Quinlivan v O'Dea
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cooke |
| Judgment Date | 20 April 2009 |
| Neutral Citation | [2009] IEHC 187 |
| Court | High Court |
| Docket Number | [No. 3270 P/2009] |
| Date | 20 April 2009 |
[2009] IEHC 187
THE HIGH COURT
AND
PREVENTION OF ELECTORAL ABUSES ACT 1923 S11(5)
PREVENTION OF ELECTORAL ABUSES ACT 1923 S11
CULLEN v STANLEY 1926 IR 73
BONNARD v PERRYMAN 1891 2 CH 269
SINCLAIR v GOGARTY 1937 IR 377
EVANS & RENAISSANCE PRODUCTS LTD v CARLYLE 2008 2 ILRM 359 2008 IEHC 143
COGLEY & ORS v RAIDIO TELEFIS EIREANN (RTE) 2005 4 IR 79 2005 2 ILRM 529 2005/11/2271 2005 IEHC 190
REYNOLDS v MALOCCO 1999 2 IR 203 1999 1 ILRM 289 1998/36/13843
PREVENTION OF ELECTORAL ABUSES ACT 1923 S11(1)
PREVENTION OF ELECTORAL ABUSES ACT 1923 S11(2)
CAMPUS OIL LTD v MIN FOR INDUSTRY (NO 2) 1983 IR 88 1984 ILRM 45
COULSON (WILLIAM) & SONS v JAMES COULSON & CO 1887 3 TLR 846
INJUNCTION
Interlocutory
Defamation - Slander - Order restraining repetition of alleged slander - Statutory injunction - Election candidate - Statutory prohibition on making false statements - Intervention of court only appropriate where statutory prohibition infringed - Evidence of making or publication of false statement of fact - Basis for grant of statutory injunction - Established risk or likelihood that disputed statement would be repeated before election - Whether injunction necessary to afford candidate protection - Whether plaintiff established risk that disputed statement would be repeated before election - Injunction - Fair issue to be tried - Balance of convenience - Damages adequate remedy - Right to free speech - Undesirability of fettering freedom of speech - Slim possibility of repetition of slander - Court must exercise particular caution before intervening in course of election - Possibility of material effect of defamation on election result -Whether plaintiff established fair issue to be tried - Whether damages adequate remedy where election candidate unsuccessful - Cullen v Stanley [1926] 1 IR 73 distinguished - Evans v Carlyle [2008] IEHC 143 [2008] 2 ILRM 359, Cogley v RTE [2005] IEHC 180 [2005] 4 IR 74 and Reynolds v Malocco [1999] 2 IR 203 considered - Campus Oil v Minister for Industry (No. 2) [1983] IR 88 and Sinclair v Gogarty [1937] 1 IR 377 applied - Bonnard v Perryman [1891] 2 Ch. 269 followed - Prevention of Electoral Abuses Act 1923 (No 38), s 11 - Relief refused (2009/3270P - Cooke J - 20/4/2009) [2009] IEHC 187
Quinlivan v O'Dea
delivered the 20th day of April, 2009.
1. This action has been brought by the plaintiff against the defendant as a claim for damages for an alleged slander.
2. On the present motion the plaintiff seeks an interlocutory injunction restraining any repetition of the alleged slander pending the trial of the action. The injunction is sought in two forms namely, an injunction to restrain the repetition of the alleged slander and, secondly, an injunction pursuant to s. 11(5) of the Prevention of Electoral Abuses Act 1923 restraining a repetition of the making or publication of false statements in relation to the personal character or conduct of the plaintiff as a candidate in the forthcoming local Government elections due to be held on 5th June, 2009.
3. The precise terms of those two injunctions as set out in the notice of motion are as follows:-
2 "(1) An interim and/or interlocutory injunction restraining the respondent from uttering or otherwise publishing or causing to be published in any manner and in any media of and concerning the applicant, words or material intending to slander the applicant and to impute to him any connection with the activity of a brothel similar to those uttered to the "Limerick Chronicle" reporter Mr. Mike Dwane and subsequently published in the edition of the "Limerick Chronicle" dated 10th March, 2009;
(2) An interim and/or interlocutory injunction pursuant to s. 11(5) of the Prevention of Electoral Abuses Act1923 restraining any repetition by the respondent of the false statements in relation to the personal conduct and character of the applicant as reported in the edition of the "Limerick Chronicle" dated 10th March, 2009, or other such false statements of a similar character in relation to the personal conduct or character of the applicant."
