Lobov v McGregor

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 23 December 2022
• Neutral Citation: [2022] IEHC 724
• Docket Number: 2022 No. 6394 P

Between

Artem Lobov

Plaintiff

and

Conor McGregor

Defendant

[2022] IEHC 724

2022 No. 6394 P

THE HIGH COURT

Defamation – Restraining publication – Defamation Act 2009 s. 33 – Plaintiff seeking to restrain the publication of allegedly defamatory statements – Whether the statements were defamatory

Facts: The plaintiff, Mr Lobov, alleged that the defendant, Mr McGregor, had breached an oral agreement to pay him five per cent of the proceeds of the sale of the whiskey brand “Proper 12”. The plaintiff issued specific performance proceedings on 22 November 2022. The plaintiff applied to the High Court to restrain the publication of allegedly defamatory statements. The application was made pursuant to s. 33 of the Defamation Act 2009. The plaintiff alleged that the defendant had, since 26 November 2022, published a series of defamatory tweets on the social media platform Twitter. The plaintiff objected, in particular, to his being described as a “rat”. It was said, variously, that this means that the plaintiff is an informer; a person who has betrayed somebody; a person who reveals confidential information; and a person who double crosses.

Held by Simons J that the first limb of the statutory test under s. 33 of the 2009 Act requires that the court form the opinion that the statement, which it is sought to restrain, is defamatory. The plaintiff had not persuaded Simons J that any of the tweets complained of were clearly defamatory. Simons J held that the hypothetical reasonable reader would not understand them to have the meanings contended for by the plaintiff. Simons J held that it was more likely that they would be regarded as no more than a rant, a tirade of vulgar abuse by an MMA fighter with a reputation for “trash talking”. Simons J held that there was no reasonable basis for apprehending that the tweets would injure the plaintiff’s reputation in the eyes of reasonable members of society. Simons J held that no reasonable member of society would attach any significance to those tweets.

Simons J held that the plaintiff had failed to meet the first limb of the statutory test under s. 33 of the 2009 Act. Accordingly, Simons J refused the application for orders restraining publication. Simons J’s provisional view was that the defendant, having been entirely successful in resisting the application, was entitled to recover his costs from the plaintiff.

Application refused.

Appearances

Andrew Walker, SC and Liam Bell for the plaintiff instructed by Dermot McNamara & Company

Remy Farrell, SC and Shelley Horan for the defendant instructed by Michael J. Staines & Company

JUDGMENT of Mr. Justice Garrett Simons delivered on 23 December 2022

INTRODUCTION

1 This judgment is delivered in respect of an application to restrain the publication of allegedly defamatory statements. The application is made pursuant to Section 33 of the Defamation Act 2009. The plaintiff alleges that the defendant has, since 26 November 2022, published a series of defamatory tweets on the social media platform Twitter. The plaintiff objects, in particular, to his being described as a “ rat”. It is said, variously, that this means that the plaintiff is an informer; a person who has betrayed somebody; a person who reveals confidential information; and a person who double crosses.

2 The publication of the allegedly defamatory tweets takes place against a backdrop whereby the plaintiff and defendant are embroiled in a contractual dispute. The plaintiff alleges that the defendant has breached an oral agreement to pay him five per cent of the proceeds of the sale of the whiskey brand “ Proper 12”. The plaintiff issued specific performance proceedings on 22 November 2022: High Court 2022 No. 5882 P. I will refer to those proceedings as “ the contractual dispute proceedings” to distinguish them from the within defamation proceedings.

SECTION 33 OF THE DEFAMATION ACT 2009

3 Section 33(1) of the Defamation Act 2009 provides as follows:

“The High Court, or where a defamation action has been brought, the court in which it was brought, may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion—

(a) the statement is defamatory, and

(b) the defendant has no defence to the action that is reasonably likely to succeed.”

4 As appears, there are two conditions precedent to the statutory discretion to grant an injunction as follows.

5 First, the court must be of the opinion that the relevant statement is defamatory. In the case of an application for an interlocutory injunction, this requires a judge of the High Court to reach an opinion on a matter which is usually the sole preserve of a jury, namely the question of whether a statement is defamatory. This opinion also has to be reached on the basis of affidavit evidence alone.

6 There was some debate in the earlier case law as to the standard to be applied in reaching the requisite “ opinion”. The better view is that the judge must be satisfied that the words complained of clearly bear a defamatory meaning, rather than merely being capable of bearing such a meaning.

7 The position is summarised as follows in Cox and McCullough, Defamation Law and Practice (Clarus Press, 2nd ed., 2022) at §12.57:

“What this means is that if there is any realistic dispute on meaning, then the matter should be sent for trial and interlocutory relief not be granted. Once again, it is important to highlight the consistent judicial acceptance that difficult issues of fact (including meaning) simply cannot properly be resolved on the basis of affidavit evidence alone.”

8 Secondly, the court must be of the opinion that the defendant has no defence to the action that is reasonably likely to succeed. The case law emphasises that it is not sufficient for a defendant merely to assert a defence, especially a plea of truth. Rather, the court must examine the evidence adduced in support of the plea of truth to assess whether that defence has any substance or prospect of success ( Beaumont Hospital Board v. O'Doherty [2021] IEHC 469).

9 Finally, even where the two statutory preconditions have been met, the court retains a discretion as to whether to grant or refuse an interlocutory injunction. One of the principal factors to be considered in the exercise of this discretion is the constitutional right to freedom of expression. The courts have traditionally been reluctant to grant an interlocutory injunction, which would restrain free speech, on the basis of a truncated hearing, predicated on affidavit evidence alone. It is generally seen as preferable to await the outcome of the trial of the action.

10 The High Court (Allen J.) put the matter as follows in Beaumont Hospital Board v. O'Doherty [2021] IEHC 469 (at paragraph 58):

“The jurisdiction invoked by the plaintiffs on this application is, as has been said, a delicate one. The court must be careful not to interfere with free speech or the free expression of opinions, a fortiori I think with responsible journalism and the freedom of the press. Orders of the type now sought must be made only in the clearest cases and any doubt resolved against the applicant. On the other hand, journalists, no less than citizens in general, are not entitled to wantonly or recklessly traduce reputations and the court will intervene if it can be shown that statements have been made, and are liable to be repeated, for which there is no reasonable basis.”

PROCEDURAL HISTORY

11 The within proceedings were instituted by way of plenary summons on 20 December 2022. On the same day, counsel on behalf of the plaintiff applied ex parte for orders restraining the publication of the allegedly defamatory statements. This application was refused but the plaintiff was, instead, given leave to issue a motion returnable to 22 December 2022. The motion was heard by me, sitting as vacation judge, and judgment reserved overnight.

12 Whereas the plenary summons seeks damages under a number of different headings, including intimidation, conspiracy and breach of constitutional rights; the application for an interlocutory injunction was predicated on Section 33 of the Defamation Act 2009. No meaningful attempt was made to rely on the other causes of action pleaded. Certainly, the plaintiff did not attempt to establish that there is a “ strong case” he is likely to succeed in these causes at the hearing of the action ( Lingam v. Health Service Executive [2005] IESC 89).

13 The plaintiff has not yet delivered a statement of claim. As discussed below, this is a significant omission given that the...