there should be a “tightening up” in the manner first mentioned by Hardiman J. in Gilroy

v. Flynn [2005] 1 I.L.R.M. 290, and later by the Supreme Court in Stephens. Such an approach was, they say, reaffirmed recently by

Clarke J. in the Supreme Court in Comcast International Holdings Inc. & Ors. v. Minister for Public Enterprise & Ors.; Persona Digital

Telephony Ltd. & Anor. v. Minister for Public Enterprise & Ors. [2012] I.E.S.C. 50 (“Comcast”) and although in the same case

McKechnie J. adhered to the view espoused by Geoghegan J. and Macken J. in Desmond v. M.G.N. Ltd. [2009] 1 I.R. 737 (“M.G.N.”),

the former, if necessary, should be preferred.

21. It is also submitted that the trial judge did not give sufficient or appropriate weight to a number of factors when adjudicating on

the balance of justice issue. In this regard it is said that the plaintiff should not be permitted, with impunity, to tactically defer the

further prosecution of his action, at least without informing the defendant so that such defendant has an opportunity to adjust his

position, if he so decides. Such a move, even if supported by legal advice should strongly hold against him. Further, in proceedings

involving a cause of action such as libel, it is particularly incumbent on the moving party to process the action with all due expedition

and a failure to do so will not be lightly excused: Keane C.J. in Ewins v. Independent Newspapers (Ireland) Ltd. & Anor. [2003] 1 I.R.

583 (“Ewins”), at p. 590.

22. In addition it was said that there was a further matter of some significance, which should not be disregarded. It relates to what

was alleged to have been “a campaign of litigation”, engaged in by the plaintiff against Times Newspapers Ltd., which has involved

the institution of several other libel actions arising out of articles published by it from 1997 to 1999. These actions, like the instant

proceedings, were not progressed with any dispatch, such that the High Court in June, 2009 dismissed them for want of prosecution.

Although Notices of Appeal were filed in response to such decision, the same were, without explanation, unilaterally withdrawn, in

November, 2012. It was alleged that this pattern of conduct, had adversely impacted on the publisher’s right to free expression under

Article 40.6.1°.i of the Constitution and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms

and Protocol 1950, more commonly known as the European Convention on Human Rights (“the Convention”), and should decisively tilt

the issue of justice in favour of this appeal.

23. Finally, it is also claimed that the High Court’s assessment on the question of prejudice, leading to a finding that it was but

“marginal or potential”, did not accurately reflect the evidential situation of the defendants and in any event it was positioned far too

centrally within the third limb of Primor. In reality, there was evidence of real prejudice which was somehow overlooked in the

analysis.

24. In all of the above circumstances the appeal should be allowed.

Respondent’s Submissions:

25. The plaintiff’s response, which is premised on his full support for and acceptance of the High Court’s decision can, as a matter of

summary, be described as follows:

(i) that the learned trial judge gave due consideration to all relevant matters in accordance with Primor, which is the

correct test: accordingly the resulting exercise of his discretion should not be disturbed by this Court: Martin v. Moy

Contractors Ltd. (Unreported, Supreme Court, 11th February, 1999) and Geoghegan J. in M.G.N. at p. 743;

(ii) that wherever ultimately the appropriate measure or standard of expedition should be set for and applied to, either a

defamatory action such as this, or all cases, the courts – regardless of that outcome – should continue to exercise the

dismiss jurisdiction most sparingly and should do so only in the most clear cut of cases (Sun Fat Chan v. Osseous Ltd.

[1992] 1 I.R. 425);

(iii) that there was a genuine reason for the decision not to proceed, a reason supported by experienced Counsel

specialising in this area of law. That fact and a review of that decision in December, 2005 renders the delay excusable.

Even however if such reason is not accepted as justifying the delay, the same nonetheless represents a factor favourable

to a continuation of the proceedings. Comcast, even though distinguishable on the facts in several ways, is supportive of

this general position. See in particular the judgment of Denham C.J.;

(iv) that the Court’s assessment on the prejudice issue was fully in conformity with the evidence and in effect was the

only conclusion available.

