High Court refuses plaintiff's request to strike out defendant defence on grounds of prolixity, scandal, or lack of locus standi.

Neutral Citation: [2014] IEHC 454

THE HIGH COURT

[2012 No. 254 P]

BETWEEN

EOIN MCKEOGH

PLAINTIFF

AND

JOHN DOE 1 (USER NAME DAITHII4U)

AND

JOHN DOE 2

AND

JOHN DOE 3 (TAXI EIRE.LEFORA.COM)

AND

FACEBOOK IRELAND LIMITED

AND

GOOGLE IRELAND LIMITED

AND

GOOGLE INC (AS SUBSTITUTED BY ORDER OF THE COURT DATED 27 JANUARY 2012)

AND

YOUTUBE

AND

YOUTUBE LLC

AND

YAHOO! (UK) LIMITED

AND

CROWDGATHER INC

DEFENDANTS

JUDGMENT of Mr. Justice Gilligan delivered on the 16th day of July, 2014

1. The plaintiff in these proceedings is a student. In the latter part of December, 2011 a video of people allegedly evading a taxi fare

on the night of 13th November, 2011, was posted online on Youtube and Facebook and a number of other websites. The plaintiff was

identified by the video as the person evading the taxi fare. Through the creation of a fake Facebook profile on the 28th December,

2011, by a third party, purportedly in the name of the plaintiff himself, a number of defamatory statements were published alleging,

inter alia, that the plaintiff was involved in criminal activity. This video was viewed by a large number of people over various social

media networks and other websites.

2. On 11th January, 2012, the plaintiff sought interlocutory injunctive relief restraining the publication of this defamatory material and

directing that the identity of the sources of this material be disclosed to the plaintiff. An interim injunction was granted by this Court

(Peart J.) on 11th January, 2012, restraining the defendants and other third parties on notice from further defaming the plaintiff or

republishing the videos in question. Yahoo! UK Limited and Cowgather Inc dealt with the matter by agreement with the plaintiff. The

first, second and third named defendants also apologised and removed the offending material from their sites and were excused from

further appearance. However, the remaining defendants, Google, Youtube and Facebook Ireland Limited resisted the application for

injunction. The relevant part of the relief sought is an order directing the fourth to the tenth named defendants, and any other party

nominated by the court, to “disclose the identity of the web users who have defamed the plaintiff via their websites to enable the

plaintiff to protect his good name.”

3. On 16th May, 2013, Peart J. delivered judgment in this matter, granting mandatory injunctive relief to the plaintiff preventing and

restraining the publication of defamatory material and other orders including an order that “Facebook provide an electronic copy of

the fake Facebook Profile” as the plaintiff had sought. The fourth named defendant has, as yet, not provided the plaintiff with this

information and has indicated that it is not in a position to do so. The terms of the order of Peart J. made on 16th May, 2013, which

is under appeal to the Supreme Court, are as follows:

“The Court doth direct that

1. Facebook Ireland Limited the fourth named defendant do provide to the Solicitor acting on behalf of the plaintiff by

email…as soon as is reasonably practicable an electronic copy of the fake Facebook profile as sought by the plaintiff…”

4. During the hearing of a motion in separate proceedings before this Court (Peart J.) which were brought by the plaintiff against a

number of national newspapers to restrain publication of details of the plaintiff’s case, legal representatives for Facebook, though the

latter was not a party to the proceedings, were permitted by Peart J. to address the court de bene esse. The plaintiff makes a

number of claims in his statement of claim to the effect that the negative publicity arising from the comments made by counsel for

the fourth named defendant at this time, including the suggestion that the plaintiff was, in fact, seeking relief similar in nature to a

“super injunction,” caused him reputational damage. The paragraphs of the defence issued by the fourth named defendant which are

the subject of the within proceedings are in response to those claims.

5. The plaintiff to these proceedings in this application seeks an order by way of notice of motion pursuant to Order 42, rule 7 or

Order 44 of the Rules of the Superior Courts, or both, directing the attachment and committal of Ms. Sonia Flynn, Managing Director

of Facebook Ireland Limited, for contempt in the face of the order of this Court (Peart J.) granted on 16th May, 2013, and perfected

on 22nd May, 2013 for failing to provide an electronic copy of a fake Facebook profile or swear an affidavit as directed by the court,

other than a hearsay affidavit by lawyers for the fourth named defendant, setting out the manner in which the fake profile came to

be deleted or permanently destroyed and the date on which such took place. The plaintiff also seeks an order directing the

attachment and committal of Ms. Flynn for contempt of the order of the court for failing to provide a full explanation in relation to the

manner in which the profile in question was deleted or the date on which the deletion took place. The plaintiff further seeks directions

in relation to these reliefs. An order is also sought under Order 19, rule 27 of the Rules of the Superior Courts 1986 as amended

striking out paragraphs 54, 55 and 56 of the Defence of the Fourth Named defendant on the grounds that it contains material which is

scandalous, vexatious, malicious and/or an abuse of process.

