Lowry v Smyth

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 10 February 2012
• Neutral Citation: [2012] IEHC 22
• Date: 10 February 2012
• Court: High Court
• Docket Number: [2011 No. 18 CA]

[2012] IEHC 22

THE HIGH COURT

[No. 18 CA/2011]

Lowry v Smyth

BETWEEN

MICHAEL LOWRY

PLAINTIFF

AND

SAM SMYTH

DEFENDANT

DEFAMATION ACT 2009 S34

DEFAMATION ACT 2009 S28

DEFAMATION ACT 2009 S30

DEFAMATION ACT 2009 S33

DEFAMATION ACT 2009 PART IV

DEFAMATION ACT 2009 S2

DEFAMATION ACT 2009 S26

AER RIANTA CPT v RYANAIR LTD 2001 4 IR 607 2002 1 ILRM 381 2001/1/68

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

HAUGHEY, IN RE 1971 IR 217

TWOHIG v BANK OF IRELAND & ANOR UNREP SUPREME 22.11.2002 2002/27/7037

GOODMAN INTERNATIONAL & GOODMAN v HAMILTON & ORS 1992 2 IR 542

DIRECTOR OF CORPORATE ENFORCEMENT v BAILEY 2008 1 ILRM 13 2007/14/2759 2007 IEHC 365

DIRECTOR OF CORPORATE ENFORCEMENT v BAILEY UNREP SUPREME 14.7.2011 2011 IESC 24

GRIFFIN v SUNDAY NEWSPAPERS LTD UNREP KEARNS 9.8.2011 2011 IEHC 331

DEFAMATION ACT 2009 S14(1)(A)

RUBBER IMPROVEMENT LTD & ANOR v DAILY TELEGRAPH LTD 1964 AC 234 1963 2 WLR 1063 1963 2 AER 151

MAPP & ORS v NEWS GROUP NEWSPAPERS LTD 1998 QB 520 1998 2 WLR 260 1997 EMLR 397

DEFAMATION

Summary relief

Declaration - Defence - Arguable defence - Public interest - Whether no defence - Whether no defence likely to succeed - Whether statements defamatory - Whether defendant entitled to express honest opinion on matters of public importance - Aer Rianta cpt v Ryanair Ltd [2001] 4 IR 607; In re Haughey [1971] IR 217 and Goodman International v Hamilton [1992] 2 IR 542 and Re Bovale Developments: Griffin v Sunday Newspapers [2011] IEHC 331, (Unrep, Kearns P, 9/8/2011); Lewis v Daily Telegraph Ltd [1964] AC 234 and Mapp v News Group Newspapers Ltd [1998] QB 520 considered; Director of Corporate Enforcement v Bailey [2011] IESC 24, [2011] 3 IR followed; Twohig v Bank of Ireland (Unrep, SC, 22/11/2002) considered - Defamation Act 2009 (No 31), ss 28, 30, 34 - European Convention on Human Rights, art 6 - Relief refused (2011/18CA - Kearns P - 10/2/2012) [2012] IEHC 22

Lowry v Smyth

TRIBUNALS OF INQUIRY

Evidence

Admissibility - Findings of tribunals of inquiry - Whether evidence from tribunal of inquiry admissible - Whether defendant entitled to refer to tribunal findings to establish possible defence - In re Haughey [1971] IR 217 and Goodman International v Hamilton [1992] 2 IR 542 and Re Bovale Developments: Griffin v Sunday Newspapers [2011] IEHC 331, (Unrep, Kearns P, 9/8/2011); Lewis v Daily Telegraph Ltd. [1964] AC 234 and Mapp v News Group Newspapers Ltd [1998] QB 520 considered - Relief refused (2011/18CA - Kearns P - 10/2/2012) [2012] IEHC 22

Lowry v Smyth

Facts section 34 of the Defamation Act 2009 provides, inter alia, that "(1) The court in a defamation action may, upon the application of the plaintiff, grant summary relief to the plaintiff if it is satisfied that - (a) the statement in respect of which the action was brought is defamatory, and (b) the defendant has no defence to the action that is reasonably likely to succeed ..." The plaintiff sought an order under section 34 of the Act of 2009 in respect of an article written by the defendant in a national newspaper and words broadcast on national television. He complained that the words used, including the words "hand in till", in their natural and ordinary meaning and/or by way of innuendo meant and were understood to mean that he had unlawfully benefited from transactions concerning property by awarding a mobile phone licence while he was Minister for Communications. The defendant contended that he had a full and valid defence to any defamation proceedings brought by the plaintiff. The Circuit Court held that test for relief pursuant to s. 34 of the Defamation Act 2009 for summary disposal of the action was very high, that it must be shown that the defendant had "no defence" reasonably likely to succeed. It could not find that such was the case. The plaintiff appealed that finding to the High Court.