(v) that if the action is not permitted to proceed, the pleas in mitigation, which closely resemble a justification plea and

which reflect badly on the plaintiff’s character, will remain unchallenged;

(vi) that in several ways the appellants have acquiesced in the delay;

(vii) that the additional urgency spoken of in the context of libel actions must be seen in context;

(viii) that the reference to the plaintiff as being involved in a campaign of litigation against Times Newspaper Ltd. is

without fact or substance. No evidence of any description was presented to this effect and the first reference thereto is

to be found in the appeal submissions made to this Court. In such circumstances such should be entirely disregarded; and

finally

(ix) that in any event, the stark consequences of a dismissal, involving the immediate termination of the proceedings,

would be excessive and in the presenting circumstances, not justly warranted.

Judgment:

26. During the course of the hearing, Counsel on behalf of the plaintiff clarified that his client accepted the High Court’s finding of

inexcusable delay, having already done so in respect of inordinate delay. Thus, the appeal is a single-issue one only, and falls to be

determined in accordance with the third limb of Primor. The sole question therefore is whether justice favours a continuation of the

proceedings or their immediate termination with irreversible effect.

27. Before outlining my conclusion on this issue, which must of course be based on the facts specific to this case, there are a number

of perhaps general matters which it is convenient to deal with at this stage.

28. As can be seen from the above summary of the submissions, some discussion took place about the desirability or otherwise of

readjusting the weight to be attached to various factors commonly found in this type of application. In the process, a number of

cases were opened where this point has been judicially commented upon. Whilst it is said that there is some divergence on the issue,

it remains unclear what the substance of these differences might be, but in either case, such would be unlikely to have much impact

on the balance of justice test. In any event, for the purposes of this case it is in my view not necessary to further consider the

issue, as on any approach – broad or narrow – I would adopt the same view and arrive at the same conclusion as I have. Therefore

on this basis I do not believe that further debate is required as the appeal can be determined in this manner.

29. As I read the documentation, it seems to me that the applications moved under O. 122, r. 11 of the Rules of the Superior Courts,

1986, were neither set up nor legally advanced in such a way as would require from this Court a consideration of in what

circumstances, if any, an action might be dismissed for want of prosecution purely on the grounds of delay, in other words, on “delay”

simpliciter. These applications were opened and outlined along traditional grounds and debated by reference to established principles

which call into play several matters, including the question of prejudice. Therefore, I would propose to treat the applications as they

were presented and to determine them on the basis indicated.

30. The third matter which I wish to refer to, relates to the sense of objection, even grievance, which the Times Newspaper Ltd.

purports to have (see para. 22 supra), arising out of the number of legal actions which Mr. Desmond has instituted against it

throughout the years. It appears that all such actions – which are based on various articles published from 1997 to 1999 – arose out

of the Moriarty Tribunal or else were related to events or personnel associated with its inquiry. Several pages of submissions on this

appeal are taken up with a detailed history of those proceedings and with a very definite assertion that their institution had in the

first place an ulterior motive.

31. Mr. Desmond entirely disputes what is alleged and, irrespective of where the merits or truth may lie, goes on to make the point

that none of the allegations are supported by evidence and moreover, that they have only been raised for the first time in the appeal

submissions. Basically it is his contention that in such circumstances he should not have to deal with them, whilst at the same time

asserting that he has a good answer, if necessary.

32. I agree with his submission: there is in fact no evidence at all in the affidavits about this matter and neither was it aired in any

way in the High Court. Evidently, it does not feature in the resulting judgment. To assert such matters now for the first time in the

submissions to this Court is not appropriate. In such circumstances it would be unfair to have regard to them.

33. That leads me back to Primor, whose principles were recently re-affirmed by this Court in Comcast, and in particular to the third

limb of the analysis. Insofar as is material, the test under this heading was summarised by Hamilton C.J. at pp. 475 and 476 of the

report as follows:

“(a) …

(b) …

(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.”

34. It is accordingly clear that the conduct of all parties is relevant – as is of course prejudice to the defendants – but above all the

question is one of fairness and whether, having regard to all of the circumstances, the possibility of a fair trial is imperilled. Before

elaborating on these issues however, the delay complained of must first be noted.

35. It will be recalled that the offending publications took place in February and March, 1998. Proceedings were instituted pretty

much immediately with the reply to the defence having been filed within 12 months. From April, 1999 until October, 2000 there was

some correspondence between the parties regarding Discovery. No point is therefore taken on this period.

