Kelly -v- National University of Ireland and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 30 March 2012
• Neutral Citation: [2012] IEHC 145
• Court: High Court
• Date: 30 March 2012

[2012] IEHC 145

THE HIGH COURT

[No. 52CA/2007]

Kelly v National University Of Ireland & Director of the Equality Tribunal

BETWEEN

PATRICK KELLY

PLAINTIFF

AND

NATIONAL UNIVERSITY OF IRELAND

DEFENDANT

AND

THE DIRECTOR OF THE EQUALITY TRIBUNAL

NOTICE PARTY

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

WONG v MIN FOR JUSTICE 1994 1 IR 223 1992/13/4426

AG v TIMES NEWSPAPERS LTD 1974 AC 273 1973 3 WLR 298 1973 3 AER 54

PRACTICE & PROCEDURE

Contempt

Leave to attach and commit - Journalists and newspapers - Freedom of speech - Freedom of press - Right of party to fair hearing - Whether newspaper articles misrepresented events - Whether articles created prejudice to administration of justice - Wong v Minister for Justice [1994] 1 IR 223 and Attorney General v Times Newspapers [1974] AC 273 considered - Motion dismissed (2007/52CA - Hedigan J - 30/3/2012) [2012] IEHC 145

Kelly v National University of Ireland

1 Judgment of Mr. Justice Hedigan delivered on the 30th of March 2012.

2 1. The plaintiff brings four motions before the Court. The first of these is a motion seeking leave to commit for contempt of court. I will deal with each of the four motions in order.

3 2. The first motion is the plaintiff's application for leave to attach and commit for contempt. The application is for:

4 (a) leave to apply for declarations that certain journalists together with the editorial officers of their newspapers are in contempt of court;

5 (b) leave to apply for the attachment and committal to prison of these same people in respect of their alleged contempt;

6 (c) leave to apply for sequestration of the assets of the said newspapers.

7 3. The applications are made by the plaintiff in the course of proceedings before this Court which arise from an appeal from an order of the President of the Circuit Court made in 2007. The President refused an application for discovery of documents which the plaintiff considers essential to his case against the defendant. The High Court on this appeal ultimately made an Article 267 reference to the European Court. Five questions were asked. Answers were given to these questions by the Court of Justice of the European Union on the 21 ^st July, 2011.

8 4. On the 22 ^nd July, 2011 articles appeared in the Irish Times and the Irish Independent concerning the plaintiff's case. Both articles stated, in slightly different ways in their headlines and in the body of the articles, that the plaintiff had lost his case. He protested to both and the Irish Times carried a "correction and clarification". The plaintiff considered this correction to be incorrect also and therefore inadequate. The Irish Independent seems to have offered to publish a correction but this also did not appear adequate to the plaintiff and does not appear to have been published. Complaints have been made to the Press Ombudsman and appeals in relation to the decisions thereof are in train. The gist of the plaintiff's application today is that both of these articles and even the Irish Times correction totally misrepresented what had happened in the European Court and also stated that he had lost his case. It is his contention that publication of these articles in the course of the discovery appeal amounts to a criminal contempt.

9 5. What is at issue in this application is on the one hand the freedom of the press to report on cases which carries within it the inevitable possibility that sometimes a journalist may get it wrong and on the other hand the right of a party to legal proceedings to get a fair hearing of his case.

10 6. The reporting of cases in court proceedings is often a difficult task and although accuracy therein is obviously essential, there must exist within that freedom of the press the right to be wrong. The duty on journalists and editors is to do everything they can to minimise the occurrence of such errors.

11 7. But the law requires much more than just getting it wrong in order for contempt to be found.

12 8. Dealing with the issue of contempt and freedom of speech, Denham J., as she then was, in Wong v. The Minister for Justice [1994] 1 I.R. 223 cited with approval a number of authorities. For the purposes of this application, I consider the most apt to be that of Lord Reid in the House of Lords in Attorney General v. Times Newspapers [1974] AC 273. Denham J. (at p. 233) cites the following passage:

"The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be a real prejudice to the administration of justice."

13 9. I consider the approach of the law outlined in this passage is dispositive of this application. At the close of his reply yesterday, Mr. Kelly stated what I think are his real complaints about these articles. He said they affect the public perception of him and he added that...