Evans and Renaissance Products Ltd and another v Carlyle

• Jurisdiction: Ireland
• Judge: Mr. Justice John Hedigan
• Judgment Date: 08 May 2008
• Neutral Citation: [2008] IEHC 143
• Docket Number: No. 5496P/2007
• Court: High Court
• Date: 08 May 2008

[2008] IEHC 143

THE HIGH COURT

No. 5496P/2007

Evans & Renaissance Products Ltd v Carlyle

BETWEEN

THOMAS EVANS, ROSEMARY EVANS, RENAISSANCE PRODUCTS LTD. AND RENAISSANCE HOUSE MANAGEMENT COMPANY LIMITED

PLAINTIFFS

AND

THOMAS CARLYLE

DEFENDANT

CAMPUS OIL LTD v MIN FOR INDUSTRY (NO 2) 1983 IR 88

COULSON v COULSON 1887 3 TLR 846

SINCLAIR v GOGARTY 1937 IR 377

COGLEY & ORS v RADIO TELEFIS EIREANN (RTE) 2005 4 IR 79 2005 2 ILRM 529 2005/11/2271

REYNOLDS v MALOCCO 1999 2 IR 203 1999 1 ILRM 289

BONNARD v PERRYMAN 1891 2 CH 269

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

CONSTITUTION ART 40.6.1

CONSTITUTION ART 40.3.2

CULLEN v STANLEY 1926 IR 73

INJUNCTION

Interlocutory

Prohibitory - Mandatory - Defamation - Prior restraint of continuing publication - Criteria to be applied - Likelihood of success at trial - Requirement to show that plaintiff will clearly succeed at trial - Whether fair issue to be tried - Whether damages adequate remedy - Balance of convenience - Interference with freedom of expression - Right to good name - Whether words complained of clearly libellous - Whether mandatory injunction should be granted - Campus Oil v Minister for Industry (No 2) [1983] IR 88 applied; Bonnard v Perryman [1891] 2 Ch 269, Cullen v Stanley [1926] IR 73, Sinclair v Gogarty [1937] IR 377 and Cogley v Radio Telefis Éireann [2005] 4 IR 79 considered - Injunction granted (2007/5496P - Hedigan J - 8/5/2008) [2008] IEHC 143

Evans v Carlyle

Facts: the plaintiff instituted proceedings claiming that the defendant had defamed him by painting comments on the gable end of his house which overlooked the plaintiff’s property. He sought and was granted an interim injunction restraining the defendant from adding to the comments already painted on the house. The plaintiff then sought an interlocutory injunction directing the defendant to remove the offending text from his house and further restraining him from continuing to publish similar text until the trial of the action.

Held by Mr Justice Hedigan in granting the plaintiff a mandatory order directing the defendant to remove the offending writing and restraining him from further publishing such texts

1. that in defamation cases, special rules applied to the grant of interlocutory inunctions and the court had to approach the application with the care and caution required where it was proposed to interfere with a person’s right to freedom of expression;

2. that the right of the plaintiff to vindicate his good name could not, save in exceptional circumstances, entitle him to prior restraint or to prohibit a continuing publication;

3. that where the defendant could satisfy the court that there was at least a reasonable chance of successfully defending the case, the court ought not to prohibit prior publication. However, that test was not as onerous where it involved a continuing rather than a prior publication.

Reporter: P.C.

Mr. Justice John Hedigan

1 The first and second named plaintiffs are directors of Renaissance House Management Company Limited which is the fourth named plaintiff herein and is the registered owner of the property known as Renaissance House, Church Street, Howth, Co. Dublin, formerly St. Mary's Church. They are also directors of the third named plaintiff. The premises has been converted into apartments and a beauty therapy and education centre and the third named plaintiff, of which the first and second named are also directors, conducts its business from a part thereof. The forecourt of the premises is used for parking to the benefit of the apartments, the plaintiffs and their customers.

2 The defendant holds himself out as the owner and controller of an adjoining property whose gable wall abuts directly onto this forecourt. Apparently the property is actually owned by a company known as Pasture Properties Limited which I am informed was dissolved on the 7^th January, 2000.