6. During the hearing of this motion it was accepted by counsel for the plaintiff that it was not possible to proceed with the first two

reliefs sought, namely the orders for attachment and committal of Ms. Flynn for breach of a court order, there being no order made

against her and she not having been served with the proceedings or any relevant orders of this Court. The orders made in these

proceedings are addressed to Facebook and Facebook Ireland Limited, the latter being a limited liability company and the employer of

Ms. Flynn. An order for substituted service or an order for sequestration of the corporate property of the company could have been

sought under Order 42, rule 32 of the Rules of the Superior Courts rather than an order for attachment and committal of an individual

under Order 42, rule 7.

7. The third relief as sought is no longer relevant since the plaintiff may take whatever approach to these issues which is deemed

appropriate by his legal representatives. The leave of this court is not necessary in order for any other motions to be instituted, in

respect of the alleged destruction of the Facebook profile or the alleged failure of any of the defendants to comply with the orders of

this Court.

8. Therefore, the court must determine the remaining relief sought by the plaintiff on this application, namely the application for an

order pursuant to Order 19, rule 27 striking out paragraphs 54, 55 and 56 of the Defence of the Fourth Named defendant on the

grounds that it contains material which is scandalous, vexatious, malicious or an abuse of process.

9. The relevant paragraphs of the plaintiff’s statement of claim are as follows:-

“43(k). The failure of the Fourth, Fifth, Sixth, Seventh, and Eighth Named defendants to act did cause the plaintiff to

engage in protracted and costly litigation in relation to the matter, and this fettered his ability to continue to engage in

his University studies.

47. Further and or in the alternative and without prejudice to the foregoing, the plaintiff claims aggravated damages and

or exemplary damages against the Fourth, Fifth, Sixth, Seventh and Eighth Named defendants by virtue of the manner in

which they have failed, neglected and or refused to comply with the said injunctions and thereby facilitated publications

and or published material defamatory of the plaintiff when they were fully aware of the nature of the said material and the

on-going damage such publication would cause to the plaintiff. In support of same, the plaintiff will rely on the following

facts and matters:-

(a) The fourth named defendant, allowed, permitted or failed to prevent the republication of the material

defamatory of the plaintiff on its side, contrary to the injunction and orders obtained.

(b) The fourth named defendant interfered in the plaintiff’s separate proceedings as against other parties, by

addressing the court when it had no locus standii to do so and alleging that the plaintiff was seeking a “super

injunction” as against those parties, and engaging in a media interview whereby that allegation was repeated,

thereby escalated, inflaming and prolonging the proceedings against the present defendants, and the plaintiff’s

separate proceedings against other parties.

(c) The defendants resolutely and continuously refused to remove material published on their websites and to

comply with the court orders obtained on 11th January, 2012, and the ongoing repetition and maintenance of the

position that they did not understand the court orders obtained and the reliefs sought by the plaintiff obliged the

plaintiff to retain experts to restate the plaintiff’s position to that defendant, and to present it to the court.

(d) The defendants, by their failure to supervise and check its site for the specific material defamatory of the

plaintiff, notwithstanding the fact that it, its servants or agents, had been made specifically aware of the

defamation, and furthermore, once the injunctions were in place, permitted or allowed further republication of

material defamatory of the plaintiff on its website which would not have taken place otherwise.”

10. The relevant paragraphs of the defence of the Fourth Named Defendant are in the following terms:

“54. Without prejudice to the generality of the foregoing, the plaintiff’s pleas at Paragraph 47(b) of the Statement of

Claim are untenable, scandalous and vexatious. In substance, the injunction sought by the plaintiff against seven national

newspapers seeking to obtain orders restricting the reporting of his injunctive proceedings against the defendants did

have many of the characteristics of what is known in the United Kingdom as a ‘super injunction’ and the Fourth Named

Defendant, as a party to the proceedings in which the injunction was sought manifestly had locus standi to appear to

defend its reputational interests.

55. In point of fact, insofar as the plaintiff complains at Paragraph 47(b) of the Statement of Claim about the receipt of

adverse publicity, this followed as a natural consequence of the plaintiff electing to bring before the High Court an

application for injunctive relief against the publishers of seven national newspapers, which application (a) manifestly had

no reasonable prospect of success, and (b) had the entirely counter-productive effect of generating significant additional

publicity which he had obtained for himself by virtue of the decision made by him, on legal advice, to seek injunctive relief

against the publishers of The Irish Independent, The Sunday Independent, The Evening Herald, The Irish Times, The

Examiner, The Star, and The Sunday Times. As was inevitable, the plaintiff failed to obtain any such injunctive relief, and

having brought an application that was, on any reasonable view of the law, doomed to failure, it is not open to him to

criticise the Fourth Named Defendant which took the decision to participate in the media injunction precisely because it

feared that the injunction hearing would be used as a vehicle to wrongfully criticise the Fourth Named Defendant to a

very wide audience, as did in fact occur.

