Gormanstown Equestrian Centre Ltd v Anglo Hush Bank Corporation Plc
| Jurisdiction | Ireland |
| Judge | McGuinness |
| Judgment Date | 14 July 1994 |
| Neutral Citation | 1999 WJSC-CC 3275 |
| Docket Number | Record No. 12718/92 |
| Court | Circuit Court |
| Date | 14 July 1994 |
1999 WJSC-CC 3275
THE CIRCUIT COURT
BETWEEN:
and
Citations:
OFFICIAL SECRETS ACT 1963
R V HORNE (1777) 2 COWP 680
JONES V SKELTON 1963 1 WLR 1371
GATLEY ON LIBEL & SLANDER 7ED PARA 97
DEFAMATION ACT 1961 S19
GATLEY ON LIBEL & SLANDER 7ED PARA 544
WILLIAMSON V FREER 1874 LR 9 CP 393
SIM V STRETCH (1936) 52 TLR 669
MCMAHON & BINCHY IRISH LAW OF TORTS 2ED 610
EDMONDSON V BIRCH LTD 1907 1 KB 371
CAMPBELL V IRISH PRESS (1955) 90 ILTR 109
GATLEY ON LIBEL & SLANDER 7ED PARA 1041
MCMAHON & BINCHY IRISH LAW OF TORTS 2ED 639–640
MCDONALD IRISH LAW OF DEFAMATION 98–99
IRISH PEOPLES ASSURANCE V CITY OF DUBLIN ASSURANCE 1929 IR 25
DUNLOP PNEUMATIC TYRE CO LTD V NEW GARAGE & MOTOR CO LTD 1915 AC 79
IRISH TELEPHONE RENTALS LTD V IRISH CIVIL SERVICE BUILDING SOCIETY LTD 1991 ILRM 880
CIVIL LIABILITY ACT 1961 S36(1)
GATLEY ON LIBEL & SLANDER 7ED PARA 885
GATLEY ON LIBEL & SLANDER 7ED PARA 225
Words & Phrases:
CEF
Subject Headings:
*
In these proceedings the Plaintiff company seeks damages for defamation and for breach of confidentiality arising out of a Telecom Eireann Telemessage was as follows:-
“Please contact Trish Worthington in Anglo Irish Bank on 760141, ext 2123 urgently regarding arrears on account reference number 7169469.”
The Plaintiff argues that this message carried the clear meaning that the company was in severe financial difficulties and unable to meet its commitments and that the sending of such a message by Telemessage was both a breach of confidentiality (as owed by a bank to its customer) and a defamatory publication.
In its Defence the Defendant bank denies the confidential relationship and duty of confidentiality and in respect of the alleged defamation pleads justification and absolute and/or qualified privilege. It also pleads the Official Secrets Act in connection with the transmission of the Telemessage. There is also a counterclaim in respect of payments alleged to be due and owing by the Plaintiff to the Defendant on foot of a Lease Agreement.
The factual background as outlined in the evidence given before me is as follows. The Plaintiff company runs an equestrian centre at Knocknagin Road, Balbriggan, Co. Fingal. Its registered office is at 235 Clontarf Road, Dublin. The centre includes both a riding school and provision for livery for horses and general equestrian business. The Managing Director of the company is Ms. Eilis Nichol and the Company Secretary is her father, Mr. Brendan Nichol. The company wished to purchase a mobile home at a cost of £10,000, in which the Managing Director was to live. To this end the company entered into a Lease Agreement dated 31st October 1990 with the Defendant bank by which the bank provided finance for the purchase and the Plaintiff undertook to make sixty monthly repayments of £217.30 plus VAT. The agreement at Clause 11 contained provision for termination of the agreement in the event of failure to pay installments and in a number of other set circumstances. The other provisions of the agreement were normal and unremarkable. The monthly payments were to be made by direct debit from the Plaintiff company's bank which was the Bank of Ireland, Marino Mart, Fairview. The first payment was to be made in November 1990.
A computer-generated record of the Plaintiff's account with the Defendant bank in regard to these monthly payments was produced in evidence. From this it is clear that the account did not proceed completely smoothly. On several occasions the direct debit was returned as unpaid, although in general it was paid when re-presented to the Plaintiff's bank a short time later. It seems also that for a period during 1992 by arrangement with the Defendant the company made payments in arrear by cheque rather than by the direct debit system. The direct debit system then recommenced.
