Stein v Scallon

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 30 November 2016
• Neutral Citation: [2016] IEHC 683
• Date: 30 November 2016
• Court: High Court
• Docket Number: [2011 No. 10988 P.] [2011 No. 10989 P.]

BETWEEN

SUSAN STEIN

PLAINTIFF

AND

DANA ROSEMARY SCALLAN

TV3 TELEVISION NETWORK LIMITED

DEFENDANTS

BETWEEN

SUSAN GORRELL

PLAINTIFF

AND

DANA ROSEMARY SCALLAN

TV3 TELEVISION NETWORK LIMITED

DEFENDANTS

[2016] IEHC 683

Eagar J.

[2011 No. 10988 P.]

[2011 No. 10989 P.]

THE HIGH COURT

Defamation – Practice & Procedures – O. 29 of the Rules of the Superior Courts – Security for costs – Reasonable prospects of the success of defendant – Public interest – Existence of special circumstances

Facts: The first named defendant sought an order pursuant to o. 29 of the Rules of the Superior Courts for directing the plaintiff to furnish security for costs in relation to the defamation proceedings instituted by the plaintiff against the defendants. The first named defendant claimed that the plaintiffs had spread false and malicious lies about the first named defendant's brother. The first named defendant argued that he stood in a position of having reasonable prospects of getting success in the case. The plaintiffs submitted that they were not in a financial position to furnish the security for costs as the cost of the litigation would be higher than the security for costs and they would be left with nothing to proceed with the litigation.

Mr. Justice Eagar refused to direct the plaintiffs to furnish the security for costs in the present defamation proceedings. The Court held that a moving party had to pass a three-limb test as laid down under Connaughton Road Construction Road Limited v. Laing O'Rourke Ireland Limited [2009] IEHC 7 to the effect of establishing a prima facie case in its favour and demonstrating the inability of the opposite party to pay. The Court further held that even if the moving party was successful in proving the aforesaid, the Court had the discretion to refuse to make an order for the security for costs under special circumstances. The Court found that in the present case, though the first named defendant had the prima facie case concerning the circulation of defamatory material against his brother, yet the impecuniosity of the plaintiffs was not a reason to grant an application for the security for costs. The Court, however, found that since the alleged defamatory comments were made in the middle of a presidential campaign, the first named defendant being one of the contestants, it would constitute special circumstances for the Court to exercise its discretion for not granting an order for the security for costs.

JUDGMENT of Mr. Justice Eagar delivered on the 30th day of November, 2016

1 The first defendant in these two sets of proceedings seeks orders pursuant to O. 29 of the Rules of the Superior Courts directing the plaintiffs to furnish security for costs for these proceedings. Order 29 of the Rules of the Superior Courts makes provision for the making of an order requiring a plaintiff to grant security for costs:-

'Order: 29: Security for costs

1. When a party shall require security for costs from another party, he shall be at liberty to apply by notice to the party for such security; and in case the latter shall not, within forty-eight hours after service thereof, undertake by notice to comply therewith, the party requiring the security shall be at liberty to apply to the Court for an order that the said party do furnish such security.

2. A defendant shall not be entitled to an order for security for costs solely on the ground that the plaintiff resides in Northern Ireland.

3. No defendant shall be entitled to an order for security for costs by reason of any plaintiff being resident out of the jurisdiction of the Court, unless upon a satisfactory affidavit that such defendant has a defence upon the merits.

4. A plaintiff ordinarily resident out of the jurisdiction may be ordered to give security for costs though he may be temporarily resident within the jurisdiction.'

2 As the second defendant in each case settled with the plaintiffs, the Court shall refer to the first defendant as the defendant in this case.

3 The substantive proceedings on behalf of the plaintiffs seek:

a. damages for defamation;

b. punitive and aggravated damages pursuant to the Defamation Act, 2009;

c. a correction order pursuant to the Defamation Act, 2009;

d. an order, pursuant to the Defamation Act, 2009 prohibiting the further publication of the statement the subject matter of these proceedings.

The statement of claim of the plaintiff

4 Susan Stein is the sister of the defendant and she resides in Donnellson in Iowa in the United States. Ms. Gorrell is the niece of the defendant and the daughter of the other plaintiff and she resides at the same address. Both plaintiffs maintain that they had close links in this jurisdiction and have a reputation and good name within the State.

