Mercury Engineering and Others v McCool Controls & Engineering Ltd

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Roderick Murphy
Judgment Date19 July 2011
Neutral Citation[2011] IEHC 425
Date19 July 2011

[2011] IEHC 425

THE HIGH COURT

[No. 734 P/2011]
Mercury Engineering & Ors v McCool Controls & Engineering Ltd

BETWEEN

MERCURY ENGINEERING, MICHAEL KENNEDY AND FRANCIS MATTHEWS
PLAINTIFFS

AND

McCOOL CONTROLS AND ENGINEERING LIMITED EUGENE McCOOL (OTHERWISE FINN) AND M AND G. VENTILATION AND AIR CONDITIONING LIMITED, SANDYFORD VENTILATION LIMITED, BARRY CLARKE TRADING AS CLARKE ELECTRICAL, D.M.I.A.C. ENGINEERING LIMITED GERRY McCOOL TRADING AS D.M.C. ELECTRICAL SERVICES TEMPLE MECHANICAL CONTRACTORS LIMITED ((IN LIQUIDATION) GLENMORE ELECTRICAL SERVICES LIMITED, S. & S. ELECTRICAL LIMITED (VOLUNTARY LIQUIDATION)
DEFENDANTS

SINCLAIR v GOGARTY 1937 IR 377

COGLEY v RTE 2005 4 IR 79 2005 2 ILRM 529 2005 11 2271 2005 IEHC 180

REYNOLDS v MALOCCO & ORS 1999 2 IR 203 1999 1 ILRM 289 1998/36/13843

DEFAMATION ACT 2009 S33

MCDONNELL IRISH LAW OF DEFAMATION 2ED 1989 262

FOLEY v SUNDAY NEWSPAPERS LTD UNREP KELLY 28.1.2005 2005/26/5290 2005 IEHC 14

BONNARD v PERRYMAN 1891 2 CH 269

COULSON v COULSON 1887 3 TLR 846

GALLAGHER v TUOHY 1924 58 ILTR 134

CULLEN v STANLEY 1926 IR 73

EUROPE CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10.1

COLLINS LAW OF DEFAMATION & INTERNET 2ED 2010 80-85

DEFAMATION

Injunction

Conspiracy to injure business and reputation - Restraining communication of false or misleading information - Allegations that defamatory statements made by subcontractor - Refusal of previous injunctive application - Addition of parties - Material published since previous application - Defence of justification - Applicable legal principles - Whether clear alleged libel was untrue - Discretionary nature of injunctive relief - Whether communications unjustified - Issue to be tried by court - Remedy available at trial - Sinclair v Gogarty [1937] IR 377; Cogley v RTE [2005] IEHC 180; Reynolds v Molloco [1999] 2 IR 203; Foley v Sunday News Papers Ltd [2005] IEHC 14, [2005] 1 IR 88; Bonnard v Perryman (1891) 2 Ch 269; Coulson v Coulson (1887) 3 TLR 84; Gallagher v Tuohy (1924) 58 ILTR 134 and Cullen v Stanley [1926] IR 73 considered - Defamation Act 2009 (No 31), s 33 - Application refused (2011/734P - Murphy J - 19/7/2011) [2011] IEHC 425

Mercury Engineering v McCool Controls and Engineering Limited

Facts The plaintiffs had instituted proceedings against the defendants and as part of the proceedings sought an injunction against the sending of allegedly defamatory/misleading emails to third parties. It appeared that there was a dispute between the parties concerning payments for contract work carried out at the new terminal at Dublin Airport. It appeared that emails had been sent alleging that the plaintiff was delaying or possibly avoiding reaching a commercial settlement with some of the defendants. It was contended that unless restrained by the court the plaintiff, would continue to be defamed by the defendants and would be seriously damaged in connection with their business activities. On the part of the defendants it was contended that they were not a pressure group but rather formed as a direct consequence of the plaintiffs' failure to resolve the contractual dispute in question. The plaintiffs' proceedings were vexatious in nature and were an abuse of process. The right to free speech and engagement in political discourse was being exercised in order to gain a resolution to the difficulties arising from the unresolved dispute with the plaintiff. Despite the allegations of a campaign of defamation and harassment, no such evidence had been exhibited to substantiate those claims.

Held by Murphy J in refusing the injunction sought. Essentially, this was a commercial dispute in which both sides claimed that the other owed money and had breached contractual obligations. However it was not the function of the court to resolve conflicts of fact at an interlocutory stage. Only if a plaintiff was bound to succeed in the main action should an order be granted. The onus was on the plaintiff to prove that they would succeed in the main action. The defendants had not simply made a bare assertion but had given details of their claims. The plaintiff could not point to any statement of the defendants which was demonstrably untrue without a court hearing testing evidence in relation to that statement. The court was not satisfied on the affidavit evidence opened that unless the alleged libel was untrue, there was no wrong committed. It was not clear at this stage that the alleged libel is untrue, nor was it clear that any right at all has been infringed. It was clear that the court must refuse the injunction sought.

