McAllister v Commissioner of an Garda Siochana

• Jurisdiction: Ireland
• Judge: Mr. Justice Dignam
• Judgment Date: 09 June 2023
• Neutral Citation: [2023] IEHC 314
• Court: High Court
• Docket Number: [Record No. 2020 3625 P]

Between

Paul McAllister

Plaintiff

and

The Commissioner of An Garda Síochána

Defendant

[2023] IEHC 314

[Record No. 2020 3625 P]

THE HIGH COURT

Judgment of Mr. Justice Dignam delivered on the 9th day of June 2023 .

INTRODUCTION

1 The plaintiff seeks a direction pursuant to section 11(2)(c) of the Statute of Limitations 1957, as inserted by section 38(1)(a) of the Defamation Act 2009, which provides:

“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.”

2 The application gives rise to two issues: whether, on the correct interpretation of section 11(2)(c), an application for a direction must be made prior to the institution of the proceedings or whether it may be made after the proceedings have issued (“the interpretation issue”); and, if it may be made after the institution of the proceedings (as it was in this case), whether the Court should, in the exercise of its power under s.11(2)(c), grant such a direction.

3 As the application in this case was made after the institution of the proceedings the second question only arises if the first one is decided in favour of the plaintiff.

4 In Morris v Ryan [2019] IECA 86 Whelan J considered this second issue first. However, Whelan J dealt with the matter in this fashion because of how it had been approached by the trial judge. Whelan J said:

“ in circumstances where the said anterior issue [as to whether an application for a direction pursuant to section 11(2)(c)(ii) can be entertained by the court after the expiration of period of two years from the accrual of the cause of action] was not comprehensively contested by the appellant – who was a litigant in person – with any degree of rigour it is proposed to consider in the first instance whether the trial judge correctly exercised his statutory discretion in refusing to extend the limitation period. Thereafter the antecedent question will be addressed should the need arise.”

That approach was not urged on me in this case. Indeed, the parties highlighted the fact that a divergence of opinion as to the correct interpretation of the section has arisen in three High Court decisions and their approach was that this issue had to be decided.

5 I think it is appropriate in those circumstances that I should first determine the interpretation issue. If I am satisfied that the section permits an application to be made after the commencement of the proceedings, I will then consider whether I should exercise the discretion in section 11(2)(c).

BACKGROUND

6 These questions arise against the following background.

7 On the 13 ^th December 2019, the plaintiff, who is a pharmacist, first learned that the defendant had previously provided a Garda vetting report which contained incorrect information about his record of criminal conviction to the Irish Pharmacy Union and the Union had then published this report to various pharmacies whenever the plaintiff was seeking to take up employment.

8 Essentially the vetting report ascribed the plaintiff's brother's criminal convictions to him.

9 Prior to this discovery the plaintiff did not know that the defendant had published this material about him.

10 In the Defence it is pleaded that the report was first published by the defendant on the 22 ^nd June 2018. Section 11(3B) of the Statute of Limitations, as inserted by section 38 of the 2009 Act, provides that:

“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.”

11 Thus, on the basis of the plea in the Defence, the date of the accrual of the cause of action was the 22 ^nd June 2018 and this is not disputed by the plaintiff. The claim was statute-barred as of the 21 ^st June 2019 unless the Court made (or makes) a direction under section 11(2)(c) and would be absolutely statute-barred on the 21 ^st June 2020.

12 Solicitors acting on behalf of the plaintiff wrote to the defendant on the 19 ^th March 2020 pointing out that the plaintiff had not been aware of the publication when it occurred and that he first became aware of it in December 2019. They also requested compensation and that the defendant write to all former employees of the plaintiff in certain terms. It seems there was no response to this and the plaintiff then issued proceedings by Plenary Summons on the 20 ^th May 2020 and delivered a Statement of Claim on the 13 ^th October 2020. A Defence was delivered on the 9 ^th June 2021 in which it was pleaded that the plaintiff's claim was statute-barred on the basis that the alleged cause of action accrued on the 22 ^nd June 2018 and no proceedings were instituted by the plaintiff until the 20 ^th May 2020.

