Bradley and Others (t/a Malcomson Law) v Maher

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 31 July 2009
• Neutral Citation: [2009] IEHC 389
• Court: High Court
• Date: 31 July 2009

[2009] IEHC 389

THE HIGH COURT

No. 8357 P/2008

Bradley & Ors (t/a Malcomson Law) v Maher

[2009] IEHC 389

BETWEEN

RAYMOND BRADLEY, TERENCE DOYLE AND PATRICIE CROSBIE, PRACTISING UNDER THE STYLE AND TITLE OF MALCOMSON LAW, SOLICITORS

PLAINTIFFS

AND

MICHAEL MAHER

DEFENDANT

COURTS OF JUSTICE ACT 1924 S94

COURTS ACT 1988 S1

COURTS ACT 1988 S1(3)

SHERIDAN v KELLY & MCDONNELL 2006 1 IR 314 2006/52/11170 2006 IESC 26

KERWICK v SUNDAY NEWSPAPERS LTD T/A SUNDAY WORLD UNREP DUNNE 10.7.2009 (EX TEMPORE)

CORK PLASTICS (MANUFACTURING) & ORS v INEOS COMPOUND UK LTD & ORS UNREP CLARKE 7.3.2008 2008/8/1638 2008 IEHC 93

RSC O.36 r7

PRACTICE & PROCEDURE

Trial

Notice of trial - Trial without jury -Set aside notice of trial- Defamation and unlawful interference with quiet enjoyment of premises - Right to jury trial - Right to jury trial in respect of part only of proceedings -Principles to be applied - Factors to be considered - Right to jury trial stipulated by statute - Entitlement to jury trial not absolute - Discretion of court - Interests of justice - Defendant lay litigant - Whether defendant had right to jury trial - Whether two separate trials should be ordered - Whether âÇÿhybrid trial' should be ordered - Whether in interests of justice to order jury trial - Sheridan v Kelly [2006] IESC 26 [2006] IR 314, Cork Plastics (Manufacturing) v Ineos Compound UK Ltd [2008] IEHC 93 [2008] 1 ILRM 174 considered - Courts of Justice Act 1924 (No 10) s 94 - Courts Act 1988 (No 14) s 1 - Notice of trial not set aside (2008/8357P - Clarke J - 31/7/2009) [2009] IEHC 389

Malcomson Law v Maher

Facts: The defendant had complained that the estate of his relative had not been properly administered by the plaintiff solicitors firm and had published certain statements on a website, Rate Your Solicitior. The plaintiffs applied for an injunction to restrain further entries onto the website and alleged that the material was defamatory and sought damages. The defendant lodged a full defence and counterclaim and sought to have the notice of trial set aside on the basis that he was entitled to a jury trial. The issue arose as to the potential for overlap between the evidence in the main proceedings and in the counterclaim. The options considered were a single unitary trial, two fully separate trials and a hybrid trial.

Held by Clarke J. That the Court was not satisfied that the balance of justice would favour two separate trials of the jury and non-jury aspects in the proceedings. The Court was not satisfied that the balance of justice would favour a hybrid trial. The only fair and just way of resolving all of the issues between the parties was by a single trial and the trial would be without a jury. It was not appropriate to set aside the notice of trial without a jury, which had already been served.

Reporter: E.F

1 Mr. Justice Clarke delivered on the 31st day of July, 2009

1. Introduction

2 2 1.1 The plaintiffs ("Malcomson Law") are a firm of solicitors. The defendant ("Mr. Maher") is in dispute with Malcomson Law arising out of the administration by Malcomson Law, as a firm of solicitors, of the estate of Michael Maher, deceased, an uncle of Mr. Maher. Mr. Maher was a beneficiary of that estate and complains that the estate has not been properly administered by Malcomson Law.

3 In that context, it would appear that Mr. Maher picketed Malcomson Law's offices with placards setting out, it is alleged, untrue and defamatory statements to the effect that monies, relating to the administration of his late uncle's estate and amounting to €150,000, had been withheld by Malcomson Law, without reason, from Mr. Maher for a period of more than five years and questioning whether the monies were used to fund political parties. Malcomson Law further claimed that Mr. Maher, his servants or agents, published or caused to be published a number of defamatory statements on the "Rate your Solicitor" website, www.rateyoursolicitor. com. The alleged statements state, inter alia, that a sum of money was missing or was withheld from the account of the late Michael Maher. Malcomson Law claim that these statements have a defamatory effect, and that in their natural and ordinary meaning, the statements meant and were understood to mean that Malcomson Law were engaged in unlawfully withholding monies from the estate of the late Michael Maher.

