Walsh v Harrison
| Jurisdiction | Ireland |
| Judge | Mr.Justice Aindrias Ó Caoimh |
| Judgment Date | 31 July 2002 |
| Neutral Citation | 2002 WJSC-HC 7186 |
| Judgment citation (vLex) | [2002] 7 JIC 3116 |
| Court | High Court |
| Date | 31 July 2002 |
2002 WJSC-HC 7186
THE HIGH COURT
Between:
Citations:
RSC O.40 r12
STRINGER V IRISH TIMES LTD 1995 2 IR 108
RSC O.40 r4
RSC O.36 r36
RSC O.28 r1
O'LEARY V MIN TRANSPORT 2001 1 ILRM 132
O'NEILL V CANADA LIFE ASSURANCE (IRL) LTD UNREP MURPHY 27.1.1999 1999/21/6680
BELL V PEDERSON 1995 3 IR 511
WOLFE V WOLFE 2001 1 IR 313
RSC O.19 r3
RSC O.19 r5
PALAMOS PROPERTIES LTD & O'NEILL V BROOKS 1996 3 IR 597
GATLEY ON LIBEL & SLANDER 9ED 1998 703
SHEPPERTON INVESTMENT CO LTD V CONCAST (1975) LTD UNREP BARRON 21.12.1992 1993/5/1393
CORNHILL V MIN FOR AGRICULTURE UNREP O'SULLIVAN 13.3.1998 1998/14/4976
ATKINSON V FITZWALTER 1987 1 WLR 201
COONEY V BROWNE 1985 ILRM 675
DOYLE V INDEPENDENT NEWSPAPERS 2001 4 IR 594 2001/6/1462
Synopsis:
- [2003] 2 ILRM 161
The plaintiff had issued proceedings against the defendant seeking damages for slander and malicious falsehood. The defendant denied that the words in question were capable of the meanings that were being attributed to them in the statement of claim. Various preliminary applications had been sought by either side including an application by the defendant to amend his defence. The defendant as part of this application swore an affidavit to ground his application. The plaintiff contended, inter alia, that the affidavit was scandalous, oppressive and composed of hearsay which was inadmissible and sought to have the contents of the affidavit struck out pursuant to Order 40 rule 12 of the Rules of the Superior Courts.
Held by Ó Caoimh J in refusing the application. Although the affidavit contained hearsay evidence it could not be said to be scandalous. The contents of the affidavit were material to the issues in the proceedings. The justice of the case was such that the defendant should be permitted to amend his defence and an order to this effect would issue.
Mr.Justice Aindrias Ó Caoimh delivered the 31st day of July, 2002.
On 2nd February, 2002 the plaintiff issued a motion in these proceedings for:-
(a) an order pursuant to O. 40 r. 12 of the Rules of the Superior Courts ordering to be struck out from the affidavit of Hugh J. Millar sworn on 4th July, 2001 herein the entire of the contents of the said affidavit, or alternatively, any matter which this court deems to be scandalous, inadmissible in evidence, oppressive or irrelevant;
(b) an order expunging the affidavit from the court file;
(c) an order that the said affidavit should not be read out in open court on the basis that the same contains hearsay averments, is inadmissible in evidence, oppressive, scandalous or irrelevant.
This application was grounded on the affidavit of Felix McTiernan, solicitor of the firm of Cusack McTiernan, solicitors for the plaintiff. He points out that the affidavit of Mr. Millar the subject matter of this application is one grounding a motion to amend the defence of the defendant in the proceedings herein. Mr. McTiernan complains that the affidavit is scandalous, oppressive, composed of hearsay which is inadmissible and the matters averred to may tend to identify persons who are minors and who were conceived by artificial insemination.
The plaintiff issued proceedings herein on 8th September, 1999 for damages for slander and malicious falsehood against the defendant. Both the plaintiff and defendant are consultant gynaecologists. The plaintiff alleges that the defendant falsely and maliciously uttered words defamatory of him on 19th May, 1999 and in 1996 which he says in their natural and ordinary meaning meant and were understood to mean or alternatively meant by way of innuendo inter alia that the plaintiff is a con-man, is extremely dangerous medically, would kill somebody someday, that he burned down or arranged for the burning down of his home for the purpose of obtaining monies from the insurers of that property, that he is not trustworthy and not properly using donor sperm, that he feigned illness while working at a clinic, that he improperly uses or improperly used sperm in the course of his practice as a fertility specialist in a grossly discreditable fashion, that his manner of practising medicine must have resulted in numerous complaints to the Medical Council, that he has no training or qualifications for the medical work he is doing, that he is a complete charlatan, that the plaintiff was incompetent and unable to carry out his work in a proper and professional manner. It is complained that the words in their natural and ordinary meaning further or in the alternative by innuendo were grossly defamatory of the plaintiff and exposed him to loss, damage, distress, odium, ridicule and contempt. The plaintiff claims that as a result of the defamation complained of his reputation both personally and professionally has been very severely damaged and he has suffered extreme distress and embarrassment. It is alleged that the words complained of were and are calculated to disparage the plaintiff in his profession.