13 The plaintiff then brought this motion on the 21 ^st September 2021.

THE PARTIES' POSITIONS

14 It is the defendant's position that the correct interpretation of section 11(2)(c) is that if proceedings are not instituted within one year of the date of accrual of the cause of action they may only be issued if the Court first gives a direction under section 11(2)(c). Put simply, it is the defendant's case that a claim can not be brought until after a direction has been granted, that a direction was not granted (or sought) within two years of the accrual of the cause of action in this case and the claim is therefore absolutely statute barred.

15 The plaintiff, on the other hand, takes the position that section 11(2)(c), on its proper interpretation, permits the institution of proceedings within two years of the accrual of the cause of action and permits an application for a direction to be made after the proceedings have been instituted, and that these proceedings were instituted within two years and will only be statute-barred if the Court does not give a direction.

16 I was referred to a number of cases: Quinn v Reserve Defence Forces Representative Association & Ors [2018] IEHC 684, Oakes v Spar (Ireland) Limited [2019] IEHC 642, McKenna v Kerry County Council & anor [2020] IEHC 687, Morris v Ryan [2019] IECA 86, O'Brien v O'Brien [2019] IEHC 591 and O'Sullivan v Irish Examiner Limited [2018] IEHC 625. The first three of these – Quinn, Oakes and McKenna are most directly on point.

DISCUSSION AND CONCLUSION ON INTERPRETATION

17 The parties acknowledged that there was a difference of opinion evidenced in these three judgments. Barton J and Butler J held in Quinn and McKenna respectively that a retrospective application after the institution of proceedings could be made. Simons J, on the other hand, held in Oakes that an application for a prolongation of the limitation period has to be made before the institution of the proceedings. The courts in Morris and O'Brien made some comments of relevance to the interpretation issue in this case which were largely in accordance with the conclusion reached by Simons J but, in fact the issue was only really considered and decided in Quinn, Oakes and McKenna.

18 I am satisfied for the following reasons that the correct interpretation of the section permits the institution of proceedings and a subsequent application for a direction.

19 I therefore find myself in agreement with the conclusion reached by Barton J and Butler J. Those sections of Simons J's judgment in Oakes in relation to whether an application may be made after the institution of the proceedings are obiter in circumstances where the application in that case was made before the proceedings were instituted. Separate proceedings had been issued in the Circuit Court but it was accepted that those earlier proceedings were issued against the wrong defendant and it was intended that if Simons J gave a direction, then fresh proceedings would be issued in the High Court and remitted to the Circuit Court. In both Quinn and McKenna the application for a direction was made after the institution of the proceedings. Furthermore, Simons J was presented with an ex parte application. This means that Simons J had to determine the issue without the matter having been fully argued before him. In particular, no argument appears to have been made to him in relation to what I consider to be the determining point, i.e., the fact that an interpretation which requires the application to be made in advance of the institution of the proceedings, would lead to the shortening of the limitation period (I return to this in detail below). This is understandable in circumstances where the application was being made in advance of the institution of the proceedings or the expiry of the two year period so this issue simply did not have to be argued.

20 Section 11(2) provides for a very short limitation period of one year with the possibility of an extension or prolongation of that period by one further year. Whether one sees the statutory scheme as providing for a one year or two year two limitation period, it is undoubtedly a short period. The uniqueness of this limitation period has previously been noted by this Court. Simons J in Oakes noted the “ uniquely short limitation period applicable to defamation actions”. Butler J in McKenna also observed that the maximum two-year period is relatively short when compared to other limitation periods. This is particularly so when one factors in the effect of sub-section (3B) which provides that the date of accrual of the cause of action is the date of first publication (rather than the date of knowledge). That is of particular significance in the context of defamation because an allegedly defamatory statement...