Gilchrist v Sunday Newspapers Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Finlay Geoghegan |
| Judgment Date | 21 June 2017 |
| Neutral Citation | [2017] IECA 190 |
| Docket Number | Record No.:2014/4861P Court of Appeal No. 2016/161 Record No.:2014/4862P Court of Appeal No. 2016/162,[C.A. Nos. 161 & 162 of 2016] |
| Court | Court of Appeal (Ireland) |
| Date | 21 June 2017 |
And
And
[2017] IECA 190
Finlay Geoghegan J.
Finlay Geoghegan J.
Peart J.
Irvine J.
Record No.:2014/4861P
Court of Appeal No. 2016/161
Record No.:2014/4862P
Court of Appeal No. 2016/162
THE COURT OF APPEAL
Defamation – Damages – Abuse of process – Respondents seeking damages for defamation – Whether respondents’ claims should be struck out as an abuse of process
Facts: The respondents, Mr Gilchrist and Ms Rogers, by separate proceedings, commenced proceedings against the appellants, Sunday Newspapers Ltd, its editor, Mr McGinty, and Ms Tallant, a journalist employed by Sunday Newspapers. They claimed damages for defamation arising out of statements allegedly published by the third appellant (whilst carrying out her employment duties for the first appellant) on 28th March, 2014 to Mr O’Brien, a retired Detective Chief Superintendent. Second, they claimed damages for defamation in respect of statements contained in a newspaper article published by the first appellant in the Sunday World on 30th March, 2014. There was a further claim for damages for defamation in relation to further online publication in respect of the statements in the said article. The appellants sought to persuade the Court of Appeal that it should follow the approach of the English courts and strike out claims for damages for defamation as an abuse of process where the probable benefit to the plaintiffs, if successful, is minimal and disproportionate to the costs of the proceedings and use of court time. Particular reliance was placed on the judgment of the English Court of Appeal in Jameel (Yousef) v Dow Jones & Co. Inc. [2005] QB 946 and explanation therein of the English Courts’ approach to striking out libel claims as being an abuse of process.
Held by Finlay Geoghegan J that the trial judge was correct in deciding that the approach of the English courts, as explained in Jameel, to striking out a defamation claim as an abuse of process where the potential benefit to a plaintiff is disproportionate to the probable costs and use of court resources is not a basis upon which the Irish courts will exercise an inherent jurisdiction to strike out proceedings as an abuse of process. Finlay Geoghegan J held that it was not an abuse of process on the facts for the respondents to pursue the claims pleaded in relation to the publications on 28th March 2014 together with the other claims in the proceedings.
Finlay Geoghegan J held that the appeals should be dismissed.
Appeal dismissed.
These appeals concern the jurisdiction of the Court to strike out part of a plaintiff's claim for defamation pursuant to its inherent jurisdiction upon the grounds that the pursuit of such a claim is an abuse of process. In particular the appellants seek to persuade the Court that it should follow the approach of the English courts and strike out claims for damages for defamation as an abuse of process where the probable benefit to the plaintiffs, if successful, is minimal and disproportionate to the costs of the proceedings and use of court time. Particular reliance is placed on the judgment of the English Court of Appeal in Jameel (Yousef) v. Dow Jones & Co. Inc. [2005] Q.B. 946 and explanation therein of the English Courts' approach to striking out libel claims as being an abuse of process.
These appeals were heard at the same time as two appeals in relation to applications pursuant to s.14 of the Defamation Act, 2009 in 2013 defamation proceedings brought by the same plaintiffs against the same defendants in respect of which a separate judgment is being delivered by the Court today.
For the purposes of these appeals it is sufficient to state that the plaintiff Mr. Gilchrist is a former member of An Garda Síochána who had attained the rank of Detective Inspector and was engaged by the force as an operative in the force's witness protection programme. He retired from the force in 2008 with a certificate of exemplary service. The plaintiff Ms. Rogers is a psychotherapist who resides in England and provided professional services, as a psychotherapist to An Garda Síochána and in particular the witness protection programme. The plaintiffs are now married to each other.
