Guerin v O'Doherty

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 12 March 2025
• Neutral Citation: [2025] IEHC 140
• Court: High Court
• Docket Number: RECORD NO. 2019 / 7009P

Between

James Guerin

Plaintiff

and

Gemma O'Doherty

Defendant

[2025] IEHC 140

RECORD NO. 2019 / 7009P

THE HIGH COURT

Defamation – Strike out – Bound to fail – Defendant seeking an order striking out the proceedings – Whether the proceedings were bound to fail

Facts: Each party pleaded a claim for damages for what arguably at least constituted the tort of defamation within the meaning of the Defamation Act 2009 in relation to a variety of statements made since July 2019 up to and including January 2024. The matter came before the High Court (Phelan J) on application of the defendant, Ms O’Doherty, seeking an order striking out the proceedings on grounds that they are malicious, vexatious, frivolous, based on fraud, perjury and deception, are a grave attack on press freedom, have no cause of action and are bound to fail pursuant to Order 19 Rule 28 of the Rules of the Superior Courts and/or the inherent jurisdiction of the Court. The defendant wished to maintain a counterclaim she made in the proceedings.

Held by Phelan J that, the Court’s strike out jurisdiction under Order 19, Rule 28 having been the subject of recent consideration in the decision of Simons J in Mohan v Revenue Commissioners, Ireland and the Attorney General [2025] IEHC 63, she would adopt his summary of the applicable legal principles. She held that as a stateable claim in defamation had been pleaded and a cause of action was plainly disclosed, whether the defendant had in fact been guilty of defamation was a matter for a jury properly charged and hearing all admissible evidence to determine. In view of the fact that the previous jury did not dismiss the claim against the defendant, Phelan J could not conclude that the proceedings were bound to fail or had no reasonable prospect of success, and it was at least arguable that the case advanced on foot of an amended pleading had enhanced or provided additional buttress to the claim of the plaintiff, Mr Guerin. On the authority of Gilchrist v Sunday Newspapers & Ors [2017] IECA 190, she was satisfied that nothing in the plaintiff’s proceedings amounted to an abuse of the process of the Court. She found that the suggestion that the proceedings were maintained for the improper purpose of silencing the defendant in her journalistic endeavour or that someone else must be funding the proceedings making them champertous, were claims which were not substantiated and were no more than bare assertion on the part of the defendant. Phelan J held that bare assertions of that kind could never be enough to justify the exercise of a strike out power. She held that there was a tangible benefit to be gained for the plaintiff by pursuing the defendant, that benefit being vindication of the plaintiff’s constitutionally protected right to a good name, and the seeking of the appropriate remedy in damages and injunctive relief as against the defendant. Phelan J held that it was not appropriate for the defendant to seek to re-agitate issues which had already been the subject of rulings and/or been addressed by the trial judge during the first trial and/or were a matter for evidence and submission at a retrial before a jury on this application. Phelan J could not go behind rulings already made nor revisit issues which were of no continuing relevance touching on the conduct of an earlier trial as a basis for exercising a strike out jurisdiction.

Phelan J refused the defendant’s application to strike out the proceedings.

Application refused.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 12 ^th day of March, 2025

INTRODUCTION

1 This matter comes before me on application of the Defendant seeking an order striking out these proceedings on grounds that they are malicious, vexatious, frivolous, based on fraud, perjury and deception, are a grave attack on press freedom, have no cause of action and are bound to fail pursuant to Order 19 Rule 28 and/or the inherent jurisdiction of the Court.

2 The application is the latest in a series of applications brought in these proceedings. The proceedings are now in a list to fix dates for the purpose of assigning a new hearing date, a previous trial before judge and jury having resulted in a hung jury.

3 Several judgments have been delivered in respect of applications brought in these proceedings. The judgment of Humphreys J. on an application in respect of service delivered on the 12 ^th of October, 2020 (neutral citation of [2020] IEHC 490) addresses some of the issues sought to be raised again on this application. In another judgment in November, 2023, the trial judge first assigned to preside at trial listed for the first week in November, 2023, recused himself in a reasoned judgment.

4 The trial proceeded instead before O'Connor J. commencing on the 21 ^st of November, 2023, and finishing on the 27 ^th of November, 2023, but the jury were unable to agree on a verdict.

