Watters (plaintiff) v Independent Star Ltd trading as Irish Daily Star on Sunday
| Jurisdiction | Ireland |
| Judgment Date | 03 November 2010 |
| Neutral Citation | [2010] IECC 1 |
| Date | 03 November 2010 |
| Docket Number | Record No: 009888 |
| Court | Circuit Court |
[2010] IECC 1
Record No: 009888
Tort law - Defamation - Sex Offenders - Relationship with notorious inmate - Order - Declaration - Correction - Apology - Defamation Act 2009
Facts: Materials had been published by the defendant in respect of the plaintiff, a serving prisoner in Arbour Hill Prison for convictions contrary to the Child Trafficking and Pornography Act 1998. The materials published were alleged to have contended that a "seedy"? and "weird"? relationship existed between a notorious sex offender prisoner and the plaintiff, entailing that they had a bizarre and secretive relationship. The materials or article attributed the account to "prison sources"?. The plaintiff alleged that the article was grossly defamatory and designed to inflict maximum damage upon him. The applicant sought declarations pursuant to s. 28 Defamation Act 2009 that the defendant had published false and defamatory statements and sought a correction order and prohibition of further publication pursuant to ss. 30 and 33 of the Act of 2009. The defendant argued that the plaintiff had no reputation that could be defamed in the eyes of right-thinking persons, as a person with child pornography convictions.
Held by Judge Matthews that the plaintiff had voluntarily admitted guilt to serious offences and had expressed remorse and contrition. He had made himself available for psychiatric evaluation and psychological assessment. He had sought a place on a treatment programme and had sought rehabilitation. Generally, admissions of guilt mandated mitigation in sentence. The applicant was entitled to a declaratory order under s. 28(1) of the Act of 2009. A correction order followed. If the parties could not agree on the content of the order then the Court had powers to direct publication of a summary of the Court?'s judgment. The applicant was further entitled to an order pursuant to s. 33 of the Act of 2009 prohibiting the defendant from publishing further false and defamatory statements.
Reporter: E.F.
Judgment of His Honour Judge J. Mathews S.C. given on 3rd day of November, 2010
(1) A Declaration pursuant to s. 28(1) of the Defamation Act, 2009 that the Defendant published false and defamatory statements concerning the Plaintiff such statements being published in the Defendant's newspaper, Star on Sunday, on September 5th, 2010.
(2) An Order pursuant to the Defamation Act, 2009, s. 30 subsection 1 directing the Defendant to publish a correction and to direct the form, content, extent and manner of publication of the said Correction in such manner as to provide coverage comparable to that given to the false and defamatory statements.
(3) An Order pursuant to the Defamation Act, 2009, s. 33, Prohibiting the Defendant from publishing or further publishing the false and defamatory statements in respect of which the within Application is made.
(4) An Order for the plaintiff's costs of and incidental to the Application and for such legal costs incurred in seeking to have the Defendant correct the false and defamatory statements of the Defendant concerning the Plaintiff.
The Application is grounded upon the proceedings already had herein this notice of motion (with proof of service thereof), the affidavit of James MacGuill affirmed on 5th day of October, 2010, the verifying affidavit of the Plaintiff sworn on 5th day of October, 2010, the affidavit of Paul Cooke on behalf of the Defendant sworn on 15th day of October, 2010 and the replying affidavit thereto of James MacGuill affirmed on 18th day of October, 2010 together with all exhibits contained in the material affidavits.
As this is the first Application of its kind under the Defamation Act, 2009 it is necessary to set out in detail the Remedies claimed under part 4 of the Defamation Act, 2009 and in particular s. 28, s. 30 and s. 33 of the said Act.
28(1) A person who claims to the subject of a statement that he or she alleges as defamatory may apply to the Circuit Court for an Order (in this Act referred to as a "declaratory order"?) that the statement is false and defamatory of him or her.