Held by Mr. Justice Kearns in dismissing the appeal, 1, that, given the reluctance on the part of the courts to strike out proceedings and thereby deprive either a plaintiff or defendant of access to the courts, the test on applications for summary judgment generally were appropriate to an application brought by a party under section 34 of the Defamation Act 2009.

2. That where either party sought relief under section 34, a high threshold required to first be met. Where the plaintiff brought the application, he had to satisfy the court that the defendant had no arguable case to suggest that his defence might be reasonably likely to succeed.

3. That an application brought under s. 34 by a defendant to dismiss a plaintiff's claim would also require to measure up to a test as to whether or not the plaintiff has demonstrated a stateable cause of action and not merely one which is merely vexatious or frivolous.

4. That that the evidence given to, or a finding made by, a Tribunal of Enquiry had no evidential value in other proceedings, including one for defamation. Goodman International v. Hamilton [1992] 2 I.R. 542 applied; Director of Corporate Enforcement v. Bailey [2008] 1 I.L.R.M. 13 considered. However, the Circuit Court could have regard to the material in question from the Tribunal of Enquiry as pointing to potential sources of evidence to which the defendant, quite apart from tribunal findings, could resort to formulate a defence to the plaintiff's claims.

5. That it was open to the defendant to argue that to report the mere fact that a tribunal is investigating a person's possible involvement in a series of property transactions with a possible link to the awarding of a mobile phone license was not necessarily defamatory per se. Griffin v. Sunday Newspapers [2011] I.E.H.C. 331 considered.

6. That the defendant could reasonably argue that the words "hand in till" in their correct meaning could be taken as referring to tax fraud and bills inappropriately picked up for the benefit of the plaintiff by business interests. As such, he had a good arguable case in respect of both publications.

1 JUDGMENT of Kearns P. delivered on 10th day of February, 2012.

2 This is an appeal brought by the plaintiff against the order of the Circuit Court dated 31 ^st January, 2001, whereby Her Honour Judge Heneghan refused to grant summary relief to the plaintiff pursuant to s. 34 of the Defamation Act 2009.

3 The plaintiff is a T.D., businessman, and former Government Minister. The defendant is a well known journalist and broadcaster.

4 The indorsement of claim in the Civil Bill recites that on 24 ^th June, 2010, in a TV3 programme entitled "Tonight with Vincent Browne" the defendant uttered the following words concerning the plaintiff:-

"But the first that we caught sort (sic) on video with hand in till was Michael Lowry and he resigned as you might remember as Minister for Communications which all this has led on from ..."

5 The interviewer Vincent Browne then said:-

"Now lets be clear now, lets be careful about the hand in till. There is no suggestion at all anyway that Michael Lowry used his position as Minister to extract public funds that weren't, that he wasn't entitled to."

6 Sam Smyth:-

"No but was in receipt, in allowed?? the biggest business in the country to pay for the refurbishment of his home. I mean ..."

7 Vincent Browne:-

8 "There was a tax that was a tax fraud hellip;"

9 Sam Smyth:-

"and that well, there was not only a tax fraud, I really don't think most people think it's a good idea for Ministers to have their bills picked up by businessmen ..."

10 The plaintiff contends that these words, in their natural and ordinary meaning and/or by way of innuendo meant and/or were understood to mean and that the plaintiff was a thief, a corrupt politician, unfit to be a T.D. or Government Minister and was or is a dishonest or untrustworthy politician.

11 The plaintiff further contends that on 27 ^th May, 2010 the defendant published an article in the Irish Independent newspaper concerning the plaintiff which was headlined "Tribunal will reveal findings on money trail to ex-Minister", the words following or words to the effect of the following namely:-

"The total value of all the property transactions involving Mr. Lowry was around 5 million pounds sterling."

12 The plaintiff complains that these words in their natural and ordinary meaning and/or by way of innuendo meant and were understood to mean that the plaintiff had unlawfully benefited from transactions concerning property valued at £5m.stg by awarding a mobile phone licence while he was Minister for Communications and had the other meanings detailed in relation to the television interview.

13 In his Civil Bill the plaintiff claimed the following reliefs:-

14 (a) A declaration pursuant to s. 28 of the Defamation Act 2009 that the statements as contained in the endorsement of claim were false and defamatory of him;

15 (b) A correction order pursuant to s. 30 of the Defamation Act 2009 directing the defendant to publish a correction of the defamatory statement in a form, content, extent and manner such as the court might deem fit;

16 (c) An order pursuant to s. 33 of the Defamation Act 2009 prohibiting the publication or further publication of the statements in respect of which defamation was alleged.

17 (d) Relief pursuant to s. 34 of the Defamation Act 2009 for summary disposal of the action.

18 The application was heard on affidavit evidence before the learned Circuit Court judge. However, the application proceeded only in relation to the s. 34 relief and not in relation to the other reliefs claimed in the Civil Bill. Having referred to the publications of which he complains, the plaintiff contended that the accusations made by the defendant were false and constituted a grave defamation of his character. He deposed that members of...