Cogley v Radio Telefís Éireann

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 08 June 2005
• Neutral Citation: [2005] IEHC 180
• Date: 08 June 2005
• Court: High Court
• Docket Number: [2003 Nos. 1842 P & 1835 P]

COGLEY & ORS v RADIO TELEFIS EIREANN (RTE)

BETWEEN

DENISE COGLEY

PLAINTIFF

AND

RADIO TELIFIS EIREANN

DEFENDANT

BETWEEN

JOHN AHERNE GENEVIEVE AHERNE AND SOVEREIGN PROJECTS LIMITED

PLAINTIFFS

AND

RADIO TELIFIS EIREANN

DEFENDANT

[2005] IEHC 180

[No. 1842P/2005]

[No. 1835P/2005]

THE HIGH COURT

CONSTITUTIONAL LAW: Injunctions

Interlocutory injunction

Personal rights Privacy - Public interest - Use of hidden cameras - Balance of right to privacy and competing rights - Right to privacy of third parties - Kennedy v Ireland [1987] IR 587 and Douglas v Hello! Ltd [2001] QB 967 considered - Broadcasting Authority Act 1960 (No 10), s 18(1B) - Broadcasting Authority (Amendment) Act 1976 (No 37), s 3 - European Convention on Human Rights and Fundamental Freedoms - Constitution of Ireland, 1937 - Injunction restraining broadcast refused

Defamation - Prior restraint of publication or broadcast - Likelihood of success at trial - Requirement to show that applicant will clearly succeed at trial - Right to privacy - Trespass - Public interest - Use of hidden cameras -Distinction between privacy of information and means of obtaining information - Reynolds v Malocco [1999] 2 IR 203 followed - Injunction restraining broadcast refused

The plaintiff in the first proceedings was a director of nursing at the Leas Cross Nursing Home. The plaintiffs in the second proceedings were the owners and occupiers of Leas Cross Nursing Home. RTE intended to broadcast a programme on the subject of the standard of nursing home care generally and the management and operation of the Leas Cross Nursing Home in particular. Both plaintiffs sought interlocutory orders to restrain the broadcast of the programme and the applications were heard together. The plaintiff in first proceedings based her claim squarely on defamation. The plaintiffs in the second proceedings contended inter alia that a significant amount of the material had been obtained by the use of hidden cameras in breach of their right to privacy and was also unlawful as having been obtained by trespass.

Held by Clarke J. in refusing the applications for interlocutory injunctions restraining the broadcast but granting an order restraining RTE from engaging in any further trespass that it was not clear that the plaintiff in the first proceedings would ultimately succeed in her defamation action. It was not clear that a reasonable viewing of the programme would cause a viewer to conclude that the plaintiff in the first proceedings was at fault. While the plaintiffs in the second proceedings had a right to privacy, this right had to balanced against competing rights. RTE had shown that there were real, significant and weighty public interest issues involved.

Reporter: R.W.

REYNOLDS v MALOCCO 1999 2 IR 2031999 1 ILRM 289

SINCLAIR v GOGARTY 1937 IR 377

CAMPUS OIL LTD v MIN FOR INDUSTRY (NO 2) 1983 IR 88

BROADCASTING AUTHORITY (AMDT) ACT 1976 S3

BROADCASTING AUTHORITY ACT 1960

BROADCASTING AUTHORITY (AMDT) ACT 1976 S18(1)(b)

