Foley v Sunday Newspapers Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 28 January 2005
• Neutral Citation: [2005] IEHC 14
• Court: High Court
• Docket Number: [2004 No. 19780P]
• Date: 28 January 2005

FOLEY v SUNDAY NEWSPAPERS LTD

BETWEEN

MARTIN FOLEY

PLAINTIFF

and

SUNDAY NEWSPAPERS LIMITED

RESPONDENT

[2005] IEHC 14

Record No.19780 P/2004

THE HIGH COURT

INJUNCTION

Interlocutory injunction

Interim interlocutory relief - Prohibitory injunction - Appropriate test - Balance of convenience - Special factors - Constitutional law - Right to life - Right to bodily integrity - Right to free speech - Freedom of the press - Whether publication to be restrained where risk to life - Burden of proof - Constitution of Ireland 1937, Article 40 - European Convention on Human Rights and Fundamental Freedoms, article 10 - Bonnard v Perryman [1891] 2 Ch. 269; Sinclair v Gogarty [1937] I.R. 377, Fraser v Evans [1969] 1 Q.B. 349 and Herbage Pressdram Ltd. [1984] 2 All E.R. 769and SP.U.C. v Grogan (No. 1) [1989] I.R. 765 followed - Relief refused

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

AMERICAN CYANAMID CO v ETHICON LTD 1975 AC 396 1975 2 WLR 316

CAMPUS OIL v MIN FOR INDUSTRY & ENERGY 1983 IR 88 1984 ILRM 45

BONNARD v PERRYMAN 1891 2 CH 269

HERBAGE v PRESSDRAM LTD 1984 2 ALL ER 769 1984 1 WLR 1160

GREENE v ASSOCIATED NEWSPAPERS LTD 2005 1 ALL ER 30 2005 3 WLR 281 TLR 10.11.2004

EUROPEAN CONVENTION HUMAN RIGHTS ART 40

SPUC v GROGAN 1989 IR 753 1990 ILRM 350 1990 1 CMLR 689

M v DRURY 1994 2 IR 8 1995 1 ILRM 108

VENABLES v NEWS GROUP NEWSPAPERS LTD 2001 1 WLR 1038 2001 FAM 430

EUROPEAN CONVENTION HUMAN RIGHTS ART 10(2)

KELLY v BRITISH BROADCATING CORPORATION 2001 FAM 59 2001 2 WLR 253

1 JUDGMENT of Mr. Justice Kelly delivered the 28th of January, 2005

THESE PROCEEDINGS

2 This action was commenced by the issue of a plenary summons on 16th December, 2004. On the same day a notice of motion was issued seeking interlocutory relief which is the subject of this judgment. That relief is as follows:-

"(1) An order by way of prohibitory interlocutory injunction restraining the defendant, it servants or agents, from publishing or causing to be published in any form or be broadcast in any sound or television broadcast or by means of any cable or satellite programme service or public computer network, any material relating to or concerning the plaintiff (whether referred to by name or by necessary implication) that;"

3 (a) Encourages, advocates, promotes or predicts, explicitly or

4 by necessary implication, an attempt to endanger the life and/or the health of the plaintiff;

5 (b) Suggests, explicitly or by necessary implication, that the plaintiff has acted or is acting as an informer to An Garda Síochána in respect of the activities of persons with criminal tendencies and/or persons engaged in drug dealing;

6 (c) Is intended to interfere with and/or is in reckless disregard of the plaintiff's right to life, privacy and bodily integrity pursuant to Article 40.3 of Bunreacht na hÉireann.

7 (2) Such further or other relief as to this honourable court shall seem just or appropriate.

8 (3) An order providing for the costs of and incidental to this application".

9 The notice of motion was grounded upon an affidavit sworn by James MacGuill who is the plaintiff's solicitor. In turn that affidavit was responded to by Colm McGinty. Two further affidavits were subsequently sworn by the same deponents and the motion for interlocutory relief was heard by me on 18th and 19th January, 2005.

THE PLAINTIFF

10 In the plenary summons the plaintiff is described as unemployed and residing at 114 Cashel Avenue, Crumlin, Dublin 12. In the affidavit grounding the application his solicitor describes him as "a citizen who has had a number of criminal convictions but who is not presently ( sic) serving any sentence". In the first replying affidavit the number of criminal convictions was put at in excess of 45, including convictions for crimes of violence and malicious damage. Neither the number nor the nature of those convictions recorded against the plaintiff is in dispute.

