Philpott v Irish Examiner Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 08 February 2016
• Neutral Citation: [2016] IEHC 62
• Court: High Court
• Docket Number: Record No. 2015/10694P,[2015 No. 10694 P]
• Date: 08 February 2016

BETWEEN/

DAN PHILPOTT

PLAINTIFF

AND

IRISH EXAMINER LIMITED

DEFENDANT

[2016] IEHC 62

Barrett J.

Record No. 2015/10694P

THE HIGH COURT

Defamation – S. 33 of the Defamation Act 2009 – Absolute privilege – Onus of proof – Freedom of speech

Facts: The plaintiff sought interlocutory orders for prohibiting the defendant from continuing to publish certain articles on the internet. The plaintiff alleged that due to the publication of the impugned articles on-line, he faced difficulty in finding employment as the said articles brought ill-repute to him. The plaintiff objected to the manner in which the proceedings of the Circuit Court were reported by the reporter of the defendant in the impugned publications on the basis that it was unfair as the reporter was not present to witness those proceedings.

Mr. Justice Max Barrett refused to grant the desired relief to the plaintiff. The Court held that an order under s. 33 of the Defamation Act 2009 would be issued only if the Court was of the opinion that the alleged statement complained of was defamatory, that the defendant had a claim of defence and that there was every likelihood that the defendant would succeed in its defence. The Court opined that even if the statement was found to be defamatory, the Court had discretion not to grant an order for prohibition, as evidenced by the use of the word 'may' under s. 33. The Court held that the Court reporter had the privilege to give an abridged or condensed court report provided that it was a fair and accurate brief of the proceedings and that the reporter need not be present in Court all the time. The Court found that the impugned article did not attempt to injure the plaintiff's reputation in the eyes of reasonable members of society as it merely provided a brief account of the settlement of the dispute. The Court found that in the present case, the defendant could assert the defence of absolute privilege and be likely to succeed and thus, the present application ought to be declined.

JUDGMENT of Mr Justice Max Barrett delivered on 8th February, 2016.

Part 1: Overview

1 The essence of the within application is simply stated: the Irish Examiner newspaper has published certain articles on its website; Mr Philpott wants them removed. He seeks to achieve this by having the court grant interlocutory orders prohibiting the Irish Examiner, its servants or agents, from continuing to publish the impugned articles on-line.

Part 2: A Brief Aside

2 Before proceeding with its judgment proper, the court pauses to address a specific concern that, it is claimed, presents for Mr Philpott at this time. A married man with two young children, he maintains that as a result of the articles that remain on the Irish Examiner website, it is proving difficult for him to get employment. To the extent that this is so, if it is so, it may assist Mr Philpott if the court briefly sets the record straight insofar as it can:

Mr Philpott is the former CEO of Marymount University Hospital and Hospice Limited. During the course of his employment as CEO, he sought to draw attention to what he perceived to be serious shortcomings in the operation of Marymount. Subsequently, there was a parting of the ways between himself and Marymount. This parting resulted in employment-related court proceedings between Mr Philpott and Marymount. However, the parties eventually settled their differences and the Board of Management of Marymount has given Mr Philpott a positive reference and publicly wished him well in his future career. The within application involves an attempt by Mr Philpott to have certain articles that he alleges are defamatory of him removed from the website of the Irish Examiner. Mr Philpott was entitled to bring the proceedings that he has settled. Moreover, while this Court is of the view that it cannot, as a matter of law, grant him the reliefs that he now seeks, he was fully entitled to bring the within application. At this time, there is nothing more to matters than that.

Part 3: The Nature of the Application Now Made

3 The within application is brought pursuant to s.33 of the Defamation Act 2009. That provision allows the court to make an order prohibiting the publication of a defamatory statement. So far as relevant to the within application, it provides:

'33. – (1) The High Court...may upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which application was made if in its opinion –

(a) the statement is defamatory, and

(b) the defendant has no defence to the action that is reasonably likely to succeed.

(2) Where an order is made under this section it shall not operate to prohibit the reporting of the making of that order [so no "super-injunctions"] provided that such reporting does not include the publication of the statement to which the order relates.