(2) Upon an Application under this section the Court shall make a declaratory Order if it is satisfied that -
(a) The statement is defamatory of the applicant and the respondent has no defence to the Application
(b) The applicant requested the respondent to make and publish an apology, correction or retraction in relation to that statement and
(c ) The respondent failed or refused to exceed to that request or, where he or she exceeded that request, failed or refused to give the apology, correction or retraction the same or similar prominence as was given by the respondent to the statement concerned.
(3) For the avoidance of doubt, an applicant for a declaratory order shall not be required to prove that the statement to which the application concerned relates is false.
(4) Where an application is made under this section, the applicant shall not be entitled to bring any other proceedings in respect of any cause of action arising out of the statement to which the application relates.
(5) An application under this section shall be brought by motion on notice to the respondent grounded on affidavit.
(6) Where a court makes a declaratory order, it may, in addition make an order under section 30 or 33, upon an application by the applicant in that behalf.
30(1) Where in a defamation action there is a finding that the statement in respect of which the action was brought was defamatory and the defendant has no defence to the action, the court may, upon the application of the plaintiff, make an order (in this Act referred to as a "Correction Order"?) directing the defendant to publish a correction of the defamatory statement.
(2) Without prejudice to the generality of subsection (1) a correction order shall -
(a) specify- (1) the date and time upon which, or (2) the period not later than the expiration of which, the correction order shall be published, and
(b) specify the form, content extent and manner of publication of the correction and shall, unless the plaintiff otherwise requests, require the correction to be published in such manner as will ensure that it is communicated to all or substantially all of those persons to whom the defamatory statement was published.
(3) Where a plaintiff intends to make an application under this section, he or she shall so inform-
(a) the defendant by notice in writing of not later than 7 days before the trial of the action, and
33 (1) The High Court, or where a defamation action has been brought, the court in which it was brought may, upon the application of the plaintiff make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion-
(b) the defendant has no defence to the action that is reasonably likely to succeed
(2) Where an order is made under this section it shall not operate to prohibit the reporting of the making of that order provided that such reporting does not include the publication of the statement which the order relates
(c) a permanent order.
The Act further provides in s. 34 for summary disposal of such an action.
34 (1) The court in a defamation action may upon the application of the plaintiff grant summary relief to the plaintiff if it is satisfied that..."
(a) the statement in respect of which the action was brought is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.
(2) The court in a defamation action may, upon the application of the defendant, dismiss the action if it is satisfied that the statement in respect of which the action was brought is not reasonably capable of being found to have a defamatory meaning.
(3) An application under this section shall be brought by motion on notice to the other party to the action and shall be grounded on an affidavit.
(4) An application under this section shall not be heard or determined in the presence of a jury.
For the purposes of the Act of 2009 "defamatory statement"? means a statement that tends to injure a person's reputation in the eyes of reasonable members of society and "defamatory"? shall be construed accordingly.
Mr. Hugh Mohan S.C. on behalf of the Plaintiff instructed by James MacGuill and Company Solicitors outlined in his opening submissions how by letter of 9th September, 2010 the Plaintiff solicitors wrote to the defendant acting on behalf of the Plaintiff Barry Watters of Hazelwood Avenue, Dundalk, Co. Louth who was presently a serving prisoner in Arbour Hill Prison in relation to an article carried in the Star on Sunday edition of 5th September, 2010 referring to the Plaintiff by name, address and accompanied by his photograph. Mr. Mohan outlined how the article entitled "LARRY'S SECRET SHOWER BUDDY"? purported to be an expose of a relationship quite clearly presented to the reader as being sexual in nature between Barry Watters the Plaintiff and one Larry Murphy a recently released and extremely high-profile convict.
Mr. Mohan contended that the article contended that the Plaintiff had variously a "seedy"? and "weird"? relationship with Mr. Murphy and was "close to him"? and a participant in a "bizarre and secretive relationship"?. The article Mr. Mohan said purported to give an...
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