Out Of Time: Nóirín O'Sullivan -V- Irish Examiner

Author:Mr Darryl Broderick
Profession:Ronan Daly Jermyn
 
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Earlier this month, the High Court (Judge Pilkington) refused former Garda Commissioner Noirin O'Sullivan an extension of time within which to issue defamation proceedings. Ms. O'Sullivan had consciously decided to delay issuing defamation proceedings due to a set of circumstances that she was dealing with at the time of and after the publication the subject matter of her intended defamation proceedings.

Background

The Irish Examiner, for whom Ronan Daly Jermyn acted, published an article on 4 October 2016 in relation to protected disclosures that had been made by members of An Garda Siochana, which alleged that senior Garda management conducted a campaign to “destroy” a whistleblower within the force. Ms. O'Sullivan was not named in the article. The Irish Examiner did not receive a complaint relating to the article until September 2018 and an application was issued the same month seeking an extension of time to issue defamation proceedings outside of the one year statutory time limit set out in the Defamation Act, 2009. Ms. O'Sullivan's reason for not issuing proceedings within the statutory time limit was that she did not believe that she was in a position to consider any steps she might take in relation to the article until the conclusion of the public hearings of the Disclosures Tribunal.

The Law

The Defamation Act, 2009 requires that defamation proceedings are issued within 12 months from the date of publication or “such longer period as the Court may direct not exceeding two years”. The Act also provides that the Court may not extend the time within which to issue proceedings unless it is satisfied that:

(a) "The interests of justice require the giving of the direction; and

(b) The prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given”.

The Act goes on to provide that in deciding whether to give such a direction the Court shall have regard to the reason for the failure to bring the action within the one year period and the extent to which any evidence relevant to the matter is, by virtue of the delay, no longer capable of being adduced.

Legal Submissions of the Parties

Counsel for Ms. O'Sullivan argued that even if the Court found that the reason for the delay was inexcusable it could nevertheless grant the extension of time if it considered that the interests of justice required it and that the...

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