Rooney v Shell E&P Ireland Ltd

JurisdictionIreland
JudgeMs Justice Ní Raifeartaigh
Judgment Date20 January 2017
Neutral Citation[2017] IEHC 63
CourtHigh Court
Docket NumberRECORD NO: 2015/8311P
Date20 January 2017
NEIL ROONEY
Plaintiff
AND
SHELL E&P IRELAND LIMITED
Defendant

[2017] IEHC 63

Ní Raifeartaigh J.

RECORD NO: 2015/8311P

THE HIGH COURT

Practice & Procedures – The Statute of Limitations Act, 1957 – The Defamation Act, – Claim for damages – Delay – Erroneous solicitor advice – Balance of convenience – Prejudice – Alternative remedy.

Facts: The plaintiff sought an order for the extension of time limit in order to institute the defamation proceedings against the defendant. The plaintiff claimed that the delay in filing claim was that he was given wrong advice by his previous solicitor about the prescribed period of limitation. The defendant argued that since they had already rectified the relevant published material, no fruitful purpose would be served by initiating the defamation proceedings as the correct approach was to bring a cause of action against the former solicitor.

Ms. Justice Ni Raifeartaigh refused to grant relief to the plaintiff. The Court held that the right to good name guaranteed under art. 40.3.2 Constitution was to be read in the light of relevant provisions of the Defamation Act 2009 coupled with the Court's discretion to extend the prescribed time limit to initiate a claim for damages. The Court held that it would exercise its discretion to grant the time extension if the interests of justice so required and keeping in mind the prejudice caused to the plaintiff. The Court found that in the present case, the plaintiff had failed to satisfy the delay and the defamatory material no longer existed in the database. The Court pointed out that the balance of convenience required to refuse the relief as the plaintiff would not be prejudiced greatly. The Court held that the plaintiff had an alternative remedy to institute proceedings against his former solicitor.

JUDGMENT of Ms Justice Ní Raifeartaigh delivered on Friday 20th January, 2017
1

The issue in this case is whether the plaintiff should be permitted to bring defamation proceedings outside the statutory time limit of one year provided for by the Statute of Limitations Act, 1957, as amended by the Defamation Act, 2009. The Court has a discretion to permit the bringing of a defamation action after the expiration of one year within a further period not exceeding two years pursuant to section 11(2)(c) of the 1957 Act as inserted by section 38(1)(a) of the Defamation Act, 2009. The question arising is whether this discretion should be exercised in favour of the plaintiff in the particular circumstances of the present case.

2

Section 38 of the Defamation Act, 2009 provides:

'Limitation of actions.

38.— (1) Section 11 of the Act of 1957 is amended—

(a) in subsection (2), by the substitution of the following paragraph for paragraph (c):

'(c) A defamation action within the meaning of the Defamation Act 2009 shall not be brought after the expiration of—

(i) one year, or

(ii) such longer period as the court may direct not exceeding 2 years,

from the date on which the cause of action accrued.',

and

(b) the insertion of the following subsections:

'(3A) The court shall not give a direction under subsection (2)(c)(ii) (inserted by section 38 (1) (a) of the Defamation Act 2009) unless it is satisfied that—

(a) the interests of justice require the giving of the direction,

(b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given,

and the court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the period specified in subparagraph (i) of the said subsection (2)(c) and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.

(3B) For the purposes of bringing a defamation action within the meaning of the Defamation Act 2009, the date of accrual of the cause of action shall be the date upon which the defamatory statement is first published and, where the statement is published through the medium of the internet, the date on which it is first capable of being viewed or listened to through that medium.'.

(2) Section 49 of the Act of 1957 is amended by the substitution of the following subsection for subsection (3):

'(3) In the case of defamation actions within the meaning of the Defamation Act 2009, subsection (1) of this section shall have effect as if for the words "six years" there were substituted the words "one year or such longer period as the court may direct not exceeding two years".'.'

3

Accordingly, it is clear from the statutory provisions above that, if the discretion to extend the time period is to be exercised in favour of a plaintiff, the court must be satisfied of two separate matters: (a) that the interests of justice require the giving of the direction; and (b) the prejudice that the plaintiff would suffer if the direction were not given would "significantly outweigh" the prejudice that the defendant would suffer if the direction were given. The Court is specifically directed to have regard to two matters in particular, namely, the reason for the failure to bring the action within the one year period, and the extent to which any evidence relevant to the matter is, by virtue of the delay, no longer capable of being adduced.

