Reynolds v Malocco

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Kelly
Judgment Date01 January 1999
Neutral Citation[1998] IEHC 175
Docket Number[1998 No. 12905 P.]
Date01 January 1999

[1998] IEHC 175

THE HIGH COURT

No. 12905P/ 1998
REYNOLDS v. ELIO MALOCCO T/A ôPATRICKö, MURRAY, WHITE & LAUR

BETWEEN

JOHN REYNOLDS
PLAINTIFF

AND

ELIO MALOCCO TRADING AS "PATRICK" DECLAN MURRAY FRANK WHITE AND PETER LAUR
AND BY ORDER
FANVILLE LIMITED
DEFENDANTS

Citations:

BATTLE V IRISH ART PROMOTION CENTRE LTD 1968 IR 252

JUDICATURE (IRL) ACT 1877

CAMPUS OIL V MIN FOR INDUSTRY (NO 2) 1990 IR 88

AMERICAN CYANAMID CO V ETHICON LTD 1975 AC 396

COULSON V COULSON 1887 3 TLR 846

SINCLAIR V GOGARTY 1937 IR 377

BONNARD V PERRYMAN 1891 2 CH 269

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

GALLAGHER V TUOHY 1924 58 ILTR 134

CULLEN V STANLEY 1926 IR 73

R V BISHOP 1975 1 QB 274

CRIMINAL EVIDENCE ACT 1898 S1(f)(II)

SEXUAL OFFENCES ACT 1967 S1(1) (UK)

Synopsis

Damages

Defamation; libel; justification; injunction; restraint of publication, dissemination or circulation of an article which plaintiff claims is defamatory of him;whether the words in question are capable of bearing the meanings contended; whether damages would adequately compensate the plaintiff; whether a statement of the intent to plead justification is sufficient to de-bar the claim of the plaintiff to an injunction; meaning of the word "gay" considered; whether an allegation that a person is a homosexual, is capable of bearing a defamatory meaning; Article 10, European Convention for the Protection of Human Rights and Fundamental Freedoms; Judicature (Ireland) Act, 1877 ; O. 50 R. 6, Rules of the Superior Courts, 1986

Held: Defendant cannot oust the jurisdiction of the Court by expressing the intention to plead justification; no arguable prospect of making out the defence of justification; there was a clear innuendo which a jury would say was libellous; words used were capable of bearing a defamatory meaning; interlocutory injunction granted

Reynolds v. Malocco - High Court: Kelly J. - 11/12/1998 - [1999] 2 IR 203 - [1999] 1 ILRM 289

In a case such as this, where an interlocutory injunction is sought to restrain publication of an article, the plaintiff must not merely show that there is a serious issue to be tried in relation to the words complained of but must also show that there is no doubt that the words are defamatory. Even when this is established an injunction will not normally be granted where a defendant intends to plead justification or any other recognised defence. However, the defendant must adduce admissible evidence to show that the plea of justification has substance or some prospect of success. The High Court so held in granting the relief sought.

1

Mr Justice Kelly delivered the 11th day of December 1998

INTRODUCTION
2

The Plaintiffs seeks an interlocutory injunction restraining the Defendants and such of them from in any manner or fashion howsoever publishing, disseminating or circulating an article intituted "Operation Night-cap Causes John Reynolds Sleepless Nights As Cops Raid Club". The article in question is contained in the first issue of a new magazine called "Patrick".

3

The Plaintiff is a company director who is involved in the running of two nightclubs one called "Pod" and the other "Red Box", both of which carry on business in a Dublin.

4

The first Defendant describes himself in his Affidavit as a journalist and is described in the body of the magazine as its editor. The second Defendant has no existence but is the first of two purported authors of the article in question. At the hearing it emerged that the name Declan Murray is a pseudonym for the first named Defendant Elio Malocco.

5

The third named Defendant has no existence either even though he purports to be the second author of the article in question. The name Frank White is a pseudonym for a gentleman called Luciano Magliocco who is a relation of Elio Malocco.

6

Little information is available as to the fourth named Defendant. He is described in the magazine under the heading "Publisher's Letter" as the publisher with an address given simply as "London". He is also described in the body of the magazine as "the boss". His address in the Plenary Summons is give as Foxrock Post Office Dublin. Notwithstanding his assertion in the body of the magazine to be its publisher, it emerged in the course of the hearing that a company called Fanville Limited holds itself out to be such publisher and indeed the owner of the magazine.

