Joyce v Mayo Travellers Support Group
| Jurisdiction | Ireland |
| Judge | Mr Justice Dignam |
| Judgment Date | 10 February 2023 |
| Neutral Citation | [2023] IEHC 84 |
| Court | High Court |
| Docket Number | Record No. 2022/172MCA |
[2023] IEHC 84
Record No. 2022/172MCA
THE HIGH COURT
Defamation – Extension of time – Prejudice – Applicant seeking an extension of time within which to bring a defamation claim against the respondents – Whether the prejudice that the applicant would suffer if the direction were not given would significantly outweigh the prejudice that the respondents would suffer if the direction were given
Facts: The applicant, Ms Joyce, was employed by the first respondent, Mayo Travellers Support Group, between the 3rd December 2018 and the 26th January 2020. She worked closely with a colleague, “Ms Murphy”. The second respondent, Ms Geraghty, was the applicant’s line manager. In spring 2021, Ms Murphy received a copy of her personnel file from the first respondent after making a data access request. The file contained four supervision reports of meetings purportedly conducted by the second respondent with Ms Murphy. The reports were dated the 6th March 2019, 8th May 2019, 3rd September 2019 and 7th February 2020 and they recorded Ms Murphy as having made comments about the applicant which the applicant claimed were defamatory. The applicant wished to sue for defamation and, in circumstances where she did not issue proceedings within 12 months of the alleged publication, required an extension of time to do so in light of the provisions of s. 11(2)(c) of the Statute of Limitations. The applicant applied to the High Court seeking an extension of time within which to bring the defamation claim against the respondents. The first respondent submitted, partly on the basis of s. 11 of the Defamation Act 2009, that the latest date of accrual of the cause of action was the 7th February 2020, i.e. the date of the latest report; more than two years before the date of the ex parte application. The applicant submitted that publication first occurred when the documents were provided to Ms Murphy. Mr Power, a board member of the first respondent, deposed that they were provided to Ms Murphy on foot of her data access request “in or around 24th February 2021”. The first respondent submitted that the date of publication of each document was the date on that document, i.e. the date “they came into existence”.
Held by Dignam J that he was satisfied on the basis of the evidence that the date of first publication was the 24th February 2021, which, while more than a year before the ex parte application was made, was within two years. Dignam J was satisfied that the applicant’s explanation provided sufficient reason for her delay in instituting proceedings. It seemed to Dignam J that it was appropriate that the applicant did not immediately use the information provided to her by Ms Murphy without Ms Murphy’s permission. Dignam J held that there was no evidence from the respondents that any relevant evidence was no longer capable of being adduced by virtue of the delay. Dignam J held that the interests of justice required the giving of a direction under s. 11(2)(c)(ii) and that the prejudice that the applicant would suffer if the direction were not given would significantly outweigh the prejudice that either of the respondents would suffer if the direction were given.
Dignam J granted a direction to the applicant giving leave to institute proceedings in terms of the draft plenary summons contained at exhibit CJ1 of the grounding affidavit of the applicant. It seemed to Dignam J that s. 11 entitled him to set a time limit within which that must occur. Dignam J granted a period of 7 days from the date of the judgment within which those proceedings must issue.
Application granted.
Judgment of Mr Justice Dignam delivered on the 10 th day of February 2023 .
This is the applicant/intended plaintiff's application for an extension of time within which to bring a defamation claim against the respondents/intended defendants.
While the grounding affidavit sets out a considerable level of background detail, it is not necessary to deal with much of that background other than by way of summary.
The applicant was employed by the respondent as a Family Support Worker/Researcher on a fixed term contract between the 3 rd December 2018 and the 26 th January 2020. She worked closely with a colleague. As this colleague's real name is not directly relevant to this application, I will simply refer to her as “Ms. Murphy”.
The second-named respondent was appointed as a temporary Family Support Coordinator in February 2019 and was the applicant's line manager. Serious difficulties appear to have arisen between the applicant and the second-named respondent. It is not necessary to go into the details of those difficulties for the purpose of this application.
