Nora Martin v Genesis Psychotherapy and Family Therapy Service Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 05 July 2021 |
| Neutral Citation | [2021] IEHC 449 |
| Docket Number | [2016 No. 4255 P] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 449
[2016 No. 4255 P]
THE HIGH COURT
JUDGMENT of Mr. Justice Twomey delivered on the 5th day of July, 2021
The plaintiff (“Ms. Martin”) claims damages for defamation and the question for consideration in this case is whether the defendant (“Genesis”) is entitled to rely upon the defences of qualified privilege and truth, where Genesis at the same time denies publishing the words which the plaintiff alleges are defamatory.
Ms. Martin claims that this approach by Genesis is totally inconsistent, either (a) the words were spoken but they were true and subject to qualified privilege or (b) the words were not spoken, in which case there is no necessity to claim privilege or truth – it is one or the other in her view and both positions cannot be adopted by Genesis.
This question arises in circumstances where Ms. Martin has brought a motion seeking to strike out of the pleas of qualified privilege and truth, or, in the alternative, her to be provided with the words allegedly spoken which are alleged to be defamatory (by the grant of an order allowing her to administer interrogatories or, in the further alternative, an order requiring the defendant to particularise the words allegedly spoken).
What is unusual about the circumstances of this case, and the very reason behind the present motion, is the fact that the allegedly defamatory words were spoken at a meeting at which the plaintiff was not present. This is not a case therefore, as might be more common in a defamation action, where the subject matter is a newspaper article or a television broadcast, where there is a record of what was said. Instead, what was said at the meeting is a matter of dispute which will require evidence at the trial.
Since evidence is a matter for the trial, Genesis claims that what Ms. Martin seeks on foot of the present motion is to effectively adduce evidence as to the words spoken prior to the trial. For her part, Ms. Martin claims that the relief sought is necessary to enable her to know the case that she will have to meet at the trial.
For the reasons set out below, this Court concludes that the plaintiff is entitled only to know in ‘ broad outline’ the case she has to meet and as noted herein, this Court does not accept that the plaintiff does not already know in general terms the case made by the defendant. On that basis therefore, and for the other reasons set out in this judgment, including the fact that (in line with Kirkwood Hackett v. Tierney [1952] I.R. 185) a defendant is entitled to deny making a statement and at the same time claim that the occasion is privileged, this Court refuses to grant the reliefs sought by the plaintiff.
On 12th January, 2009, Ms. Martin commenced working as manager of Genesis. Genesis is a limited company that provides community-based psychotherapy services to families and individuals. At the time that Ms. Martin was employed with Genesis, the company was governed by a Board of Management, of which Ms. Martin was a member.
It appears that Ms. Martin worked as manager of Genesis from January 2009 to late 2013 without controversy. In late 2013, a charity event was organised as a means of fundraising for Genesis. That event was advertised as a ‘ Strictly Come Dancing’ event. Following the event, the money collected at the fundraising event was kept or stored by Ms. Martin in her private residence for an extended period of time. It is not necessary to set out the precise details of this event or its immediate aftermath, although it should be noted that it has not been suggested or implied anywhere in the pleadings that Ms. Martin misappropriated the fundraising monies in any way, rather that she kept the funds for safekeeping in her home for an ‘ extended period’ for the purpose, as claimed by the defendant, of conveying to third parties that Genesis had less funds available to it than was in fact the case.
On 23rd April, 2015, Mr. Richard Trehy (“Mr. Trehy”), treasurer of the Board of Management of Genesis at the relevant time, a role in which he acted in a voluntary capacity, had a meeting with Ms. Martin at which it is said he raised certain issues in relation to the safekeeping by her of the fundraising monies at her private residence. It seems that that meeting was a private meeting between Ms. Martin and Mr. Trehy. This is a relevant detail insofar as it is claimed that Mr. Trehy questioned Ms. Martin at that meeting regarding two issues, the first being the revaluation of the defendant's building in 2012 and the second being the accounting of fundraising monies raised at the ‘ Strictly Come Dancing’ fundraising event in 2013. Ms. Martin claims that at this meeting Mr. Trehy commented to her that ‘ at best it could be seen that you tried to defraud funders’ – in relation it seems to the holding of the fundraising monies at the plaintiff's private residence. No claim for defamation is made in respect of this meeting however.
