Bell v Pederson

• Jurisdiction: Ireland
• Judge: Mr. Justice Morris,Mr. Justice Kinlen
• Judgment Date: 14 May 1996
• Neutral Citation: 1996 WJSC-HC 110,1995 WJSC-HC 3863
• Docket Number: [1991 No. 8479P],No.8479p/1991,No. 8479P/1991
• Court: High Court
• Date: 14 May 1996

BELL v. PEDERSON

STANLEY BELL

PLAINTIFF

AND

WINFRIED PEDERSON AND SANDOZ RINGASKIDDY LIMITED

DEFENDANTS

1995 WJSC-HC 3863

No. 8479P/1991

THE HIGH COURT

Synopsis:

PRACTICE

Pleadings

Amendment - Application - Delay - Defence - Libel - Defendant's application at trial of action - Separate motion directed - Claim that libel published to several persons - Defence mistakenly pleaded publication and privilege in relation to one person - Extension of publication and privilege to other persons sought - Amendment allowed on terms - Rules of the Superior Courts, 1986, order 28, r. 1 - (1991/8479 P - Kinlen J. - 29/5/95) 1995 3 I.R. 511

|Bell v. Pederson|

Citations:

PALAMOS PROPERTIES LTD V BROOKS UNREP FLOOD 11.1.95

DPP V CORBETT 1992 ILRM 674

BALKAN BANK V TAHER UNREP SUPREME 19.5.94 1994/8/2060

MCFADDEN V DUNDALK & DOWDALL HILL COURSING CLUBS LTD UNREP SUPREME 22.4.1994

KROPS V IRISH FORESTRY BOARD LTD & RYAN UNREP KEANE 6.4.95

RSC O.28 r1

WELDON V NEAL 1887 19 QBD 394

1 Judgment of the Honourable Mr. Justice Kinlendelivered the 29th day of May 1995.

2 The Plaintiff was a liason Procurement Consultant with the establishment of the Sandoz operation at Ringaskiddy in the county of Cork. By a letter dated the 29th November, 1990 addressed to Mr. Dave Parsons and circulated to Mr. Gerry Hourihan, Mr. Hans Klettner and Mr. Jeff Osborn the Defendants used words concerning the Plaintiff which he alleges weredefamatory.

3 The Plenary Summons is dated the 11th June, 1991 and the Statement of Claim is the 27th June, 1991. The Defence is dated the 20th September, 1991 and paragraph 5 thereof reads:-

"Further or alternatively the said words were published (if at all which is denied) solely to Dave Parsons of United Engineering and Constructors Incorporated who are the parties responsible forengaging the Plaintiff and who had a common interest with the Defendants in the subject matter thereof and the occasion is thereforeprivileged."

4 A notice of intention to proceed dated the 30th April, 1993 was served and a reply was delivered on the 7th July, 1993 which, inter alia, denies that the words were published on an occasion of qualified privilege and also denies that the words published were true in substance and in fact. A notice of trial was served on the 2nd November, 1993. The case came for hearing before Mr. Justice Flood on the 10th March, 1995. On that occasion Mr. Sreenan, S.C. for the Defendant sought to "tidy up" his own pleadings basically by deleting the words "solely" and adding Mr. Gerry Hourihan, Mr. Hans, Mr. Klettner and Mr. Jeff Osborn and that the publication to them was also privileged. Mr. Garreth Cooney, S.C. objected strenously to the amendment on the grounds that it was a radical change and should not be made at the last minute.

5 Mr. Justice Flood, suggested that the amendment should be done by a Notice of Motion.

6 The Defendants then issued such a Motion dated the 16th March, 1995 seeking to amend paragraph 5 of the defence by substituting thefollowing:-

"Further or alternatively the said words were published (if at all which is denied) solely to Dave Parsons of United Engineering and Constructors Incorporated and Jeff Osborn of Badger Catalyticwho were the parties responsible for engaging thePlaintiff and to Jerry Hourihan, and Hans Klettner of Sandoz, all ofwhom had a common interest with the Defendants in the subject matter thereof and the occassion is therefore privileged."

7 This motion was supported by an Affidavit of Cormac O'Hanlon sworn the 16th March, 1995. This motion then came before this Court. The Plaintiffs wished to cross-examine Mr. Cormac O'Hanlon, Solicitor, on his said Affidavit and this was done.

