Gorrell v Scallon and Another; Stein v Scallon and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 13 July 2023
• Neutral Citation: [2023] IEHC 411
• Court: High Court
• Docket Number: Record No. 2011/10989 P

Between

Susan Gorrell

Plaintiffs

and

Dana Rosemary Scallon and TV3 Television Network Limited

Defendants

Between

Susan Stein

Plaintiffs

and

Dana Rosemary Scallon and TV3 Television Network Limited

Defendants

[2023] IEHC 411

Record No. 2011/10989 P

Record No. 2011/10988P

THE HIGH COURT

Judgment of Mr. Justice Brian O'Moore delivered the 13th day of July 2023

1 . These two sets of proceedings are claims in defamation. The first Defendant, Dana Rosemary Scallon, is the sister of one of the Plaintiffs (Ms. Stein) and the aunt of the other Plaintiff (Ms. Gorrell). The second Defendant is now known as Virgin Media, and was the television network on which the allegedly defamatory material was broadcast. The current applications are brought in each action and are effectively identical. In these motions, Ms. Scallon seeks to have TV3 held responsible for her costs in defending the actions.

2 . One striking feature of Ms. Scallon's applications is that the proceedings in which they are brought appear in essence to be at an end. The claims against TV3 were struck out by order of Keane J made on the 30th of June 2014. The claims against Ms. Scallon were struck out, on her application, by me on the 26th of July 2021. It was only after the proceedings had been struck out, against all Defendants, that the current motions were brought seeking to join TV3 as a third party to these actions, or alternatively an order in these actions that TV3 pay Ms. Scallon's costs.

3 . The first issue to decide, therefore, is whether Ms. Scallon's current applications are procedurally sound. In particular, I must decide the question as to whether or not, in these very unusual circumstances, the original actions can act as the vehicle within which Ms. Scallon can claim her costs against the broadcaster. If this cannot be done, counsel for Ms. Scallon asserts that his client can take fresh proceedings against TV3.

4 . The facts giving rise to the original claims occurred a very long time ago. This judgment will therefore be arranged as follows;

1. The background to these proceedings;

2. The progress of the actions;

3. Submissions;

4. Decision

1. THE BACKGROUND TO THESE PROCEEDINGS.

5 . 2011 was a Presidential election year. One of the candidates was Ms. Scallan, who was then (and now) one of the best known citizens in the country, with a varied public career beginning when she won the Eurovision Song Contest in 1970. Some weeks before polling day, Ms. Scallon gave an interview on Prime Time, a current affairs programme broadcast on RTE. In that interview, on the 12th of October 2011, Ms. Scallon stated that ‘vile and malicious rumours’ were due to emerge about a member of her family.

6 . On the 14th of October 2011 Ms. Scallon gave an interview to Ursula Halligan, a journalist with TV3. At paragraph 34 of her grounding affidavit, Ms. Scallon summarises the interview as follows;

‘The subject matter of the interview focused on what I had asserted on RTE's Prime Time to be false allegations of a sexual nature which had been circulated by [Ms. Gorrell] in respect of my brother, John Brown, and Ms. Halligan expressly raised the issue of the allegations which I had made during the RTE Prime Time programme…’

7 . Ms. Scallon claims that TV3 were notified by solicitors acting for Ms. Gorrell and Ms. Stein before the interview was broadcast that proceedings would issue if the transmission went ahead. She also says that at the time of the interview that TV3 had not disclosed to her that ‘…a notice of intention to bring a defamation action had been issued by [Ms. Gorrell's] attorneys and/or solicitors. I further say that, had I been so advised, I would have refused to answer any pertinent questions.’

8 . On this issue, Ms. Scallon's complaint is that in the wake of the Prime Time broadcast lawyers for both Ms. Stein and Ms. Gorrell sent a document headed ‘Media Advisory Note’ making it clear that both women reserved the right to issue proceedings should it be claimed that ‘…any potential allegations made by my client are in any way false, malicious, or otherwise.’ The document exhibited by Ms. Scallon is dated the 14th of October 2014 and is sent by Eells & Tronvold, attorneys based in Cedar Rapids, Iowa.

9 . In none of the affidavits filed on behalf of TV3 in these motions is this aspect of Ms. Scallon's account disputed.

10 . On the 18th of October 2011, solicitors for Ms. Gorrell and Ms. Stein wrote a pre action letter to TV3. The actions commenced by Plenary Summons on the 1st of December 2011. Throughout the proceedings, Ms. Scallon and TV3 were separately represented.