Four weeks later, on 20th May, 2015, a staff meeting was held (the “meeting”). There were 12 members of staff of the defendant present at this meeting but the plaintiff was not in attendance. Representing management at the meeting was Mr. Trehy, treasurer of the Board, as well as Chairman of the Board, Mr. Damien Scattergood. Ms. Martin claims that at this meeting Mr. Trehy made certain defamatory statements in relation to her, and in particular her conduct as manager of Genesis and her role and motivation in storing the aforementioned fundraising monies at her home. As will be clear, what exactly was said by Mr. Trehy at the meeting is unclear, although the Amended Statement of Claim sets out in brief terms the nature of what was said, it is ultimately a matter for evidence at the trial.
In essence, Ms. Martin claims that certain statements were made by Mr. Trehy at the meeting ‘ to like effect’ that something had happened that could be classified as a ‘ criminal offence’ that would ‘ have a prison sentence going with it’ and which related to a ‘higher level employee’, that Genesis had ‘not been run well and was open to criminal charges’, that ‘ more changes in reporting to stakeholders were necessary’ to protect Genesis from ‘ criminal charges’ and that Ms. Martin had ‘ mismanaged the service’.
As matters transpired, a week later, on 27th May, 2015, Ms. Martin's role as manager was abolished by Genesis. By letter dated 10th June, 2015, Ms. Martin was notified of the termination of her employment and it appears that her official termination date was 31st May, 2015. In this regard, it appears from the Amended Statement of Claim that Ms. Martin has issued unfair dismissal proceedings which are pending before the Employment Appeals Tribunal. However, the present status of those proceedings is unclear.
Reference is also made in the Amended Statement of Claim to a letter sent by Genesis to Ms. Martin on 13th July, 2015 in which Ms. Martin is advised that certain matters are ‘ reportable under the Criminal Justice (Theft and Fraud Offences) Act 2001’ – however it seems that no action has been taken on foot of this correspondence.
Almost one year to the day after the meeting, 13th May, 2016, Ms. Martin issued proceedings in which she claims damages for defamation against Genesis as the alleged publisher of an allegedly defamatory statemen under the Defamation Act 2009. Notably, Ms. Martin has not chosen to sue Mr. Trehy, as the person who spoke the allegedly defamatory words at the meeting in May 2015.
The original Statement of Claim was delivered on 15th July, 2016 and the original Defence was delivered on 14th October, 2016. However, the Defence was struck out on consent by Barniville J. on 26th February, 2018 for failure to comply with O. 19, r. 17 RSC. It appears to be common case that at that hearing for the strike out of the Defence it was agreed that the defendant was ‘at large’ to amend its defence and therefore no issue is taken with the fact that a plea of truth was added, and that the plea of qualified privilege was expanded upon, in the Amended Defence. Some issue was taken with this in the written submissions although no great reliance was placed on this fact in the oral submissions to this Court. An amended Statement of Claim was then delivered on 6th March, 2018 and the plaintiff's Affidavit of Verification was sworn on 14th May, 2018.
The Amended Defence was delivered on 23rd March, 2018 and in that Amended Defence, Genesis expands on the defence of qualified privilege and also relies on a plea of truth per s. 16 of the Defamation Act, 2009. Both defences are particularised in the Amended Defence, which particulars are set out more fully later in this judgment.
Importantly, while Genesis has pleaded qualified privilege and truth in its Amended Defence, it has also denied that the words complained of were spoken. It is claimed by Ms. Martin that this is inconsistent, i.e. if the words were spoken they were true and subject to qualified privilege, but if the words were not spoken then there is no necessity for claiming such privilege – it is one or the other.
Ms. Martin says that this inconsistency means that she does not know the case that she has to meet at trial, as she does not know what words Genesis claims are privileged or were spoken as truth in circumstances where Genesis simultaneously denies that the words complained of were spoken. Ms. Martin claims that she will not have a fair trial and that the defendant will be at an advantage if she does not know in advance of the trial what words were actually spoken by Mr. Trehy at the meeting. It is relevant to note however that a Reply to the Amended Defence was delivered on 3rd May, 2019 and in this Reply, Ms. Martin denies that the defences pleaded...
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