Proudfoot v MGN Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Barr
• Judgment Date: 19 December 2019
• Neutral Citation: [2019] IEHC 871
• Date: 19 December 2019
• Docket Number: [2019 No. 115 MCA]
• Court: High Court

[2019] IEHC 871

THE HIGH COURT

Barr

[2019 No. 115 MCA]

BETWEEN

DARREN PROUDFOOT

PLAINTIFF

AND

MGN LIMITED

DEFENDANT

Defamation – Limitation period – Prejudice – Applicant seeking permission to institute defamation proceedings against the defendant – Whether the prejudice to the applicant in not allowing the defamation proceedings to continue would significantly outweigh the prejudice to the defendant if the direction were given

Facts: The applicant, Mr Proudfoot, applied to the High Court pursuant to s. 11(2)(c)(ii) of the Statute of Limitations 1957 (as inserted by s. 38 of the Defamation Act 2009) for a direction that the applicant be permitted to institute defamation proceedings against the defendant, MGN Ltd, notwithstanding that over one year had passed since the accrual of the cause of action. It was submitted that the applicant had furnished cogent reasons why he was not able to institute proceedings within the one-year limitation period. Having regard to the fact that he would suffer very considerable prejudice to his reputation and good name if he were not able to proceed with the action and having regard to the fact that there was no evidence that the defendant had been caused to suffer any prejudice as a result of the short delay, it was submitted that the Court should exercise its discretion to allow the applicant to institute proceedings claiming damages for defamation against the defendant.

Held by Barr J that the interests of justice were not in favour of permitting the plaintiff to institute defamation proceedings at this stage against the defendant. Barr J held that it could not be said that the prejudice to the applicant in not allowing the defamation proceedings to continue would significantly outweigh the prejudice to the defendant if the direction were given.

Barr J held that the application would be refused.

Application refused.

JUDGMENT of Mr Justice Barr delivered on the 19th day of December, 2019

Introduction

1 This is an application brought by the applicant pursuant to section 11(2)(c)(ii) of the Statute of Limitations 1957 (as inserted by section 38 of the Defamation Act 2009) for a direction that the applicant be permitted to institute defamation proceedings against the defendant, notwithstanding that over one year has passed since the accrual of the cause of action.

2 The applicant's complaint concerns a portion of an article published in the Irish Daily Mirror newspaper on Friday 26th January, 2018, wherein it was stated that in the course of criminal proceedings heard in France, the following was said concerning the applicant, who was on trial before that court: “The court heard the football coach was a known dealer and was under surveillance in his home country”.

3 The applicant maintains that not only was that statement untrue as to its substance, in that he has never been a drug dealer and was never under surveillance by An Garda Síochána; more particularly, he alleges that he has been defamed by the defendant because the statement reported as having been made in the article, was never in fact made about him in the course of the proceedings before the French court.

4 The applicant accepts that the article was published on 26th January, 2018 and that the first warning letter concerning the article was only sent to the defendant by his current solicitors on 19th March, 2019. That was followed by the issuing of the present notice of motion on 28th March, 2019. The applicant makes a number of submissions why the Court should exercise its discretion to allow him to bring defamation proceedings outside the one-year period and these can be briefly summarised in the following terms: (a) he was imprisoned in France from 17th January, 2018 until 13th August, 2018; (b) he had great difficulty consulting with his former solicitor and only managed to give instructions to him in late October 2018; (c) despite repeated contacts, it was not until the end of January 2019 or early February 2019, that the applicant's former solicitor told him that he could no longer act in the matter; (d) on 14th February, 2019, the applicant instructed his present solicitors and it was then that he learnt for the first time that there was a one-year time limit for the instituting of defamation proceedings; (e) his present solicitors acted promptly in sending the warning letter on 19th March, 2019, and in issuing the notice of motion grounding the present application on 28th March, 2019, and (f) having regard to the fact that the defendant was first notified only eight weeks outside the initial one-year limitation period, it could not be said that they would suffer any appreciable prejudice in defending the action as a result of such a short period of delay.

