High Court refuses dismissal of defamation claim due to inexcusable delay, prioritizing justice over defendant's prejudice arguments.

Neutral Citation [2015] IEHC 684

THE HIGH COURT

[Record No. 2005/1490 P]

BETWEEN

MONICA LEECH

PLAINTIFF

AND

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED

DEFENDANT

JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 3rd day of November, 2015

1. The plaintiff alleges that she was defamed in material published by the defendant on the 30th January, 2005. These proceedings

are the third set of libel proceedings maintained by the plaintiff against the defendant. The pleadings in this case closed prior to the

other proceedings. In the defamation proceedings bearing record No. 2005/513P the jury found for the defendant following a trial in

June 2007. The plaintiff appealed that decision to the Supreme Court. In the defamation proceedings bearing record No. 2004/19853P

the plaintiff succeeded following trial in 2009 and was awarded €1.87 million in damages by the jury. The defendant appealed. The

appeals were heard in April 2014.

2. In December 2014 the Supreme Court reversed the decision of the jury in one of the matters, ordering a new trial in the High Court

and in the second appeal it reduced the award to the plaintiff to €1.25 million. The issue of costs of these appeals was determined on

the 26th February, 2015.

3. The parties in these proceedings have been entangled in litigation concerning defamation for more than a decade. The trial of this

third set of defamation proceedings is due to commence on the 5th November, 2015. However, by the present application the

defendant seeks to dismiss or strike out the plaintiff’s claim on the basis of delay. The application was heard on the 29th November,

2015.

The History of the Proceedings:

4. The history of the proceedings is as follows:-

• Plenary summons issued on the 27th April, 2015.

• Statement of claim delivered on 13th May, 2005.

• Motion for judgment in default of defence was returnable for 18th July, 2005

• A composite affidavit was sworn on behalf of the defendant which referred to these proceedings in the context of the

other two sets of libel proceedings referred to above.

• The defence was delivered on the 15th August, 2005

• Particularisation of pleadings occurred between 15th August, 2005, and April 2006 and July 2008 and notice of intention

(the third one) to proceed was filed by the plaintiff on the 16th July, 2014.

5. This motion issued on the 1st September, 2014.

6. The principles which govern applications to dismiss for want of prosecution are not in controversy and have been clearly stated by

the High Court and the Supreme Court. In Ewins v Independent Newspaper Limited [2003] 1 I.R. 583 Keane C.J. said:-

“I am satisfied that the correct approach on an application of this nature as has been frequently made clear by many

authorities, to all of which it is not necessary to refer, is for the court in the first instance to consider whether the

actual delay in prosecuting the claim is inordinate,. If it is not, then that is of course an end of the application. If it is,

the court then has to go on to consider whether although inordinate, it is excusable and again if it is excusable that

would be end of the application. Then, as has been again frequently said, even at that stage where the delay is both

inordinate and inexcusable, the court must go on to consider whether the justice of the case, on balance, requires that

the proceedings be either struck out or left to take their course. Undoubtedly, one of the matters to which the court

has to have regard in deciding that third issue, is whether there is any prejudice resulting to the defendant as a result of

the delay. That only comes into the equation of course if one has already come to the conclusion that the delay is both

inordinate and inexcusable. If it is inordinate and inexcusable, then the court must consider all the circumstances

including, as in this case, the non- availability of a particular witness and it is not an appropriate approach, in my view,

to treat the period of delay as being in some sense reduced because the prejudice can be seen to have been present as

from a particular time within the overall period and because of that, to treat the period as being reduced.”

7. In Stephens v Paul Flynn Limited [2005] I.E.H.C. 148 Clarke J. repeated the principles identified in respect of applications such as

these but added that delay on behalf of a defendant seeking to dismiss the action may be an ingredient in the exercise of the

discretion whether or not to grant the relief sought.

8. The present application does not turn on whether the delay is inordinate or inexcusable. The delay in this case covers the period

from the date of the defendant’s replies to the plaintiff’s motion compelling delivery of replies to particulars which is dated the 1st

July, 2008, to the date of the plaintiff’s third notice of intention to proceed which is dated the 16th July, 2014. Thus the period of

delay is said to be approximately six years.

9. The Court finds that period of inactivity to be inordinate. The contrary was not seriously suggested by the plaintiff.

10. The excuse advanced for the inactivity is that the plaintiff was vigorously pursuing the other sets of libel proceedings against the

same defendant. It is not said that the actions were dependent on each other. In addition, it is said that the plaintiff fell out with the

solicitors originally retained by her and had two changes of solicitors during that period. The Court is not of the view that the

explanation advanced for the inactivity would excuse the failure to prosecute the appeal.

11. In accordance with the authorities, the Court now examines where the balance of justice lies between the defendant’s desire to

strike out the proceedings and the plaintiff’s interest in pursuing this defamation action. The real issue in this application is whether

the defendant has suffered prejudice by the delay in prosecuting this action.