Reporter: R.F.

1

JUDGMENT of Mr. Justice Roderick Murphy dated the 19th day of July 2011

The 2010 Proceedings
1. Present Notice of Motion
2

By notice of motion dated the 26 th January, 2011 the plaintiff applied for the following orders:

3

1. An order restraining the defendants or either or any of them, their servants or agents from communicating to third parties, including but not exclusively, third parties with business relations with the plaintiff, verbally, by media interviews, by any written form, including e-mails and by any symbolic or pictorial means, false and/or misleading information of and concerning the plaintiff and its business relations and dealings with the defendants or any of them, their servants or agents.

4

2. An order restraining the defendants or either or any of them their servants or agents from maliciously communicating to third parties, including but not exclusively, third parties with business relations with the plaintiff (in the same manner) false and/or misleading information of and concerning the plaintiff and its business relations and dealings with defendants or any of them or their servants or agents.

2. Previous Notice of Motion (2010)
5

Identical reliefs were sought by the first named plaintiff against the first two defendants in proceedings entitled Mercury Engineering v. McCool Controls and Engineering Limited and Eugene (otherwise) McCool in Record No. 2010 6258P (the 2010 proceedings) in respect of which a notice of motion dated the th 5 July, 2010 issued.

6

It is necessary to refer to that motion in the 2010 proceedings before addressing the present application.

7

In the 2010 proceedings by an affidavit of Frank Mathews, company director of the plaintiff, sworn on the 5 th July, 2010, it was averred that the plaintiff was one of the main contractors and was responsible for mechanical and electrical engineering works in connection with the construction of the then new terminal No. 2 ("T2") for the Dublin Airport Authority at Dublin Airport. In that capacity, the plaintiff was responsible for appointing sub contractors to carry on various aspects of the said works.

8

By agreement between the plaintiff and the first named defendant dated the 7 th and 9 th July, 2008, McCool Controls and Engineering Limited were appointed as subcontractor for the supply and installation of the building management system, software and controlled engineering systems on part of the site. The second named defendant was a director and the third named defendant and employee of the first named defendant and son of the second named defendant. The T2 project was due for completion in August 2010. From early stages of the project difficulties arose regarding the work being carried out by the first named defendant. The plaintiff commenced the process of agreeing final work schedules and final accounts for the relevant sub contractors which numbered in excess of 70. By the end of April 2010, agreement had been reached with a number of subcontractor firms while negotiations were still ongoing with the remainder. Agreement could not be reached with two subcontractors whose contracts had been determined by the plaintiff including that of the first named defendant.

9

The deponent referred to correspondence and, in particular to three invoices dated the 18 th of May, 2010, contained in a letter of the 27 th May, 20010, which claimed sums due approaching almost €1.5 million which the plaintiff alleged had no basis in fact. The plaintiff refuted these invoices and claimed over €1.8 million from the first named applicant.

10

By e-mail dated the 7 th May, 2010, the third named defendant wrote to various persons, including companies with which the plaintiff had ongoing business relationships, setting out the defendants view of the matter in dispute, alleging that the plaintiff was delaying or possibly avoiding reaching a commercial settlement with the first named defendant, who claimed copyright in the software of works.

11

The deponent stated that rather than pursue the resolution procedures provided for an agreement between the parties, the defendants engaged with an unofficial group described as the "T2 Subcontractors Group" and conspired by pressure tactics to force conclusions to disputes in the plaintiff. The second named defendant spoke disparagingly of the plaintiff in or about the conduct of their business affairs, e-mail was sent to Chris Ainsworth of Ultra Electric Airport Systems and Colm Moran of the Dublin airport Authority. The deponent wrote to Mr. Ainsworth in an attempt to refute the contents of that e-mail. The T2 subcontractors group organised and held a demonstration outside the plaintiffs head office on the 30 th June, 2010 and thereafter outside Dáil Éireann and planned a further demonstration for Friday 2 nd July, 2010 outside the constituency offices of Minister Noel Dempsey. Many of the demonstrators carried placards bearing comments defamatory to the plaintiff.

12

It was alleged that, unless restrained by the court the plaintiff, would continue to be defamed by the defendants and would be seriously damaged in connection with their present and future business activities.

13

An application...

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2 cases
  • Philpott v Irish Examiner Ltd
    • Ireland
    • High Court
    • 8 Febrero 2016
    ...the material complained of was unarguably defamatory.( Mercury Engineering and Others v. McCool Controls and Engineering Ltd and Others [2011] IEHC 425; Cogley v. RTÉ [2005] IEHC 180). If anything, this Court would note, the position appears even stronger under s.33. Under that provision,......
  • Gilroy v O'Leary
    • Ireland
    • High Court
    • 1 Febrero 2019
    ...of the opinion that the statement ‘ is’ defamatory. 24 Barrett J. (citing Mercury Engineering v. McCool Controls and Engineering Limited [2011] IEHC 425 and Cogley v. RTE [2005] 4 I.R. 79) noted that at common law injunctive relief would only be granted where the court was satisfied that ......

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