Since the institution of these proceedings notice of motion for judgment were issued by the plaintiff on 13th October, 1999 in default of appearance, on 14th December 1999 in default of defence resulting in this court granting the defendant two weeks from 24th January, 2000 to deliver a defence; thereafter as no defence had been delivered a further motion for judgment in default of defence issued on 29th February, 2000 returnable for 20th March, 2000, which motion was struck out with costs to the plaintiff on 20th March, 2000 in circumstances where a defence had been delivered by the defendant on 16th March, 2000.
The defence denied the uttering of the words alleged, pleaded that if uttered and published the claim was statute barred insofar as it pertained to words allegedly uttered in 1996 and it was denied that the words allegedly uttered bore or were capable of bearing the meanings set forth in the statement of claim and further denying that the words in their natural and ordinary meaning or alternatively by innuendo are defamatory of the plaintiff, denying damage to the plaintiff's reputation and denying that the plaintiff had suffered the alleged or any extreme distress or embarrassment, and that he had been disparaged in his profession as alleged or at all. In addition the defence raised a plea of qualified privilege.
On 14th March, 2000 the plaintiff issued a motion to amend his statement of claim by deleting portion thereof arising from the fact that the person to whom it is alleged some of the words complained of were uttered had declined to give evidence from fear for the consequences of giving evidence for his own professional position as a result of which the statement of claim was amended on consent on 14th April, 2000 by the Master.
The plaintiff issued a reply on 9th May, 2000 following which the plaintiff sought discovery against the defendant by motion of 25th May, 2000 following a request for voluntary discovery in order to meet the defence of qualified privilege raised by the defendant. On 27th June, 2000 an order was made on consent that discovery be made by the defendant within three weeks thereof. An affidavit of discovery was sworn by the defendant on 24 July 2000 and the plaintiff made discovery on 15th August, 2000.
The action was set down by the plaintiff on 25th September, 2000. A notice to produce was served on 18th October, 2000 and the plaintiff made further discovery on 30th November, 2000. On 16th March, 2001 the defendant sought further particulars from the plaintiff of his claim.
On 22nd March, 2001 the defendant issued a motion seeking third party discovery arising from a conversation between the defendant and a third party to whom some of the words the subject of these proceedings were allegedly published and in respect of which it was stated that the conversation was recorded by the third party.
On 6th April, 2001 the plaintiff replied to a notice for particulars issued by the defendant on 16th March, 2001. On 9th April, 2001 the defendant issued a motion for further third party discovery as a result of which the Master made an order on 3rd May, 2001 against the third party Michelle Lynch Byron as a result of which she made discovery. At the same time a motion issued by the defendant seeking further discovery against the plaintiff which issued on 22nd March, 2001 based upon an assertion on the defendant's behalf that the plaintiff or a David Walsh who has issued like proceedings against the defendant had provided the said Michelle Lynch Byron with equipment to enable her to record her conversation with the defendant. The plaintiff swore an affidavit to the effect that he had no other documentation other than the items which he had already discovered following which on consent the motion for further discovery by the plaintiff was struck out by the Deputy Master on 3rd May, 2001. However, at the same time third party discovery was directed against Risk Management International Limited (RMI) which made discovery on 25th May, 2001. On 28th May 2001 the plaintiff made further discovery of a letter of 1st December, 2000 from the Medical Council to his solicitors. On 11th June, 2001 discovery was made by another third party Gerry Murphy.
On 11th June, 2001 the defendant issued a further motion seeking discovery against the plaintiff returnable for 5th July, 2001 in circumstances where it was stated that the third party discovery made at that time revealed that the conversation between the defendant and Ms. Lynch Byron had been covertly recorded by her using a devices inserted in her handbag. The plaintiff's solicitor swore an affidavit on 13th June, 2001 referring to the fact that the plaintiff had previously sworn an affidavit discovering a transcript and the original tape recording of...
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