8 He stated in his Affidavit that Junior Counsel drew his attention a few days before the trial date to the fact that the plea of qualified privilege in the defence referred only to the alleged publication to Mr. Parsons and did not refer to the persons to whom the letter was allegedly circularised. The error apparently arose when Junior Counsel was initially briefed to draft the defence and the second page of the letter constituting the alleged libel was omitted. The Barrister in his letter of the 29th July, 1991 to the Defendant's Solicitor stated:-

"As instructed I have drafted a letter of particulars and a full defence which I enclose. The draft defence includes the plea of privilege. I take it that we only wrote to Parsons (the second page of the letter is not furnished). It occurs to me that there must be some question of whether the publication and alleged libel occurred in the United States. I have not made an issue of this but if it were the case that thepublication would be libellous in the U.S then some consideration should be given to an amendment of the defence."

9 The Solicitor dealing with the matter was a Mr. Clayton Love, Junior, and he appears not to have adverted to the potential importance of the fact that the letter was allegedly copied to three other persons. Senior Counsel advised initially in December, 1993 and ultimately advised proofs in June, 1994. While it was argued that both these documents were privileged it was agreed that I should read them. Neither document deals with the now proposed amendment to paragraph 5 of the defence. The only pertinent observation is in relation to the fact that express malice had not been pleaded by the Plaintiff in his reply.

10 Shortly before the trial date the Plaintiff's Solicitor wrote on the 28th February, 1995 saying that they would be applying at the hearing to deliver a amended reply pleading express malice. As previously stated a few days before the trial date Junior Counsel, who had been reviewing the pleadings alerted the solicitor to the potential ambiguity in the manner in which qualified privilege was pleaded in that it did not expressly refer to the parties allegedly circularised and did not indicate that the circulisation to these parties was itself privileged. The Defendants decided to apply on the morning of the trial for an amendment. On the morning of the trial Counsel for the Defendants informed his opponent that he would not be opposing the Plaintiff's application to amend the reply toplead express malice and he himself would be applying to amend the plea of qualified privilege and the defence so as to clarify its ambit. The Plaintiff then withdrew his application for an amendment and opposed theDefendants" application. As already stated Mr. Justice Flood adjourned the trial and awarded one day's costs against the Defendants directing that a motion seeking leave to amend be brought. The learned trial Judge also directed that any award of damages ultimately made would carry interest at the Court's Act rate from the 10th March, 1995. There was a replying Affidavit from Phelim O'Reilly, Solicitor for the Plaintiff sworn the 5th May, 1995. He points out that in the Statement of Claim it is pleaded that the letter had been published to the four persons named. By a letter of the 30th July, 1991 the Defendants"Solicitors sought further particulars. The letter required inter alia at paragraph 3 the date and place the said words were published to the four persons who are each named. The letter goes on to seek particulars at paragraphs 4 and 5 of the name, address and status for each of these persons, their respective employers and their places of employment. The Plaintiff's Solicitor furnished these particulars by letter dated the 30th September, 1991 in which he gave the precise information sought. He points out that Mr. Clayton Love made no Affidavit but Mr. O'Hanlon does not appear to have even consulted him. He argues that it is difficult to accept that the matter now sought to be amended was a matter of inadvertence rather than deliberate choice and intention bearing in mind that it was specifically alleged in the Statement of Claim that the letter was published to each of the four persons in question, that thesepersons were referred to specifically, and, by name in theDefendants" letter for particulars and that full information concerning these publishees was contained in the Plaintiff's letter of reply. Mr. Phelim O'Reilly states that:-

"It is the Plaintiff's contention that it was quite deliberately decided not to raise a plea of qualified privilege in respect of the publication of the letter to the three persons to whom it was copied on the basis that it appeared from our letter of reply on the 13th September, 1991 in which we would have difficulty in proving thispublication".

11 It then avers that the choice and use of the words "solely" is indicative of the adoption of such a strategy. Mr. O'Reilly points out that the proposed amendment is much more than a simple "tidying up" exercise. He states:-

"The proposed amendment radically alters the issues between the parties and introduces for the first time since the defence was delivered almost four years ago a new and separate issue which could pose extreme difficulty to the Plaintiff in his pursuit to clear his good name. In this regard I respectfully draw the Court's attention to the fact the Defendants have pleaded justification that is the damaging and harmful allegations made by them about the Plaintiff are true in substance and in fact and that they can prove these allegations to the satisfaction of the jury. I am advised by Counsel and believe that it would be unfairand unjust to the Plaintiff to permit the requested amendment in view of that specific plea of justification; presumabely the Defendants have sufficient evidence and facts at their disposal to establish such a plea and will not therefore require the radical amendment which they now seek in order to defeat the Plaintiff's claim."

12 The Court was referred to Palamos Properties Limited and Hugh O'Neill -v- Brooks Hickey et al. delivered by Flood J. January 1994 and to D.P.P. -v- Corbett, 1992 ILRM P 674 at p. 678 ...