7

Fanville Limited is a limited liability company which was formed on the 20th January, 1998. It has two directors, one of whom is Margaret Magliocco and the other is Colette Kett. It has a paid up capital of £2. Both issued shares are owned by a limited company. Miss Kerr appeared before me and indicated that she was the Secretary of Fanville Limited. She also swore an Affidavit on behalf of that company. However, in light of the decision of the Supreme Court in Battle v. Irish Art Promotion Centre Limited ( 1968 IR 252) I was to obliged to rule that she could not appear on behalf of the limited liability company. She accepted my ruling and took no further part in the proceedings.

8

Mr Elio Malocco appeared personally as did Luciano Magliocco under the pseudonym Frank White.Mr Lourwas not represented.

THE ARTICLE
9

The article to which exception is taken by the Plaintiff commences at page 31 of the magazine and concludes at page 33. Apart from the heading which I have already reproduced in the first paragraph of this judgment, the other parts of the article in respect of which complaint is made read as follows:-

"Pod and U2's Kitchen Nightclubs Among 12 Dublin Nightclubs and Late-Night Bars Stung By Undercover Gardai Buying IIIegal Drugs. So Far, Up To 30 People Arrested in Various Clubs And Pubs

Gay bachelor John Reynolds is feeling far from gay these days. The face synonymous with what was once one of Dublin's top nightclubs, the POD, is in big trouble. PATRICK magazine can exclusively reveal that the POD nightclub has been visited by undercover Gardai who have bought drugs there not once but on several occasions. Efforts were made by our journalists to contact Reynolds and give him an opportunity to speak about the drugs problem, but through his spokesperson he declined to comment. During the summer Reynolds approached two journalists from PATRICK in the POD who were working on this story and told them to leave his club-that he did not want their "type" there.

This is not Reynolds first brush with the law but the difficulties he faces now are for more serious. Should the Gardai proceed with the prosecution and be successful Reynolds would be banned from holding a licence or operating a nightclub for five years. The gay bachelor. who is featured regularly in the tabloid gassip columns where the names of his latest model girlfriends are plugged, is seriously worried. The consequences of a successful prosecution by the National Drugs Unit for the Porsche-driving Reynolds could be devastating. Not only would be personalty be banned but the POD would lose its existing licence and would no longer be able to operate as a nightclub. Furthermore, according to sources close to him. Reynolds is concerned that, if convicted, other business interests he has might also suffer, particularly if the banks were to call in their loans. But it would not be the first time that a nightclub owner was jailed if it came to that. In 1995 a Donegal nightclub owner was convicted and imprisoned for three years and fined £10,000 for allowing drugs to be sold on his premises where raves were a regular feature ......

However, it remains to be seen if any premises are to be closed down or any licensees jailed. Cynics believe that no club owners would ever be jailed and those club owners who are directly involved in drugs will continue for some time to make vast profits from allowing their venues to be used as drug havens. They claim that the people who will have the full force of the law brought down to bear on them will be the drug buyers.

Despite "Operation Nightcap" drugs continue to be widely available in several of Dublin's top nightspots. There are complaints that the Gardai are dragging their feet on the matter and effectively allowing certain club owners to continue to profit from the sale of illegal drugs on their premises.

In October this year two undercover investigative journalists from PATRICK magazine had no difficulty in purchasing cocaine. ecstasy and cannabis in Lillies Bordello, the Kitchen Nightclub, the POD. the RED BOX and Bruselles near the Westbury Hotel. It is unlikely that the owners of these clubs knew of these dealings as they have all adopted additional security measures to prevent these transactions. The journalists were able to ascertain the names of the drug dealers. When the journalists returned one week later drugs were still available in all five venues but there was a noticeable increase in club security. Maybe the message is finally getting across".

10

On the first page of the article there is a photograph of the Plaintiff in the company of a woman whose face has been excised from the picture. It bears the legend "Reynolds continues to run the POD". On the third page of the article there is a photograph of the Plaintiff's Porsche motor car. This picture bears the legend "Reynolds enjoys the high life".

11

The Plaintiff complains that the above extracts defame him in two respects. He says that the words in the natural and ordinary meaning or by innuendo allege (a) that he has been charged with permitting the sale of drugs in his nightclubs and/or that he permits the sale of drugs on the premises and is benefiting therefrom. Alternatively, he is turning a blind eye to the sale of drugs on his premises and(b) that he is homosexual.

12

Mr Malocco contends that insofar us the first of these complaints is concerned the words do not bear the meanings ascribed to them. If...

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2 books & journal articles
  • The Relevane of Constitutional Rights to the Granting of an Interlocutory Injunction
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