Naughton v Irish Examiner Ltd; Naughton v Independent Star Ltd

JurisdictionIreland
JudgeMs. Justice Siobhán Phelan
Judgment Date01 December 2023
Neutral Citation[2023] IEHC 675
CourtHigh Court
Docket Number[Record No. 2017/662P]
Between:
Barbara Naughton
Plaintiff
and
Irish Examiner Limited
Defendant
Between:
Barbara Naughton
Plaintiff
and
Independent Star Limited
Defendant

[2023] IEHC 675

[Record No. 2017/662P]

[Record No. 2017/663P]

THE HIGH COURT

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 1 st day of December, 2023.

INTRODUCTION
1

. By separate Notices of Motion returnable to the 6 th of April, 2022 (in the proceedings against “the Irish Examiner”) and the 5 th of July, 2021 (in the proceedings against “the Irish Daily Star”) respectively, coming on together for hearing before me on the 3 rd of July, 2023, the Defendants in both above-entitled proceedings seek orders pursuant to Order 8, Rule 2 of the Rules of the Superior Courts 1986 (as amended) setting aside orders renewing the Plenary Summons in each case. Both proceedings relate to the alleged defamation of the Plaintiff arising from separate publications by each of the Defendants and plead identical relief. The proceedings against the Irish Examiner were issued by the Plaintiff in person whereas the proceedings against the Irish Daily Star were issued by solicitors on behalf of the Plaintiff.

2

. In both cases the Plenary Summonses issued on the 25 th of January, 2017 but were not served within twelve months as required under the Rules, with the result that the summonses required to be renewed in accordance with the provisions of the Rules of the Superior Courts, 1986 (as amended). In fact, in both cases the Plenary Summonses were not served until the 27 th of July 2020, some two and a half years post issue of each summons. It has emerged that in each case an application to renew the summons was moved before Allen J. in August, 2019 and refused. On further application an order renewing the plenary summons was made in each case on the 29 th of June 2020 by Cross J. It is these renewal orders which the Defendants seek to set aside by separate application in each case.

3

. The renewal applications were presented pursuant to Order 8, rule 1(4). The Rules of the Superior Court with regard to renewal were amended pursuant to the provisions of Rules of the Superior Courts (Renewal of Summons), 2018 ( S.I. 482 of 2018) and the new Rules came into effect from January, 2019. Under the amended Rules a new requirement to demonstrate “ special circumstances” was introduced. Order 8 rule 1 (as amended) provides:

“(1) No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons.

(2) The Master on an application made under sub-rule (1), if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for three months from the date of such renewal inclusive.

(3) After the expiration of twelve months, and notwithstanding that an order may have been made under sub-rule (2), application to extend time for leave to renew the summons shall be made to the Court.

(4) The Court on an application under sub-rule (3) may order a renewal of the original or concurrent summons for three months from the date of such renewal inclusive where satisfied that there are special circumstances which justify an extension, such circumstances to be stated in the order…..”

Accordingly, the requirement is not only that “ special circumstances” be demonstrated to the Court in grounding the application but also that the Court order recite the “ special circumstances” relied upon in making a renewal order under Order 8 rule 1(4).

4

. Provision is made to apply to set aside a renewal order made on an ex parte basis under Order 8 rule 2 in the following terms:

“In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such an order.”

5

. There are minor differences only between the two applications to set aside before me. Whereas the Irish Examiner were aware of a previous refusal of a renewal application by Allen J. if not the basis upon which the application was made, the Irish Daily Star were not aware at all that the application before Cross J. was the second renewal application when initiating this set-aside application and only became aware subsequently. Delivery of judgment in this matter has been delayed allowing an opportunity for the DAR record of the hearings before Cross J. and Allen J. to be obtained by the Defendants' solicitor and shared with the Plaintiff and the Court. By email dated the 28 th of November, 2023, the DAR transcripts were received from solicitors acting for one of the Defendants. The DAR record has been considered for the purpose of this decision.