5 Subsequently, in a judgment (O'Connor J.) delivered in writing on the 23 ^rd of February, 2024 (with neutral citation of [2024] IEHC 110), a series of different applications made following the conclusion of the first trial and in advance of an intended retrial were addressed. In this judgment, the reasons for making interlocutory restraining orders in relation to the conduct of the Defendant are explained. The said orders had been sought in circumstances where complaint had been made that the Defendant had been “ posting” about the Plaintiff and his legal representatives in a damaging manner.

6 By Order made on the 23 ^rd day of January 2024 (O'Connor J.) the Defendant was restrained pending the trial of the action or until the determination of further interlocutory applications by the parties from maintaining, repeating or publishing through any medium of communication any posts which assert or imply that any member of the Plaintiff's legal team had told lies or committed crimes in relation to these proceedings or maintaining, replicating, or publishing online or through any medium of communication photos or images of any and all members of the Plaintiff's legal team.

7 Although she was legally represented at earlier stages of these proceedings, the Defendant's former solicitors came off record in January, 2024, after the conclusion of the first trial. They applied to come off record at a time when injunctive relief was being pursued against the Defendant in respect of her continuing commentary in various publications on the merits of a case which she is involved in and which is still before the Courts. She now represents herself.

8 In circumstances where the case has already proceeded to hearing before a judge and jury in November, 2023, running for several days and resulting in a hung jury and has been the subject of multiple applications before different judges, it is clear that these proceedings have already consumed considerable judicial resources. Despite now applying to have the Plaintiff's claim as against her struck out, the Defendant wishes to maintain a counterclaim she makes in these proceedings.

BACKGROUND

9 The Plaintiff is a brother of the late Veronica Guerin and a politician. The Defendant describes herself as an investigative journalist.

10 On the 11 ^th and 12 ^th of July, 2019, the Defendant took to Twitter to comment in relation to a court case involving a brother of the late Veronica Guerin. She was then met with these proceedings for defamation which were instituted on the 9 ^th of September, 2019.

11 At the heart of the proceedings as instituted is the Plaintiff's claim to have been defamed by the Defendant in a publication which referred to the “ paedophile brother of Veronica Guerin”. It is claimed this publication is defamatory of the Plaintiff in the absence of full and clear publication of the identification particulars of the correct brother.

12 Publication of the material complained of in these proceedings has been admitted by the Defendant and is not in issue. The said admission as to publication was made in advance of the previous hearing and the Defendant had the benefit of legal advice — solicitor, senior and junior counsel when making the admission. The position concerning admitted publication has not changed since they ceased to act following the first trial in November, 2023.

13 The proceedings were heard by O'Connor J. with a jury for four days commencing on the 21 ^st of November, 2023, and ending on the 27 ^th of November, 2023, and culminating in a hung or deadlocked jury on the 28 ^th of November, 2023. On the 28 ^th of November, 2023, at the conclusion of the first trial, it was indicated to the Defendant and her legal team that the Plaintiff would seek to have the matter heard again at the April 2024 Jury Sessions.

14 The matter was called on for hearing on the 14 ^th of December, 2023, and the 21 ^st of March, 2024. In subsequent court appearances, it was also agreed that the parties would refrain from and “ temper” commentary in relation to the matter.

15 An unusual feature of these proceedings is that, despite admonitions from the trial judge in relation to behaviour, the Defendant's conduct in publishing other material concerning the Plaintiff said to be in breach of the sub judice rule and after the initial hearing, has resulted in an Order of 23 ^rd of January, 2024 (O'Connor J.) restraining the Defendant from continuing to publish material of and concerning the Plaintiff's legal team.

16 In compliance with further directions (O'Connor J.) given on the 23 ^rd of January, 2024, an Amended Statement of Claim was served on the Defendant on the 12 ^th of February, 2024.

17 The Defendant was directed to deliver an Amended Defence on the 21 ^st of March, 2024, (direction of Owens J.).

18 On the 24 ^th of April, 2024, four weeks after the Notice of Motion now before me for determination, a Defence and Counterclaim (entitled: “ Response to Plaintiff's Amended Statement of Claim and Defendant's...