Quinn v Reserve Defence Forces Representative Association

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 30 November 2018
• Neutral Citation: [2018] IEHC 684
• Court: High Court
• Docket Number: [2012 13171 P.]
• Date: 30 November 2018

BETWEEN

JOHN QUINN

PLAINTIFF

AND

RESERVE DEFENCE FORCES REPRESENTATIVE ASSOCIATION, CHARLES BRADLEY, BRIAN O'KEEFFE

AND

JASON MCKEVITT

DEFENDANTS

[2018] IEHC 684

Barton J.

[2012 13171 P.]

THE HIGH COURT

Tort - Defamation – Statute of Limitations – Plaintiff seeking an order for an extension of time pursuant to s. 11 (2) (c) of the Statute of Limitations Act 1957 – Whether the Plaintiff was required to apply for an order extending the limitation period before issuing proceedings and whether the court should exercise its discretion to extend the period

Facts: The plaintiff issued defamation proceedings against the defendants outside the statutory one year limitation period. The plaintiff then sought an order for an extension of time pursuant to S. 11 (2) (c) of the Statute of Limitations Act, 1957, as inserted by S.38 (1) (a) of the Defamation Act 2009 by which the court can allow proceedings to be brought in a period not exceeding two years from the cause of action. The plaintiff sought this order after issuing proceedings against the defendants. The defendant argued that the wording of S.38 (1) (a) mandated the plaintiff to apply for an order for extension and have such an order granted before proceedings could be filed and that this could not be done retrospectively. The two questions before the court were (1) could the plaintiff apply for the extension order after proceedings had been issued; and (2) if the plaintiff could apply for such an order, should the court exercise its discretion and grant the extension.

Held by Barton J that the plaintiff was entitled to retrospectively apply for an order to extend the limitation period and that the phrase “shall not be brought” in S.38 (1) (a) should not be read to bar the plaintiff from issuing proceedings in the first instance, but rather may bar the claim should the defendant raise it in his defence. As such, it was procedurally appropriate for the plaintiff to apply for the order of extension once the defendants had raised the limitation issue.

Barton J held that it was in the interests of justice to grant the extension and that the plaintiffs had demonstrated a good reason for the delay. The prejudice the plaintiff would suffer if relief was refused was found to be significantly greater than the prejudice to the defendant if relief was granted. As such, the court granted the direction extending the limitation period by not more than two years from the date of the accrual of the cause of action.

Relief granted.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 30th day of November, 2018

1 This matter comes before the Court by way of motion on notice in defamation proceedings whereby the Plaintiff seeks an order for an extension of time pursuant to s. 11 (2) (c) of the Statute of Limitations Act, 1957, (the 1957 Act) as inserted by s. 38 (1) (a) of the Defamation Act, 2009 (the 2009 Act), in circumstances where the proceedings have been issued outside the one year limitation period which in the circumstances of the case commenced on the 9th September, 2011.

2 Two issues fall for determination and are as follows: (a) Having regard to the provisions of s. 11 (2) (c) of the 1957 Act, whether the Plaintiff was required to apply for an order extending the limitation period before the issuance of proceedings or may do so retrospectively and if so entitled (b) whether the Court should exercise its discretion to extend the period.

Statutory Provisions

3 The determination of the first issue necessarily involves a construction of s.11 (2) (c) of the 1957 Act as inserted by Section 38 (1) (a) of the 2009 Act which provides for the limitation of actions in defamation proceedings as follows:

‘(1) Section 11 of the Act of 1957 is amended—

(a) in subsection (2), by the substitution of the following paragraph for paragraph (c):

‘(c) A defamation action within the meaning of the Defamation Act 2009 shall not be brought after the expiration of—

(i) one year, or

(ii) such longer period as the court may direct not exceeding 2 years,

from the date on which the cause of action accrued.’

and

(b) the insertion of the following subsections:

‘(3A) The court shall not give a direction under subsection (2) (c) (ii) (inserted by section 38 (1) (a) of the Defamation Act 2009) unless it is satisfied that—

(a) the interests of justice require the giving of the direction,

(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,

and the court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the period specified in subparagraph (i) of the said subsection (2) (c) and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.

