Cogley -v-Radio Telifis Eireann, [2005] IEHC 181 (2005)

Docket Number:2005 1842 P & 2005 1835 P
Judge:Clarke J.

Neutral Citation Number: [2005] IEHC 180THE HIGH COURT[2005 No. 1842P]BETWEENDENISE COGLEYPLAINTIFF ANDRADIO TELIFIS EIREANNDEFENDANT [2005 No. 1835P]BETWEENJOHN AHERNE GENEVIEVE AHERNE AND SOVEREIGN PROJECTS LIMITEDPLAINTIFFSANDRADIO TELIFIS EIREANNDEFENDANTJUDGMENT of Mr. Justice Clarke delivered 8th June, 2005.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.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 ApplicationsHaving 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.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.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.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 lightly interfere with an intended time of broadcast or publication without substantial reasons. In this case I do not believe that such a short delay would have been justified nor do I believe that there is any real likelihood that this judgment could have been altered had such a delay occurred. Nonetheless it should be noted that in an appropriate case it may be that the balance of justice would require a very short restraining order to enable proper analysis to be engaged in at the interlocutory stage.The sort of delay that is likely to be encountered prior to trial and subsequent to an interlocutory order is, however, an entirely different matter. The reality is that the broadcast of a programme some significant period after its intended original date amounts to a significant interference in both the freedom of expression of the broadcaster concerned, and, in cases where the issue arises, in the public interest in the timely dealing with the matters raised in the broadcast. In that sense it seems to me that the grant of an interlocutory injunction would give rise to a significant detriment to the defendants by imposing an appreciable delay in the time at which the material could be broadcast.The ProgrammeIt was made clear at the hearing, from the affidavit of Eddie Doyle, the Executive Producer concerned with the programme in question, that RTE intended to broadcast a current affairs programme in the "Prime Time Investigates" series on the subject of the standard of contemporary nursing home care in general and the management and operation of the Leas Cross Nursing Home in particular. The defendant ("RTE") in both proceedings contends that the programme involved the coverage of a number of areas of significant and legitimate public interest. In the course of his affidavit Mr. Doyle exhibited a copy of the programme intended to be broadcast and I was invited by counsel for the defendant, without objection from counsel for the plaintiffs in either proceedings, to view the programme. I did so. There can be little doubt but that the programme makes very serious allegations indeed about the manner in which the nursing home at Leas Cross was operated over a significant period of time. It is also clear that the programme can, on one view, be regarded as being critical of Ms. Cogley. However for reasons which I will explain more fully when dealing specifically with her case it may also be said that, on another view, the programme may be said to be more understanding of her position. It should also be noted that a significant amount of the footage included in the broadcast would appear to have been filmed secretly. It seems that an experienced care worker was engaged by RTE to seek and take up a job at Leas Cross. On the evidence before me at this stage it would appear that, after a period of approximately two weeks working at the Nursing Home, the person in question, in conjunction with the programme makers, decided that, by virtue of the seriousness of the situation, it was appropriate that he be equipped by RTE with a concealed camera. A significant amount of footage ensued some of which was included in the intended...

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