KENNEDY & ARNOLD v IRELAND 1987 IR 587

DOUGLAS & ORS v HELLO! LTD TLR 16.1.2001

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950

DUDGEON v UK 1981 4 EHRR 149

TV3 NETWORK SERVICES LTD v FAHY 1999 2 NZLR 129

1 Mr. Justice Clarke delivered 8th June, 2005.

2 Both of the above proceedings were commenced on Friday 27th May, 2005 and relate to what was, at that time, an intention on the part of RTE to broadcast a programme on Monday the 30th May concerning a nursing home at Leas Cross. The plaintiff in the first proceedings ("The Cogley Proceedings") is a Director of Nursing at the Leas Cross Nursing Home which is situated in Swords, Co. Dublin. She is a registered general nurse and holds a degree in Business Studies and Languages from Dublin City University. She has worked as a nurse since qualifying in 1992 apart from a break while she was completing her degree during which time she worked as an agency nurse. From 2003 until November 2004 she worked with Parexel Clinical Pharmacological Unit in Harrow in the United Kingdom, initially as a senior research nurse and, subsequent to a promotion as a Recruitment and Screening Manager. In the latter part of 2004 she decided to return to Ireland for personal reasons. She applied for and was appointed to the position of Assistant Director of Nursing at Leas Cross taking up duties on 8th November, 2004. She was promoted to the position of Director of Nursing when the existing holder of that office resigned. She took up her appointment as Director of Nursing in the latter part of March 2005. As it is material to the issues in the case it should be noted that Ms. Cogley was, therefore, a nurse in Leas Cross for less than seven months prior to the events which give rise to these proceedings and was Director of Nursing for approximately six weeks.

3 The plaintiffs in the second proceedings ("The Aherne Proceedings") are the owners and occupiers of the nursing home and carry on the business of a nursing and retirement home at the Leas Cross premises having established same in April 1998.

The Initial Applications

4 Having issued separate proceedings on the 27th May the plaintiffs in both proceedings applied ex parte to the court on that day. The plaintiff in the Cogley proceedings simply sought short service of a motion seeking interlocutory injunctions which short service was ordered to enable the motion to come before the court on the following Monday (the 30th May) in time to allow the interlocutory application to be heard prior to the time when the broadcast then intended by the defendant was due to go out (at approximately 9.30 on Monday evening). Nothing furthers turns on that application.

5 The plaintiffs in the Aherne proceedings however, sought an interim order which I declined. I did, however, direct short service of a motion for an interlocutory application which again came before the court on Monday the 30th in time to enable a decision to be made prior to the intended time of broadcast. As both applications related to the same intended programme they were heard together.

6 I should, however, explain more fully the reasons why I felt it inappropriate to grant an interim injunction in the Aherne proceedings. Later on in this judgment I will deal in more detail with the balancing of rights required where a party seeks to restrain the publication of material. In addition to the jurisprudence of the courts in this jurisdiction it is now also necessary to consider the position pursuant to the European Convention on Human Rights in relation to the grant of what are, in the jurisprudence of that court, referred to as prior restraint orders (which are orders which restrain in advance the broadcast or publication of material). However it is clear that there is an obligation on a court only to grant such orders after what is described as "careful scrutiny". Given that obligation it seems to me that a court should be reluctant to grant interim orders which would have the effect of restraining in advance, publication in circumstances where the intended publisher has not had an opportunity to be heard. For those reasons it seems to me that where it is at all possible the court should attempt to afford the defendant at least some opportunity to put before the court its case prior to making any form of restraint order. There will, of course, be cases where, for one reason or another, that is simply not possible. The time between the initial application to the court and the intended publication or broadcast may, in practice, be too short. In such circumstances the court may still have to consider granting an interim order but apart from the general considerations (which are dealt with in more detail later in the course of this judgment) which the court must keep in mind in granting any order of prior restraint this court should, in my view, in addition at an interim stage have regard to the question of whether the fact (if it be so) that there is not time to put the defendant on notice can, in any way, be attributed to a default or delay on the part of a plaintiff. Thus if a plaintiff delays in applying to the court in a manner which effectively precludes the court from ensuring that the defendant is given an opportunity to be heard prior to any order being made, that fact of itself must be taken into account by the court as a significant factor which would lean against the grant of an interim order. Furthermore any delay on the part of a plaintiff which, while not so severe as to preclude the court from affording the defendant an opportunity to be heard prior to the consideration of the making of an order, nonetheless places the defendant in a position where he may be prejudiced in the presentation of his case at a hearing designed to determine whether there should be prior restraint is also a factor that will have to be taken into account in appropriate cases. I should add that it does not seem to me, on the facts of this case, that either of the plaintiffs were guilty of any such delay in all the circumstances of the case.

7 The question of urgency also arose in the course of this hearing. It was contended by both plaintiffs that there was no urgency in the matter by virtue of the fact that the programme could be broadcast at some other time. It seems to me that in such circumstances the court must have regard to two different types of urgency. The first is the question of whether a short delay in a broadcast or publication may not be necessary to ensure that that proper scrutiny should be exercised at an interlocutory stage in determining whether a contested broadcast or publication should go ahead. No application for such a short delay was made in this case and it should also be emphasised that the court should not...