Egan v Fenlon

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 12 October 2016
• Neutral Citation: [2016] IEHC 566
• Date: 12 October 2016
• Court: High Court
• Docket Number: [2016/8887 P]

[2016] IEHC 566

THE HIGH COURT

O'Connor Tony J.

[2016/8887 P]

BETWEEN

WILLIAM J.P. EGAN

PLAINTIFF

AND

MICHAEL FENLON

DEFENDANT

Defamation – Interlocutory application – S. 33 of the Defamation Act 2009 – Wide ranging orders – Adequacy of damages

Facts: The plaintiff, by way of the interlocutory application, sought various specific reliefs to the effect of restraining the defendant to publish or circulate the alleged defamatory statement about the plaintiff's breach of the mediated agreement. The plaintiff contended that there was gross defamation of his professional reputation by the publication of relevant material. The plaintiff contended that the plaintiff's right to good name might not be cleared by an award of damages, if he was to be compensated in damages.

Mr. Justice Tony O'Connor refused to grant the reliefs sought by the plaintiff. The Court declined to determine the extent of the defendant's responsibility in the publication at the interlocutory stage. The Court held that whether the alleged defamatory statement was defamatory was not needed to be determined by the Court at the present stage. The Court held that the Court was not prepared to grant the wide reliefs sought by the plaintiff and that the plaintiff had not established the need for the wide ranging interlocutory orders sought. The Court observed that the adequacy of damages was the most important factor in determining whether to grant an interlocutory injunction.

JUDGMENT of Mr. Justice Tony O'Connor delivered on the 12th day of October, 2016

Introduction

1 The Court has a particular reason which will become apparent later in this judgment to set out the specific reliefs now sought by way of interlocutory application on behalf of the plaintiff:-

(i) 'An injunction restraining the defendant his servants or agents or any person acting in concert with him, or having knowledge of the making of this order, from uttering or publishing any words to the effect that the plaintiff had breached the terms of the mediated settlement of proceedings involving the National Association of Regional Game Councils (' NARGC') of 31st March, 2016;

(ii) An injunction restraining the defendant, his servants or agents or any person acting in concert with him, or having knowledge of the making of the order, from circulating, publishing or proposing resolution 6 as listed in the NARGC annual report or words to the like effect;

(iii) An injunction restraining the defendant, his servants or agents or any person having knowledge of the making of the order from publishing or circulating in any way whatever the annual report of the national association of regional game councils for so long as it contains the text of the said resolution 6.'

Dramatis personae

2 The NARGC is an unincorporated body made up of local gun clubs from parishes throughout the country. The plaintiff who has at least 33 years knowledge of the NARGC and its constitution explained on affidavit how those local gun clubs affiliate with the regional game councils on a county basis. The regional game councils constitute the membership of the NARGC. Two nominated delegates from each individual regional game council form 'the governing body' which in turn elects an executive committee of fifteen including officers to run the affairs of the NARGC when the governing body is not in session. The governing body and the executive committee have the ability to appoint sub-committees to deal with matters as fall within their jurisdictions. They may also delegate work to them.

3 The plaintiff (' Mr. Egan') has practised as a solicitor for over 35 years. He terminated his long standing retainer with the NARGC with effect from its 2015 annual general meeting (' AGM') held on 17th October, 2015.

4 There is no controversy between the parties that the defendant (' Mr. Fenlon') is the chairman of the NARGC. The plaintiff referred to the constitution of the NARGC when outlining how the defendant has overall responsibility for the day to day functioning of the association including the management of staff.

Chronological summary

31.03 2016 Following a confidential mediation process the plaintiff's professional fees and outlays including fees due to counsel for 22 cases were agreed to be discharged by the NARGC within 28 days. The mediated agreement included the following term which the parties agree refer to the plaintiff:-

'6: Cessation of any professional involvement with NARGC'.

