Supreme Court allows defamation action to proceed despite inexcusable delay due to balance of justice favoring the plaintiff.

THE SUPREME COURT

No. 317/2005

Geoghegan J.

Kearns J.

Macken J.

BETWEEN/

DERMOT DESMOND

Plaintiff/Respondent

and

M.G.N. LIMITED

Defendant/Appellant

JUDGMENT of Mr. Justice Geoghegan delivered the 15th day of October 2008

I find myself in complete agreement with the judgment of Macken J. and the reasons which she gives. In particular, I am in

agreement with her and indeed with Kearns J. in his judgment that the delay at issue was both inordinate and inexcusable. I

take the view, however, as does Macken J., that the balance of justice favours, nevertheless, the action being allowed to

proceed.

There are three aspects of the case on which I would like to make some observations of my own.

The first relates to the plea of justification. I entirely agree with Macken J. that as she puts it “in assessing where the

balance of justice lies as between the parties,…the scope and ambit of the defence .. is a factor which, in an appropriate

case, may be taken into account.” The plea of justification in a defamation action has always been considered to be a most

serious plea and certainly not one to be made likely. In this case, the appellant pleaded that the words in their natural and

ordinary meaning were true in substance and in fact. Macken J., in her judgment, refers to the fact that during the course of

exchanges before the court, senior counsel for the appellant suggested that in some way it was not a full justification plea

and that at any rate it might be amended to a modified plea of some kind. In my view, no significance can be attached to

that submission. If the action was to be struck out now the plea of justification would remain on the record and it could

never be disproved. There was also a suggestion coming from counsel that the pleadings might be amended to include what

has become known in England as “the Reynolds defence” deriving from the libel action brought against the Sunday Times

by the former Taoiseach, Mr. Albert Reynolds. Again, I think that that is entirely irrelevant to the weight to be attached to

the plea of justification in considering the balance of justice.

Further significance can be attached to it in the light of the respondent’s submissions before the Moriarty Tribunal. At all

material times, the newspaper report complained of was being disputed by the respondent albeit before that tribunal. I am

satisfied that the respondent could not be excused for failing to proceed with his action for his own tactical reasons (I would

not really call them legal reasons) without giving any notice of his intention to the appellant and that is why I agree that the

delay was not only inordinate but also inexcusable. On this point I therefore disagree with the views of the learned trial

judge. But, for the reasons which I have indicated and especially in the light of the plea of justification, I am satisfied that

there are just reasons for allowing the action to go ahead in the absence of serious prejudice to the defence. I do not think

that the reasons put forward for such alleged prejudice are valid. I adopt the views in this regard of Macken J.

The second matter on which I wish to comment relates to the views expressed by Kearns J. in his judgment that the

jurisprudence well established by two Supreme Court decisions in relation to when an action should be struck out for delay

have somehow now to be modified having regard to the European Convention on Human Rights incorporated into domestic

law by the 2003 Act. This view which has been expressed in one or two other judgments exclusively derives, as far as I am

aware, from the dicta of Hardiman J. in Gilroy v. Flynn [2005] 1 I.L.R.M. 290 as set out in the judgment of Kearns J. On

my reading of that case, these dicta can be regarded as obiter dicta. Macken J., in her judgment, expresses the view with

which I fully agree that the basic principles as set out in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 and

Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 remain substantially unaltered. I do not think that the case law

of the Court of Human Rights relating to delay justifies reconsideration of those principles or in any way modifies those

principles. I do not know of any relevant case of the Court of Human Rights dealing with when an action should be struck

out for delay.

The dicta of Hardiman J. to which I have already referred indicate that his view is that application of those principles should

now change or indeed that the principles themselves might have to be “revisited”. I am not convinced that that would be

either necessary or desirable. It would seem to me that those principles have served us well. Unless and until they are altered

in an appropriate case by this court, I think that they should still be treated as representing good law and in that respect, I

entirely agree with Macken J.

The third matter is something which has arisen in a peripheral way in this case and is the approach which this court should

adopt on an appeal from a discretionary order. Traditionally the common law view was that a discretionary order should not

be interfered with by an appellate court unless the judge at first instance made an error of law in the exercise of the

discretion. In a landmark case cited by Kearns J. in his judgment in Bonis Morelli: deceased; Vella v. Morelli [1968] I.R.

11. It was pointed out by this court that an appeal lay from every decision of the High Court to the Supreme Court unless

otherwise provided for by law. Any rule by which the court was inhibited from interfering with a discretionary order was not

therefore compatible with the Constitution. However, in the Morelli case as Kearns J. points out, Budd J. indicated that the

court would have to give “great weight to the views of the trial judge”. I think that that is the true legal principle in the light

of the Constitution now. But there is an added factor in my opinion. The expression “discretionary order” can cover a

huge variety of orders, some of them involving substantive rights and others being merely procedural in nature including

mundane day to day procedural orders such as orders for adjournments etc. I think that in reality over the years since

Morelli this court has exercised common sense in relation to that issue. The court would be very slow indeed to interfere

with the High Court judge’s management of his or her list, but in a case such as this particular case where much more

substantial issues are at stake the court, while having respect for the view of the High Court judge, must seriously consider

whether in all the circumstances and in the interests of justice it should re-exercise the discretion in a different direction.

As indicated, I would dismiss the appeal.

Desmond v. MGN Limited