4 Malcomson Law further claim that Mr. Maher, his servants or agents, have published or caused to be published statements on the "Rate Your Solicitor" website encouraging members of the general public to inform Mr. Maher as to when Malcomson Law and their representative are attending court so that Mr. Maher might have an opportunity to mount a picket, and that Mr. Maher, his servants or agents, have published or caused to be published, on the "Rate Your Solicitor" website, personal details of members of the firm such as their home address or type of car.

5 3 1.2 It was in that context that these proceedings were commenced by Malcomson Law against Mr. Maher. Malcomson Law applied for and obtained an interlocutory injunction on 10 ^th October, 2008, restraining Mr. Maher from making any further entries to the "Rate Your Solicitor" website. Mr Maher was further restrained from watching, besetting or otherwise picketing Malcomson Law's premises and was restrained from communicating with members of the public by way of distribution of leaflets regarding any matter concerning Mr. Maher and Malcomson Law.

6 4 1.3 The basis of Malcomson Law's claim is to the effect that Mr. Maher has been guilty of defamation in the circumstances referred to and also it is said that Mr. Maher has engaged in unlawful picketing.

7 5 1.4 Mr. Maher has put in a full defence to these proceedings together with a counterclaim. Some interlocutory issues concerning discovery have already been dealt with, but an important question has arisen arising out of the service by Malcomson Law of a notice of trial which purports to specify that these proceedings are to be tried by a judge sitting alone, and thus without a jury.

8 6 1.5 Mr. Maher seeks to have that notice of trial set aside on the basis of an assertion on his part that he is entitled to a jury trial, at least in respect of the defamation aspects of these proceedings. This judgment is directed to that issue. It is first important to note the precise claim made by Malcomson Law.

2. The Claim

9 2 2.1 The relief claimed in both the plenary summons issued by Malcomson Law and statement of claim filed by them is as follows:-

10 1. Damages for libel;

11 2. Damages for slander;

12 3. Damages for unlawfully picketing, watching, besetting, loitering and otherwise interfering with Malsomson Law's quiet enjoyment of its premises and its ability to conduct its lawful business unfettered by interference from Mr. Maher;

13 4. An order preventing Mr. Maher from continuing to unlawfully picket, watch, beset, loiter and otherwise interfere with Malcomson Law's quiet enjoyment of its premise and their professional practices unfettered by inference from Mr. Maher;

14 5. Such further or other order as this Court shall deem fit; and

15 6. Costs and interest pursuant to statute.

16 3 2.2 As will be clear from the above, there are, in substance, two aspects to Malcomson Law's claim. The first is a claim for damages for defamation and damages for unlawfully interfering with Malcomson Law's quiet enjoyment of its premises.

17 4 2.3 The second aspect of the claim is one in which Malcomson Law seeks to restrain what is said to be unlawful picketing, together with other similar relief.

18 5 2.4 It is clear that, in the ordinary way, a claim for damages for defamation in this Court is heard by a judge sitting with a jury. It is equally clear that a claim for damages for unlawful picketing, and the like, together with a claim for an injunction arising out of what is said to be such unlawful picketing, is a claim which would never have been tried before a jury but rather, given that an injunction is equitable relief, would have been heard by a Court of Chancery in historical times and would, after the unification of the various divisions of this Court, have been likely to have been listed for trial as part of the Chancery List of this Court.

19 In addition, regard has to be had to the defendant's counterclaim which seeks as follows:

20 1. General, special and punitive damages for negligence and breach of fiduciary duty;

21 2. Any further order as this Court seems fit; and

22 3. Costs and interest pursuant to statute

23 6 2.5 It is equally clear, therefore, that the claim made by Mr. Maher in his counterclaim would, ordinarily, fall to be decided by a judge sitting alone. It is also clear that there is a real risk that there would be a substantial overlap between the evidence relevant to at least one aspect of the defamation proceedings, and the evidence relevant to Mr. Maher's counterclaim. At the heart of the defamation proceedings are Mr. Maher's allegations concerning the way in which the estate concerned was administered. To the extent that Mr. Maher may seek to justify anything said by him about Malcomson Law, then it would be necessary for him to seek to establish the truth of any allegations which he may be found to have made. Likewise, it is likely that the same, or quite similar, facts would be at the heart of his counterclaim.

24 7 2.6 Against that factual background, it is next necessary to turn to the legal principles.

3. The Law

25 2 3.1 The starting point has to be the provisions of s. 94 of the Courts of Justice Act, 1924, which preserved, in the Courts of Saorstát Éireann, the right to trial by jury in any case where a right to trial by jury in civil proceedings had previously existed. Section 94...