Oakes v Spar (Ireland) Ltd

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date13 September 2019
Neutral Citation[2019] IEHC 642
CourtHigh Court
Docket Number2019 No. 79 IA,[2019 No. 79 IA]
Date13 September 2019

IN THE MATTER OF AN INTENDED ACTION

BETWEEN
EMMA OAKES
APPLICANT
AND
SPAR (IRELAND) LIMITED
RESPONDENT

[2019] IEHC 642

Garrett Simons

2019 No. 79 IA

THE HIGH COURT

Defamation – Limitation period – Extension – Applicant seeking a direction extending the limitation period during which an intended defamation action could be brought – Whether the delay in the case was inexcusable

Facts: The applicant, Ms Oakes, applied to the High Court seeking a direction extending the limitation period during which an intended defamation action could be brought. She had, in fact, issued separate proceedings before the Circuit Court within the one-year limitation period. She accepted that those earlier proceedings were issued against the incorrect defendant. She wished to institute a fresh set of proceedings before the Circuit Court against a named individual, the proprietor of the retail premises wherein the alleged defamation was said to have occurred. Notwithstanding that the intention was that the defamation action would be heard before the Circuit Court, the application for a direction extending the limitation period had been made on an ex parte basis to the High Court. Leading counsel on behalf of the applicant appeared before Simons J at the Vacation Sitting on 10 September 2019. Counsel explained that the two-year limitation period was set to expire on 12 September 2019, and that there was no sitting of the Dublin Circuit Court scheduled before that date. It was initially submitted that the High Court would have jurisdiction to make an order extending the limitation period for Circuit Court proceedings but, on reflection, counsel then suggested that the proceedings might be instituted before the High Court and subsequently remitted to the Circuit Court. Having heard submissions from counsel for the applicant, Simons J made an order on 10 September 2019 refusing the application and indicated that he would set out his detailed reasons in a written judgment on 13 September 2019.

Held by Simons J that the form of application was irregular; an ex parte application is not permitted under the Rules of the Superior Courts, and would, in any event, be contrary to the spirit of the legislation. He was satisfied that the delay in the case was inexcusable by reference to any threshold. Having had regard to the minimal prejudice which would be suffered by the applicant, he was not satisfied that the prejudice that the applicant would suffer if the direction was not given would significantly outweigh the prejudice that the defendant, Spar (Ireland) Ltd, would suffer if the direction were given.

Simons J held that the application for a direction prolonging the limitation period pursuant to s. 11(2)(c) of the Statute of Limitations had been refused on 10 September 2019 for the above reasons.

Application refused.

Judgment of Mr. Justice Garrett Simons delivered on 13 September 2019.
Introduction
1

This matter has come before the High Court by way of an application for a direction extending the limitation period during which an intended defamation action can be brought. The normal limitation period applicable to defamation actions is one year, but the court has a statutory discretion to direct an extended period not exceeding two years.

2

As explained in more detail presently, the Applicant had, in fact, issued separate proceedings before the Circuit Court within the one-year limitation period. ( Oakes v. Spar (Ireland) Ltd., Dublin Circuit Record No. 589/2018). The Applicant now accepts that those earlier proceedings were issued against the incorrect defendant. The Applicant wishes to institute a fresh set of proceedings before the Circuit Court against a named individual, Loye Wei. It seems that this individual is the proprietor of the retail premises wherein the alleged defamation is said to have occurred.

3

Notwithstanding that the intention is that the defamation action will be heard before the Circuit Court, the application for a direction extending the limitation period has been made on an ex parte basis to the High Court. Leading counsel on behalf of the Applicant, Mr Philip Sheahan, SC, appeared before me at the Vacation Sitting on Tuesday 10 September 2019. Counsel explained that the two-year limitation period was set to expire on Thursday 12 September 2019, and that there was no sitting of the Dublin Circuit Court scheduled before that date. It was initially submitted that the High Court would have jurisdiction to make an order extending the limitation period for Circuit Court proceedings but, on reflection, counsel then suggested that the proceedings might be instituted before the High Court and subsequently remitted to the Circuit Court.

4

The fact that the application was made at the eleventh hour, with only two days remaining within which proceedings might be instituted, meant that it was necessary to rule on the matter urgently. Having heard submissions from counsel for the Applicant, I made an order on 10 September 2019 refusing the application and indicated that I would set out my detailed reasons in a written judgment on 13 September 2019.

Relevant Factual Background
5

The intended defamation action, the subject-matter of this application for an extension of the limitation period, arises out of an alleged incident which is said to have occurred on 12 September 2017. It is alleged that on that date the intended plaintiff, i.e. the Applicant, attended at retail premises at Mountjoy Street, Dublin 7. The retail premises seemingly traded under the style of a “SPAR” shop.

6

The alleged incident is summarised as follows in the indorsement of claim in the earlier Circuit Court proceedings ( Oakes v. Spar (Ireland) Ltd., Dublin Circuit Record No. 589/2018).

