Watson v Campos

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 14 January 2016
• Neutral Citation: [2016] IEHC 18
• Docket Number: Record No. 2015/4949P
• Court: High Court
• Date: 14 January 2016

[2016] IEHC 18

THE HIGH COURT

Barrett J.

Record No. 2015/4949P

Between/

CAROLINE WATSON

Applicant

– and –

ADELINA CAMPOS

– and –

MGN LIMITED trading as IRISH SUNDAY MIRROR

Respondents

Tort – Defamation – Practice & Procedures – Extension of time – S. 38(1)(a) of the Defamation Act 2009 – S. 11(2) (c) of the Statute of Limitations 1957

Facts: The applicant sought extension of time in the present case for continuing the defamation proceedings instituted against the respondents after the issuance of the summons for defamation. The applicant contended that the delay in instituting the proceedings was owing to getting the name of the editor of the newspaper alleged to have published the defamatory material.

Mr. Justice Max Barrett refused to grant an extension of time to the applicant. The Court held that s. 11(3A) of the Statute of Limitations 1957 put a mandate that the Court must have regard to the reason for failure to bring an action within the prescribed period under s. 11 (2) (c)(i) of the Act of 1957 in an application for grant of extension of time limit. The Court found that there was no express reason except the laxity shown by the applicant and hence, it would not warrant the exercise of discretion in favour of the applicant. The Court opined that the public interest required that there should not be unnecessary curtailment on the freedom of press and any individual aggrieved by any alleged piece of published information must take steps without any delay and pursue his/her case diligently within the standard time-limit prescribed by law.

JUDGMENT of Mr Justice Max Barrett delivered on 14th January, 2016.

Part I: Background.

1 The awfulness of Mr Durran's crime was such that it attracted a blaze of publicity. After he was convicted of rape, the victim, his daughter, waived her right to anonymity and gave an interview to the Sunday Mirror newspaper. The article that followed that interview explained how immediately after the crime occurred, the daughter complained to a ‘ female occupant of the house’ where the rape occurred. This ‘ female occupant’,the article indicates, was at first somewhat incredulous regarding the daughter's claim.

2 Ms Watson claims that she is the ‘ female occupant’ in question and that she has been defamed by the article in that it suggests, to borrow from her affidavit evidence, ‘ that I was sympathetic to a rapist or somehow complicit in a rape or the cover up of the crime or/and that I declined assistance to a victim of rape’.

3 The difficulty that Ms Watson faces in continuing her claim at this time is that she is outside the standard one year limitation period that, pursuant to s.38 of the Defamation Act 2009, normally applies to the commencement of defamation claims. So Ms Watson comes now to court seeking that pursuant to the same provision, it now extendthe limitation period in order that Ms Watson may continue these proceedings.

Part II: Chronology.

4 A summary chronology of the pertinent background facts follows:

5 Article appears in the Sunday Mirror. On what seems to be the back page of the newspaper, the required publisher details are stated as follows: ‘ Published by MGN Ltd. at One Canada Square, Canary Wharf, London, E14 5AP (020 7293 3000) and printed at […]…Registered as a newspaper at the Post Office Serial No. 2538.’ [1]

08.07 2014 Ms Watson's solicitor issues letter to Sunday Mirror complaining of alleged defamation .[2]

03.12 2014 Ms Watson's solicitor issues letter to Sunday Mirror seeking confirmation of identities of appropriate defendants and name of editor or person nominated to defend .[3] Notably, this letter includes the following text:

‘We now have High Court proceedings drafted and settled by Senior Counsel and which we are ready to issue and perhaps you would first of all provide is with the name of your editor, who we intend naming in the proceedings together with the journalist in question and responsible for the article’. [4]

06.02 2015 Ms Watson's solicitor issues further letter to Sunday Mirror seeking confirmation of identity of editor .[5]

09.06 2015 Ms Watson's solicitor issues further letter to Sunday Mirror seeking confirmation of identity of editor .[6]

18.06 2015. Defamation summons issues .[7]

[1] At the hearing of the within application, it was sought to make some play of the fact that the address given is a United Kingdom address. The court sees no significance to this. There is no reason why a summons cannot be served readily on a corporate party at its registered address in another European Union member state.