11 Over the last 10 years the plaintiff has been shot on three separate occasions. In December, 1995, he was shot in the arm and stomach. In February, 1996, he was shot in the back and the finger. He was again shot in the year 2000. He obtained judgment for IR£120,000.00 against a man called Charles Bowden in respect of the shooting in February, 1996. That sum was awarded by Kinlen J. on 15th November, 2000, but the judgment remains unsatisfied.

12 In the first replying affidavit at para. 5 the plaintiff is described as "a notorious and self professed crime lord and major drug dealer known as "the Viper"". It gives details of some of his criminal convictions over many years. These are not denied either by the plaintiff who chose not to swear any affidavit or on his behalf by his solicitor.

THE DEFENDENT

13 The defendant has its registered office in Terenure, Dublin and is the publisher of the Sunday World newspaper. The editor of that newspaper is Mr. Colm McGinty. The crime editor of that newspaper is Mr. Paul Williams. Mr. Williams has written about the activities of the plaintiff on numerous occasions, not merely in the newspaper, but in a book which he authored called "Crime Lords".

14 The first edition of that book was published in August, 2003 and contained a chapter devoted to the lifestyle and criminal activities of the plaintiff.

15 In October, 2003, the Sunday World newspaper produced a twelve page pullout containing extracts from that book.

16 The plaintiff was animadverted upon again in the newspaper's edition of 25th April, 2004 in an article entitled "Sinn Féin: The Big Lie".

17 On 5th December, 2004, the paper published an article by way of a serialisation of a further book written by Mr. Williams called "Crime Lords Update". It is that publication in the Sunday World which has given rise to these proceedings.

18 It is the stated policy of the newspaper to expose and report on the criminal underworld and its principal figures.

THE NATURE OF THESE PROCEEDINGS

19 The material published of and concerning the plaintiff by the defendant prior to the article of the 5th December, 2004, would, if untrue, be highly defamatory. But the plaintiff has never sued in defamation in respect of any article published of or concerning him by the defendant prior to 5th December, 2004, nor does he do so in respect of that publication either.

20 His solicitor has sworn that letters have been sent to the defendant concerning the publications prior to December, 2005, complaining of "unsubstantiated allegations that have linked the plaintiff, quite incorrectly and unfairly, to various criminal activities and enterprises, these allegations accordingly being grossly defamatory of him and his reputation". The explanation given for not taking action in respect of the allegations identified as "being grossly defamatory of him and his reputation" is that the plaintiff is "a citizen whose reputation and character is blemished and who for that reason is unlikely to have an effective remedy available to him in the law of defamation even when matters that are materially untrue and highly prejudicial are published about him". It is said on his behalf that he has no effective conventional legal remedy available to him concerning such publications.

21 In a further affidavit the plaintiff's solicitor alleges that he is instructed that "in countless respects the plaintiff challenges the accuracy of the content of the first edition of "Crime Lords" that relates to him". Again he gives by way of explanation for not suing in respect of such material the fact that the plaintiff has a reputation and character which is blemished.

22 No one has a right to a reputation which is unmerited. One can only suffer an injury to reputation if what is said is false. In defamation the falsity of the libel is presumed but justification is a complete defence. The plaintiff contends that even when matters materially untrue and highly prejudicial are published about him he is devoid of a remedy in the law of defamation, presumably because he does not have a reputation worthy of merit.

23 It is in these circumstances that he brings these proceedings which have as their basis not damage to the plaintiff's reputation but rather what is said to be an interference with his right to life and bodily integrity.

THE PUBLICATION OF 5th DECEMBER, 2004

24 In its issue of the 5th December, 2004, the Sunday World newspaper published a lengthy article running from pages 63 to 66 inclusive. It was headed "Crime Lords Update". It purported to set out what were described as "new exclusive extracts from Paul William's exposé of Irish crime".

25 On the first page of the article it is said that the publication of the book "Crime Lords" infuriated several criminals who subjected Mr. Williams and his family to what is described as an appalling campaign of intimidation. That campaign it is alleged led to several death threats, an acid attack and the planting of an elaborate hoax bomb at Mr. William's home. Mr. Williams and his family were evacuated from their home along with 150 of his neighbours in the early hours of a November morning. The article alleges that the gangster who led that campaign was the plaintiff whom it calls (and not for the first time) "the Viper". On pages 64 and 65 under the heading "How the Viper tried to silence me" there is an extensive article pertaining to the plaintiff alleging inter alia that he has engaged in intimidation of Mr. Williams. The article continues to its conclusion on page 66. The heading on that page is "Foley's a Dead Man Walking". The sub-heading is "Viper isn't Trusted by Other Gang Members".

26 The plaintiff's solicitor in his affidavit of 16th December, 2004, identifies a section of the article which is contained at page 66 as being the one...