Guerin v O'Doherty

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 23 February 2024
• Neutral Citation: [2024] IEHC 110
• Docket Number: [2019 / 7009 P]

Between

James Guerin

Plaintiff

and

Gemma O'Doherty

Defendant

[2024] IEHC 110

[2019 / 7009 P]

AN ARD-CHÚIRT

THE HIGH COURT

Judgment delivered electronically on 23 February 2024 by Mr. Justice Tony O'Connor

Introduction

1 . This judgment explains the determination of the interlocutory reliefs sought by the plaintiff in relation to the conduct of the defendant before a jury retrial of his claims against the defendant.

Pleadings

2 . The statement of claim delivered 2 February 2021 claims damages for defamation to include aggravated and punitive damages for social media publications on 11 July 2019 and 12 July 2019 which constituted “a campaign of defamation” by the defendant. The claim is that words used by the defendant were understood to mean inter alia that “the plaintiff is a paedophile” and “has concealed the case from the general public for five years”.

3 . Para. 5 of the defence delivered on 1 March 2021 pleads that:-

“The Defendant's words at all times were clearly intended and understood to refer to Martin Guerin who is a well-known and well-publicised paedophile.”

4 . The defence, signed by the defendant herself, referred at paras. 24 and 25 to:- “… intentional misdirection by the Plaintiff and his legal representatives”. Those representatives are named. The defence refers to “deceitful statements presented to the High Court by the legal representatives of” the plaintiff. Those pleas were the subject of an unsuccessful application by the defendant to set aside an order for substituted service as explained in the judgment of Humphreys J. delivered on 12 October 2020 [2020] IEHC 490. That judgment was not appealed.

5 . On the application of counsel for the defendant, the trial judge assigned to preside at the trial listed for hearing during the first week of the November 2023 jury sessions recused himself in a reasoned judgment. The trial then commenced before me during the third week of the jury sessions, commencing on Tuesday 21 November 2023. It finished on Monday 27 November 2023. The jury returned to announce on 28 November 2023 that they could not reach the required majority verdict of nine. Thus, the proceedings were adjourned to the next list of fix dates for jury actions.

Tempering comments

6 . During the exchange with the Court about whether the retrial could be listed for the jury sessions beginning on 30 January 2024, counsel for the plaintiff informed the Court that he was not “looking for orders” but submitted that the parties adopt “a tempered approach to whatever is said on both sides in preparation of the February sessions”.

7 . Counsel for the defendant said “I suspect that the proposal would have no objection, it is clear given that there may be a retrial that anything said about it in the interim, understanding the position should be tempered.” The Court limited its comment by referring to what “is proper and appropriate” and expressed the view that “counsel had put it very well”.

Callover

8 . On 14 December 2023, the Court was informed by representatives for the parties at the callover for the sessions beginning on 30 January 2024 that it was agreed to postpone the retrial to the April 2024 Jury sessions. Counsel for the plaintiff brought to the Court's attention that the defendant had been posting about the plaintiff and his legal representatives in such a manner as might contaminate a future pool of jury members. The plaintiff's solicitors had earlier emailed a four – page letter to the defendant's solicitors with links and copies of the posts. One of the posts on 4 December 2023 read:-

“Gemma O'Doherty on Councillor Jimmy Guerin's thugs in gowns led by [name] SC and the cover up of Mary Boyle by her mother Anne Boyle and RTE. You can watch back here.”

Counsel for the defendant was “not in a position to respond” to any application which was not before the Court with formal notice. Therefore, the Court gave liberty to the plaintiff to issue a motion on Friday 15 December 2023 returnable to Wednesday 20 December 2023 seeking such interlocutory reliefs as the plaintiff then wished to make.

20 December 2023

9 . On the second last day of Michaelmas term 2023, being 20 December 2023, counsel for the plaintiff indicated to the Court that the plaintiff wished to pursue the following reliefs as set out in the notice of motion:-

“(1) an order pursuant to the inherent jurisdiction of the court directing the defendant to remove the publications complained of by the plaintiff as an abuse of the processes of the court, a breach of the direction of the court, and as matters of scandalising and contempt in facie curiae and sub judice;

(2) in the alternative, orders pursuant to the inherent jurisdiction of the court directing the hosts of the impugned publications to remove the publications complained of.”