3 The parties are adjoining land holders and, as is common case, have a fractious history between themselves. This history involves bitter conflict centred upon a long running boundary dispute. On the 5^th February, 1999, in proceedings taken by the defendant against the first named plaintiff, his application for an injunction was refused. On the 8^th November, 2004, on the application of the fourth named plaintiff, the defendant was restrained from carrying out works or entering on the fourth named plaintiff's lands. The present dispute arises from the defendant's belief that the planning permission for the development of the plaintiffs' premises at St. Mary's Church was obtained through fraudulent means and, as he put it, is not a proper permission. In his affidavits he outlines very elaborately the planning history of the site as he sees it. In his analysis of events he is convinced he has a strong case to make to support his allegation of corruption in the planning process in relation to this property. He acknowledges the time for challenging the permission by way of judicial review or appeal is long expired as the same was granted in 1996. His actions following that and which have given rise to this application are born, he says, of his upset and frustration at being left without a legal remedy.

4 The plaintiffs herein strenuously deny any wrongdoing. The first named plaintiff argues the permission was obtained with the assistance of well established and well respected professional architects. He objects that the defendant's allegations are mere bald assertions unsupported by any evidence of fraud. He avers that the defendant was a competitor at auction when the premises of St. Mary's was bought by him. He maintains that the defendant is motivated by spleen and ill will. He further alleges that the defendant has harassed both him and his staff and has engaged in shouting verbal abuse and making nasty telephone calls to the plaintiff's architects. The first named plaintiff further alleges that the defendant has damaged borders and flower beds on the site in question.

5 At some time in 2007, apparently before June 9^th, the defendant herein commenced writing on the gable wall of his property which overlooks the forecourt of the plaintiffs' premises. This writing was added to throughout 2007 and by the commencement of these proceedings covered a large part of this gable wall. In its position, the gable wall enjoys a high level of visibility. As a result, replete with its current graffiti written thereon by the defendant, it has become a major talking point for locals and passers by.

6 The writing in essence accuses a broad range of persons of participating improperly in the obtaining of planning permission for the plaintiff's property. It is also drafted in a very personal and deliberately insulting way, in particular with reference to the first named plaintiff. One notable phrase among many is"Thomas Evans beauty queen writes bogus reports for dummy planning applications". In his oral submissions herein the defendant said that he referred to the first named plaintiff as "beauty queen" just to wind him up as he put it.

7 On the 21^st June, 2007, the first named plaintiff's solicitors herein on his instructions wrote to the defendant. This letter called upon him to remove this writing and to undertake not to write further material relating to the first named plaintiff. The defendant's response to this letter was to admit he was the one who had written the statements appearing on the wall, that he had a right to do so, that he would write more and also put this information on the internet. He maintained and he has continued to maintain that his intention was, as he put it, "to force these jokers into court". By this he means, as he has made clear in his affidavit and at the hearing of this application, that he will not remove the writing on the gable wall and that he wants to be brought to court where he will plead that all that he has written is true.

8 The first named plaintiff avers that when the graffiti first appeared his instinct was to ignore it. However, while it started as quite a small phenomenon, it gradually began to fill most of the gable wall. The first named plaintiff came to the conclusion that he should act and, as noted, instructed his solicitors in June, 2007. An application was madeex parte to the High Court on the 24^th July, 2007. Laffoy J. ordered that the defendant be restrained from:-

"…writing text defamatory of the plaintiffs on exterior walls of premises in the occupation and/or control of the defendant, his servants, agents or otherwise in the immediate vicinity of the plaintiff's place of business and/or residential premises let by the first and/or second plaintiffs as landlords at or in the vicinity of Renaissance House (formerly St. Mary's Parochial Hall, formerly St. Mary's Church) Church Street, Howth, Co. Dublin, for the purpose of wrongfully interfering with the plaintiffs in their conduct of his/her/their/its business as beauty product distributors, consultants, property managers and landlords of residential accommodation at Church Street, Howth, Co. Dublin."

9 The Court did not grant an order requiring the defendant to remove the text on the wall.

10 The Court gave leave to serve short notice of motion for the 27^th July, 2007. This notice of motion has been adjourned to various dates and finally came for hearing before me on the 2^nd April, 2008. The plaintiffs were represented by solicitor and counsel. The defendant represented himself, having served notice of change of solicitor on the 1^st October, 2007.

11 The plaintiffs herein have issued proceedings for,inter alia, defamation and have delivered a statement of claim dated the 20^th February, 2008, in which they seek:

12 (1) A permanent injunction to restrain the...