Tracey v Independent Newspapers (Ireland) Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 12 January 2023 |
| Neutral Citation | [2023] IECA 1 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 2022 54 Record No: 2022 56 Record No: 2022 57 |
[2023] IECA 1
Donnelly J.
Haughton J.
Allen J.
Record No: 2022 54
Record No: 2022 55
Record No: 2022 56
Record No: 2022 57
THE COURT OF APPEAL
Trial of a preliminary issue – Privilege – Defamation – Respondents seeking a trial in each action of a preliminary issue – Whether the publication upon which the appellant sued was protected by privilege
Facts: Each of four newspapers, The Irish Times, Irish Independent, Evening Herald and Irish Daily Star, on 17 September 2004, published an article about a prosecution for assault taken against the appellant, Mr Tracey, in the District Court the previous day. The appellant issued proceedings against each of the newspapers individually on 23 December 2008, claiming that he had been defamed. The newspapers brought motions in the High Court, dated 30 June 2010, invoking the inherent jurisdiction or alternatively O. 19 r. 28 of the Rules of the Superior Courts to strike out/dismiss/stay the proceedings on grounds that they were unsustainable, bound to fail, or frivolous and/or vexatious. The newspapers were successful in the High Court. On appeal by the appellant against each of the High Court orders, the Supreme Court, in a series of judgments delivered by MacMenamin J, allowed the appeals and ordered that the matters be remitted to the High Court for a rehearing in accordance with law. On return to the High Court, the newspapers issued identical fresh motions seeking the following relief: (a) an order re-entering the motion of 30 June 2010 arising from the Supreme Court judgment; (b) further or alternatively, an order pursuant to O. 25 r. 1 and/or pursuant to O. 34 r. 2 and/or pursuant to the court’s case management or inherent jurisdiction “fixing for trial the determination of a preliminary issue, namely as to whether the publication upon which the Plaintiff sues is protected by privilege, arising from section 18 of the Defamation Act 1961 and/or at common law”; (c) an order for directions as the court sees fit arising out of the Supreme Court judgment and order. Meenan J held that the second relief claimed fell within the terms of the order of the Supreme Court. Meenan J was satisfied to make the order sought on each motion. The appellant appealed to the Court of Appeal against those orders. His primary focus was on what he contended was the procedural impropriety of the fresh motions being permitted to be heard. He claimed this was contrary to the judgment and order of Supreme Court which, he argued, only permitted the original motion to be heard.
Held by Donnelly J that there was no procedural irregularity in the newspapers’ reformulation of their original motions into the fresh motions. She held that The Irish Times were entitled to seek an order for the determination of a preliminary issue pursuant to O. 25 r. 1 in circumstances where they had filed a defence; such an entitlement did not apply to the respondents in the other three proceedings. She held that the decision as to whether a publication is a fair and accurate report of court proceedings is a matter for a jury provided that there is at least some evidence to show that the publication is unfair and inaccurate. In all the circumstances, she held that the issue as to whether the articles were fair and accurate was properly left in the first instance to the trial judge; the legal issue as to whether the privilege in s. 18 of the 1961 Act is qualified or absolute is a matter of law which must be decided by a judge alone. She held that this does not interfere with the right to trial by jury as the jury does not make decisions as to the law but makes decisions as to the facts. In the particular circumstances of these cases, she held that the evidence before the Court did not demonstrate how there would be a saving of time or costs by having this matter heard as a preliminary issue.
Donnelly J held that, as the appellant had been entirely successful in his appeals, he was presumptively entitled, as a litigant in person, to his reasonable outlay and out of pocket expenses.
Appeals allowed.