June \ July, 2016 - Murphy J. in her judgment on Friday, 29th July, 2016 in proceedings between NARGC, Mr. Fenlon and three others as plaintiffs versus seven defendants from six regional game councils vacated interim ex parte orders granted by this Court to the claimants in those proceedings and refused the orders sought restraining the holding of an extraordinary general meeting (' EGM') of NARGC among other reliefs. The transcript of the judgment discloses the court's description of the NARGC as being ' a very unhappy organisation...' with the following excerpts as particularly noteworthy:-

'The members are concerned by the executive committee's handling of the affairs of the organisation...– the amount of their money being spent on multiple legal proceedings in which the association is embroiled...whether or not these concerns prove to be well founded they are there and members are entitled to express them'.

Ultimately, Murphy J. found that those claimants including the defendant in these proceedings could not establish the claim that those seven named defendants had acted unlawfully in convening an EGM of NARGC on Tuesday 28th June, 2016 for Saturday 2nd July, 2016 given the provisions of the NARGC's rules and constitution and particularly r. 2(j) thereof. The learned judge discharged the interim order made by the Court on Friday 1st July, 2016 upon the ex parte application of counsel for those five claimants which had prevented the holding of the EGM on the following day when refusing the other reliefs sought by the claimants.

The Law Society

5 By letter dated 21st July, 2016 with a NARCG address and signed by Mr. Fenlon as chairman, the Law Society was advised that Mr. Egan had agreed that he ' would not act for the association' going forward and that Mr. Egan had ' an intimate knowledge of the association's affairs'. The letter complained that:-

(i) Mr. Egan had failed to respond to the assertion made on behalf of the NARGC on 1st July, 2016 that he had a conflict of interest in representing a former employee of NARGC in a claim against the NARGC;

(ii) Mr. Egan acted unethically in taking instructions from the successful defendants in the application determined by Murphy J on 29th July, 2016.

6 The complaints and client relations committee of the Law Society by letter of 6th October, 2016 notified Mr. Egan that the committee was of the view that he did not have unique special knowledge in the proceedings in which Murphy J. gave judgment while pointing out that there may be situations in the future whereby there could be a potential conflict of interest. Mr. Fenlon averred at para. 18 of his replying affidavit of 10th October, 2016 that it was now for the executive committee to decide whether to appeal that decision.

These proceedings

7 Last Thursday evening (6th October, 2016) counsel for Mr. Egan on an ex parte basis outlined to this Court how the annual report for 2015-2016 of the NARGC included as an ordinary resolution proposed by the Wicklow regional council for consideration at the 47th AGM of the NARGC scheduled for Tullamore on Saturday 15th October, 2016 the following:-

'That because of the agreement reached at mediation with William Egan of William Egan and Associates Solicitors and his failure to honour that agreement {underlining inserted by the Court for ease of reference} the following shall apply:-

- No Associate Member, Regional Game Council or any Sub-Committee of the NARGC shall engage the legal services of William Egan and Associates in any dealings with the NARGC;

- If they do they shall immediately be referred by the National Executive to the Disciplinary Committee and if the complaint is upheld those who are the subject of the complaint shall cease to be members of the NARGC and their membership of the Compensation Fund shall not be renewed.

- All NARGC indemnities shall be null and void from the date William Egan and Associates were engaged.'

8 It was explained that the said annual report had been sent to the regional councils for distribution to their members and Mr. Egan was anxious to prevent further circulation of what he termed as the defamatory statement about his breach of the mediated agreement. Among the papers made available to the Court was the exchange of correspondence between Mr. Egan, the NARGC and the solicitors on record for Mr. Fenlon who also acted for the NARGC after Mr. Egan had terminated his retainer.

9 The Court directed that Mr. Fenlon be put on notice for last Friday morning in regard to the most pressing issue concerning the further circulation of the annual report with the impugned proposed resolution.

10 In accordance with the further order of this Court last Friday, the Notice of Motion seeking the interlocutory reliefs sought by Mr. Egan was made returnable for Tuesday 11th October, 2016 with directions for the delivery of legal submissions and replying affidavits to be exchanged and filed during the course of Monday 10th October, 2016.

11 Senior counsel for Mr. Fenlon undertook on behalf of Mr. Fenlon last Friday, without prejudice to any rights of the parties, to inform the regional councils of the existence of these proceedings and to request them not to circulate copies of the annual reports to their constituent gun clubs. The said communication which was sent asserted that Mr. Fenlon and I quote ' would be fully contesting these proceedings both in...