Mr. Eugene O'Donnell, credit controller of the Defendant bank, said in evidence that letters would have been written to the Plaintiff company over a period concerning arrears, and that he had made arrangements concerning the cheque payments with Mr. Brendan Nichol, the company secretary. Mr. Nichol was not called in evidence by the Plaintiff to confirm or deny this. There appears to be no record of the sending of letters to the company since such letters, the court was informed, are very numerous and are automatically sent out to customers by computer. While I fully accept that it would be impracticable to keep paper copies of all such letters it seems to me strange that the computer's own software would not provide for the automatic noting of the fact that such “reminder” letters have been sent and on what date, thus providing a useful record.
It appears, however, to be agreed by both sides that on 3rd July 1992 there were arrears of £305.93 on the account (representing one instalment plus VAT), the direct debit for the May instalment having been returned unpaid.
On 3rd July 1992 Ms. Trish Worthington of the Defendant bank wrote to the Plaintiff company at its Balbriggan address pointing out these facts and seeking “immediate attention” to the matter. This letter was received by Ms Nichol some few days later. She had been unaware of the situation and was surprised. She did not directly contact the bank but passed the letter to her father to deal with since apparently he was the person dealing with the lease payment situation in general. Before any further action was taken, on 10th July Ms. Nichol received the Telemessage quoted above. She said in evidence that she did not receive any telephone call from the bank and the bank did not produce any record of having telephoned her at that time. Ms. Nichol was both surprised and annoyed as she viewed the Telemessage as a very public way of communicating with the company in regard to the arrears. She also felt that she had been given little or no time to respond to the original letter of 3rd July.
She contacted her solictors Messrs. Binchys who wrote to the Defendant on 24th July 1992. Following a reminder letter dated 13th August 1992 the solicitors for the Defendant replied. They did not deal at all with the manner of the message but merely restated the fact of the arrears. The Plaintiff issued proceedings on 23rd October 1992.
In evidence Mr. O'Donnell fully defended the use of a Telemessage in connection with arrears of this kind. This use of Telemessages is apparently regular practice in this particular bank, and is justified by them on the grounds that it produces a fast response from the vast majority of defaulters. This, I suppose, is scarcely surprising, given the telegram-type context, with all its connotations of death and disaster, in which many people still perceive Telemessages. Whether it is ethically acceptable to make use of human reactions in this way is another question, and one which lies outside these proceedings.
Ms. Nichol remained indignant at being offered no explanation of the use of the Telemessage, and she quite deliberately refused to pay the instalments for November and December 1992. On 27th January 1993 the Defendant served notice of termination of the lease agreement. The Plaintiff complains that this action by the Defendant was over-hasty but the Defendant was well within its legal rights and I cannot hold it to be at fault in terminating the agreement in the circumstances. Mr. O'Donnell apparently called to the premises in Balbriggan on one occasion in or about February 1993 to arrange for repossession of the mobile home, but found no one in. No further effort was made to repossess and the Defendant informs me that no further effort will be made to repossess.
The Defendant counterclaims for a sum of £6088.74 made up of arrears of instalments, plus the monies due to it under clause 11 of the agreement. Allowance is made for the value of the mobile home, and this is allowed to stand as a deduction despite the fact that there was no repossession. The Plaintiff claims that the terms of clause 11 are such that it is in fact a penalty clause and therefore unenforceable.
It is admitted that is recent times the Plaintiff company has got into financial difficulties and that the Balbriggan premises are up for sale. However it is denied that these difficulties existed in 1992.
With regard to the Telemessage itself evidence was given by Mr. Brady, Assistant Manager or the Central Telegraph Office, to the effect that all Telemessages are routed through one room in the GPO and handled by some 6 to 8 operators. The operator types up the message as it is received by telephone and it is then automatically printed on the form provided, which is then folded and sealed by either that operator or another operator in the same room. The sealed envelopes are then placed in sealed mailbags which are delivered by hand to a counter in the GPO for mailing. As far as possible they are given priority in mailing and should arrive within 24 hours. They are neither opened nor read by any other employee of An Post and do not have to go through any local exchange. The Telemessage operators are all bound to complete confidentiality under the Official Secrets Act, which they must sign as a condition of their employment.
At the conclusion of the evidence both counsel made comprehensive and helpful submissions on the law to the court.
The issues before the court appear to me to be these:
1. Was there a banker/customer relationship between the Plaintiff and the Defendant?
2. If so, was this breached by the Telemessage of 10 July 1992?
3. Was the wording of the Telemessage capable of being defamatory?
4. Does the Plaintiff have to show...
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