Smyth v Tunney
| Jurisdiction | Ireland |
| Judge | Mr Justice Finnegan |
| Judgment Date | 23 January 2009 |
| Neutral Citation | [2009] IESC 5 |
| Date | 23 January 2009 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 204 of |
BETWEEN
and
[2009] IESC 5
Kearns J.
Macken J.
Finnegan J.
THE SUPREME COURT
PRACTICE AND PROCEDURE
Discontinuance
Withdrawal of notice of discontinuance - Jurisdiction - Prejudice to defendant - Defence under Statute of Limitations - Castanho v Brown & Root [1981] AC 557 and Ernst & Young v Butte Mining plc [1996] 1 WLR 1605 considered - Pleadings - Statement of claim - Amendment of statement of claim - New cause of action - New facts - Whether prejudice to defendants - Krops v Irish Forestry Board Ltd [1995] 2 IR 113 and Croke v Waterford Crystal Ltd [2004] IESC 97, [2005] 2 IR 383 followed - Statute of Limitations 1957 (No 6) - Rules of the Superior Courts 1986 (SI 15/1986),O 26, r 1 & O 28, r 1 - Defendants' appeal allowed (204/2004 - SC - 23/1/2009) [2009] IESC 5
Smyth v Tunney
Facts: The respondent issued a plenary summons in 1996 against the appellants seeking damages for defamation, injurious falsehood and negligent misstatement and in 1998 sought damages for malicious and/ or injurious falsehood, defamation and conspiracy. An amended Statement of Claim was subsequently delivered and the respondent sought inter alia to withdraw the notice of discontinuance against the third named defendant. The Supreme Court had delivered a decision in 2002 holding that telephone calls had been made on her behalf as well as that of the company. The respondent sought to amend his claim to include other telephone calls. The respondent sought to add an additional cause of action, namely wrongful interference with economic interests of the plaintiff and negligence and breach of duty. The High Court gave the plaintiff liberty to withdrawn the notice of discontinuance and liberty to deliver an amended statement of claim as sought. The appellant sought to appeal that order.
Held by the Supreme Court per Finnegan J. (Kearns & Macken JJ. concurring), that the amendment would only be allowed if it was necessary for the purposes of determining the real issues in controversy between the parties. Facts could only be added if they sought to clarify the original claim. The amendment sought here did not satisfy these requirements and the amendments would be disallowed, as would the amendment in respect of the State of Claim. The appeal would be allowed and leave would be refused to the plaintiff to withdraw the notice of discontinuance and leave would be refused to the plaintiff to amend his statement of claim.
Reporter: E.F.
CROFTER PROPERTIES LTD v GLENPORT LTD 2002 4 IR 73
SMYTH v TUNNEY & ORS 2004 1 ILRM 2004/47/10815
ADAM v INSURANCE CORPORATION OF BRITISH COLUMBIA 1985 66 BCLR 164
PACIFIC CENTRE LTD v MICROBASE DEVELOPMENT CORPORATION 1990 BCLR (2d) 218
CUSACK v GARDEN CITY PRESS LTD 1978 22 OR (2d) 126
RSC O.26 r1
FOX v STAR NEWSPAPER COMPANY 1898 1 QB 639 1900 AC 19
CASTANHO v BROWNE & ROOT (UK) LTD 1981 AC 557
ERNST & YOUNG v BUTTE MINING PLC 1996 2 AER 623
GILHAM v BROWNING & ANOR 1998 2 AER 68
HUNTER v CHIEF CONSTABLE OF WESTMIDLANDS 1981 3 AER 727 729
FAKIH BROS v AP MOLLER (COPENHAGEN) LTD 1994 1 LLOYDS REP 103
KROPS v IRISH FORESTRY BOARD LTD 1995 2 IR 113
WELDON v NEAL 1887 19 QB 394
CHATSWORTH INVESTMENT LTD v CUSSINS (CONTRACTORS) LTD 1969 1 WLR 1
CROKE v WATERFORD CRYSTAL 2005 2 IR 383
Judgment of Mr Justice Finnegan delivered on the 23rd day of January 2009
Judgment delivered by Finnegan J. [nem diss]
The respondent issued a plenary summons against the appellants on the 26 th March 1996. In the endorsement of claim he sought damages for defamation, injurious falsehood and negligent misstatement. There was delay in service of the plenary summons and a statement of claim was not delivered until the 10 th September 1998. The reliefs claimed in the statement of claim are damages for malicious and/or injurious falsehood, defamation and conspiracy. By notice of discontinuance dated the 11 th August 1998 the action was discontinued against the third named appellant. Pursuant to an order of the court an amended statement of claim was delivered on the 26 th March 2001. The relevant facts are set out in paragraphs 4, 5 and 8 of the amended statement of claim as follows:-
4. In or about the period between 29 th June 1992 and 26 th October 1992 and thereafter until and about May 1995 a series of phone calls of a malicious and defamatory nature were made on behalf or at the behest of or with the knowledge and acquiescence of the first named defendant from phone lines and telephone apparatus in Classiebawn Castle, Mullaghmore, Co. Sligo, i.e. from the phone numbers 071-66455, 071-66491 and 071-66326 which telephone lines were listed in the names of Tunney Meats Limited and/or Hugh Tunney as subscriber. Phone calls of a similar nature were made from phone lines and telephonic apparatus in the Gresham Hotel, Dublin, i.e. from phone lines now with the number 01-8748145, which telephone lines were listed in the name of Hugh Tunney c/o The Gresham Hotel. The said phone calls were made to the same parties as the aforementioned phone calls.
