Morris v Ryan

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 22 March 2019
• Neutral Citation: [2019] IECA 86
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2017 92
• Date: 22 March 2019

BETWEEN/

CHRISTIAN MORRIS

PLAINTIFF/APPELLANT

- AND -

ALOYSIUS RYAN

DEFENDANT/RESPONDENT

[2019] IECA 86

Whelan J.

Whelan J.

Baker J.

Costello J.

Record Number: 2017 92

THE COURT OF APPEAL

Defamation – Statute barred – Isaac Wunder order – Appellant seeking to appeal against the judgment of the High Court refusing his motion for a direction that he be permitted to proceed with defamation proceedings issued outside the one-year period of limitation – Whether the claim was statute barred

Facts: The appellant, Mr Morris, appealed to the Court of Appeal against the judgment delivered 7th February, 2017 and consequential orders made on the 1st March, 2017 by Gilligan J in the High Court wherein he refused the appellant’s motion for a direction pursuant to s. 11(2)(c)(ii) of the Statute of Limitations 1957 that he be permitted to proceed with defamation proceedings issued outside the one-year period of limitation specified in the said Act. The appellant also appealed orders made on the same date dismissing the said defamation suit on the grounds that same was statute barred pursuant to s. 11(2)(c) of the Statute of Limitations 1957. He further appealed an order, in the nature of an Isaac Wunder order, restraining him from instituting any further proceedings whatsoever, whether by summons or notice of motion, by application in court or by appearing or applying in court or otherwise, against the respondent, Mr Ryan, or any parties or companies associated in any way with the respondent or his business interests or in relation to the Marine Hotel Sutton and the Grand Hotel Malahide, without leave of the President of the High Court. The notice of appeal contended that the determination of the High Court was a “miscarriage of justice” based on “findings which are fundamentally wrong” and that the judge had failed to consider “the entire evidence as available before the Court”. It was further contended that the determination of the High Court resulted in the appellant having “an unresolved grievance” and that there remained an outstanding “total dispute” between the parties. He also contended that it had the “collateral effect of injuring” his inalienable rights under Bunreacht na hÉireann and that the order was “excessive, oppressive and unenforceable”. He contended that “the balance of justice favoured allowing the appeal.”

Held by Whelan J that the claim was clearly statute barred and accordingly the trial judge was correct to dismiss the claim on that basis. Whelan J held that the trial judge was correct in making the Isaac Wunder order as there was ample evidence before him to support his conclusions that such an order was warranted.

Whelan J held that the appeal would be dismissed on all grounds.

Appeal dismissed.

JUDGMENT of the Court delivered on the 22nd day of March 2019 by Ms. Justice Máire Whelan

1 This is an appeal against the judgment delivered 7th February, 2017 and consequential orders made on the 1st March, 2017 by Mr. Justice Gilligan in the High Court wherein he refused the appellant's motion for a direction pursuant to s.11(2)(c)(ii) of the Statute of Limitations, 1957, as amended, that he be permitted to proceed with defamation proceedings issued outside the one-year period of limitation specified in the said Act. The appellant also appeals orders made on the same date dismissing the said defamation suit on the grounds that same was statute barred pursuant to s.11(2)(c) of the Statute of Limitations, 1957 (as inserted by s.38(1) of the Defamation Act, 2009). He further appeals an order, in the nature of an Isaac Wunder Order, restraining him from instituting any further proceedings whatsoever, whether by summons or notice of motion, by application in court or by appearing or applying in court or otherwise, against the respondent or any parties or companies associated in any way with the respondent or his business interests or in relation to the Marine Hotel Sutton and the Grand Hotel Malahide, without leave of the President of the High Court.

Background

2 There had been a history of conflict between the appellant and respondent's hotel companies which apparently had its origins in 2007, resulting in the appellant in November 2007 objecting to the renewal of hotel licences at the annual District Court licensing hearing. Those objections were dismissed by the District Court as being ‘frivolous and vexatious’. The appellant's appeal of that determination was dismissed in the Circuit Court in 2008.

3 The claim in defamation arises out of an alleged incident which occurred some years later on the 22nd February, 2010 at the Marine Hotel in Sutton, County Dublin. The appellant is a resident in the area. The respondent is the managing director of the company which beneficially owns and runs the hotel.