2. THE PROGRESS OF THE ACTIONS

11 . In each case, the Statement of Claim was delivered on the 4th of May 2012. Ms. Scallon's Defence was delivered on the 10th of July 2013. On the same day, a formal request for security for costs was issued to each Plaintiff on behalf of Ms. Scallon.

12 . Security for costs applications were brought by both Ms. Scallon and TV3. Naturally, each Defendant had to set out on affidavit their defence to the claims and they duly did so. However, before either motion was heard the Plaintiffs settled with TV3. On the 30th of June 2014, the following statement was made to this court (Keane J) by counsel for TV3;

‘On October 14 2011 TV3 published an interview that suggested Susan Stein and Susan Gorrell had made unfounded allegations about a member of their family. TV3 apologises to Susan Stein and Susan Gorrell for any offence and distress caused by this interview.’

13 . Ms Scallon says that her consent to the settlement was not sought by TV3, and would not have been given. She refers to newspaper reports that the Plaintiffs had received a ‘substantial payment’ from TV3. Ms. Scallon also complains that she was left to defend the two actions alone.

14 . Remarkably, despite the fact that the apology was one made in open court in the context of proceedings solicitors for Ms. Scallon subsequently not only complained about it but also sought a separate apology along with ‘significant damages’ from TV3. Further proceedings were threatened, this time by Ms. Scallon against TV3, unless her demands were satisfied by the 2nd of July 2015. No action appears to have been prosecuted by Ms. Scallon, though it seems (from a letter of the 14th of December 2015 from TV3's solicitors) that a writ may have been issued.

15 . In her grounding affidavit, Ms. Scallon lays much emphasis on the criminal complaints made by Ms. Gorrell against Mr. Brown (who is Ms. Scallon's brother). The allegations made by Ms. Gorrell were at the centre of Ms. Scallon's comments both to Prime Time and to TV3 in 2011. Ultimately, Mr. Brown was prosecuted for ‘historical sex abuse offences’. He was charged on the 22nd of May 2013. One of the complainants was Ms. Gorrell. Mr. Brown's trial began on the 7th of July 2014, and he was acquitted by unanimous jury verdict on the 25th of July 2014. From Mr. Brown's perspective, the timing of TV3's public apology was potentially problematic though it is of interest that the only public reporting of the apology described by Ms. Scallon postdates the acquittal. Ms. Scallon also sets out correspondence to her then solicitors from TV3's solicitors on the 10th of June 2013, in which TV3 expresses concern that Mr. Brown had ‘failed to appear’ before Hendon Magistrates Court and that ‘a warrant has now been issued for his arrest’. Importantly, TV3 indicated that it may ‘have no alternative but to pursue a full indemnity’ against Ms. Scallon. Notwithstanding this correspondence, neither defendant served notices for contribution and indemnity against each other and Ms. Scallon nowhere explains why this was not done on her behalf.

16 . The implementation of the TV3 settlement is important. On the 30th of June 2014, the apology was read to Keane J. Counsel for TV3 then asked the court to strike out the proceedings against TV3. Counsel for the Plaintiffs consented to this. He then went on;

‘And that leaves the two other motions, Judge, which are Nos 310 and 325, and as I said, Mr. Quinn appears for [Ms. Scallon], and subject to the Court, authorities have agreed, if these motions could be adjourned for mention to the last day of term, for the purpose of fixing a date in respect of the security for costs applications.’

17 . The Order in respect of TV3's application was perfected on the 3rd of July 2014. It states that ‘this Motion together with the proceedings were struck out’. The motion was TV3's motion for security for costs. The form of the Order has lead counsel for Ms. Scallon to submit, in these applications, that the Order was ineffective and that the actions continue to be in existence to this day as against TV3.

18 . Subsequent to the TV3 settlement, Ms. Scallon pressed on with her motions seeking security for costs. She failed before Eager J, but on appeal Ms. Scallon succeeded in obtaining Orders for security for costs against both Ms. Gorrell and Ms. Stein. The Court of Appeal, by judgment of Whelan J of the 30th of November 2018, directed security. The amount of security was fixed at 150,000 euro ‘to be apportioned between Ms. Gorrell and her mother equally’.

19 . The security ordered by the Court of Appeal was never provided, and Ms. Scallon then brought an application to have the proceedings against her struck out. I made that Order on the 21st of July 2021. At that hearing, counsel for Ms. Scallon indicated that she was seeking orders for contribution and indemnity against TV3. Without prejudice to the position of TV3 (which was and remains that there are no proceedings in being in which any order against it can be made), Ms. Scallon was granted liberty to bring any application she wished against the broadcaster. At the request of counsel for Ms. Scallon, and despite the fact that the action was (at her request) struck out, the issue of her costs as against...