Scallon v Independent News and Media Plc Trading as The Irish Independent and Trading as The Sunday Independent and Trading as The Sunday World and Trading as The Belfast Telegraph

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 08 July 2020
• Neutral Citation: [2020] IEHC 472
• Date: 08 July 2020
• Docket Number: [2015 No. 5549 P]
• Court: High Court

BETWEEN

DANA ROSEMARY SCALLON

PLAINTIFF

AND

INDEPENDENT NEWS AND MEDIA PLC TRADING AS THE IRISH INDEPENDENT AND TRADING AS THE SUNDAY INDEPENDENT AND TRADING AS THE SUNDAY WORLD AND TRADING AS THE BELFAST TELEGRAPH

DEFENDANT

[2020] IEHC 472

Richard Humphreys J.

[2015 No. 5549 P]

THE HIGH COURT

Defamation – Damages – Bound to fail – Defendant seeking to strike out the plaintiff’s claims – Whether the plaintiff’s claims were bound to fail

Facts: The plaintiff, Ms Scallon, complained of defamation arising from various publications on 10th and 11th July, 2014. She issued a plenary summons seeking damages for defamation on 9th July, 2015. On 3rd October, 2019 the plaintiff filed a motion seeking summary relief and on 9th March, 2020 the defendant, Independent News & Media plc, filed a motion to strike out the plaintiff’s claims as disclosing no reasonable cause of action or as frivolous or vexatious, having no reasonable prospect of success, being bound to fail and/or being an abuse of process, under O. 19, r. 28 of the Rules of the Superior Courts. It was agreed by the parties to take the defendant’s motion first. On 6th July, 2020 the plaintiff applied ex parte for short service of a new notice of motion to add further defendants. The High Court (Humphreys J) granted the order for short service although the motion did not issue. On 8th July, 2020 the plaintiff renewed the application and Humphreys J granted the order for short service again and made the motion returnable for later that day.

Held by Humphreys J that on the basis of the factual averments in the affidavit submitted on behalf of the defendant (which were not effectively countered), it was clear that the defendant was simply the owner of the publishers and was not itself involved in publication; thus, at their high water mark, the proceedings as constituted were not stateable or alternatively were bound to fail. Humphreys J held that the mutually reinforcing reasons why the addition of new defendants should not be allowed were as follows: (i) allowing the motion would not amount to an amendment, but a totally new case with the existing case failing in its entirety; (ii) the principal thrust of the action was in defamation and that failed both against the existing and the proposed new defendants because it was manifestly statute barred; (iii) the claims regarding constitutional rights and loss of reputation were untenable and the proposed claims of malicious falsehood and breach of privacy were not only not supported by an averment that there was a good cause of action but were not backed up by anything to show that there was any evidence to support them; (iv) those two claims were highly tenuous, if not frivolous, and something of a legal stratagem to circumvent the statute given that the primary relief was statute barred; (v) if one subtracts the statute-barred defamation claim and the misconceived constitutional and reputation claim from the action as proposed to be reconstituted, what is left at best are disconnected fragments of claims that bear little resemblance to the existing case; (vi) no amendment was sought to the statement of claim, simply the addition of new defendants, but much of the statement of claim would not make complete sense with multiple defendants; (vii) there was significant prejudice caused to the proposed new defendants by parachuting the proposed new action into a highly complex and convoluted five-year piece of litigation; (viii) there was a specific complexity and, therefore, prejudice in relation to the questions relating to the Brussels Convention of 27th September, 1968 on jurisdiction and the enforcement of judgments as amended by the accession conventions; and (ix) there was a specific complexity and prejudice regarding the contradiction between the existence of Northern Irish proceedings and the fact that the statement of claim was not limited to publication in the State.

Humphreys J held that he would refuse the plaintiff’s motion to add new defendants, allow the reliefs sought by the defendant and strike out the claim in its entirety as bound to fail

Plaintiff’s motion refused. Reliefs sought by defendant allowed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on Wednesday the 8th day of July, 2020

1 The plaintiff complains of defamation arising from various publications on 10th and 11th July, 2014. On 3rd June, 2015 she issued a writ in the High Court of Justice in Northern Ireland, suing the publisher of the Sunday World, namely Sunday Newspapers Ltd.

2 She issued a plenary summons in this jurisdiction seeking damages for defamation on 9th July, 2015. This time, although the same solicitors were used, a different entity was sued, Independent News &. Media plc. The plaintiff delivered a first statement of claim on 23rd October, 2015.