4 A plenary summons issued on the 25th January, 2012, one year and eleven months following the incident in question. It pleads as follows:-

‘The Plaintiff's claim is that, on the morning of Monday 22nd February, 2010, among other possible occasions both before and afterwards, you, Aloysius Ryan (hereafter entitled ‘the Defendant’) did, in a public place harass the plaintiff and did repeatedly defame the plaintiff and did, in a public place, repeatedly insult and humiliate the Plaintiff and, above and beyond anything aforesaid, at times including but not confined to Monday 22nd February, 2010, have disseminated untrue statements about the Plaintiff to third parties…’

5 An appearance was entered promptly on the 1st February, 2012. By letter of the same date Orpen Franks, solicitors for the respondent, stated:

‘It would appear to us that your actions against both The Marine Hotel (Sutton) Limited and Mr Aloysius Ryan are statute barred. We would invite you to file a Notice of Discontinuance in relation to each case and should you discontinue the said proceedings, we can confirm that neither The Marine Hotel (Sutton) Limited nor Aloysius Ryan will pursue you in relation to the costs of those proceedings. If you elect to proceed with both actions, you will immediately have a significant exposure in respect of costs and that exposure will increase significantly if our clients are put to the expense of entering a Defence. We do suggest you give this matter your full consideration before any further legal expenses are unnecessarily incurred.’

6 It is significant that the said letter was written well in advance of the second anniversary of the incident in question.

7 No further step was taken to prosecute the claim until the 21st January, 2013 when, on foot of a motion brought by the respondent, Mr. Justice Gilligan made an order in the High Court directing the appellant to serve a statement of claim on the respondent not later than three weeks from the date of the said order. The appellant, a litigant in person, delivered a statement of claim dated the 8th February 2013. It included the following assertion;-

‘Section 38 of the 2009 Government of Ireland Defamation Act sets a statutory bar of one year for such litigation but is silent about whether a Plaintiff should proceed with a Statement of Claim in the event of it being arguable that such a statutory bar might apply. It is construed by the Plaintiff that the Defendant's demand for service of this Statement of Claim is a waiver of their right to relief under Section 38 of the 2009 Government of Ireland Defamation Act.’

8 At para. 1 it is pleaded that:-

‘The plaintiff is a law-abiding and respectable citizen who is of excellent character notwithstanding the uncontested existence of two minor traffic convictions against him (for driving without due care and consideration, and for crossing a continuous white line)’.

9 The statement of claim pleads that ‘on 22nd February, 2010 an incident (hereafter ‘the incident of 22nd February, 2010’) happened at the Marine Hotel, Sutton, Dublin 13’. It further recounts that on the 4th May, 2010 and the 3rd June 2010 the appellant made statements to the Gardaí arising from the said incident. It is pleaded at para. 5 that on the 9th August, 2010 the appellant got a letter from a Garda Superintendent telling him ‘that Supt. O'Connor had pardoned Aloysius Ryan from his criminal behaviour towards the Plaintiff as specified in the Garda statements at (3) and (4) above’.

10 It is pleaded that on the 22nd November, 2010 the appellant served on the respondent's solicitors a ‘detailed claim letter’. The statement of claim incorporates a series of ten photographs which are pleaded to constitute still images from a video recorded by the appellant in the course of the incident on the 22nd February, 2010.

11 The statement of claim, in addition to making allegations against the respondent, also alleges or imputes misconduct to the Marine Hotel Sutton Limited, the Grand Hotel Malahide Limited, Matthew Ryan Senior, Matthew Ryan Junior, Gillian Butler and John Walsh. All are entities or individuals connected with Mr Ryan or one or other of his businesses. It is pleaded that the video created by the appellant constitutes evidence of ‘the pursuit of an active and malicious smear campaign’ against him by the aforementioned parties in addition to the respondent. The reliefs sought include €4m. by way of punitive and exemplary compensation ‘or alternative sum as might eventually be agreed’, to be paid to the appellant by the respondent. In addition, he seeks a public apology.

12 The defence was delivered on the 1st March 2013. It pleads that the appellant's claim is statute barred pursuant to s.11(2)(c) of the Statute of Limitations (as inserted by s.38(1)(a) of the Defamation Act 2009) since the proceedings were commenced more than one year after the date on which the appellant's cause of action is alleged to have accrued.

13 The defence also pleads that the statement of claim discloses no reasonable cause of action against the respondent. In particular, it is...