5. In these phone calls a female caller had claimed that Sherry, a criminal associate of a convicted drugs trafficker and with excellent sources within the Garda, was part of a money laundering operation on behalf of the I.R.A. and that monies were cleansed through an Irish company called Princeton Limited. It was alleged that a co-director of Princeton Limited was Chief Superintendent Paul Smyth of the Garda (being the plaintiff herein). It is alleged that Chief Superintendent Smyth had actively inhibited any enquires about Sherry and associates, allegedly by misuse of his authority whilst head of personnel by transferring 'troublesome' officers. The phone calls in question were made to the South East Regional Crime Squad of the British Police Forces at (inter alia) New Southgate branch office, 143 High Road, London N1 1PM (phone number 181-3685100) and were received by Detective Inspector Stephen Condon and Detective Constable Paul Edwards.
8. The allegations made in these phone calls were notified to An Garda Siochána by the British Police Forces concerned which led to an investigation by An Garda Siochána to the prejudice, damage and detriment of the plaintiff."
On the 11 th February 2003 the respondent issued a motion seeking the following reliefs:-
2 "1. An order granting the plaintiff liberty to withdraw the notice of discontinuance of the 11 th August 1998 as against the third named defendant and liberty to proceed within proceedings as against the third named defendant.
2. An order grant the plaintiff liberty to deliver an amended statement of claim in the form attached hereto."
The motion was grounded on an affidavit of the plaintiff. Therein he deposes that a defence had been delivered by the first named defendant but no defence had been delivered by the second named defendant. He deposes as to the reason for the discontinuance of the action against the third named defendant as follows:-
"The reason for the discontinuance is that the calls were made by the said Ms Devine either on her own behalf or on behalf of Mr Tunney and while she may also have made them on behalf of Crofter Properties Limited it seemed unnecessary at that time to involve Crofter Properties Limited in order to vindicate my reputation. Proving that Ms Devine acted on behalf of Crofter Properties Limited seemed a burden which I need not take on with any associated risk of costs."
On the 9 th July 2002 the Supreme Court in a decision in an action Crofter Properties Limited v Genport Limited held that Ms Devine, made the calls not only on her own behalf but also on behalf of Crofter Properties Limited.
Consequent on the withdrawal of the notice of discontinuance the statement of claim would require amendment. However in addition the respondent sought to amend his claim by including claims arising from similar type telephone calls made to the Revenue Commissioners and Phoenix Magazine. The respondent became aware of these telephone calls as a result of discovery made in the action Crofter Properties Limited v Genport Limited. No leave was sought at any time to avail of this discovery for the purposes of the present proceedings.
By order of 29 th January 2004 the High Court (O'Sullivan J.) gave the plaintiff liberty to withdraw the notice of discontinuance and liberty to deliver an amended statement of claim as sought and against that order the appellants now appeal.
The respondent in the High Court relied on two Canadian cases Adam v Insurance Corporation of British Columbia [1985] 66 B.C.L.R. 164 and Pacific Centre Limited v Microbase Development Corporation, unreported,19 th September 1990, Hynes J. In this court reliance was placed on the former. In that case the plaintiff instituted proceedings seeking damages for personal injuries sustained when a bus in which he was travelling was in collision with a car against both the bus driver and the owner and operator of the bus company and the unidentified owner and driver of the car. Shortly before the trial date the action against the Insurance Corporation of British Columbia was discontinued as the plaintiff's counsel believed that the action was barred by the combined effect of the Insurance (Motor Vehicle) Act and Regulations relating to the Workers Compensation Board. Her counsel later learned of an unreported decision which indicated that the relevant Regulation might have been ultra viresand as a result sought and obtained an order setting aside the discontinuance. At that time the...
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