Tracey t/a Engineering Design & Management v Burton

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 25 April 2016
• Neutral Citation: [2016] IESC 16
• Date: 25 April 2016
• Court: Supreme Court
• Docket Number: [High Court Record No. 2006/2002 P] [Appeal No. 24/2011]

Denham C.J.

MacMenamin J.

Charleton J.

BETWEEN:

KEVIN TRACEY, T/A ENGINEERING DESIGN & MANAGEMENT

PLAINTIFF/APPELLANT

AND

MICHAEL BURTON, CHARLES O'CONNOR,

AND

BURTON & O'CONNOR LIMITED,

AND

FPQ CONSULTING ENGINEERS

DEFENDANTS/RESPONDENTS

[2016] IESC 16

MacMenamin J.

[High Court Record No. 2006/2002 P]

[Appeal No. 24/2011]

THE SUPREME COURT

Defamation ? Damages ? Termination of contract ? Appellant seeking damages from the termination of a contract ? Whether the proceedings could properly be described as defamation proceedings

Facts: The appellant, Mr Tracey, is a chartered engineer by qualification. He was allegedly formerly entered into a contractual arrangement with the respondents, FPQ Consulting Engineers. The appellant described the agreement as a contract for services. That contract was terminated. He brought proceedings seeking damages from the termination of the contract. On the 6th December, 2010, the President of the High Court, Kearns P, held that the proceedings were not defamation proceedings, that the appellant had no right to a jury trial, and, for that reason, ordered that the matter should be transferred from the Dublin Jury List to the Dublin Non?Jury List, and that the appellant pay the respondents the costs both of the motion, and the order made thereunder, when taxed and ascertained. The appellant appealed to the Supreme Court against the judgment of Kearns P, submitting that the High Court judge was biased against him in previously rejecting medical certificates; that the High Court judgment indicated a predisposition on the judge?s part to strike out or dismiss the proceedings; that the judge?s unwillingness to accept the word of a general practitioner regarding the appellant?s medical condition was surprising; and that explanations had already been given for the fact that a consultant?s report had not been available. He said that on the 4th March, 2011 the President rejected a renewed, updated medical certificate dated the 23rd February, 2011, which said that the appellant would not be able to work for 6 months. The appellant submitted that the principle of?audi alteram partem?was not observed, citing?Dellway Investments Ltd & Ors v NAMA & Ors?[2011] IESC 4. He said that the case was listed for mention only on the 6th December, 2010, and not for hearing. He contended that the President had no jurisdiction to determine the matter. On the issue of a right to a jury trial, the appellant cited?McMullan v Mulhall?and Farrell?[1929] IR 470. He submitted that he was entitled?as of right?to a jury trial, because there was a defamation aspect to the case. He said that words imputing unfitness for office were spoken by the respondents on the 19th October, 2004.

Held by MacMenamin J that he rejected any imputation that the President of the High Court was biased, or in any way acted improperly, noting that the appellant?s claim was not dismissed; instead, a procedural order of far lesser import was made. MacMenamin J was unable to accept that the proceedings could, properly, be characterised as defamation proceedings; there was no such plea and defamation requires explicit and clear pleading. MacMenamin J held that the conduct referred to was entirely peripheral to the main issue in the appellant?s case, which was an alleged breach of a contract for services. MacMenamin J thought that the entirety of the judgment and order made in the appellant?s absence, and concerning him, should not stand in the circumstances. MacMenamin J therefore, exceptionally, set aside the part of the High Court judgment and order which awarded costs, and remitted the balance of the case to the High Court.

MacMenamin J held that the Court would otherwise affirm the High Court order.

Appeal dismissed.

Judgment of Mr. Justice John MacMenamin dated the 25th day of April, 2016

1 This is an appeal against a judgment of the President of the High Court, Kearns P., delivered on the 6th December, 2010. In that ex tempore decision (which is referred to in more detail below), Kearns P. ordered that a notice of trial before judge and jury dated the 28th October, 2008 be vacated, that the plaintiff's (hereinafter the appellant) proceedings be transferred from the Dublin Jury List to the Dublin Non-Jury List, and that the appellant pay the respondents the costs both of the motion, and the order made thereunder, when taxed and ascertained.