[2] By this date, less than five months after the Sunday Mirror article was published and seven months before a year elapsed from the date of publication, Ms Watson had professional legal advice. Her advisors would doubtless have been aware of the standard one-year timeframe arising for a defamation claim.

[3] Although there was no harm in Ms Watson's solicitor sending this letter, there was and is no obligation on the Sunday Mirror to assist Ms Watson in her quest to sue the Sunday Mirror.

[4] By this date, still well within the standard one-year timeframe, all was ready to go. The quest for the editor's name is a “red herring”. First, it was not necessary for the bringing of proceedings. Second, MGN had been stated in the Sunday Mirror of 16th February to be the publisher and could have been (as it has been) sued. As publisher, it was vicariously liable for the editor's actions. Third, even if the name of the editor was required and unavailable, the proceedings could have been commenced and his name added at a later stage, following production of the correspondence that sought unsuccessfully to discover the editor's identity. Fourth, the court must admit to some mystification as to why no-one just called ++ 44 20 7293 3000, the contact telephone number for the Sunday Mirror that was published in the Sunday Mirror of 16th February, and asked the Sunday Mirrorreceptionist, the editor's PA, or someone in the Legal Department for the name of the Sunday Mirror'seditor. Even a Google search would have yielded the relevant detail.

[5], [6] Again, for the reasons stated at [4], this quest for the editor's name is a “red herring”.

[7] This date is 16 months after the date of publication, four months outside the standard one-year timeframe.

Part III: Some relevant legislation.

5 Section 38(1)(a) of the Defamation Act 2009 introduces a new s.11(2)(c) into the Statute of Limitations 1957. This new sub-section (c) provides as follows:

‘(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.’

6 So, to put matters succinctly, when it comes to bringing a defamation action, as defined, a one-year limitation period is standard, more than one yearis exceptional.

7 Section 38(1)(b) of the Defamation Act 2009 introduces a new s.11(3A) into the Act of 1957. This prohibits the court from granting the direction referred to in the new s.11(2)(c)(ii) unless certain criteria are satisfied. Thus, per s.11(3A) of the Act of 1957:

‘(3A) The court shall not give a direction under subsection (2)(c)(ii)…unless it is satisfied that –

(a) the interests of justice require 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,

and the court shall, in deciding whether to give such a direction, have regard [c] to the reason for the failure to bring the action within the period specified in subparagraph (i) of the said subsection (2)(c) and [d] the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.’

8 The court notes the use of the mandatory form “shall”; the court must not give a direction unless (1) (a) and (b) are satisfied; and (2) it has had regard to [c] and [d]. As a process, it seems appropriate logically to deal with matters backwards, i.e. by dealing with [d], then [c], then (b) and then (a) in that order.

Part IV. Order 1B of the Rules of the Superior Courts (1986), as amended.

9 The court must admit to some sense that there has been a touch of “cart before horse” about the within application. It is clear from the new s.11(2)(c) of the Act of 1957 that a defamation action ‘ shall not be brought’ after (i) one year or (ii) such longer period as the court may direct, not exceeding two years.

10 Strictly speaking, it seems to the court from the foregoing that once a plaintiff is outside the standard one-year limitation period, a direction ought to be sought for the extension of the limitation period so that – assuming the extension is granted – a defamation action may then commence, rather than a defamation action commencing and a direction then being sought. It is true that O.1B, r.3(2) appears implicitly to acknowledge that either approach is possible. Thus it refers to the process to be adopted ‘[w]here a defamation action has not been brought…’ and so appears to contemplate that a situation may arise “where a defamation action has been brought…”, notwithstanding that, as mentioned above, s.11(2)(c) appears to contemplate that no defamation action can be brought after one year, absent the previous issuance of a direction under s.11(2)(c)(ii). Not a lot may ride on the foregoing in substance, save for the not-so-minor fact that, absent a determination of unconstitutionality, it is necessary for the courts, and the rules of court, to conform with what our elected lawmakers prescribe in statute. In the within application, the issue is perhaps met by the fact that...