36. From October, 2000, to December, 2005 when a Notice of Intention to Proceed was served, is the 1st period in issue: a further

eight months passed before Discovery was sought in the Doyle proceedings on the 21st of August, 2006. After several reminders and

also after having had some correspondence with the C.S.S. (para. 51 infra), the defendants eventually replied to this request on the

9th of January, 2007: so this period, which is largely common to both sets of proceedings can be discounted. However, the six

months inactivity which then followed until the issue of the Discovery Motions in July, 2007 cannot; rather, it exacerbated further the

above periods of delay. For completeness, the Motions to Dismiss were issued on the 23rd/24th October, 2007 and nothing turns on

what happened thereafter. So in all, there are three periods: five years, eight months and six months.

37. Against the backdrop of these delay periods, there are several factors in this case which must be looked at in the balance of

justice test. These are as follows.

The Decision to Defer:

38. The explanation offered for this decision does not arise for consideration as excusing the delay, as it is conceded that the delay is

inexcusable. See Macken J. in M.G.N. and Fennelly J. in Comcast. However, I see no reason in principle why it is not a relevant matter

on this aspect of the case. All matters which are material and probative should be considered. Surely a plaintiff facing an application

of this nature, who has a genuine explanation for the delay, even one which has limited legal effect, is in a position different to that

of a fellow plaintiff who can offer nothing but indifference, apathy or the like. Therefore, in my view, it is a relevant factor.

The Added Obligation in Libel Actions:

39. It is said, supported by authority, that where defamation is the cause of action, expedition is all the more incumbent on the

moving party. Keane C.J. in Ewins at p. 590 applied this proposition to the institution of proceedings and Macken J. in M.G.N. at p.

759, did so to the prosecution of such proceedings. Grovit v. Doctor & Ors. (Unreported, Court of Appeal, Civil Division, Glidewell J.,

28th October, 1997) was cited in support.

40. The reason why a defamation action is peculiar in this regard seems to be based on two grounds: firstly, that unless the plaintiff

moves rapidly, the significance which otherwise he would wish to attach to his reputation may seem less than what he asserts; and

secondly, one would expect that in any event he would wish to undo the damage to his reputation as soon as possible, and to restore

its standing to its pre-publication position.

41. Even though these grounds appear more relevant and probative to the substance of the action itself rather than to an application

of this nature, nonetheless it seems to have been accepted that some added urgency is required in this type of action.

The Mitigation Issue:

42. The three matters pleaded under this heading, in both defences, are set out at para. 7 supra. It is clear that by putting them in

issue, the defendants will seek to counter the effects of any defamatory finding against them by suggesting that in any event, the

plaintiff was a person of poor character, and thus his reputation is not further affected by the publications in issue.

43. It is correct, in my view, for the plaintiff to suggest that this is a serious plea which he has to face, and is one which to some

degree can be considered analogous to the defamatory allegation itself (if established), or where pleaded, to a defence of

justification. So it is understandable why he is concerned that unless he has an opportunity of contesting these matters before a

court/jury, they will remain as part of the official record.

44. However, in the circumstances, this can also be seen as somewhat of a double-edged sword, in that the weight to be attached

to it from the plaintiff’s point of view will necessarily be affected by the period(s) of delay for which he is responsible.

The Question of Prejudice:

45. The nature and extent to which the defendants have been prejudiced by the delay must next be considered. On this question the

appellants have failed to establish any arguable basis for suspecting that their ability to defend the action – either at a general or at

a specific level – or to advance the mitigation plea, has been compromised by reason of delay. There is no suggestion that any

potential witness will be unavailable; the reference to Mr. Godson having left Times Newspaper Ltd. being, without more, immaterial.

Whilst undoubtedly at a general level it can be taken that over time one’s memory of past events and the circumstances in which

they occurred will diminish, nonetheless, at the particular level, the precise consequences will depend on a number of more individual

variables. The allegation of prejudice in this case is pitched at the former and has not been argued at any more specific level.

46. In any event the weight of this complaint from the defendants’ point of view can be evaluated by looking at the most important

issues which might call for oral evidence. These, regarding Mr. Doyle, will include the occasion upon which he wrote the letter, as the

circumstances of such will be of importance so as to advance his claim for qualified privilege and/or to defend against the allegation of

malice, which in this context is not malice in law but malice in fact: Clarke v. Molyneaux (1877-78) L.R. 3 Q.B.D. 237 and Hynes-

O’Sullivan v. O’Driscoll [1988] I.R. 436. As regards all of the defendants, it may be that a factual controversy could arise regarding the

third matter pleaded in mitigation; namely an assertion that the plaintiff tried to dissuade Mr. Ben Dunne from giving evidence at the

Tribunal of Inquiry. The other points made as part of this plea can be disregarded, as the Johnson, Mooney and O’Brien controversy is

one of record and as by his own acknowledgement, the plaintiff has in fact in the past made substantial payments to the Haughey

family and to Mr. Haughey himself.