2 The appellant is a chartered engineer by qualification; he was allegedly formerly entered into a contractual arrangement with the respondents, a firm of consulting engineers. I make no comment on the nature of the contract. Whether it was a contract of service, or for services, is immaterial. The appellant describes the agreement as a contract for services. This contract was terminated. He brought proceedings seeking damages from the termination of this contract. The President held that the proceedings were not defamation proceedings, that the appellant had no right to a jury trial, and, for that reason, ordered the matter should be transferred to the non-jury list.

3 Two issues arise in this appeal against that order: first, whether the High Court should have proceeded with the hearing in the appellant's absence; second, whether these proceedings can properly be described as ?defamation? proceedings which, the appellant contends, entitle him to a trial with a jury.

The Plenary Summons

4 The order appealed against was a step in protracted litigation, originally issued by the appellant as long ago as the 9th May, 2006, now some 10 years ago. The appellant, a litigant in person, made the following claim in the plenary summons:

?The plaintiff's claim is for damages for breach of contract, financial loss owing and overdue, damage to his good character, damage to his good professional name and status, emotional and psychological damage, acute disruption to his life, distress, inconvenience, severe upset and expense, caused and occasioned to him by reason of serious wrongdoing on the part of the defendants, their servants or agents, in or about their termination of the contract for services with the plaintiff, together with interest pursuant to Statute and cost.?

5 Even from the outset, therefore, it is evident that the precipitating event for the proceedings was the alleged wrongful termination of the contract. Three years elapsed between the time of the plenary summons and the statement of claim herein, delivered on the 20th April, 2009.

The Statement of Claim

6 The statement of claim is lengthy and carefully drafted. It sets out a series of allegations in great detail. The appellant says that he was employed by the respondents under a contract for services, which was finalised in writing on the 24th February, 2004. The Statement of Claim sets out the terms of the contract, including hourly rates and profit sharing arrangements. It alleges that the respondents confirmed to the appellant that they were in financial difficulties requiring a reduction of fees to him, and that he was given an assurance that they (the respondents) would pay outstanding amounts due to him at a later date. The appellant pleads that, on or about the 4th October, 2004, he was called to a meeting-room and told that his contract was being terminated without any reason, and later he was offered 16 weeks pay in lieu of notice, in accordance with the contract. The Statement of Claim describes subsequent events over a period of 3 weeks, during which time, it is said, the appellant's personal property was removed from the respondent firm's premises, and he was prevented from working any further there as a qualified chartered engineer.

7 The statement of claim does include a plea that the appellant was exposed to public ridicule, humiliation and mental distress; but only in so far as, it is alleged that on the day the contract was terminated the firm's staff lined up at the windows and stared at him as he transferred his belongings from the office to his car. There are pleas of conversion of property. It is said that the respondents dishonoured pledges to pay the appellant on outstanding invoices. Various heads of general and special damage are pleaded, giving rise to sub-heads of liquidated sums. However, there are no words pleaded which might be construed as being defamatory. The height of any such claim is the alleged exposure to humiliation as to the manner in which the appellant had to pack his goods into his car.

8 At the conclusion of the Statement of Claim, there is a sub-heading ?damages claim?. Twelve causes of action are pleaded. These are:

(1) fundamental breach of contract for services,

(2) breach of trust,

(3) breach of duty of care/negligence,

(4) gross humiliation, intimidation and embarrassment,

(5) harm to the plaintiff's excellent professional name and standing within the industry, and his good character,

(6) financial loss,

(7) loss of profit,

(8) loss of opportunity,

(9) conversion of personal and intellectual property,

(10) nuisance,

(11) mental distress caused to the plaintiff,

(12) a range of special damages, many unquantified, but insofar as identified totalling a sum of ?825,843.

9 A fundamental question which arises is whether, on these pleadings, there is sufficient pleaded material for them to be described as ?defamation proceedings?, or even proceedings involving defamation of character. In Duncan and Neill, the classic work on Defamation, the authors wrote:

?2.01 In order to establish at cause of action in an action for defamation, it is necessary to show that the words complained of were defamatory. It is true that defamatory gestures and defamatory sounds may be slanderous. There may be an occasion when defendants so conduct themselves as to convey a defamatory meaning about the plaintiff to third persons, giving rise to an action for slander.? (see Duncan...