56. If, which is denied, the plaintiff’s reputation has suffered the alleged or any damage as a consequence of the matters

complained of, same has occurred as a consequence of the manner in which the plaintiff has conducted the within

proceedings, and in particular his objectively irrational decision to bring a doomed application for injunctive relief against

the publishers of seven national newspapers. To the extent that the plaintiff has suffered a financial or reputational loss

arising out of that decision, the plaintiff, by declining to sue any party who advised him to bring such a doomed injunction

application, has discharged the liability of such parties with whom he has entered into an accord and satisfaction. Thus,

to the extent that it is necessary for the Fourth Named Defendant to do so, it shall plead reliance upon Section 35(1)(h)

of the Civil Liability Act, 1961 and shall rely upon the acts of such parties other than the plaintiff that were in fact

responsible for any financial or reputational loss that the plaintiff has suffered as a result of the manner in which this

litigation has been conducted as additional evidence of negligence and/or contributory negligence on the part of the

plaintiff.”

Submissions

11. Ms. Walley, on behalf of the plaintiff, submits that the relevant paragraphs of the defence issued by the Fourth Named Defendant

should be struck out under Order 19, rule 27 of the Rules of the Superior Courts. The rule provides:

“The court may, at any stage of the proceedings, order to be struck out or amended any matter in any indorsement or

pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of

the action; and may in any such case, if it shall think fit, order the costs of the application to be paid as between

solicitor and client.”

12. It is submitted on behalf of the plaintiff that the relevant paragraphs of the defence concern matters of evidence rather than

matters of fact and that since the main proceedings relate to a cause of action in defamation they would be heard before a jury and

that such material would be inappropriate since the jury is charged with determining issues of fact alone. In addition, it was submitted

that the content of the relevant paragraphs is irrelevant and unnecessary and should therefore be struck out.

13. Counsel for the plaintiff submits that the decision of Smyth J. in Riordan v Hamilton & Ors. (Ex Tempore, High Court, 26th June,

2000) is relevant to the matter currently before the court. In that case an application to strike out the plaintiff’s application under

Order 19, rule 28 of the Rules of the Superior Court was brought by the defendants. Smyth J. stated:

“The purpose of pleadings is to convey what the nature of the action is. Pleadings should not be used as an opportunity

of placing unnecessary or scandalous matters on the record of the court, or as an opportunity of disseminating such

matters when they have nothing to do with any dispute between the parties. Allegations are not scandalous where they

would be admissible in evidence to show the truth of any allegation in the pleadings which is material to the relief claimed.

The authority for that statement is Christie v Christie (1873) Ch. 499 ‘However, any unnecessary matter containing any

imputation such as…may be struck out as scandalous.”….The imputations of character made here would leave a person

open to litigation in defamation had they not been accorded the protection of the privilege of the court. The pleadings

here, it seems to me, are of that character….It is perfectly in order for a litigant to say that a defendant has acted in a

particular way. However, what has been imputed here is not only over the top but is being deliberately used for the

purpose of trying to advance some view which does not accord with fairness, common sense, justice, constitutional rights

or with any modicum of decency.”

14. Counsel for the plaintiff also relies on the decision of Clarke J. in Ryanair v. Bravofly and Anor [2009] IEHC 41. The court stated at

para 4.4 that it would rely on the following principles in coming to a conclusion on the facts of that case:

“4.4 Order 19 r. 27 confers a broad discretion on a court to strike out any part of a pleading, which is unnecessary,

scandalous or prejudicial. In Morony v Guest (1878) 1 LR I.R. 564 Chatterton VC, at page 571, described one of the

predecessors to this rule in the following way:-

“A party is not to be called upon to answer statements which are irrelevant to the case, or which are pleaded in an

unfair, ambiguous, or prolix manner; but the court should confine the rule to cases which come within it.”

Chatteron VC, however, also cautioned that:-

“The Rule is not to be abused, nor are pleadings to be scanned too finely, with regard to the power of the amendments

conferred, nor can a party dictate to his opponent how he ought to plead.”

4.5 The primary test used in judging whether a pleading contains unnecessary or scandalous matters is the relevancy of

the matter pleaded to the proceedings between the parties; whether the pleadings concerned seek to introduce

extraneous matters for purposes and motives unconnected with the subject matter of the dispute between the parties.