4. As appears from the terms of the injunctions sought, the plaintiff claims that he was slandered by the defendant in the course of an interview which the defendant gave to a journalist, Mike Dwane, as reported in the edition of the Limerick Chronicle on 10th March, 2009. The plaintiff is a political activist for the Sinn Féin party in Limerick and has been nominated by it to stand as a candidate for election as a council member in the June election. The defendant is a sitting T.D. for a Limerick constituency and a Minister in the Government.
5. According to the plaintiff, this interview arose out of a press release issued by him to newspapers in Limerick on 9th March, 2009 in which he had criticised the defendant for employing six civil servants to work on constituency matters for him and for making unsolicited offers to assist applicants for planning permissions.
6. The plaintiff claims that in the course of being interviewed by the journalist the defendant made false and defamatory statements to the effect that he, the plaintiff, was involved as a part owner or otherwise in the operation of a brothel in an apartment at Clancy Strand in Limerick. The plaintiff relies in particular upon the title to that article, on its opening paragraph and on part of a direct quotation from the defendant in the body of the article as follows.
The title reads: "Quinlivan says he may sue O'Dea over brothel" The opening paragraph reads: "Sinn Fein's Maurice Quinlivan says he's considering legal action against Willie O'Dea after the Minister for Defence claimed he part-owned a Clancy Strand apartment where a brothel was discovered in Garda raids."
The quotation is:
"I suppose I am going a bit too far when I say this but I'd like to ask Mr. Quinlivan is the brothel still closed?".
7. The plaintiff claims that these references to the brothel were made by the defendant both in the interview and elsewhere for the sole purpose of damaging the plaintiff's reputation and damaging his political future including, obviously, his prospects of success in the forthcoming local elections.
8. In a replying affidavit the defendant candidly admits that he did indeed say to the journalist the quoted words "I suppose I am going a bit too far when I say this but I'd like to ask Mr. Quinlivan is the brothel still closed?", but he denies "most categorically and emphatically" that he said to Mr. Dwane that the plaintiff was the co-owner of the apartment in question. The defendant also accepts that, contrary to a mistaken impression that may have been given in his solicitor's letter of 27th March, 2009, that the quoted statement was volunteered by him spontancously and was not made in reply to any question by the journalist.
9. The defendant for his part takes issue with remarks attributed to the plaintiff in the report to the effect that Mr. O'Dea in common with "dissident republicans" was spreading the story that he owned the property and that he, Mr. O'Dea, was going around town slandering the plaintiff and was "up to every kind of dirty trick". The defendant claims that these allegations by the plaintiff are wholly unfounded, unsupported by any evidence and are made in an attempt to provide an appearance of support for the present application. Finally, the defendant maintains that he proposes to defend the present action vigorously. In submissions on his behalf, counsel stated that it was not intended to plead justification as such but, in so far as the claim is based on an alleged slander to the effect that the plaintiff was co-owner or part owner of the apartment, it is denied that any such statement was ever made by the defendant. In so far as it is based upon the quoted question as to the brothel being still closed, it would be denied that the words are defamatory and the question will be claimed to be one which the defendant was entitled to raise as a public representative for the area in question.
10. It is in these circumstances that the interlocutory injunctions are sought. In the course of submissions counsel have referred the court to the pertinent case law both on section 11 of the 1923 Act and on the criteria relevant to the grant of an interlocutory order in a defamation action. In particular the court has had opened to it and has considered the following...
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The Relevane of Constitutional Rights to the Granting of an Interlocutory Injunction
...and informed public debate on [these] issues.” 77 70 Ibid , at 209–210. A similar test was espoused by Cooke J in Quinlavan v O’Dea [2009] IEHC 187, at para.20 71 Citing with approval the decision of the Supreme Court in Cullen v Stanley [1926] IR 73. 72 Reynolds, supra note 67, p.212 73 Wh......