10 . The affidavit sworn by the plaintiff's solicitor on 15 December 2023 described various publications of the defendant which alleged how senior counsel (named in person) and “thugs in gowns” tried to silence the defendant. The plaintiff's solicitor in that affidavit further summarised the various publications of the defendant as seeking to republish the matter which was the subject of the recent jury trial. The solicitor averred that “there is a real and very substantial risk to the Plaintiff of a future unfair trial if the publications…. are not removed, and the Defendant penalised for her actions.”

11 . The motion was made returnable for 2pm on 20 December 2023 so that the defendant could reply and give instructions. Unfortunately, the defendant's solicitor told the Court that he was “unable to secure instructions”.

12 . Despite the frustration expressed by counsel on behalf of the plaintiff, the Court ruled that there were two matters to be considered by the defendant in order for the Court to adjudicate fully on the interlocutory reliefs:-

(1) whether the defendant would consent to a trial before a judge sitting without a jury; and

(2) whether she had proposals to remedy the plaintiff's allegations of ongoing defamation and scandalising.

13 . The Court engaged with counsel for the plaintiff about whether the plaintiff was now going to extend his claim for the retrial. Counsel indicated that this would be considered.

14 . The Court also pressed counsel for the plaintiff to respond to the Court's view that decent, honest and fair – minded people, who will be part of the jury for the retrial, will not be swayed from their duty to adjudicate upon the facts from the evidence adduced. It was apparent to the Court at that stage that a jury could be directed to disregard prejudicial commentary by one or other party and that the Court should have evidence that the general public was actually heeding whatever the defendant was posting about the plaintiff. Counsel referred the Court to the outline legal submissions comprised in 48 paragraphs when directing the Court to precedents for court orders inhibiting “…the making and publication of statements tending to influence the decision of a pending issue, particularly a trial by jury or holding a litigant up to public obloquy for exercising his right of access to the courts – the so – called ‘ sub judice’ rule, see Re MM and HM [1933] IR 299 at 341 (1932) 67 ILTR 24.”

Given that the defendant had not given instructions and that the Court was not satisfied to exercise its inherent jurisdiction as sought by the plaintiff at that stage without further evidence and without hearing the defendant, the Court adjourned the application with directions so that the application came on for hearing on Tuesday 23 January 2024. The directions gave liberty to the plaintiff to issue a new notice of motion before 8 January 2024 with a grounding affidavit and liberty to the defendant to serve and file a replying affidavit by 15 January 2024.

23 January 2024

15 . When the motions were called, counsel for the solicitors on record for the defendant made an application pursuant to Order 7(3) of the Rules of the Superior Courts declaring that the solicitors were no longer on record as and from that date. The Court was informed that the defendant consented to such an order and that the plaintiff was not objecting. Therefore, the declaration sought was made.

16 . Counsel for the plaintiff then impressed upon the Court the effect of the increasing commentary by the defendant about the proceedings and the legal representatives for the plaintiffs. The affidavits of 8 January 2024 were opened to the Court and counsel relied upon the outline written legal submissions for the plaintiff which had already been served and opened to the Court in December.

17 . No application was made by or on behalf of the defendant to adjourn the hearing on 23 January 2024 although the defendant in her affidavit averred on 8 January 2024 at para. 30 that she was “beginning an international lecture tour next week and will not be available….”. She stated that she has:-

“…professional commitments abroad as part of this tour throughout 2024 and 2025. I also will be on religious retreat. I will not be in a position to attend any further court dates during this time and will resist strongly any attempt to physically threaten me in this regard. The courts and plaintiff have had five years to proof their case and have failed. They have purposely dragged it out over the years to try to persecute me”.

18 . The Court read a copy of the publication by the defendant as editor of the “Irish Light Newspaper”, which was exhibited as “3 KK 1”. That exhibit bears the following headline “The five-year campaign of terror against Gemma O'Doherty by [name of counsel] and Jimmy Guerin for being a journalist.” There then followed 14 pages of what the defendant describes as “a five-year campaign of hell”, with negative suggestions about judges and this Court. Suffice to say that the defendant in that article referred...