5 On 14th October, 2011 TV3 broadcast an interview with the defendant who was at that time running a political campaign to become President of Ireland. The interview was conducted by Ursula Halligan, Political Editor and journalist with TV3. The subject matter of the interview concerned what the first named defendant alleged to be false allegations of a sexual nature which had been circulated by the plaintiffs in relation to the defendant's brother, Mr. John Brown. In the particulars of the statement of claim the plaintiffs say they shall be relying on the entire interview, the words uttered therein and the meaning and context of those words at the time of the action but without prejudice to the generality, the following words will be relied upon as being defamatory:

a. the plaintiffs had spread ' false and malicious lies' about the first named defendant's brother;

b. that the plaintiffs had made ' false accusations' against the first named defendant's brother;

c. that the plaintiffs had circulated ' unsubstantiated and malicious rumours about the first named defendant's brother that the defendant would not give in to lies, or deception, or bullying' from the plaintiff;

d. that the plaintiffs had sent a malicious e-mail to the first named defendant;

e. that there were extensive media coverage that would relay ' those lies and false accusations';

f. that the defendant was being ' pressurised' by the plaintiffs;

g. that the plaintiffs were engaged in a character attack of the defendant;

h. that the plaintiffs had attempted to destroy the defendant's good character and integrity;

i. that the defendant felt that this was an attempt to make her stand down from the presidential race;

j. that the plaintiffs had circulated ' false and malicious lies used at moments of opportunity in order to try to destroy the defendant's character';

k. that the defendant would not ' bend to bullying and intimidation or blackmail or any form of pressure';

l. that these accusations were ' raised... in the course of my presidential campaign with the obvious desire to destroy my character';

m. that the defendant was the victim of ' a malicious attack in order to destroy my character';

n. that these accusations concerning the defendant's brother ' first arose in a family dispute court case 5 or 6 years ago';

o. that these accusations are only raised at times ' convenient' to suit the purposes of the plaintiffs;

p. that these accusations concerning the defendant's brother ' were never acted upon';

q. that these accusations concerning the defendant's brother ' now arrived, conveniently, in the middle of my presidential campaign';

r. that ' for 35 years ... no one has ever ... either the alleged victim or the family have taken action on this ... so I know these are false and malicious lies';

s. that the defendant knew these accusations ' were not true' because the first time they were ' ever raised was in a court case – never before' and these accusations were not ' acted upon at that time';

t. that 'the fact that no action was taken by the family or the alleged victim ... proves that this was a false allegation';

u. that if ' they were the truth (i.e. the accusations) why would they have only appeared in a family dispute court case and why would they come to the surface now in my presidential campaign';

v. that if 'it were me or someone related to me who had been the victim of abuse I would certainly act upon it' and the statement of claim said the said words were published of the plaintiffs and referred to the plaintiffs or were capable to be understood by reasonable people to refer to the plaintiffs.

6 The defendant stated that the allegations she was referring to were of a sexual nature and had emanated from certain members of her family against another member of her family. She stated that these same members of her family were engaged in a campaign of threats, bullying, lies and deception. The defendant knew that it was public knowledge that the plaintiffs were involved in a court case with the defendant and her brother John Brown in and around the same time and at one stage in the interview stated 'much of the detail of the court case is now on social websites and a lot of people will know what we are talking about'. The defendant agreed with this, thereby confirming that the people to whom she was referring were the plaintiffs.

The Legal Principles

7 The leading case on security for costs applications in this jurisdiction is Connaughton Road Construction Road Limited v. Laing O'Rourke Ireland Limited [2009] IEHC 7 (herein ' Connaughton Road'). Clarke J. quoted the judgment of Morris P. (as he was then) in Inter Finance Group v. KPMG, Pete Marwick (Unreported, High Court, 29th June, 1998), and the relevant test is set out in the following terms:-

'(1) In order to succeed in obtaining security for costs, an initial onus rested upon the moving party to establish:

(a) That he had a prima facie defence to the plaintiff's claim, and

(b) that the plaintiff would not be able to pay the moving party's costs if the...