Dermot Desmond v Tom Doyle and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 17 December 2013
• Neutral Citation: [2013] IESC 59
• Date: 17 December 2013
• Court: Supreme Court

[2013] IESC 59

THE SUPREME COURT

Denham C.J.

Murray J.

McKechnie J.

[S.C.No. 168 of 2008]

[S.C. No. 169 of 2008]

Desmond v Doyle & Ors

Dermot Desmond

Plaintiff/Respondent

And

Tom Doyle

Defendant/Appellant

And

Dermot Desmond

Plaintiff/Respondent

And

Times Newspapers Ltd., Rory Godson and John Burns

Defendants/Appellants

PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287

COMCAST INTERNATIONAL HOLDINGS INC & ORS v MIN FOR PUBLIC ENTERPRISE & ORS UNREP GILLIGAN 13.6.2007 2007/10/1913 2007 IEHC 297

STEPHENS v PAUL FLYNN LTD 2008 4 IR 31 2008/59/12277 2008 IESC 4

ANGLO IRISH BEEF PROCESSORS LTD & DJS MEATS LTD v MONTGOMERY & ORS 2002 3 IR 510 2002/2/275

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269 2004 IESC 98

COMCAST INTERNATIONAL HOLDINGS INC & ORS v MIN FOR PUBLIC ENTERPRISE & ORS UNREP SUPREME 17.10.2012 2012/7/1702 2012 IESC 50

DESMOND v MGN LTD 2009 1 IR 737 2008/12/2410 2008 IESC 56

EWINS v INDEPENDENT NEWSPAPERS (IRL) LTD & PURCELL 2003 1 IR 583 2003/21/4763

CONSTITUTION ART 40.6.1.i

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

MARTIN v MOY CONTRACTORS LTD & ORS UNREP SUPREME 11.2.1999 1999/17/5117

SUN v OSSEOUS LTD 1992 1 IR 425 1991/10/2412

RSC O.122 r11

GROVIT v DOCTOR UNREP 30.10.1993 (INDEPENDENT 13.12.1993)

CLARK v MOLYNEAUX 1877 3 QBD 237

HYNES-O'SULLIVAN v O'DRISCOLL 1988 IR 436 1989 ILRM 349 1988/5/1301

DOWD v KERRY CO COUNCIL & GALVIN 1970 IR 27

HOGAN & ORS v JONES & ORS 1994 1 ILRM 512 1994/4/946

TOAL v DUIGNAN & ORS (NO 1) 1991 ILRM 135 1987/8/2248

TOAL v DUIGNAN & ORS (NO 2) 1991 ILRM 140 1990/8/2334

O DOMHNAILL v MERRICK 1984 IR 151 1985 ILRM 40 1984/5/1593

MANNING v BENSON & HEDGES LTD 2004 3 IR 556 2005 1 ILRM 190 2004 29 6876 2004 IEHC 316

PRACTICE AND PROCEDURE

Delay

Motion to dismiss for want of prosecution on basis of inordinate and inexcusable delay - Appeal - Matters not raised in High Court - Test to determine whether appropriate to dismiss - Balance of justice - Conduct of parties - Prejudice - Unilateral decision to defer proceedings - Added obligation in libel actions - Mitigation - Whether possibility of fair trial imperilled - Whether justice favoured continuation of proceedings or immediate termination with irreversible effect - Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 and Comcast International Holdings Inc & Ors v Minister for Public Enterprise & Ors; Persona Digital Telephony Ltd & Anor v Minister for Public Enterprise & Ors [2012] IESC 50 (Unrep, Supreme Court, 17/10/2012) approved - Stephens v Paul Flynn Ltd [2008] IESC 4, [2008] 4 IR 31; Anglo Irish Beef Processors Ltd v Montgomery [2002] 3 IR 510; Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290; Desmond v MGN Ltd [2008] IESC 56, [2009] 1 IR 737; Ewins v Independent Newspapers (Ireland) Ltd & Anor [2003] 1 IR 583; Grovit v Doctor & Ors (Unrep, Court of Appeal, Civil Division, Glidewell J, 28/10/1997); Clarke v Molyneaux (1877-78) LR 3 QBD 237; Hynes-O'Sullivan v O'Driscoll [1988] IR 436; Dowd v Kerry County Council & Anor [1970] IR 27 and Hogan & Ors v Jones & Ors [1994] 1 ILRM 512 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 122, r 11 - Constitution of Ireland 1937, Art 40.6.1 - European Convention on Human Rights 1950, Art 10 - Appeal dismissed (1998/4771P and 1998/5045P - SC - 17/12/2013) [2013] IESC 59

Desmond v Doyle; Desmond v Times Newspapers Ltd & ors

Facts: The proceedings related to litigation arising out of the Moriarty Tribunal. The applicants challenged the findings of the High Court on the issue of delay. It was alleged that there was real evidence of prejudice which had been overlooked. It was submitted that the finding that there was a failure to take any step in the proceedings for five years to warrant a dismissal of proceedings. The respondents argued inter alia that the appellants had acquiesced on delay. The Court considered whether it was accept the findings of the High Court on delay as inexcusable or whether justice favoured a continuation of the proceedings or their termination.

Held by the Supreme Court per McKechnie J. (Denham CJ, Murray J concurring) that the Court would uphold the findings of the trial judge and dismiss the appeal. The Court was not satisfied of the capacity of the defendants to meet the claims. It was not unfair on the defendants to ask them to defend these proceedings.

Background:

1 1. The plaintiff in both actions is a well-known and successful businessman, both in Ireland and abroad, and is widely credited as having been the inspiration behind the concept for the International Financial Services Centre in Dublin ("IFSC" or "the Centre"), the building of which commenced as far back as 1988. Mr Doyle, the defendant in the first action, does not and never has agreed with that understanding of Mr. Desmond's role in initiating the establishment of such a centre, and in a letter of February, 1998, claims that he himself first thought of the idea back in 1984, albeit with Shannon, Co. Clare as the location. Shortly after he had dispatched this letter, the defendants in the second set of proceedings published an article in the Irish edition of the Sunday Times which was essentially based on its contents. The plaintiff took objection to both letter and article, and sued for libel. After the pleadings were closed and after some subsequent correspondence had passed between the parties, nothing much, if anything, was done for several years to progress these actions. When eventually the plaintiff gave notification of his intention to press on, the defendants reacted by issuing separate motions to have such proceedings dismissed, for want of prosecution on the basis of inordinate and inexcusable delay. They were unsuccessful in the High Court and their appeal to this Court is now the subject matter of this judgment.

2 2. In 1997, by resolution of Dáil Éireann and Seanad Éireann, it was resolved to establish a Tribunal of Inquiry, to inquire urgently into the matters covered by its terms of reference and to report to the Clerk of the Dáil on its findings ("the Moriarty Tribunal" or "the Tribunal"). The essence of the inquiry related to alleged payments made to the late Mr. Haughey, a former Taoiseach and to Mr. Michael Lowry, T.D., both in active politics at the time. After its establishment, the Tribunal invited members of the public to furnish to it whatever relevant information they may have in this regard. In that context, Mr. Doyle sent the letter above referred to, which is reproduced in its main terms in the schedule to the statement of claim. It reads as follows:-

"The original idea for an International Services Centre in Ireland was proposed by Tom Doyle".

"Tom Doyle made a formal proposal to the Department of Finance in 1985."

"Dermot Desmond was given an option to purchase an office block at the eventual IFSC in Dublin at an attractive price on the basis that he initiated the idea. Dermot Desmond did not produce a report for the Department of Finance during Alan Duke's time in office."

"I can prove that I made a proposal to the Department for a similar centre in Shannon in 1985."

"It was not critical to the intellectual property involved that Shannon be used, and basically the same interpretation of double tax treaties with some enabling legislation has resulted in the IFSC in Dublin."

"I am concerned that in some way my idea and report was in some way leaked either intentionally or otherwise to a third Party who passed it on to Dermot Desmond who subsequently took credit for it and who appears to have benefited significantly from taking such credit."

"Mr. Doyle is concerned that the option given to Dermot Desmond may not have been bona fide and perhaps not for his own personal benefit."

3 3. Shortly after this communication, a copy of the letter was obtained by Mr. Burns, the third named defendant in the second set of proceedings, who at the time was a journalist with the Sunday Times, a newspaper published in this jurisdiction and owned by the first named defendant, Times Newspapers Ltd.. That newspaper, of which Mr. Godson was the then Editor, printed an article in its edition published on the 1 ^st March, 1998 under the heading: "Desmond was Not the Man Behind the IFSC Idea, Tribunal Told". The article is too lengthy for its reproduction here, and in any event, such is not required, it being sufficient to say that in essence it repeated what was stated in the letter and, either as background or as context, went on to say that: the official account up to now of the Centre's origin was that Mr. Desmond had conceived of the idea in 1986, and when the then Government declined its support for the project, he went to Mr. Haughey, whose Government, a year later, enacted legislation giving effect to the plan. In addition, it pointed out that the plaintiff had acknowledged having paid significant amounts of money to members of Mr. Haughey's family and, following his political retirement in 1992, to Mr. Haughey himself.

4 4. As I have said, two sets of proceedings were instituted as a result of the aforegoing, which for convenience I will henceforth refer to as the "Doyle" proceedings and the "Sunday Times" proceedings, respectively.

Timeline:

5 5. As with all applications of this nature the timeline of the most material events is of much importance; it runs in both proceedings as follows:

The Doyle Proceedings:

31 st October, 1997	Moriarty Tribunal commenced sitting;
February, 1998	Offending letter sent by Mr. Doyle to the Tribunal;
1 st March, 1998	Article in question published in the Sunday Times;
22 ndApril, 1998	Plenary Summons issued;
20 th May, 1998	Statement of Claim delivered;
29 ...