Rogers v Sunday Newspapers Ltd

• Jurisdiction: Ireland
• Judge: Clarke J.,MacMenamin J.,Laffoy J.
• Judgment Date: 17 November 2016
• Neutral Citation: [2016] IESCDET 137
• Court: Supreme Court
• Date: 17 November 2016

[2016] IESCDET 137

THE SUPREME COURT

DETERMINATION

Clarke J.

MacMenamin J.

Laffoy J.

BETWEEN

ISABEL ROGERS

PLAINTIFF

AND

SUNDAY NEWSPAPERS LIMITED

COLM MacGINTY

AND

NICOLA TALLANT

DEFENDANTS

AND

BY ORDER OF THE COURT OF APPEAL MADE ON 21st OCTOBER, 2016 THE COMMISSIONER OF AN GARDA SÍOCHÁNA

NOTICE PARTY

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES.

RESULT: The Court grants leave to the Defendants to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. Jurisdiction

1.1 This determination relates to an application by Sunday Newspapers Limited, Colm MacGinty and Nicola Tallant who are the defendants in the underlying plenary proceedings in the High Court and are hereinafter referred to as ‘the Defendants’. Leave is sought by the Defendants to appeal under Article 34.5.3° of the Constitution from a judgment of the Court of Appeal (Ryan P., Birmingham J. and Sheehan J.) delivered on 21st October, 2006 by Ryan P. ( [2016] IECA 296) and the order of the Court of Appeal dated 21st October, 2016, which was perfected on 24th October, 2016.

1.2 As is clear from the terms of the Constitution and from the many determinations made by this Court since the enactment of the Thirty Third Amendment of the Constitution, it is necessary, in order for this Court to grant leave, that it be established to the satisfaction of this Court that the decision sought to be appealed either involves a matter of general public importance or that in the interests of justice it is necessary that there be an appeal to this Court.

1.3 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2 The proceedings

2.1 The underlying proceedings are plenary proceedings in the High Court (Record No. 2013 No. 11583P) brought by Isabel Rogers, hereinafter referred to as ‘the Plaintiff’, against the Defendants for defamation, which were listed for hearing in the High Court in the Civil Jury List on 3rd November, 2016 before a judge and jury.

2.2 By notice of motion dated 9th June, 2016 the Commissioner of An Garda Síochána, hereinafter referred to as ‘the Commissioner’, sought, inter alia, the following orders:

(a) an order joining the Commissioner as a notice party to the proceedings; and

(b) an order directing that the proceedings be heard otherwise than in public.

By order of the High Court (Mac Eochaidh J.) made on 15th June, 2016, the High Court refused to join the Commissioner as a notice party to the proceedings and made certain orders in relation to the hearing of the proceedings, but did not make an order directing that the proceedings be heard otherwise than in public.

2.3 The Commissioner appealed to the Court of Appeal from the judgment and order of the High Court made on 15th June, 2016 seeking to set aside the said judgment and order and in lieu thereof the granting of the reliefs sought by the Commissioner on the motion in the High Court. The Court of Appeal delivered judgment on the expedited appeal on 21st October, 2016 and made the order appealed against on 21st October, 2016. The judgment of the Court of Appeal also related to a similar appeal in proceedings brought by Patrick Benedict Gilchrist (Record No. 2013/No. 11584P), hereinafter referred to as ‘the Gilchrist Proceedings. This Court is issuing a separate determination in relation to an application for leave from the judgment of the Court of Appeal in relation to the Gilchrist Proceedings.

3. The order appealed against

3.1 In the order dated 21st October, 2016 it was ordered that the appeal be allowed, that the order of the High Court dated 15th June, 2016 be set aside and that in lieu thereof the applications of the Commissioner to the High Court be granted. Accordingly, it was ordered:

(a) that the Commissioner be joined as a notice party in the proceedings in the High Court and be subject to such directions as the trial judge may give in relation to the participation of the notice party in the trial of the action; and

(b) that the proceedings be heard in the High Court otherwise than in public and that members of the public and members of the media be excluded from any hearing of said proceedings with judgment in the proceedings to be handed down in open court.

4. The contentions of the parties

4.1 The Defendants' Application for Leave to appeal together with the Respondent's Notice of the Plaintiff and the Respondent's Notice of the Commissioner are published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of the determination, it is sufficient to summarise the basis on which the Defendants suggest that the constitutional threshold for leave has been met and the response of the Plaintiff and the Respondents.

4.2 The Defendants seek, as appellants on the appeal, to appeal from the entire decision of the Court of Appeal. They submit that the decision of the Court of Appeal involves a matter of general public importance. In support of that submission, they contend...