The proceedings in which these appeals occur were commenced in May, 2014. Each plenary summons claims damages for defamation in respect of two sets of statements. First, statements allegedly published by the third named defendant (whilst carrying out her employment duties for the first defendant) on 28th March, 2014 to Mr. John O'Brien, a retired Detective Chief Superintendent. Second, damages for defamation in respect of statements contained in a newspaper article published by the first named defendant in the Sunday World on 30th March, 2014. There is a further claim for damages for defamation in relation to further online publication in respect of the statements in the said article.
Following an exchange of pleadings the defendants brought a motion in each proceeding in the High Court seeking:
1. An order pursuant to the inherent jurisdiction of the Court striking out the paragraphs in each of the plaintiffs' statements of claim relating to the statements published to Mr. O'Brien on 28th March, 2014 on the grounds that the pursuit of the claims in those paragraphs amounts to an abuse of process.
2. Further or in the alternative, an order pursuant to the provisions of O. 19, r. 27 of the Rules of the Superior Courts striking out the same paragraphs in each statement of claim on the grounds that the said paragraphs contain pleas which are unnecessary.
The two motions were heard in the High Court by MacEochaidh J. at the same time as the two motions in the 2013 proceedings seeking orders pursuant to s. 14 of the Defamation Act, 2009.
In a short ex tempore judgment delivered on 15th March, 2016, MacEochaidh J. dismissed the application to strike out the claims in respect of the publication on 28th March, 2014. His decision was that the pursuit of those claims in the proceedings was not an abuse of process. It is not clear from the judgment whether the application pursuant to O. 19, r. 27 was pursued in the High Court. In any event it is not an issue relied upon in the notice of appeal and therefore does not require to be considered on the appeal.
The trial judge dismissed the applications essentially for two reasons. Firstly, having set out briefly his understanding of the abuse of process jurisdiction explained in Jameel he stated ‘I am not of the view that the Jameel authority is good law in Ireland’. Notwithstanding that view he continued to consider, if he was wrong in that view, whether the defendants had discharged the burden of persuading the Court in accordance with the approach in Jameel that the pleas in question should be struck out and concluded that they had not done so. In the course of doing so he stated:-
‘I take the strong view that if a person has been defamed twice they're entitled to litigate both occasions of defamation and even if they are very, very similar, and even if one of the occasions was to one person only, they are entitled to their day in Court in respect of that matter.’
The appellants in their grounds of appeal and submissions contend that the High Court judge erred in refusing to strike out the relevant paragraphs in the statements of claim as an abuse of process principally by reference to the line of authority in Jameel. They also rely upon the judgment in McSorley v. O'Mahony (Unreported, High Court, Costello P., 6th November, 1996) in support of following the Jameel approach in this jurisdiction. They seek an order from this Court striking out the relevant paragraphs in each statement of claim ‘on the grounds that the inclusion of the said paragraphs amounts to an abuse of process.’ They do so in a context where they make no objection to the continuation of the remainder of the claims in relation to the article published in the Sunday World and on the internet.
The parties informed the Court at the hearing that there is no written judgment in this jurisdiction on what they term the ‘ Jameel point’.
The claims brought by the plaintiffs are for damages for the alleged commission of torts of defamation as now defined in s. 6 of the Defamation Act 2009. Section 6(2), (4) and (5) provide:
‘(2) The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and ‘defamation’ shall be construed accordingly.
…
(4) There shall be no publication for the purposes of the tort of defamation if the defamatory statement concerned is published to the person to whom it relates and to a person other than the person to whom it relates in circumstances where—
(a) it was not intended that the statement would be published to the second-mentioned person, and
(b) it was not reasonably foreseeable that publication of the statement to the first-mentioned person would result in its being published to the second-mentioned person.
(5) The tort of defamation is actionable without proof of special damage.’
It is not in dispute that each of the plaintiffs has pleaded in the relevant paragraphs in the statements of claim the making of allegedly defamatory statements by the third defendant to Mr. O'Brien on 28th March, 2014. The defences admit the making of the statements and plead (1) that the words complained of were true...
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