5 It was submitted that having regard to these factors, the applicant had furnished cogent reasons why he was not able to institute proceedings within the one-year limitation period and having regard to the fact that he would suffer very considerable prejudice to his reputation and good name if he were not able to proceed with the action and having regard to the fact that there was no evidence that the defendant had been caused to suffer any prejudice as a result of the short delay, it was an appropriate case in which the Court should exercise its discretion to allow the applicant to institute proceedings claiming damages for defamation against the defendant.

6 In response, it was submitted on behalf of the defendant that the applicant bore the burden of proof in this application, which meant that he had to do more than merely give an excuse for his delay in attempting to institute proceedings, but had to go further and persuade the Court that there was a good explanation as to why he had not instituted proceedings within the primary limitation period of one year from date of publication of the allegedly defamatory statement. It was submitted that the plaintiff had not gone anywhere near discharging the burden of proof that lay upon him. There was no evidence that he himself, or members of his family, could not have made contact with a solicitor while he was in prison, and tell the solicitor to institute defamation proceedings on his behalf. Even if the Court were to accept that it was not possible for him to take such steps while he was in prison in France, he was obliged to take the necessary steps upon his return to Ireland in the middle of August 2018. It was submitted that while the plaintiff had stated in his affidavit that he had encountered difficulties in consulting his former solicitor, he had stated clearly that he had given him detailed instructions on the matter at the end of October 2018. That was three months prior to the expiry of the one-year limitation period. No excuse had been proffered why the necessary proceedings had not issued within that period.

7 It was submitted that the defendant would suffer considerable prejudice if it were deprived of the opportunity to rely on the primary limitation period. It would face difficulty obtaining the necessary witness evidence from the reporter who had furnished the initial report on the French court proceedings in January 2018. They would also have to locate the witness who had translated the report furnished by the court reporter. The defendant would also be prejudiced in that it would have to undergo the expense of defending the action and in this regard the Court was entitled to have regard to a number of matters: firstly, that the defendant would be entitled to rely on the defence of qualified privilege in respect of its reporting of proceedings before a foreign court or tribunal, and secondly, the Court was entitled to take into account the candid averment by the applicant, that in the event of him losing the case, he would not be in a position to pay the defendant's costs. In these circumstances it was submitted that the Court should refuse the relief sought by the applicant in this application.

Background

8 When considering an application such as this, the background facts which are said to constitute the circumstances which excuse or justify the delay on the part of the applicant in instituting the defamation proceedings, are of considerable importance. In an affidavit sworn on 20th March, 2019, the applicant set out his version of events. He stated that in January 2018 he was in his apartment in Alicante, Spain. A friend of his asked him to drive him to La Chambre in France. His friend was unable to drive, as he had recently undergone a hip replacement operation. He offered the applicant €500 to bring him to France. The applicant agreed and rented a car for that purpose.

9 The applicant stated that his friend told him that he wished to collect some medication, which the friend planned to bring with him to France. The friend purchased the medication from a pharmacist in Spain. The applicant and his friend then drove to France on 17th January, 2018. They were stopped by French customs officials in Estezagues, France. When the customs officers searched the boot of the applicant's car, they found the medication that his friend had purchased. The friend explained that he had lawfully purchased the medication. The applicant stated that he and his friend were arrested and were both sent for trial at Nimes Criminal Court.

10 The applicant continued his narrative by stating that he pleaded guilty to a charge of possession of dangerous goods for public health (psychotropic drugs) without regular documentary evidence, which was deemed a smuggled import. He was sentenced to a term of imprisonment of 18 months and was fined €35,000, which was reduced to €22,000 on appeal. He stated that the prosecutor had appealed against the initial sentence on the basis that it was unduly lenient, but that appeal was dismissed and the fine was reduced.

11 In his supplemental affidavit sworn on 12th July, 2019, the applicant stated that...