(3) In this section "order" means

(a) an interim order,

(b) an interlocutory order, or

(c) a permanent order.'

4 Notably, the premium placed by our society on freedom of speech is such that our elected lawmakers provide merely that the High Court 'may' grant a s.33 order even when the court is of the opinion that an indefensible defamatory statement presents. That the High Court 'may' grant such an order, but need not do so, indicates that our elected lawmakers contemplated that there will be instances when a court is of the opinion that an indefensible defamatory statement presents but may nonetheless elect not to bring the hammer of a s.33 order to bear in all the circumstances arising.

5 Notable too is the fact that the High Court need merely be of the opinion that the factors identified in s.33(1) present. In Reynolds v. Malocco [1999] 2 I.R. 203, Kelly J. indicated the position at common law as regards the granting of injunctions in situations of a type now governed by s.33 was that there should be no doubt but that the words complained of were defamatory. By reducing the test to a matter of judicial opinion, our elected lawmakers, in enacting s.33, appear to have lowered the bar for plaintiffs in this regard. Even so, a court in a liberal democracy such as ours that places a high premium on freedom of speech, may be slow in any event to issue a s.33 order, notwithstanding that the court is of the opinion that an indefensible defamatory statement presents. Indeed the profound importance of free speech – a freedom inextricably linked to the freeness of our nation –is such that it is arguable that a court ought to be slow to do so. One possible situation that occurs to the court in which the s.33 criteria might be satisfied but where, nonetheless, a s.33 order might not issue, would be where a court was possessed of the necessary opinion but not sufficiently confident of that opinion, whether on the facts presenting or otherwise, to wield the hammer of injunctive relief.

6 What does 'defamatory' mean for the purposes of s.33? The term is defined in s.2 of the Act of 2009 as meaning 'a statement that tends to injure a person's reputation in the eyes of reasonable members of society, and "defamatory" shall be construed accordingly'. The term 'statement' is also defined in s.2 and includes (a) a statement made orally or in writing, (b) visual images, sounds, gestures and any other method of signifying meaning, (c) a statement that is (i) broadcast on the radio or television, or (ii) published on the internet, and (d) an electronic communication. There is no doubt but that the on-line articles published by the Irish Examiner and which are the focus of the within application either comprise two statements and/or are two publications comprised of multiple statements.

7 Counsel have been unable to identify any previous Irish case-law that examines the precise nature of the test to be applied before a s.33 order will issue in circumstances such as those now presenting and have effectively invited the court to arrive at some formulation of the relevant test, and to determine whether, for example, a Campus Oil or Maha Lingham-style test applies. However, it seems to the court that the tapestry of law woven by the Oireachtas does not invariably or even generally require additional embroidery by the courts. The Act of 2009 posits simply that there are three criteria which must be satisfied before an order can issue under s.33, viz:

In the opinion of the court:

(1) is the statement complained of defamatory?

(2) does the defendant have a defence to the claim of defamation?

(3) is that defence reasonably likely to succeed?

8 The great strength of the common law is that so many judges have said so much; the great weakness of the common law is that so many judges have said so much. Either way, to borrow from Sati, there comes a time for everybody when words and reason become a great weariness. To add more to the plain words of statute, to afford those words a meaning other than what ordinary English requires, seems to this Court to be unnecessary.

9 The court is conscious that Kearns P. in Lowry v. Smith [2012] IEHC 22 did seek to define, in the context of s.34 of the Act of 2009, what was meant by the phrase 'no defence to the action that is reasonably likely to succeed' which appears in that section also. However, that was a case dealing with s.34 of the Act and the very different scenario of summary disposal. Our courts are generally especially careful as regards exercising a power of summary jurisdiction because of the inherent potential for unfairness that arises. Consequently Kearns P. (in this Court's respectful opinion, rightly) sought to pitch the test for summary judgment under s.34 in such a way as to favour defendants as much as possible, and thus reduce, so far as possible, the risk of a summary judgment issuing inappropriately. The same concerns do not present in the context of a s.33...