12. The defence in these proceedings is that which has come to be known as “the Reynolds Defence”. This asserts that publication of

the controversial statements was in respect of a matter of public interest and followed proper and ethical standards of journalistic

inquiry and investigation prior to publication. The defendant says that the editor of the Sunday Independent passed away in January

2012. It is said that his evidence is required to assist with “the Reynolds Defence” to demonstrate appropriate editorial control. In

addition, it is said that ‘the Reynolds Defence’ relies upon the evidence of two journalists involved in writing the article and that the

passage of time will impair their ability to give evidence as to the steps they took to prepare the story for publication.

13. The affidavit grounding the application to dismiss the proceedings was sworn by Daniel Coady who is a solicitor in the office of

Simon McAleese Solicitors, acting for the defendant in these proceedings. It was sworn on the 13th of August 2013.

14. In that grounding affidavit Mr. Cody says that it is reasonable to infer from the plaintiff’s delay that she had no intention of

prosecuting this case.

15. My view is that it would be reasonable to so infer in a case where a plaintiff who was suing in defamation in one case only took no

action for a period of six years. In 2005 the defendant swore a composite affidavit in respect of the three sets of libel proceedings in

reply to a motion for judgment in default of defence. This indicates that the defendant was dealing with the three sets of proceedings

together at a certain level. The defendant was aware of the plaintiff’s vigorous pursuit of the other sets of liable proceedings. I note

that the averment of Mr. Coady does not say that the defendant formed the opinion that the plaintiff had decided not to pursue

these proceedings. Mr. Cody refers to a reasonable inference to draw from the plaintiff’s delay is that the plaintiff had no intention of

bringing these proceedings to trial. In so far as the defendant is seeking to suggest that it had come to the view that the plaintiff

was dropping this case then my view is that the defendant ought to have known, by virtue of their mutual litigation history, that this

plaintiff was no shrinking violet.

16. It is of some significance that the averments in respect of prejudice in the grounding affidavit of Mr. Coady (sworn on the 1st

September, 2014) are in the following terms:-

“20 I say and believe that the very long delay such as that of which the Plaintiff has been guilty, inevitably and

inexorably results in prejudice to a Defendant. I emphasise that it is approaching nine years since the Plaintiff delivered

her Reply to the Defendant’s defence herein, with the Reply being delivered on 3 October 2005.

21 I say and believe that the Defendant has been prejudice by virtue of the Plaintiff’s delay herein. I respectfully say and

believe that the Plaintiff has clearly failed to discharge the duty she had as plaintiff in libel proceedings to prosecute her

claim with appropriate expedition. I say and believe that the Plaintiff’s delay is both inordinate and inexcusable. I believe

that the balance of justice herein is in favour of dismissal of the within proceedings. In the circumstances, I humbly pray

this Honourable Court for an Order in the terms of the Notice of Motion herein.”

17. Nowhere in those averments does the defendant say what actual prejudice it suffers from the maintenance of these proceedings.

18. More than a year later a supplemental affidavit was sworn by Mr. Coady on the 21st October, 2015. There for the first time the

defendant says that the prejudice suffered as a result of the delay results from the demise of Mr. Aengus Fanning, the former editor

of the Sunday Independent, who died on the 17th January, 2012. It is a surprising feature of this application that this averment was

not at the forefront of the application when first made on the 1st September, 2014. It is also of significance that though Mr. Fanning

died in January, 2012, the first expression of prejudice based upon this circumstance was uttered on the 21st October, 2015. No

explanation has been offered as to why the defendant did not bring a motion seeking to dismiss these proceedings shortly after the

death of Mr. Fanning.

19. In the same supplemental affidavit of the 21st October, 2015, the defendant sets out for the first time that the defendant is now

inevitably prejudiced by the fact that its journalist and other witnesses will be seeking to relay their evidence, details of

conversations, inquiries and investigations of third parties, of times and dates well over ten years ago. These include a key

conversation with the plaintiff. Again one would have thought that if this is the particular prejudice suffered by the defendant this

matter would have been identified in the grounding affidavit to the application to dismiss and not left to the supplemental affidavit

sworn more than a year after the application was first moved and on the eve of the hearing of this application to dismiss. Further, if it

is seriously contended that ‘the Reynolds Defence’ is in difficulty because of the inability of the journalists to remember how they

conducted themselves professionally in the preparation of the story, one would have expected personal affidavits from the journalists

in question to support this contention. The furthest the defendant advances this species of prejudice is by an averment from a

solicitor who says that the prejudice is inevitable. I do not regard delay as causing inevitable prejudice. If this were not so an

applicant would merely be required to establish inordinate delay to succeed on an application such as this. In my view, the solicitor’s

opinion that prejudice is inevitable does not properly ground a case to establish real prejudice such as would persuade this Court to

dismiss these proceedings.

20. My view is that the balance of the justice in this case, having regard to the nature and extent of the litigation relationship

between the parties, and the circumstances in which the present application is presented tilts the balance against the defendant and

in favour of the plaintiff. I refuse the application to dismiss.