The applicant's employment with the first-named respondent concluded on the 26 th January 2020 when the term of her contract ended.
In spring 2021, Ms. Murphy, who, it appears, continued to work with the first-named respondent but was out of work on health grounds, received a copy of her personnel file from the first-named respondent after making a data access request. This file contained four supervision reports of meetings purportedly conducted by the second-named respondent with Ms. Murphy. The reports are dated the 6 th March 2019, 8 th May 2019, 3 rd September 2019 and 7 th February 2020 and they record Ms. Murphy as having made comments about the applicant which the applicant claims are defamatory. The applicant deposes in her grounding affidavit that she was unaware of these reports until Ms. Murphy told her in a telephone call in March 2021 of the existence of these reports, that she told the applicant that these meetings never took place and that she never made the comments attributed to her in those reports. It is stated in the replying affidavit filed on behalf of the respondents, sworn by a director of the first-named respondent, that the documents were provided to Ms. Murphy on the 24 th February 2021. This is not disputed by the applicant. A feature of the case is that neither Ms. Murphy nor the second-named respondent have sworn affidavits.
The applicant wishes to sue for defamation and, in circumstances where she did not issue proceedings within 12 months of the alleged publication, requires an extension of time to do so in light of the provisions of section 11(2)(c) of the Statute of Limitations.
By Order of the 20 th June 2022 on foot of an ex parte docket of that date O'Moore J granted liberty to the applicant to amend the proposed Originating Notice of Motion and gave the applicant liberty to issue that Notice of Motion returnable for the 18 th July 2022. The Originating Notice of Motion (as provided for under Order 1B rule 3 of the Rules of the Superior Courts) seeks that the applicant be granted leave to institute defamation proceedings against the respondents notwithstanding that over one year has passed since the accrual of the cause of action.
The evidence in the case consisted of the grounding affidavit of the applicant, a replying affidavit sworn by Mr. Jim Power, a board member of the first-named respondent, and a supplemental affidavit of the applicant. Mr. Power did not state on whose behalf he was swearing the affidavit, though the filing clause stated that it was being filed on behalf of the “ Respondents”. However, when the matter came before me solicitor and counsel appeared for the first-named respondent and not the second-named respondent. I was satisfied as to service on the second-named respondent. I was informed that O' Moore J had been told by counsel for the first-named respondent that the second-named respondent had been in touch with them to say that she was still in hospital (I return to this below) and I was therefore satisfied that she was aware that the matter was on for hearing. There was, therefore, no evidence directly from the second-named respondent.
Section 38 of the Defamation Act 2009 provides:
“38.—(1) Section 11 of the Act of 1957 is amended—
(a) in subsection (2), by the substitution of the following paragraph for paragraph (c):
“(c) A defamation action within the meaning of the Defamation Act 2009 shall not be brought after the expiration of—
(i) one year, or
(ii) such longer period as the court may direct not exceeding 2 years,
from the date on which the cause of action accrued.”,
and
(b) the insertion of the following subsections:
“(3A) The court shall not give a direction under subsection (2)(c)(ii) (inserted by section 38 (1) (a) of the Defamation Act 2009) unless it is satisfied that—
(a) the interests of justice require the giving of the direction,
(b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given,
and the court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the period specified in subparagraph (i) of the said subsection (2)(c) and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.
(3B) For the purposes of bringing a defamation action within the meaning of the Defamation Act 2009, the date of accrual of the cause of action shall be the date upon which the defamatory statement is first published and, where the statement is published through the medium of the internet, the date on which it is first capable of being viewed or listened to through that medium.”.
(2) Section 49 of the Act of 1957 is amended by the substitution of the following subsection for subsection (3):
“(3) In the case of defamation actions within the meaning of the Defamation Act 2009, subsection (1) of this section shall have effect as if for the words...
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