47. It has not been established to any real extent that the defendants will be prejudiced in any way beyond the general. Mr. Doyle

presumably will be the key witness as to the circumstances in which he came to send the letter: he has not suggested any memory

frailty or recollection debility in this regard due to the passage of time. In respect of the Dunne allegation it must be assumed that at

the time of the defence plea, each defendant had possession of information, viewed as being adequate, which enabled them to make

the allegation in the first instance. There is no suggestion that such information does not continue to exist. Therefore, this aspect of

the alleged prejudice cannot be considered weighty.

48. The question of documents does not arise in the case of the Sunday Times proceedings and the position in which Mr. Doyle has

left the evidence regarding his contact with the Department of Enterprise in 2001 is entirely unsatisfactory. It is by no means clear

that the alleged documents which he refers to ever actually existed – a possibility which he expressly acknowledges in

correspondence. In fact he relies upon this uncertainty as a basis to call for their production. In any event, to date, no further effort

has been made by him to clarify the position and accordingly the High Court’s finding that any prejudice could only be “potential or

marginal” is, in my view, at the highest level of what on the evidence was available to the trial judge.

Defendants’ Delay:

49. It has been accepted for many years that, in the face of a plaintiff’s delay in progressing the proceedings, the conduct of a

defendant in failing to move to have such proceedings dismissed for want of prosecution is a factor to be considered in the balance of

justice test. In Dowd v. Kerry County Council & Anor. [1970] I.R. 27, at pp. 41 and 42, Ó Dálaigh C.J. said the following by way of a

general observation:

“First, 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. There is the provision of Order 27,

r. 1, and the provision of Order 108, r. 11, where there has been no proceeding for two years. 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.”

50. Murphy J. said much the same in Hogan & Ors. v. Jones & Ors. [1994] 1 I.L.R.M. 512 as did I in my judgment in Comcast.

Therefore, whilst undoubtedly the moving party has the greater obligation of expedition, nonetheless the defendant’s interaction or

lack thereof as the case may be, with the delay of which he later complains, may rightfully be the subject matter of judicial comment.

51. On the facts of this case the defendants never moved until the within Motions were issued in October, 2007. That was evidently

after the first period of delay had ended. It was however also after a number of further opportunities arose, which they may have

been expected to react to, but failed to so do. For example, on the service of a Notice of Intention to Proceed in December, 2005, on

the Discovery request made in August, 2006, and on the occasion of any one of the several reminder letters sent thereafter. In

addition, they became aware in November, 2006 of the plaintiff’s attempt to obtain Discovery from the Minister for Finance. That

correspondence with the C.S.S. continued until the 9th January, 2007, on which date and notwithstanding the inter partes

correspondence, they responded by suggesting that the Minister should not accede to such request as in their view the proceedings

were dormant. That was a calculated position to take, particularly in view of the then recent inter partes correspondence. In any

event that opportunity to move was also passed over.

52. In these circumstances I consider their inactivity until October, 2007, which was after the plaintiff’s Motion for Discovery had

issued, to be of measured significance.

53. Having thus considered the most important of the relevant factors in this regard, I am not satisfied that the defendants’ capacity

to meet the claims and to advance any defence which they have asserted has been compromised by the delay, and certainly not to

such an extent that a fair trial is in peril. I do not believe that it is unfair on the defendants to ask them to defend these proceedings,

whereas an injustice, readily more recognisable, could be inflicted upon the plaintiff if the actions were dismissed. Accordingly, I would

uphold the findings of the trial judge and dismiss this appeal.

54. This conclusion also applies to the alternative basis upon which these applications were moved. See: Toal v. Duignan & Ors. (No.

1) [1991] I.L.R.M. 135 and Toal v. Duignan & Ors. (No. 2) [1991] I.L.R.M. 140, O Domhnaill v. Merrick [1985] I.L.R.M. 40 and Manning

v. Benson and Hedges & Ors. [2004] 3 I.R. 556. No additional observation further to those above made is required in this context.

55. Finally, as the first condition imposed by the order of the High Court has not been appealed, I would also affirm the order in this

regard. The other conditions specified by the trial judge do not arise at this point in time.