(3B) For the purposes of bringing a defamation action within the meaning of the Defamation Act 2009, the date of accrual of the cause of action shall be the date upon which the defamatory statement is first published and, where the statement is published through the medium of the internet, the date on which it is first capable of being viewed or listened to through that medium.’.

(2) Section 49 of the Act of 1957 is amended by the substitution of the following subsection for subsection (3):

‘(3) In the case of defamation actions within the meaning of the Defamation Act 2009, subsection (1) of this section shall have effect as if for the words “six years” there were substituted the words “one year or such longer period as the court may direct not exceeding two years”.’

4 It is evident from these provisions that, if the discretion to extend time is to be exercised in favour of a plaintiff, the Court must be satisfied about two distinct matters; (a) that the interests of justice require the giving of the direction; and (b) the prejudice which the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice which the defendant would suffer if the direction were given. In arriving at its decision the Court is also required to have regard to (i) the reason why the proceedings were not brought within the one year limitation period and (ii) the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.

Background

5 The allegedly defamatory statements giving rise to the complaint in these proceedings were first published at the annual delegate conference of the first Defendant on the 9th and 10th September, 2011, and culminated at the annual delegate conference of the association on the 7th and 8th September, 2012. It follows that the date on which the Plaintiff's cause of action first accrued was the 9th September, 2011, accordingly, the one year limitation period began to run from that date. The timeline for the delivery of pleadings in the case is as follows:

(i) The Plenary Summons was issued the 21st December, 2012, more than one year after the allegedly defamatory statements were first published;

(ii) The Statement of Claim was delivered on the 20th October, 2014,

(iii) A notice for particulars was raised on the 26th January, 2015, and replied to on the 4th November, 2015.

(iv) A full defence was not delivered until the 18th July, 2016.

(v) A further seventeen month delay occurred before the matter was set down and notice of trial dated the 1st of February, 2018, was served.

(vi) The Defendants filed a motion on notice returnable to the 23rd April, 2018, to amend the Defence by pleading that the Plaintiff's claim was statute barred in relation to all matters about which complaint was made prior to the 21st December, 2011. The application to amend the Defence was successful.

Application to Extend Time; Appropriate Procedure

6 In circumstances where the one year limitation period had expired, it was submitted on behalf of the Defendants that on a proper construction of the subsection the Plaintiff was required to obtain an order extending the time before proceedings could be issued and that having failed to do so he was not entitled to apply for the order retrospectively. The gravamen of this submission is that where the limitation period has expired the permission of the Court has to be obtained before the Plaintiff can sue the Defendants. In this regard it was urged on the Court that the words in the subsection “ shall not be brought” were clearly mandatory and thus prohibited the bringing of proceedings after the expiry of the one year limitation period or after such longer period, not exceeding two years, as might be directed by the court.

5 In support of this proposition the Defendants relied on the obiter dicta contained in recent judgements of the court delivered in defamation proceedings where the plaintiffs had sought an extension of the one year limitation period. See Watson v. Campos & Anor [2016] IEHC 18 and Rooney v. Shell E & P Ireland Ltd [2017] IEHC 63. In Watson Barrett J., commenting on the wording of s. 11 (2) (c) of the Act of 1957 as inserted by the Act of 2009, and having observed that the application had a touch of the ‘ cart before the horse’ about it, stated at para. 10 of the judgment:

‘Strictly speaking, it seems to the court from the foregoing that once a plaintiff is outside the standard one-year limitation period, a direction ought to be sought for the extension of the limitation period so that – assuming the extension is granted – a defamation action may then commence, rather than a defamation action commencing and a direction then being sought. It is true that O.1B, r.3 (2) appears implicitly to acknowledge that either approach is possible. Thus it refers to the process to be adopted ‘[w]here a defamation action has not been brought…’ and so appears to contemplate that a...