Leech v Independent Newspapers (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 27 January 2017
• Neutral Citation: [2017] IECA 8
• Date: 27 January 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 8 Appeal Nos. 2015/583

BETWEEN/

MONICA LEECH

PLAINTIFF/RESPONDENT

- AND -

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED

DEFENDANT/APPELLANT

[2017] IECA 8

Irvine J.

Finlay Geoghegan J.

Irvine J.

Hedigan J.

Neutral Citation Number: [2017] IECA 8

Appeal Nos. 2015/583

THE COURT OF APPEAL

Libel – Inordinate and inexcusable delay – Error in law – Appellant seeking dismissal of proceedings on grounds of inordinate and inexcusable delay – Whether claim should be dismissed under the court’s inherent jurisdiction

Facts: The appellant, Independent Newspapers (Ireland) Ltd, on 30th January, 2005, published an article concerning the respondent, Ms Leech, under a front page headline “Leech thinks Provo spies raided home”. The article reported that her home had been burgled in June, 2004. Ms Leech considered the story to be “a work of fiction” and demanded an apology. None was forthcoming. That being so, by plenary summons dated 27th April, 2005, Ms Leech commenced proceedings seeking damages for libel. On 3rd and 17th November, 2015, the High Court (MacEochaidh J) refused the appellant’s application to dismiss the libel proceedings on the grounds of inordinate and inexcusable delay on the part of the respondent in the conduct of the proceedings. The High Court judge was satisfied that Ms Leech had indeed been guilty of inordinate and inexcusable delay in the manner in which she had conducted the proceedings yet he concluded that the “balance of justice” favoured permitting her continue her claim. The appellant appealed to the Court of Appeal against that judgment and order. The appellant submitted that the principles set out in Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459, when properly applied to the circumstances of the case, would warrant the Court of Appeal interfering with the decision of the High Court judge by making an order that Ms Leech’s claim be dismissed pursuant to the Court’s inherent jurisdiction.

Held by Irvine J that the trial judge made a number of legal errors when it came to his assessment of whether, in light of his finding of inordinate and inexcusable delay, the balance of justice favoured the dismissal of the proceedings or allowing them proceed. Irvine J held that the trial judge’s decision on the appellant’s motion must be set aside. In those circumstances, balancing all of the considerations as they emerged from the conduct of and the interests of the parties, Irvine J was satisfied that the interests of justice warranted the dismissal of the proceedings.

Irvine J held that Ms Leech’s claim should be dismissed under the court’s inherent jurisdiction on the grounds of delay.

Appeal allowed.

JUDGMENT of Ms. Justice Irvine delivered on the 27th day of January 2017

1 This is an appeal brought by Independent Newspapers (Ireland) Ltd (‘the newspaper’) against the judgment and order of the High Court (MacEochaidh J.) (dated 3rd and 17th November, 2015, respectively), refusing its application to dismiss the within libel proceedings on the grounds of the alleged inordinate and inexcusable delay on the part of the plaintiff, Ms. Monica Leech (‘Ms. Leech’), in the conduct of these proceedings.

2 In circumstances where the High Court judge was satisfied that Ms. Leech had indeed been guilty of inordinate and inexcusable delay in the manner in which she had conducted the proceedings and there is no appeal that that finding, the question for this Court is whether he erred in law when he concluded that the ‘balance of justice’ favoured permitting her continue her claim.

3 Prior to setting out the reasons for my conclusion that MacEochaidh J. erred in law when he failed to accede to the newspaper's application, I will set out as briefly as I can the relevant background facts, the findings of the trial judge, the submissions of the parties and the relevant legal principles.

Relevant background facts

4 On 30th January, 2005, the newspaper published an article concerning Ms. Leech under a front page headline ‘Leech thinks Provo spies raided home’. The article reported that her home had been burgled in June, 2004. Ms. Leech considered the story to be, what was described by her solicitor in a letter dated 31st January, 2005, ‘a work of fiction’ and demanded an apology. None was forthcoming. That being so, by plenary summons dated 27th April, 2005, Ms. Leech commenced the within proceedings seeking damages for libel.

5 It is not necessary, for the purposes of this judgment, to deal in detail with the manner in which Ms. Leech cast her claim, although I will later briefly refer to the particular nature of the defence delivered on behalf of the newspaper. What is of particular importance is the speed and manner in which the parties have conducted this litigation. The following chronology is of assistance to demonstrate the action / inaction of the parties during the currency of the proceedings.

