Tansey -v- Gill and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Michael Peart
• Judgment Date: 31 January 2012
• Neutral Citation: [2012] IEHC 42
• Date: 31 January 2012
• Docket Number: [2010 No. 7095 P]

[2012] IEHC 42

THE HIGH COURT

Record Number: No. 7095P/2011

Tansey v Gill (A Bankrupt) & Ors

Between:

Damien M.P. Tansey

Plaintiff

And

John Gill (a bankrupt), Ans Vogelaar, Dotster Inc. And (by Order) Ann Vogelaar

Defendants

RSC O.11 r1

DEFAMATION ACT 2009 S11(2)

DEFAMATION ACT 2009 S33

REYNOLDS v MALOCCO 1999 2 IR 203 ELR 274 2002

GALLAGHER v TUOHY 1924 58 ILTR 134

CULLEN v STANLEY 1926 IR 73

DEFAMATION ACT 2009 S33(1)

DEFAMATION

Interlocutory injunction

Publication on internet - Defence of justification - Whether court should intervene more readily where publication on internet - Whether damages an adequate remedy - Whether defence of justification had prospect of success - Whether mandatory interlocutory order could be made - Reynolds v Malocco [1999] 2 IR 203 considered- Defamation Act 2009 (No 31), s 33 - Relief granted (2010/7095P - peart J - 31/1/2012) [2012] IEHC 42

Tansey v Gill

1 The plaintiff is a well-known solicitor, who, along with many other solicitors in this country, has been the subject defamatory statements being made about him on a website www.rate-your-solicitor.com(hereinafter referred to as 'the website). Many but not all these defamatory statements are made anonymously or under a pseudonym. He claims that the words used mean in their natural and ordinary meaning that he has committed criminal acts, has engaged in dishonest appropriation of clients' property, has lied to clients, has engaged in corrupt conduct, has engaged in unprofessional conduct, has engaged in incompetent conduct, and that serious grounds existed for believing that these matters are true.

2 Put briefly, these proceedings are commenced against the defendants in order to put a stop to such defamatory material being posted on the website, and to prevent defamatory material from being posted in the future, including if necessary by an order requiring that the operation of the website be terminated.

3 On the 30 ^th May 2011 this Court granted an order under Order 11, rule 1 RSC permitting the plaintiff to issue proceedings against the third named defendant whose registered office is outside the jurisdiction of this Court and to serve notice of such proceedings on that defendant at that address in the United States of America.

4 On the 22 ^nd July 2011 this Court granted an order pursuant to the provisions of Section 11(2)(c)(ii) of the Defamation Act, 2009 ("the Act") extending the limitation period in respect of which the plaintiff be entitled to bring these proceedings in order to cover the period between the date of commencement of that Act, and one year prior to the institution of the proceedings, that is to say from the 1 ^st January 2010 to the 12 ^th August 2010. In addition, the plaintiff was given liberty to bring the present application by way of Notice of Motion for injunctive relief pursuant to the provisions of Section 33 of the Defamation Act, 2009.

5 These proceedings were then commenced by way of Plenary Summons on the 3 ^rd August 2011, and notice of same together with copy Statement of Claim and copy verifying affidavit were duly served upon the third named defendant on the 5 ^th August 2011 by ordinary pre-post to its registered office. No appearance has been entered by that company. A Notice of Motion seeking judgment against the third named defendant has been issued and served and is before the Court also for determination.

6 On the same date, the proceedings were served upon the first and second named defendants by pre-paid registered post.

7 The first named defendant served a personal appearance on the plaintiff's solicitors by letter dated 15 ^th August 2011. He may not have actually entered that appearance in the Central Office as required, but one way or another he has appeared in person before the Court to argue his defence to the plaintiff's Notice of Motion.

8 The second named defendant instructed solicitors to enter an appearance, and they did so, and she was represented by counsel before me. She swore an affidavit in response to the claims made against her and denies any knowledge of the subject matter of these materials, and the plaintiff appears to accept that. Counsel for the plaintiff informed the Court that no relief is sought against the second named defendant on this application for injunctive relief.