3 On 21st March, 2016 the defendant's solicitors told the plaintiff's solicitors, KRW Law, that they had sued the wrong defendant, and that information was delivered at a time when the plaintiff was still within the maximum potential two-year limitation period. That indicated a degree of commendable fair play by INM and their legal advisers that they had stated the position clearly before the limitation period had expired. However, the plaintiff's solicitors did not take the necessary action on foot of this crucial letter. Instead, they wrote back on 4th April, 2016 belligerently rejecting the idea that they had named the wrong defendant, and asserting that the owner of the company that publishes material is liable in defamation. They also raised the suggestion that the defendant might join the Sunday World as a third-party. That unfortunately misunderstands relevant court procedure. Tellingly perhaps, the letter also asked about the defendant's insurance policy. That could, on one view, be suggestive of the view that one shouldn't spend too much time worrying about the legal niceties because the matter mightn't trouble the court. Overall, one has to view the letter of 4th April, 2016 as a significant misstep by the plaintiff's solicitors. They had been put on notice that they had the wrong defendant. They still had time to make inquiries and to rectify the position, but instead they doubled down on the existing course. Failure to take the opportunity that they had at that point has led directly to the current situation.

4 On 29th November, 2016 they delivered a document which purports to be a second statement of claim. It is not headed as an amended statement of claim. A defence was delivered on 7th September, 2018.

5 On 26 November, 2018 the Northern Irish proceedings referred to above were settled with an apology.

6 On 3rd October, 2019 the plaintiff filed a motion seeking summary relief and on 9th March, 2020 the defendant filed the present motion to strike out the proceedings. It was quite logically agreed by the parties to take the defendant's motion first.

7 On 3rd July, 2020 that motion was part-heard and adjourned for a further clarifying affidavit on behalf of the defendant. On 6th July, 2020 the plaintiff applied ex parte for short service of a new notice of motion to add further defendants. I granted the order for short service although the motion didn't actually issue.

8 On 8th July, 2020 the plaintiff renewed the application and despite some misgivings on behalf of the defendant, I granted the order for short service again and made the motion returnable for later that day, which was the only way to facilitate the plaintiff's application given the at that point highly imminent expiry of the limitation period for any possible torts with a 6-year limitation period. I have now received helpful submissions on the motion to add defendants and the motion to strike out, from Mr. Mel Christie S.C. (with Mr. Eamonn Dornan B.L.) for the plaintiff and from Mr. Eoin McCullough S.C. (with Mr. Brian Gageby B.L.) for the defendant.

Was the plaintiff entitled to amend the statement of claim?

9 I am not sure this question makes a huge difference, but I had better answer it anyway for completeness. The plaintiff's solicitor claims on affidavit that he was entitled to deliver an amended statement of claim, without leave, at any time prior to the expiry of time for reply under 0. 28, r. 2. However, that averment misunderstands the provision. The rules of court allow two time windows - what Hilary Delany, Declan McGrath & Emily Egan McGrath, Delany and McGrath on Civil Procedure, 4th ed., (Dublin, Round Hall, 2018), at p. 280, call “certain limited time periods”. They are:

(i). four weeks from the appearance – the amended statement of claim was not delivered during that time; and

(ii). before the time limited for the reply – that didn't apply either because the defence had not been delivered as of the date on which the second statement of claim was purportedly delivered so the time for reply hadn't even begun. It seems to me that even disregarding the irregularity that the amended statement of claim was not headed as an amended statement of claim, and the further irregularity that it did not clearly specify the amendments, it was delivered at a time when leave of the court was required but not sought, and so should be struck out or at least disregarded.

Defendant's motion

10 The defendant seeks an order under O. 19, r. 28 of the Rules of the Superior Courts striking out the plaintiff's claims as disclosing no reasonable cause of action or as frivolous or vexatious, having no reasonable prospect of success, being bound to fail and/or being an abuse of process.

11 The principles were set out recently by Cregan J. in Irish Bank Resolution Corporation Ltd. v. Purcell [2014] IEHC 525, [2016] 2 I.R. 83, at 111-112. The plaintiff's claim must be treated at its high water mark: see per Clarke J., as he then was, in McCourt v. Tiernan [2005] IEHC 268 (Unreported, High Court, 29th July, 2005) and Salthill...