Desmond -v- MGN Limited, [2008] IESC 56 (2008)

Docket Number:317/05
Party Name:Desmond, MGN Limited
Judge:Kearns J.

THE SUPREME COURTGeoghegan J.Kearns J.Macken J.[S.C. No. 371 of 2005]BETWEEN DERMOT DESMOND PLAINTIFF/RESPONDENTANDM.G.N. LIMITEDDEFENDANT/APPELLANTJUDGMENT of Mr. Justice Kearns delivered the 15th day of October, 2008 This is an appeal against the refusal of the High Court (Hanna J.) on 11th July, 2005 to dismiss the plaintiff's claim for want of prosecution either pursuant to Order 27 the Rules of the Superior Courts or pursuant to the inherent jurisdiction of the court.BACKGROUNDOn 8th January, 1998 the defendant's newspaper, The Irish Mirror, published an article under the heading "Tycoon Desmond 'picked up tab for Charlie'" which said article comprised the Irish Mirror's presentation of a lengthy article concerning Charles Haughey's finances which was published on that date by Magill Magazine.The article published in the Irish Mirror on 8th January, 1998 commences as follows:-"Millionaire financier Dermot Desmond helped fund Charles Haughey's champagne lifestyle, it was claimed last night.The top businessman shelled out several sums of money - including one six figure amount, after Haughey left office in 1992, according to a magazine published today. The cash was paid to offset the shamed former premier's extravagant household and living expenses, sources claim.Current affairs magazine, Mcgill (sic) also claimed Mr. Desmond sought donations for Fianna Fail in the late 1980's while Mr. Haughey was still head of government."The article went on to state that:-"The accusations are now likely to be taken up by the new probe into Mr. Haughey's finances …"Express references were then made to the Moriarty Tribunal.The plaintiff issued a statement on 8th January, 1998 in response to the Magill article. On the following day, 9th January, 1998, the defendant followed up with a further front page article in the Irish Mirror, under the headline "I did give cash to Charlie". This article noted on page 2 that the Moriarty Tribunal was "taking a detailed look at the 71 year old statesman's financial affairs" (being a reference to Charles Haughey).The plaintiff's solicitors wrote to the defendant on 28th January, 1998 seeking an unqualified apology and damages on the basis that the contents of the two articles were defamatory of him. A follow-up letter was sent on 17th February, 1998 and a further letter was sent on 22nd March, 1998 to which a response was sent by the defendant on 13th March, 1998.The plaintiff instituted proceedings by way of plenary summons on 12th May, 1998. Thereafter a statement of claim was delivered on 25th June, 1998. Following two motions for judgment in default of defence, the defendant delivered a defence on 1st February, 1999. The defence as delivered pleaded, inter alia, no libel, justification and fair comment.No reply having been delivered within fourteen days of the delivery of the defence, the pleadings were thus deemed to be closed in February, 1999.Thereafter nothing further occurred until a notice of intention to proceed was served on behalf of the plaintiff in February, 2005. This initiative to reactivate proceedings which had been dormant for six years prompted the present application brought by the defendant on 25th May, 2005 to dismiss the plaintiff's claim for want of prosecution.In the course of the appeal before this Court, Mr. Bill Shipsey, Senior Counsel for the plaintiff, candidly admitted that a decision was taken by his client to "park" the proceedings to await the outcome of the Moriarty Tribunal's investigations into the matters which were covered by the articles in suit. He said that the plaintiff took this decision following legal advice. Mr Shipsey submitted that the articles contained a series of allegations which were to be the subject of enquiry by the Moriarty Tribunal and that it would clearly have been of assistance to the plaintiff to have the allegations "aired in evidence" in the Tribunal's proceedings and to be the subject of a report. Such findings and such evidence as might be given would be potentially highly relevant material for the purposes of the preparation and conduct of the libel proceedings. Ultimately, however, due to the protracted nature of the hearings in the Moriarty Tribunal, the plaintiff took the view in February, 2005 that he should re-activate his defamation proceedings. It was acknowledged on the part of the plaintiff that the defendant had not been notified of the decision to "park" the defamation proceedings but it was contended that as the defendant was on full notice of the case which the plaintiff sought to make it had ample opportunity to marshal and preserve any evidence or other material in support of its defence.Mr. Shipsey submitted that in exercising his discretion to refuse the relief sought, Hanna J. had acted within reasonable parameters for the exercise of that discretion. Once this Court was satisfied that the High Court judge had so acted, he submitted that it should not intervene to interfere with that decision. In this regard Mr. Shipsey placed reliance upon the decisions of this Court given in Martin v. Moy Contractors Limited (Unreported, Supreme Court, 11th February, 1999) and Stevens v. Paul Flynn Limited [2008] I.E.S.C. 4.HIGH COURT DECISIONIn the course of an ex tempore judgment in the High Court, Hanna J. found that there had been inordinate delay in this case. He did, however, find the delay was excusable and stated as follows:- "I am satisfied that there is just about sufficient excuse in that it was clear in 1998 that the Tribunal known as the Moriarty Tribunal was about to begin and in my view it was understandably prudent advice to give to the plaintiff that he stay his hand until evidence dealing with allegations was formally dealt with before the Tribunal. It is not unfair to take account of the fact there was considerable delay caused to the Moriarty Tribunal by litigation and whilst no criticism attaches to the Moriarty Tribunal, it would have been difficult if not impossible to predict that matters would take the course that they did in relation to the length of the investigation. So it is not surprising that matters lay dormant for a period of years.Now there did come a point where the balance had to be struck between waiting for the end of the Moriarty Tribunal and proceeding to vindicate the plaintiff's good name. It was this step (i.e. service of notice of intention to proceed) that inspired the defendant into action.I began by referring to the words of O'Dalaigh C.J. in Dowd v. Kerry County Council [1970] I.R. 27. Of course, the primary onus rests on the plaintiff in pursuing his or her proceedings, and more particularly so in defamation cases where any waiting around may be prejudicial. There is an onus to proceed with speed. But it is not all one way. If there was any...

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