9 However, her daughter, Ann Vogelaar, the fourth named defendant, swore an affidavit in which she stated that she was an unpaid volunteer for the website, and in the light of this averment the plaintiff applied on the 13 ^th October 2011 for an order to join her as a fourth named defendant, and that order was granted on that date. She was duly served with the proceedings. She has not entered an appearance, but she had previously sworn an affidavit before being joined in the proceedings in support of her mother's response to the application for injunctive relief. That affidavit was prepared by the solicitors acting for her mother. I will come to its contents in due course. In addition, she wrote a letter to the Court dated 14 ^th November 2011 indicating that she did not intend to attend court, and amongst a number of other matters in that letter she states that she has nothing to add to the said affidavit, but asks the Court not to grant the reliefs sought against her.

10 It has taken the plaintiff some years to identify the relevant parties against whom the proceedings should be directed, since he first became aware of it in 2007, given the anonymous or pseudonymous nature of the material posted on the website. By May 2008 he was in a position to write to those parties whom he believed had posted material, or who operated and/or hosted the site, and he called upon them, inter alia, to take down the offending material, apologise, and undertake not to repeat the same or similar material in respect of the plaintiff. Not unexpectedly perhaps these letters did not achieve any useful purpose and no reply was received from any party written to.

11 The plaintiff engaged the services of Dr Mark Humphries, B.Sc. Joint Hons. (UCD), PhD(Cambridge), and who is a lecturer in the School of Computing at Dublin City University to prepare a number of reports in order to assist in theidentification of the relevant parties who operate and control the website. Among those identified were the first, second and third named defendants. The parties identified by Dr Humphries, including the first, second and third named defendants were written to and were called upon to withdraw the defamatory remarks, to apologise, to give an undertaking not to publish any further such material and to pay compensation, and were warned that a failure to comply with these requests would lead to the commencement of proceedings. No response was received.

12 The reports from Dr Humphries are extremely technical and thorough. I could not possibly do justice to the comprehensive contents of same by attempting a summary, beyond saying that it is pellucidly clear that the first named defendant runs the website here, and that it is hosted by the third named defendant, and indeed the name of the website was registered by that defendant. He also identified the second named defendant as an operator of the site, but the affidavit of the fourth named defendant and indeed the affidavit sworn by the second named defendant clarifies that the second named defendant has had no real involvement even though her name appears connected.

13 The fourth named defendant's replying affidavit sets out her involvement in the website. She states therein that her mother, the second named defendant, knows nothing of her use of the internet and does not monitor her use at all. She goes on to state that since June 2010 she has been an unpaid volunteer for the website which she understands is a not for profit website. Her work on the website consisted of answering questions which may be sent to the website by email, and if she is unable to answer the questions she forwards the query to any friend of hers who she thinks may be able to do so. She states that her role is confined to this activity or involvement. She denies that she has ever had any involvement in the process of posting comments on the website, or that she runs, controls or organises the site. It appears that the reason why her mother may have been identified as being involved was that she (daughter) was using her mother's computer around June 2010.

14 The second named defendant swore a replying affidavit also. She says that she is a stranger to the proceedings, but that she is familiar with the site because her late husband had had some dispute with a certain solicitor and had given publicity to that dispute on the website but by using his full name. But she absolutely denies having had any role or involvement whatsoever with the site.

15 The first named defendant has sworn a replying affidavit also. As I have said, he represents himself in these proceedings. In that affidavit he describes how he first met the plaintiff in March 2001 after a member of An Garda Siochana had recommended the plaintiff to him as a solicitor who would take a case against other solicitors who Mr Gill considered had engaged in what he describes as "wrongdoing, perjury, forgery, bribery, distortion of legal contracts, money laundering and perverting the course of justice to a degree that only the frightened inflicted...