Reidy v Pasek

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 01 June 2022
• Neutral Citation: [2022] IEHC 366
• Court: High Court
• Docket Number: [Record No. 2019/57IA]

Between:

Neil Reidy

Plaintiff

and

Czeslaw Pasek

Defendant

[2022] IEHC 366

[Record No. 2019/57IA]

THE HIGH COURT

Defamation – Extension of time – Jurisdiction – Plaintiff seeking an extension of time – Whether the High Court had jurisdiction to make an order extending the time for the bringing of the proceedings

Facts: The intended plaintiff, Mr Reidy, applied to the High Court for an extension of time in respect of defamation proceedings. On the face of the motion, the application to the Court was for an order for an extension of time to initiate defamation proceedings rather than to extend time in respect of proceedings already in being. An issue arose during the hearing of the application as to whether proceedings had in fact already been initiated. This was because proceedings between the plaintiff and the defendant, Mr Pasek, were recorded under three different record numbers in court records, namely record number 2019/40IA, record number 2019/57IA and record number 2018/873P. When the application came on for hearing no proceedings had been exhibited or averred to as having been instituted other than the original 2018/873P proceedings which then stood struck out by court order made in May, 2019 (under appeal). In response to questions from the Court, the plaintiff maintained that further proceedings had issued. Further affidavit evidence was adduced by the plaintiff (sworn under record number 2019/40IA and not that of the application before the Court) in which he claimed to have started defamation proceedings under record number 2019/40IA. It appeared from the exhibits to that affidavit that defamation proceedings had not in fact been issued out of the Central Office in respect of the publication of an alleged defamatory email and letter in March, 2018 by sending them to the Wexford District Court. No such proceedings were in being. The summons exhibited by the plaintiff was neither stamped nor filed. The defendant’s solicitor denied both authority to accept service of the summons and that the summons was in fact served. A review of the Court record confirmed that insofar as an application was made in separate intended proceedings under record number 2019/40IA, that application culminated in an order (Meenan J) made ex parte on the 24th of June, 2019 in which the plaintiff was given liberty to issue a notice of motion in proceedings bearing record number 2018/873P on notice to the respondent seeking orders extending time to amend the plenary summons and statement of claim to include a claim for defamation in the said proceedings. It appeared that instead of pursuing that application the plaintiff proceeded to bring the application before the Court.

Held by Phelan J that it appeared clear from s. 11(2)(c) of the Statute of Limitations 1957 (as inserted by s. 38(1)(a) of the Defamation Act 2009) that the Court’s jurisdiction to make an order extending time was limited to extending time for the bringing of an action before the expiry of two years from the date on which the cause of action accrued. Phelan J held that the Court had no authority to give an extension of time in respect of proceedings which were not brought within two years. Even if the Court had jurisdiction to make an order extending time, Phelan J was not satisfied having regard to the policy of the legislation and the burden on the plaintiff to satisfy the Court to exercise a discretion that this was a case in which it would be proper to exercise her discretion (presuming she had such a discretion) to grant the direction sought having regard to the interests of justice including in particular the reason for the delay and the failure to institute proceedings earlier and the respective prejudice (with due regard to the merits of the proceedings) to the parties of the making or refusal of the direction.

Phelan J refused the direction sought under s. 11(2)(c) and dismissed the application.

Application dismissed.

RULING of Ms. Justice Siobhán Phelan delivered on 1 ^st day of June, 2022

INTRODUCTION

1 . This matter comes before the Court on the Intended Plaintiff's [hereinafter “the Plaintiff”] application for an extension of time in respect of defamation proceedings. The Plaintiff is a lay litigant and the Defendant is a Polish businessman.

2 . On the face of the Motion, the application to the Court is for an order for an extension of time to initiate defamation proceedings rather than to extend time in respect of proceedings already in being.