“3. On or about the 12th day of September, 2017, the Plaintiff attended at the Defendant's said premises to purchase a number of items when a servant or agents of the Defendant shouted from the till area to her ‘ You are not getting served‘. The Plaintiff was completely shocked and asked if this man was addressing her. He said that he was and again outlined that he would not be serving her. The Plaintiff was dressed in her work attire and asked ‘ why?’. He stated ‘ I have got a complaint that you are being rude’. He again stated to her ‘ Yes, you are being rude and causing trouble, I have it on camera‘. The Plaintiff was completely shocked by this incident which took place in front of a number of onlookers and the Plaintiff was extremely embarrassed.

4. The said incident occurred in the presence and view of a large number of right-thinking members of the public.”

7

The Applicant instituted defamation proceedings arising out of this alleged incident. The proceedings were brought in the Circuit Court and the defendant named in the proceedings is a company known as Spar (Ireland) Ltd. The Circuit Court proceedings were instituted on 11 September 2018, that is just shy of the expiration of the initial one-year limitation period fixed for defamation actions.

8

It subsequently transpired in correspondence between the Applicant's solicitors and the insurers acting on behalf of Spar (Ireland) Ltd that that company does not, in fact, operate the individual shops. See letter dated 12 July 2019 from Zurich Insurance to the Applicant's solicitors as follows.

“As previously advised, as with all SPAR shops, the proprietor is responsible for all trading aspects of the shop and dealings with customers. SPAR Ireland/PWG Foods provides a marketing, product supply and advisory support service to each SPAR shop. Accordingly, PWG Foods of Greenhills Road, Tallaght, Dublin 24 is not the correct legal entity of SPAR, Mountjoy Street, Dublin 7 and proceedings should be reissued in the name of the proprietor of the store in question.”

9

Notwithstanding that this letter was received by the Applicant's solicitors on 15 July 2019, an application for a direction pursuant to section 11(2)(c) of the Statute of Limitations was not made until Tuesday of this week, i.e. 10 September 2019.

10

The application was made pursuant to an ex parte docket grounded on two affidavits sworn by the Applicant's solicitor, Joseph McNally. The first affidavit explains that the Circuit Court proceedings were initiated against Spar (Ireland) Ltd in circumstances where it was believed that that company was operating the retail premises. The letter of 12 July 2019 from Zurich Insurance, cited above, is then referred to. It is next explained that a telephone call was made to the retail premises on 9 September 2019 and that the owner identified himself as Loye Wei.

11

The second affidavit outlines exchanges between the Applicant's solicitors and officials of Zurich Insurance during the period November to December 2018.

12

The principal relief sought in the ex parte docket is a direction extending the time for the bringing of proceedings against the defendant for a period of two years subsequent to the date of the alleged incident. The proceedings are, however, entitled “Emma Oakes, Plaintiff, and Spar (Ireland) Ltd., Defendant”. In other words, the title of the proceedings does not reflect the proposed new defendant, Mr Wei.

13

The application was moved on an ex parte basis before me on Tuesday, 10 September 2019. It was initially submitted that the High Court would have jurisdiction to make an order extending the limitation period for Circuit Court proceedings but, on reflection, counsel then suggested that the proceedings might be instituted before the High Court and subsequently remitted to the Circuit Court.

Timing Of Application For Extension
14

Counsel for the Applicant—correctly in my view—pursued the application for an extension of the limitation period on the assumption that it was necessary to obtain a direction from the court prior to the institution of a defamation action outside the one-year limitation period. The difficulty which...

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5 cases
  • McKenna v Kerry County Council
    • Ireland
    • High Court
    • 15 Diciembre 2020
    ...in this regard might be regarded as obiter were it not for the subsequent judgment of Simons J. in Oakes v Spar (Ireland) Ltd [2019] IEHC 642 in which he disagreed with Barton J.'s analysis and held that an application for a direction under s.11(2)(c) must be made prior to the institution o......
  • Reidy v Pasek
    • Ireland
    • High Court
    • 1 Junio 2022
    ...may be called upon to exercise its statutory discretion under s. 11(2)(c) is not entirely clear cut. Certainly, in Oakes v. Spar Limited [2020] 3 IR 337 Simons J. considered that a party could not simply issue proceedings and make an application ex post facto but rather an application for a......
  • McAllister v Commissioner of an Garda Siochana
    • Ireland
    • High Court
    • 9 Junio 2023
    ...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 Iris......
  • Reidy v Pasek
    • Ireland
    • Court of Appeal (Ireland)
    • 16 Febrero 2023
    ...in this regard might be regarded as obiter were it not for the subsequent judgment of Simons J. in Oakes v Spar (Ireland) Ltd [2019] IEHC 642 in which he disagreed with Barton J.'s analysis and held that an application for a direction under s.11(2)(c) must be made prior to the institution o......
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