Chronology

27th April 2005: Plenary summons issues.

13th May 2005: Service of plenary summons and statement of claim.

19th May 2005: Appearance on behalf of defendant.

15th August 2005: Delivery of defence.

Defendant's request for particulars.

3rd October 2005: Plaintiff delivers reply to defence.

Replies to the defendant's notice seeking particulars also delivered.

14th November 2005: Defendant complains regarding the adequacy of the plaintiff's replies to particulars of 3rd October, 2005.

28th April 2006: Plaintiff delivers updated particulars.

4th September 2006: Plaintiff serves notice of trial.

16th October 2006: Plaintiff serves second notice of trial.

18th October 2006: Plaintiff serves notice of intention to proceed.

16th January 2008: Plaintiff serves second notice of intention to proceed.

18th February 2008: Plaintiff serves a notice seeking particulars arising from defence.

16th June 2008: Plaintiff brings motion to compel delivery of replies to letter for particulars dated 18th February, 2008.

1st July 2008: Defendant delivers reply to plaintiff's particulars of 18th February, 2008.

13th February 2012: Plaintiff serves notice of change of solicitor.

10th July 2014: Dfendant writes requesting that the proceedings be withdrawn.

16th July 2014: Plaintiff serves notice of change of solicitor and notice of intention to proceed.

1st September 2014: Defendant issues motion to dismiss proceedings for delay.

19th December 2014: Supreme Court delivered judgment in proceedings between the same parties bearing record no. 2005/513P and 2004/ 19853P.

26th February 2015: Supreme Court rules on the costs of the appeals the subject matter of the judgment of 19th December, 2014.

9th July 2015: Plaintiff serves notice of trial.

30th October 2015: Hearing of the defendant's motion to dismiss the proceedings.

6 The application brought by the newspaper to dismiss these proceedings spawned four affidavits, two from Mr. Daniel Coady, solicitor acting on behalf of the newspaper and two from Ms. Leech. It is not necessary to detail all of the matters dealt with in these affidavits. I think it sufficient to refer to those matters relied upon by the High Court judge in the course of his judgment and to those relied upon by counsel in their submissions to this Court on the appeal.

7 As may be apparent from the chronology set out above, it is common case that Ms. Leech instituted two other sets of libel proceedings against Independent Newspapers (Ireland) Ltd bearing record numbers 2004/ 19853P (‘the 2004 proceedings’) and 2005/513P (‘the 2005 proceedings’). The 2004 proceedings were heard in June, 2009 when Ms. Leech was awarded damages of €1.872m., an award later reduced by the Supreme Court in its judgment delivered on 19th December, 2014. The 2005 proceedings, which were initially resolved in favour of the newspaper in June, 2007, were also the subject matter of an appeal to the Supreme Court. In its judgment of the 19th December, 2014, it set aside the order of the High Court and referred the proceedings back for a retrial. Ms. Leech asserts that the existence of those proceedings and her conduct in relation thereto was correctly relied upon by the High Court judge in refusing the newspaper's application to dismiss the within proceedings.

8 When taken together, the principal matters relied upon by Mr. Coady in support of his client's application were as follows. The law requires a plaintiff who brings libel proceedings to prosecute their claim with particular expedition and Ms. Leech had failed to meet that obligation. Her delay had been inordinate and could not be excused. The newspaper would likely be prejudiced by the delay. It had raised a defence of qualified privilege with the result that it bore the onus of demonstrating the evidential basis for that plea. A ten year delay between publication and trial made the defence of public interest privilege, which has a substantial factual component, harder to establish. Further, Mr. Fanning, the newspaper's editor, had died on the 17th January, 2012, with the effect that he would not be available to give evidence to establish that the article had been the subject of a proper process of editorial control prior to publication. In addition, the newspaper was liable to be further prejudiced by reason of the fact that the two journalists who had authored the article would likely find it more difficult to defend their actions as they would be relying upon conversations which they had had and enquiries which they had made with third parties, almost ten years earlier.

9 On the issue of the newspaper's culpability for any delay, Mr. Coady denied the existence of what Ms. Leech maintained was ‘a mutual understanding’ that these proceedings might be postponed to await the outcome of her other two actions against the newspaper. No evidence had been furnished to support that proposition. Further there was no conduct on the part of the newspaper which might be...