O'Sullivan v Irish Examiner Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Pilkington |
| Judgment Date | 07 November 2018 |
| Neutral Citation | [2018] IEHC 625 |
| Court | High Court |
| Docket Number | [2018 No. 8260 P.] |
| Date | 07 November 2018 |
[2018] IEHC 625
THE HIGH COURT
Pilkington J.
[2018 No. 8260 P.]
Defamation – Statutory time limit – Extension – Applicant seeking an order permitting her to issue defamation proceedings outside of the statutory time limit of one year – Whether the reasons advanced by the applicant were sufficient to disapply the one-year statutory time limit
Facts: The applicant, Ms O'Sullivan, on 19th September 2018, issued a notice of motion seeking an order permitting her to issue defamation proceedings outside of the statutory time limit of one year, pursuant to s. 11(2)(c) of the Statute of Limitations Act 1957. The intended defamation proceedings concerned the publication of articles by the respondent, Irish Examiner Ltd, in the Irish Examiner on 4th October, 2016. Within the intended defamation proceedings, the applicant sought damages including aggravated and/or exemplary damages for defamation, a correction order pursuant to s. 30 of the Defamation Act 2009, together with the standard pleas of further and other reliefs, in respect of the publication of 4 October 2016.
Held by the High Court (Pilkington J) that the reasons advanced by the applicant were insufficient to disapply the one-year statutory time limit; to make a decision not to deal with matters within a time limit imposed by statute was an insufficient reason to grant an extension of it. Pilkington J held that the interest of justice required that no direction be given to disapply the one year statutory time limit and she was satisfied that the prejudice to the plaintiff in being prevented from bringing those proceedings did not significantly outweigh the prejudice to the defendant in losing its statute of limitation defence.
Pilkington J held that she would refuse the reliefs sought.
Relief refused.
On 19th September 2018 the applicant issued a Notice of Motion seeking an Order permitting her to issue defamation proceedings outside of the statutory time limit of one year, pursuant to section 11(2)(c) of the Statute of Limitations Act, 1957, as amended by the Defamation Act, 2009 ("the application").
The intended defamation proceedings concern the publication of articles by the respondent in the Irish Examiner on 4th October, 2016. The publication comprises a prominent front page article under the byline of Michael Clifford, an editorial, and an article analysing the front page story; all within the same edition of the newspaper.
The Irish Examiner's front page article on 4th October 2016 was headed 'Senior Gardaí "tried to destroy" source' and stated, in the opening paragraph, that two senior gardaí had made statements under whistle-blower legislation alleging that senior garda management conducted a major campaign to 'destroy' a whistle-blower within the force.
At the time the applicant was Commissioner of An Garda Síochána, her appointment having been made permanent in November 2014 until her resignation from that position on 10th September 2017.
The applicant is not named within the publication of 4 October 2016. The next day she was referred to by name in connection with it in an RTÉ broadcast and in Dáil Eireann. Thereafter the matters set out within the publication and the naming of the applicant in connection with it were widely reported throughout the media.
On or about 7th October 2016 the then Minister for Justice announced that Mr Justice Iarfhlaith O'Neill would conduct an inquiry into protected disclosures referenced within the publication and in his report of 7th December 2016 recommended the establishment of a Commission of Inquiry. That commission of inquiry became the Disclosures Tribunal and it was set up on 17th February 2017 pursuant to the Tribunals of Inquiry (Evidence) Act 1921 (Appointment of Tribunal) Instrument 2017. The opening statement by Mr Justice Charleton was delivered on 27th February 2017 and its hearings concluded on 2nd July 2018.
Within the intended defamation proceedings, the applicant seeks damages including aggravated and/or exemplary damages for defamation, a correction order pursuant to s. 30 of the Defamation Act 2009, together with the standard pleas of further and other reliefs, in respect of the publication of 4 October 2016 ('the intended proceedings').
The necessity for the application arises pursuant to the amendments to the Statute of Limitations pursuant to the terms of the Defamation Act 2009.
The Legislation
Section 38 of the Defamation Act 2009 provides:
'Limitation of actions.
38.— (1) Section 11 of the Act of 1957 is amended—
(a) in subsection (2), by the substitution of the following paragraph for paragraph (c):
'(c) A defamation action within the meaning of the Defamation Act 2009 shall not be brought after the expiration of—
(i) one year, or
(ii) such longer period as the court may direct not exceeding 2 years,
from the date on which the cause of action accrued.',
and
(b) the insertion of the following subsections:
'(3A) The court shall not give a direction under subsection (2)(c)(ii) (inserted by section 38(1)(a) of the Defamation Act 2009) unless it is satisfied that—
(a) the interests of justice require the giving of the direction,
(b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given,
and the court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the period specified in subparagraph (i) of the said subsection (2)(c) and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.
(3B) For the purposes of bringing a defamation action within the meaning of the Defamation Act 2009, the date of accrual of the cause of action shall be the date upon which the defamatory statement is first published and, where the statement is published through the medium of the internet, the date on which it is first capable of being viewed or listened to through that medium.'.
(2) Section 49 of the Act of 1957 is amended by the substitution of the following subsection for subsection (3):
'(3) In the case of defamation actions within the meaning of the Defamation Act 2009, subsection (1) of this section shall have effect as if for the words "six years" there were substituted the words "one year or such longer period as the court may direct not exceeding two years"'.
Pursuant to the legislation cited above the intended proceedings were required to be issued (a) within one year which did not occur or (b) such longer period as the court may direct not exceeding two years.
The legislation is also clear as to the matters that must be considered in dealing with any application for an extension of time, not exceeding two years, in such circumstances. In considering these matters on the facts of this case two factors must be noted (a) the first is that no argument is advanced that there is any evidence relevant to the matter which is no longer capable of being adduced by virtue of the delay and (b) the second is that it is clear that the applicant became aware of the publication the subject matter of the intended proceedings at or immediately after its date of publication.
In summary therefore the statutory requirements make it clear that a court cannot give a direction to disapply the one-year statutory limitation period unless it is satisfied of two matters:
(a) that the interest of justice requires the giving of the direction; and
(b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given.
Thereafter in deciding whether to give a direction the court should have regard to two matters (only one is appropriate in this instance) namely the reason for the failure to bring the action within the one-year period.
The applicant has sworn three affidavits in support of her application. Her reason for not issuing within the one-year statutory time limit can be summarised as follows: -
(a) That the period from the publication of the article on 4th October, 2016, to the conclusion of the public hearings of the Disclosure Tribunal was a period of intense strain for the applicant and her family.
(b) That, whilst in office (as Garda Commissioner), in dealing with the fallout of the controversy and since the applicant left her position in September 2017, she describes herself as being 'consumed' with the Disclosures Tribunal which she states was a constant presence and strain for her family and herself.
(c) At the conclusion of the public hearings the applicant believed she could then draw a line under that aspect of the controversy and only thereafter seek to deal with the intended defamation proceedings against the respondent.
(d) The applicant accepts that she could have issued the intended proceedings before now and that she did not have to wait until the conclusion of the Disclosures Tribunal but asserts that she was simply not in a position to do so until the present application.
(e) The applicant also makes reference to the fact that she would have preferred to have awaited the report of the Disclosures Tribunal but to do so would ensure that she could not bring this application within the two year statutory time limit. This application was heard before the court on 3rd October, 2018 prior to any report of the Disclosures Tribunal. The applicant does not explain her preference to make the application and issue the intended proceedings following the report of the Disclosures Tribunal as opposed to its conclusion
The applicant does not set out the precise date when she...
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