O'Brien v O'Brien

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní
• Judgment Date: 04 July 2019
• Neutral Citation: [2019] IEHC 591
• Court: High Court
• Docket Number: [RECORD NO. 2018/458CA]
• Date: 04 July 2019

[2019] IEHC 591

THE HIGH COURT

Ní Raifeartaigh J.

[RECORD NO. 2018/458CA]

BETWEEN

JOHN O'BRIEN

PLAINTIFF

AND

CONOR O'BRIEN

DEFENDANT

Extension of time – Delay – Defamation – Plaintiff seeking an extension of time within which to bring a defamation claim against the defendant – Whether the interests of justice required the granting of the extension of time sought

Facts: The respondent/intended defendant, Mr C O’Brien, appealed to the High Court against an order of the Circuit Court dated the 5th November, 2018, which granted the applicant/intended plaintiff, Mr J O’Brien, an extension of time within which to bring a defamation claim against the intended defendant. Counsel on behalf of the intended plaintiff relied primarily upon the following factors in favour of an extension of time: (a) the gravity of the allegations (in essence, an allegation of forgery of land transfer documents and the coercion of an elderly mother for personal gain); (b) the reason for the delay which was, it was said, due to an understandable reluctance to bring proceedings against a sibling and to ventilate a bitter family dispute in open court; (c) the fact that, because the second of the communications was within the time limit and the intended plaintiff was entitled to proceed with regard to that allegedly defamatory communication as a matter of right, there would be an airing of the family dispute in open court whether or not the extension of time were granted in respect of the first communication; (d) the fact that the period of time from the expiry of the time limit was relatively short, namely three months; (e) the fact that the intended defendant had not suggested that any prejudice arose by reason of the failure to commence the proceedings within the one-year time limit; (f) that there was, it was said, a need to prevent a repetition of the alleged defamation(s); and (g) the fact that the intended defendant could have avoided the proceedings by giving an apology and an undertaking that there would be no repetition. Counsel on behalf of the intended defendant relied upon the following submissions in opposing the grant of an extension of time: (a) that the reason given by the intended plaintiff was inadequate, particularly having regard to the fact that he had engaged the services of a solicitor by the time his letter of December 2017 was written and therefore was clearly aware of the time limit; (b) that the intended plaintiff had behaved unreasonably in failing to engage with the intended defendant’s offer of mediation; (c) that qualified privilege was clearly a defence; (d) that there was no evidence from which a risk of repetition could be inferred, in circumstances where (the first) communication was by way of formal complaint to An Garda Síochána only; and (e) that the absence of asserted prejudice if the extension were granted should be considered neutral rather than a factor which favoured the other side.

Held by Ní Raifeartaigh J that, having had regard to all of the above matters, including the reason given by the plaintiff for the failure to bring the action (in respect of the first allegedly defamatory allegation) within the one-year period and the absence of any averment that there was evidence relevant to the matter no longer capable of being adduced by reason of the delay, together with the various respective prejudices and additional factors discussed, the interests of justice required the granting of the extension of time sought, and 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.

Ní Raifeartaigh J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 4th day of July, 2019

Nature of the case

1 This case comes before the Court by way of appeal against an order of the Circuit Court dated the 5th November, 2018, which granted the applicant/intended plaintiff, Mr. John O'Brien, an extension of time within which to bring a defamation claim against the respondent/intended defendant, Mr. Conor O'Brien. For ease of reference, I will refer to the intended plaintiff and intended defendant as the plaintiff and defendant respectively. The claim concerns two allegedly defamatory statements made by one brother (the defendant) against another (the plaintiff). The first of the two alleged defamatory statements was made in March 2017 (to An Garda Síochána) and the second in July 2017 (to a company called Dolmen Securities).

2 The plaintiff issued a notice of motion on the 28th June, 2018 seeking an order for an extension of time within which to bring a defamation action in respect of both the March and July 2017 communications. Section 11(2) of the Statute of Limitations Act, 1957 - as amended by s. 38 of the Defamation Act, 2009 - provides that the time limit for bringing defamation actions is one year, which may be extended by the Court up to two years after the making of the allegedly defamatory statement. The grounding affidavit exhibited a draft civil bill in respect of the intended defamation action. The procedure adopted was in accordance with that envisaged in obiter comments of two decisions of the Court ( Watson v. Campos [2016] IEHC 18 and Rooney v. Shell E&P Ireland Ltd [2017] IEHC 63), although the Court (Barton J.) more recently held that the appropriate procedure would be to issue the proceedings and seek an extension only if and after the defendant has raised the issue of the time-limit ( Quinn v Reserve Defence Forces [2018] IEHC 684, 30th November 2018). The latter judgment post-dated the notice of motion in the present case and I do not think it would be fair to criticise the plaintiff for adopting the procedure he did, and I will take the clock as having stopped running on the day of the issue of the notice of motion (June 2018). Given that the first allegedly defamatory communication was in March 2017, the one-year time limit for bringing a defamation claim had expired in March 2018 i.e. three months before the notice of motion issued; but had not expired regarding the second allegedly defamatory communication (communication date July 2017, expiry date July 2018). Accordingly, the plaintiff is entitled to bring his defamation claim in respect of the second communication complained of and the issue herein is whether or not he should be given an extension of time within which to bring or maintain a claim in respect of the first communication complained of.

3 The notice of motion seeking an extension of time was grounded upon an affidavit sworn by the plaintiff. An affidavit of reply was sworn by the defendant's solicitor, Peter Lennon of Ronan Daly Jermyn solicitors, in which he set out the defendant's position. The defendant himself did not swear any affidavit. It is possible to construct a rudimentary chronology relevant to the case from the affidavits and exhibits before the Court. I emphasise that the sequence of events set out below is of a provisional nature only, due to the fact that the case is at a preliminary stage at this point in time.

4 I heard the case on 23rd May, 2019. On the 20th June, 2019, I indicated briefly that I would be ruling in favour of the plaintiff's application for an extension of time and that I would deliver a written judgment on 4th July, 2019.

The relevant statutory provision

5 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”.’.

Background as set out in the affidavits

A family dispute in relation to the transfer of lands

6 The mother of both the plaintiff and the defendant, Mrs. O'Brien, owned certain lands at Clondalkin, County Dublin. Certain land transfers were made involving this land in the 1990s, and again in 2004. The plaintiff, Mr. John O'Brien, was the ultimate transferee and later sold the lands onwards for considerable value after...