4

The following events constitute the context in which this issue arises. The plaintiff through a company, OSSL, had provided goods and services to the defendant company in connection with its Corrib Gas project in County Mayo for a number of years from the year 2004 onwards. This relationship broke down for reasons which are not necessary to explore in this application. On the 5th September, 2014, the Plaintiff made a request pursuant to data protection legislation seeking information as to the data held by the defendant concerning him. By letter dated the 15th October 2014, he received a reply to this request by letter from a Mr. Paul Walsh on behalf of the defendant company, which stated, inter alia:

'I confirm that Shell E&P Ireland Limited ("SEPIL") and other companies within the Shell Group of companies processed personal data about you for the purposes of business execution, including concluding and executing agreements with customers, suppliers and business partners, organisation and management of the business, health safety and security of Shell assets and individuals and for legal and regulatory compliance.

I can also confirm that:

• the source of your personal data is yourself, OSSL and companies within the Shell Group, a number of media sources which are referred to in the attached document and Mr John Donovan.

• the categories of data are your contact details (name, address and email address) details of the work that you were involved in on behalf of OSSL Company and disputes between OSSL Company and SEPIL (insofar as they involved your personal data).

• the recipients of your personal data were SEPIL, other companies within the Shell Group and those third party organizations providing administration or other services to the Shell Group.'

A document was enclosed with this letter and this set out a number of data entries. One of these was an entry dated the 7th March, 2014, stating that the plaintiff had been prosecuted by the Northern Ireland Environment Agency for illegal transportation and dumping of toxic waste, in respect of which he received a conviction and a substantial fine. The entry contained a link to a webpage of the Northern Ireland Department of Environment website, which contained further details of the illegal dumping case. In fact, the plaintiff had never been convicted of any such offence. The person who had been convicted of the offence in question was not the plaintiff, but another person of the same name. The core of the defamation case that the plaintiff wishes to bring is based upon the publication of this particular entry.

5

As the letter of 15th October, 2014, made clear, the recipients of the information in question were 'SEPIL, other companies within the Shell Group, and those third party organizations providing administration or other services to the Shell Group.' From the affidavits sworn for the purposes of the present application, there would appear to be a factual conflict as to whether the information was additionally published to parties other than those identified in the letter of the 15th October, 2014, but it is not necessary to resolve that conflict for present purposes. It is not entirely clear in what format the information was published, but my understanding is that it was in some sort of electronic format such as an electronic database to which the recipients had access. At the hearing, complaint was made by the plaintiff that the date of publication was not in fact clear, and might have been later than the 7th March, 2014, but counsel for the applicant ultimately confirmed that this was the date of publication. If this is so, the cause of action accrued on that date in accordance with the statute, and the one year deadline for the bringing of defamation proceedings expired on or about the 7th March, 2015. However, the plaintiff did not issue defamation proceedings until October, 2015, six months after the expiry of the deadline, and further, did not serve those proceedings until January, 2016.

6

It was a most unsatisfactory feature of the plaintiff's approach to this case that his grounding affidavit made no reference to some important correspondence that followed between him and the defendant company in the months following his receipt of the data. His first affidavit merely exhibited two emails dated the 23rd and 24th October, 2014, and even those two emails appear to be in edited form. It was not until a replying affidavit was sworn on behalf of the defendant company that the relevant...

To continue reading

Request your trial
11 cases
  • Morris v Ryan
    • Ireland
    • Court of Appeal (Ireland)
    • 22 March 2019
    ...the appellant has failed to meet the test which was correctly identified by Ní Raifeartaigh J. in Rooney v Shell E&P Ireland Ltd. [2017] IEHC 63 at para. 21 as follows:- ‘…a person seeking to persuade the court to exercise its discretion in his favour must provide full and adequate informa......
  • Oakes v Spar (Ireland) Ltd
    • Ireland
    • High Court
    • 13 September 2019
    ...exhibited as part of the affidavit grounding the application. See Watson v. Campos [2016] IEHC 18 and Rooney v. Shell E & P Ireland Ltd [2017] IEHC 63. 18 The matter was considered in more detail by the High Court in Quinn v. Reserve Defence Forces Representative Association [2018] IEHC ......
  • O'Sullivan v Irish Examiner Ltd
    • Ireland
    • High Court
    • 7 November 2018
    ...& ors (unrept, H Ct, 6th February, 2014), which was in turn endorsed by Ní Raifeartaigh J. in Rooney v Shell E & P Ireland Limited [2017] IEHC 63 considered and confirmed that it is the plaintiff who bears the onus of proof in persuading a Court to disapply the one year statutory time limi......
  • McKenna v Kerry County Council
    • Ireland
    • High Court
    • 15 December 2020
    ...with the obiter comments of Barratt J. in Watson v Campos [2016] IEHC 18 and her own comments in Rooney v Shell E&P Ireland Limited [2017] IEHC 63. Barrett J. felt the direction ought to be sought in advance of commencing proceeding, but had observed that the relevant Rules of Court (Order ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT