Desmond v Doyle and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 14 March 2008
• Neutral Citation: [2008] IEHC 65
• Court: High Court
• Date: 14 March 2008

[2008] IEHC 65

THE HIGH COURT

No. 4771 P/1998

No. 5045 P/1998

Desmond v Doyle & Times Newspapers Ltd

BETWEEN/

DERMOT DESMOND

PLAINTIFF

AND

TOM DOYLE

DEFENDANT

AND

BETWEEN/

DERMOT DESMOND

PLAINTIFF

AND

TIMES NEWSPAPERS LIMITED, RORY GODSON AND JOHN BURNS

DEFENDANTS

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

CONCAST INTERNATIONAL HOLDINGS INC & ORS v MIN PUBLIC ENTERPRISE & ORS UNREP GILLIGAN 13.6.2007 2007 IEHC 297

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

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

KATEGROVE LTD (IN RECEIVERSHIP) & ORS v ANGLO IRISH BANK CORPORATION PLC & O'BRIEN UNREP CLARKE 5.7.2006 2006/31/6555 2006 IEHC 210

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

ROGERS v MICHELIN TYRE PLC & MICHELIN PENSIONS TRUST (NO 2) LTD UNREP CLARKE 28.06.2005 2005 IEHC 294 2005/53/11045

WOLFE v WOLFE & ORS UNREP FINLAY-GEOGHEGAN 15.3.2006 2006 /9/12482 2006 IEHC 106

ANGLO IRISH BEEF PROCESSORS LTD & DJS MEATS LTD MONTGOMERY & ORS 2002 3 IR 510

MANNING v BENSON & HEDGES LTD & GARLAND v JOHN PLAYER & SONS LTD & MCNEVIN v P J CARROLL & CO LTD 2004 3 IR 556 2005 1 ILRM 190

O DOMHNAILL v MERRICK 1984 IR 151

TOAL v DUIGNAN 1991 ILRM 135

TOAL v DUIGNAN (NO 2) 1991 ILRM 140

RAINSFORD v LIMERICK CORPORATION 1995 2 ILRM 561 1981/7/1121

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

PRACTICE AND PROCEDURE

Strike out proceedings

Want of prosecution - Delay - Whether inordinate delay - Whether delay inexcusable - Advice from counsel to wait until report of tribunal - Whether course adopted justified - Balance of justice - Inherent jurisdiction of court - Rainsford v Limerick Corporation [1995] 2 ILRM 561, Gilroy v Flynn [2005] 1 ILRM 290, Manning v Benson & Hedges [2004] 3 IR 556, O Domhnaill v Merrick [1984] IR 151, Toal v Duignan (No 1) [1991] ILRM 135, Toal v Duignan (No 2) [1991] ILRM 140, Anglo Irish Beef Processors v Montgomery [2002] 3 IR 510 and Primor plc v Stokes Kennedy Crowley [1996] 2 1R 459 applied; Kategrove Ltd v Anglo Irish Bank Corp [2006] IEHC 210 (Unrep, Clarke J, 5/7/2006), Rodgers v Michelin Tyre [2005] IEHC 294 (Unrep, Clarke J, 29/6/2005) Wolfe v Wolfe [2006] IEHC 106 (Unrep, Finlay Geoghegan J, 15/3/2006), Comcast International Holdings Inc v Minister for Public Enterprise [2007] IEHC 297 (Unrep, Gilligan J, 13/6/2007) and Stephens v Paul Flynn Limited [2005] IEHC 148 (Unrep, Clarke J, 29/4/2005) followed; Ewins v Independent Newspapers (Ireland) Ltd [2003] 1 IR 583 distinguished - Claim dismissed with conditions (1998/4771P & 5045P - MacMenamin J - 14/3/2008) [2008] IEHC 65

Desmond v Doyle

1 Mr. Justice John MacMenamin dated the 14th day of March. 2008.

2 1. This is an application by the defendants in both proceedings to strike out these proceedings for want of prosecution. On 1 ^st March, 1998 the Sunday Times newspaper published an article under the headline:

"Desmond was not the man behind IFSC idea, Tribunal told"

3 This article referred to the plaintiff in these proceedings, the well-known businessman, Dermot Desmond. Mr. Desmond contends that the article contained material concerning himself, suggesting that he was not the original author of the idea of the Irish Financial Services Centre and that the defendant in the first set of proceedings had previously proposed a similar idea (albeit located in Shannon) in 1985, prior to the return of Mr. Haughey to office in 1987.

4 2. In the proceedings against Times Newspapers ('the Times proceedings'), the plaintiff submits that the words by inference or innuendo might be understood to mean that he had wrongly taken credit for the idea of the Financial Services Centre; that in fact he had obtained the idea for the Centre through a leak in the Department of Finance; that other persons were excluded by himself in collusion with others from acquiring a block in the Centre and that as a consequence he is to be considered a corrupt or dishonest person.

5 3. In the first set of proceedings, the defendant, Tom Doyle is sued. He is represented by the same solicitor and counsel. It is alleged that words to the same effect were contained in a letter sent to the Moriarty Tribunal of Inquiry; were also sent or given to John Burns, a journalist working with the Sunday Times, and as a consequence were published in the edition referred to earlier of which the second defendant was then editor.

6 4. The proceedings differ in some respects. In the first, (the Doyle proceedings), it was alleged the material in question was published by Mr. Doyle maliciously. Consequently, in the Reply it is alleged that he is not entitled to rely upon qualified privilege. One issue in these proceedings, therefore, may appertain to the defendant's state of mind at the time of alleged publication.

7 5. It is to be noted that in the defences, a number of issues are outlined which, it is contended by the defendants, would be sufficient to permit them to be relied upon in mitigation of damages. These refer to alleged adverse findings by the Inspector appointed to investigate transactions which led to the sale of the former Johnston Mooney & O'Brien site to Telecom Éireann; certain adverse findings allegedly made by this Inspector and a plea that the plaintiff wrongfully enriched himself as a result of these transactions.

8 6. A further issue relied upon by the defendants, and said to be in mitigation of the claim, is the contention that the plaintiff had, allegedly by his own admission, made substantial advances and payments to the children of Mr. Haughey since 1987 and had made unspecified payments to Mr. Haughey himself in and after 1994. Further matter in the defence, stated to be in mitigation of damages, is an assertion to the effect that the plaintiff had sought to dissuade Mr. Ben Dunne from giving evidence to the Tribunal of Inquiry (Dunne's payments). Other pleas under article 10 of the European Convention on Human Rights are immaterial to this application.

Chronology

9 The following relevant dates are identified by the defendant in the Doyle proceedings:

February, 1998	Alleged publication of impugned words by the defendant
22 nd	April, 1998 Proceedings commenced
12 th May, 1998	Appearance entered
20 th May, 1998	Statement of claim delivered
29 th May, 1998	Defendants seek further particulars of claim
21 st July, 1998	Replies to particulars delivered
14 th December, 1998	Defence filed
7 th April, 1999	Reply

6 th August, 1999	Notice of change of solicitor (defendants)
12 th December, 2005	Notice of intention to proceed served by the plaintiff
2 nd July, 2007	Motion for discovery issued by the plaintiff
24 th October, 2007	Motion to dismiss for want of prosecution issued by the defendants.

10 7. While the dates in the second set of proceedings against Times Newspapers vary slightly, such distinction is immaterial. The critical point is the elapse of time after the steps taken in 1999.

11 8. By letter dated 6 ^th September, 2000, Messrs. Beauchamps Solicitors wrote to Donal T. McAuliffe & Company, solicitors for the plaintiff, referring to the amendment in the Rules of the Superior Courts relating to discovery made in or about that time, and noting that it might be necessary to agree specific categories of discovery. This was replied to in a letter of 10 ^th October, 2000 stating that no categories of discovery were required by the plaintiff. However, no timeframe for the completion of discovery was agreed at that time. The defendants state that nothing further was heard from the plaintiffs solicitors until a notice of intention to proceed was delivered under cover of a letter dated 16 ^th December, 2005, some five years later, followed by a letter of 25 ^th August, 2006, actually seeking specific categories of discovery. This was contrary to the agreed format for discovery set out in the earlier letter of 10 ^th October, 2000. A further request was then made by letter of 21 ^st September, 2006, followed by reminder letters. It was submitted that these are indicative of the plaintiff's belated attempts to reactivate these proceedings.

12 9. On 25 ^th August, 2006 the plaintiffs solicitors, McAuliffe & Company, wrote to the Minister for Finance seeking third party discovery of documents from the Minister. The defendants became aware of this through contact made by the Chief State Solicitor's office (on behalf of the Minister) to Messrs. Beauchamps.

13 10. Ms. Clare Callinan, (solicitor and partner in Messrs. Beauchamps) in the course of an affidavit sworn on behalf of Times Newspapers states that nothing further was heard from the Chief State Solicitor or from the plaintiff's solicitors in relation to the request for discovery revised in the manner described.

14 11. The defendants contend that the steps taken in 2006 were a matter of concern as they had concluded that the proceedings were long since dormant. They add that from the date of a further reminder letter of 16 ^th December, 2006 relating to discovery, until the service of a notice of motion for discovery referred to in the chronology earlier, nothing further was heard. They contend there has been inordinate and inexcusable delay in the prosecution of the proceedings and there has been prejudice deriving from the natural dimming of memory. The defendants also express further concern in that they made efforts in obtaining documentation from the Department of Enterprise, Trade and Employment. It is believed they may no longer be in the possession of that Department, although previously having been in existence in the period 1984 and 1985, when it is said, Mr Doyle discussed a project of a financial services...