3 . An issue arose during the hearing of the application as to whether proceedings had in fact already been initiated. This is because proceedings between the Plaintiff and the Defendant are recorded under three different record numbers in court records, namely record number 2019/40IA, record number 2019/57IA and record number 2018/873P. When the application came on for hearing no proceedings had been exhibited or averred to as having been instituted other than the original 2018/873P proceedings which then stood struck out by court order made in May, 2019 (under appeal). In response to questions from the Court, however, the Plaintiff maintained that further proceedings had issued. As this was an issue with potential jurisdictional consequences, in view of the fact that the Plaintiff did not have the benefit of legal representation, exceptionally, a short adjournment was allowed at the conclusion of the hearing to permit the Plaintiff to file a supplemental affidavit.

4 . Further affidavit evidence was adduced by the Plaintiff (sworn under record number 2019/40IA and not that of the application before the Court) in which he claimed to have started defamation proceedings under record number 2019/40IA. It appears from the exhibits to this affidavit that defamation proceedings had not in fact been issued out of the Central Office in respect of the publication of an alleged defamatory email and letter in March, 2018 by sending them to the Wexford District Court. No such proceedings are in being. The summons exhibited by the Plaintiff was neither stamped nor filed. The Defendants solicitor denies both authority to accept service of the summons and that the summons was in fact served. A review of the Court record confirms that insofar as an application was made in separate intended proceedings under record number 2019/40IA, that application culminated in an Order (Meenan J.) made ex parte on the 24 ^th of June, 2019 in which the Plaintiff was given liberty to issue a Notice of Motion in proceedings bearing record number 2018/873P on notice to the Respondent seeking orders extending time to amend the plenary summons and statement of claim to include a claim for defamation in the said proceedings. It appears that instead of pursuing that application (perhaps in circumstances where proceedings bearing record number 2018/873P stood struck out) the Plaintiff proceeded instead to bring the application which is now before this Court.

5 . On this application I must determine whether the Court has jurisdiction to make an order extending the time for the bringing of proceedings where the application is heard outside the two-year extended limitation period fixed by statute but was issued within that two-year period and where no proceedings issued within the said two year period.

BACKGROUND

6 . The background to this application is fully set out on affidavit and will not be rehearsed again here. Suffice to say that there is a history of previous litigation between the parties both in this jurisdiction and in Poland and the parties have been involved in a long running dispute with complaints and countercomplaints being made, many of which are vexatious and malicious, at least from the Plaintiff's perspective.

7 . Most relevant to this application is the fact that the Plaintiff issued previous defamation proceedings against the Defendant in this jurisdiction bearing record number 2018/873P [hereinafter “the 2018 proceedings”]. The 2018 proceedings were initiated following receipt by the Plaintiff of a letter described as “ highly defamatory” dated the 12 ^th of December, 2017. The Defendant claims that this letter was itself in response to a letter from the Plaintiff to the Defendant in which he sought payment of compensation for property damage. The Plaintiff denies sending any such letter. The 2018 proceedings were issued on the 1 ^st of February, 2018. A conditional appearance was entered on behalf of the Defendant on the 7 ^th of March, 2018.

8 . The Plaintiff avers on affidavit grounding this application that the 2018 proceedings were commenced in anticipation that the Defendant would make good on a threat contained in the letter of the 12 ^th of December, 2017 to repeat the allegations therein contained to parties in Ireland and other jurisdictions because he had prior form in this regard. Subsequent to the issue of these proceedings the Plaintiff became aware that a letter had in fact been forwarded to Wexford Court Office on the 11 ^th of March, 2018. In the email sending on the letter, the sender is identified as the Defendant and it is stated that he wishes to “ make complaint for fraud and criminal activity against Neil Reidy” stating his address and adding that the writer was “ sending you my complaint for attention of police and other authority in your county”.

9 . The letter which accompanied this email was a copy of the letter dated the 12 ^th of December, 2017 which had already been sent directly to the Plaintiff prompting the issue of the 2018 proceedings. The thrust of the letter was to dispute the legitimacy of a judgment obtained in default by the Plaintiff in earlier proceedings brought against the Defendant in Wexford District Court. The Plaintiff was accused of “ fraud and cheating in Court”. In the letter, which was translated by a Polish translator and signed by the Defendant, the Defendant said that he intended to notify the Court in...