JUDGMENT of Ms. Justice Donnelly delivered on the 12 th day of January 2023
. On the 17 th September 2004, each of four newspapers (The Irish Times, Irish Independent, Evening Herald and Irish Daily Star, hereinafter “the newspapers”) published an article about a prosecution for assault taken against the plaintiff (hereinafter “the appellant”) in the District Court the previous day. The articles, while similar, are not identical and each has a different headline. All of the articles say, albeit in somewhat different terms, that the appellant was convicted of assault and that he was given the Probation Act because the assault was a minor one. The appellant issued proceedings against each of the newspapers individually on 23 December 2008 (together referred to as “the proceedings”), claiming that he had been defamed. His claim is that he was not convicted because the assault proceedings were dismissed against him. He claims the articles (and the photograph of him in one publication) were published maliciously.
. In the High Court, Meenan J., pursuant to motions brought by each of the newspapers, directed a trial in each action of a preliminary issue “namely as to whether the publication upon which the Plaintiff sues is protected by privilege”. It is against those orders that the appellant appeals.
. The procedural history of the proceedings is relevant to the arguments raised in the present appeals. The newspapers had previously brought motions in the High Court, dated 30 June 2010, invoking the inherent jurisdiction or alternatively Order 19 rule 28 of the Rules of the Superior Courts to strike out/dismiss/stay the proceedings on grounds that they were unsustainable, bound to fail, or frivolous and/or vexatious. The newspapers were successful in the High Court where the appellant did not appear but relied upon two medical reports to explain his absence. On appeal by the appellant against each of the High Court orders, the Supreme Court, in a series of judgments delivered by MacMenamin J. ( [2019] IESC 62, [2019] IESC 67, [2019] IESC 68, & [2019] IESC 69), allowed the appeals and ordered that the matters be remitted to the High Court for a rehearing in accordance with law.
. On return to the High Court, the newspapers issued new motions (“the fresh motions”). These identical fresh motions sought the following relief:
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a) An order re-entering the motion of 30 June 2010 arising from the Supreme Court judgment.
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b) Further or alternatively, an order pursuant to Order 25 rule 1 and/or pursuant to Order 34 rule 2 and/or pursuant to Court's case management or inherent jurisdiction “fixing for trial the determination of a preliminary issue, namely as to whether the publication upon which the Plaintiff sues is protected by privilege, arising from section 18 of the Defamation Act 1961 and/or at common law”.
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c) An order for directions as the Court sees fit arising out of the Supreme Court judgment and order.
. In the High Court, the appellant, who appears personally, objected to the re-entered motion primarily on the basis of his contention that the only matter ordered by the Supreme Court to be reheard was the original motion. Meenan J. held that the second relief claimed fell within the terms of the Order of the Supreme Court. He also stated that if there was any doubt, the judgment of the Supreme Court was clear that these were legal issues which the Supreme Court identified. In particular, he relied upon the dicta of MacMenamin J. at para 43 of the judgment and also the dictum at para 44 that “[t]he balance of justice requires that this important issue should be remitted to the High Court for determination in accordance with law.” Meenan J. was satisfied to make the order sought on each motion.
. In his notice of appeal, his written submissions, his subsequent affidavit and his oral submissions, the appellant's primary focus was on what he contended was the procedural impropriety of these fresh motions being permitted to be heard. He claimed this was contrary to the judgment and order of Supreme Court which, he argued, only permitted the original motion to be heard. He made various claims of lack of fair procedures that the High Court judge had heard the motion to re-enter when, he contended, the motion was only listed for mention, a claim of bias against the High Court judge in allowing the newspapers to expand the strike out motion, and apparently, a rather ill-defined allegation that seems to amount to one of an unsuccessful conspiracy between members of the Bar to prevent him from accessing the correct court for the hearing before Meenan J.
. The claim of bias seems wholly based upon the fact that the High Court judge did not agree with the appellant's understanding of the effect of the Supreme Court Order, and the fact that the judge went on to order costs against him. Making a claim of bias is entirely unwarranted in those circumstances; a judge may be right or wrong in a decision but the fact of being wrong does not in itself demonstrate bias. If an appellant wishes to say that the judge made the incorrect decision then the notice of appeal should make that assertion, accompanied by the reason why it is claimed the decision was made in error. That finds its...
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