THE PLAINTIFF'S CLAIM
6

. Almost identical Statements of Claim have been delivered by the Plaintiff in each case. The Plaintiff previously waived anonymity in respect of the prosecution of her father for acts of abuse against her. In broad terms, her claim in these proceedings is advanced on the basis that both newspapers published articles in which the Plaintiff was identified as a person involved in or associated with a group of survivors who advocate for legal consequences for those who know about abuse, including mothers in the cases of abuse by fathers, without acting to protect a child.

7

. The Plaintiff says that she was never a member of this particular group. She claims that a person reading the articles would be led to believe that she considered her mother a criminal and wanted to have her mother prosecuted. The Plaintiff claims that she has never sought to have her mother prosecuted and that her mother was not aware of the abuse she suffered. The Plaintiff claims that she has been damaged by the publications, particularly in her relationship with family members and in her home community.

8

. Although I am not deciding the merits of the Plaintiff's claim, in submissions before me, the Plaintiff sought to explain why the publications complained of were damaging of her and why these proceedings are so important for her. She stressed that she had obtained justice before the Courts through the conviction of her abuser and had moved on with her life, seeking to put the abuse and past hurt behind her. As I understand her submission, which was forcefully and impactfully made, she considered it damaging of her reputation and her close personal relationships to be falsely associated with a group of campaigners many years after the conviction of her abuser. She explained that this was because from her perspective, it suggested both that she had not moved on with her life and that she wished her mother to be pursued or penalised in some way. The Plaintiff made it very clear in submissions that she never had any wish to pursue her mother and found the imputation harmful and distressing. It was further clear from what was urged on me in submissions that she considered the articles she complains of as exploitative of the pain and suffering of persons she says she does not know but with whom she is associated in the publications, each of whose experiences are different from each other's and from her own.

BACKGROUND
9

. I propose to set out the background to the application to set aside in each case separately.

The Irish Examiner Proceedings

10

. In these proceedings, the Plaintiff seeks damages for alleged defamation arising from a newspaper article published by the Defendant in The Irish Examiner on the 30 th of January, 2016. The Plaintiff also seeks a Correction Order pursuant to s. 30 of the Defamation Act 2009 [hereinafter “the 2009 Act”]. While the Plaintiff was represented by a solicitor in early correspondence, there has never been a firm of solicitors on record for her. The proceedings were issued by the Plaintiff as a litigant in person in January, 2017, just days before the one-year statutory time limit fixed by amendment to the Statute of Limitations Act, 1957 effected by s. 38 of the 2009 Act expired. The summons was not served at that time.

11

. More than two and a half years later, on the 26 th of August 2019, the Plaintiff applied for an Order renewing the Plenary Summons and her application was refused by Order of Allen J. (This Order was perfected on the 30 th of August, 2019). The Plaintiff did not appeal against the refusal of her application.

A second application was moved on foot of a Notice of Motion issued by the Plaintiff on or about the 10 th of February, 2020 and the application proceeded ex parte. The said Notice of Motion was not served on the Defendant or on its solicitors. By Order made on the 29 th of June 2020, on foot of the Plaintiffs aforesaid ex parte application, Cross J. renewed the Plenary Summons for three months. The Order is expressed in simple terms providing only:

“It is ordered that the Plenary Summons herein be renewed as of this date for the period of three months from the date of such renewal inclusive”.

12

. Notwithstanding the express requirements of O.8, r.1(4), the Order as drawn is silent as to the “ special circumstances” which justified the extension. By further Order made on the 22 nd of July 2020, Cross J. ordered that a copy of the Plenary Summons be sealed as the Original Plenary Summons “… which said Original has been lost”.

13

. Upon service of the proceedings, the Defendant's solicitors called upon the Plaintiff to furnish a copy of all documentation relied upon by her and submitted to both Allen J. and Cross J. in the context of her application to renew the Plenary Summons made in August, 2019 and June, 2020 respectively by letter dated the 25 th of August, 2020 as follows:

“In order to assist us in understanding the...

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