Allegations are not scandalous where they would be admissible in evidence to show the truth of any allegation in the

pleadings which is material to the reliefs claimed. This test was formulated in Christie v Christie (1873) L.R. 8 Ch App 499,

and approved in Riordan v Hamilton (Unreported, High Court, 26 June 2000, (Smyth J) where at p. 5 of his judgment, he

stressed that:-

“The purpose of pleadings is to convey what the nature of the action is. Pleadings should not be used as an opportunity

of placing unnecessary or scandalous matters on the record of the court, or as an opportunity of disseminating such

matters when they have nothing to do with any dispute between the parties”

4.6 In Riordan v Hamilton, the plaintiff sought certain reliefs against the defendants who were all members of the

Supreme Court. In his pleadings, he had made a number of serious and intemperate allegations against the defendants,

and Smyth J., having considered the pleadings, concluded that they should be struck out as scandalous. Smyth J. held

that allegations are not to be considered scandalous where they would be admissible in evidence to show the truth of any

allegation in the pleadings which is material to the relief claimed.

4.7 At the same time, not all facts which have relevance to the proceedings may be properly pleaded and matters set out

in pleading must comprise facts that are relevant to the action between the parties and must not comprise the evidence

by which it is hoped that such facts may be proved. In Hanly v Newsgroup Newspapers Ltd [2004] 1 IR 471, at page 475

, Smyth J stated that only material facts and not the evidence on which they are to be proved should be pleaded. This

principle is also expressed in O. 19, r. 3 of the RSC, which states as follows:-

“Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party

pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to prove…”

4.8 A further type of problem to which O. 19 r. 27 is directed is where pleadings are found to be prejudicial. This may

occur for a number of reasons. However the principal focus is again on materiality. In Hanly Smyth J. held, at p. 475, that

the matters pleaded were scandalous, prejudicial and embarrassing in that they sough to “introduce immaterial matters

which would lead to the introduction of irrelevant evidence at the trial of the action.”

15. In Ryanair v. Bravofly and Anor [2009] IEHC 41 Clarke J. at para. 4.10 stated that the plaintiff in that case complained that the

material pleaded was scandalous as it contained “highly prejudicial and damaging slurs” on the plaintiff which were also irrelevant to

anything to be proved during the trial of the action. It was also submitted by the plaintiff in those proceedings that if these

arguments were continued those portions of the defence and counterclaim in that case would cause considerable delay and cost.

16. Counsel for the plaintiff submits that in this instance the defence issued by the fourth named defendant is being used as a

platform for making comments which would otherwise be defamatory of individuals and which were also an attempt to undermine the

plaintiff’s confidence in his legal advisors under the privilege of the courtroom and that this is exactly the form of pleading which Order

19, rule 27 is intended to prevent.

17. Counsel for the plaintiff also refers to para. 5.10 of the decision of Clarke J. in Ryanair v. Bravofly and Anor [2009] IEHC 41 at

which it was stated:

“…those aspects of the pleading which assert abuse, aggressive behaviour and the like are, therefore, inappropriate. It is

not relevant to these proceedings to consider or determine whether Ryanair has been guilty of abuse of a dominant

position in the flight market. The only facts under this heading that are, arguably, relevant in these proceedings are

underlying facts which demonstrate Ryanair’s economic power in the flight market. These latter underlying facts will be

relevant to the court’s assessment of whether it has been established that Ryanair has a dominant position in the flight

market which, for the reasons which I have sought to analyse earlier, is arguably relevant to the issues which arise in this

case.”

It was submitted that the language used in the relevant paragraphs of the defence is abusive and aggressive and should therefore be

struck out. Clarke J. gave the defendant in those proceedings an opportunity to amend the pleadings in relation to the categories

that were to be struck out. Counsel also submits that it was not necessary for the fourth named defendant to refer to the facts

mentioned in paragraph 56 in order to plead reliance on s. 35 of the Civil Liability Act 1961.

18. Mr. Gardiner on behalf of the fourth named defendant refers to the statement of claim delivered by the plaintiff to these

proceedings and in particular to paragraphs 43(k) and 47. The plaintiff has sought aggravated damages for the alleged intervention of

the Fourth named defendant in the hearing of an earlier motion in this Court (Peart J.) brought against various members of the press

by the plaintiff seeking to restrain the respondents from publication of information concerning the plaintiff. The plaintiff was

unsuccessful in this application but significant publicity was drawn to the details of the plaintiff’s case as a result of this motion. It is

alleged that the intervention of representatives for the Fourth Named defendants worsened the negative effects of this publicity for

the plaintiff and, in effect, caused injury to him. Counsel on behalf of the Fourth named defendant states that, as this allegation is

clearly made in the statement of claim delivered by the plaintiff, the fourth named defendant must adequately meet and deal with all

aspects of this claim in its defence. This is what it has endeavored to do in the paragraphs in question; they are merely a response to

the claim raised by the plaintiff. The defence denies the claim in para. 43(k) of the statement of claim at para. 48(1) of the defence

and then, in the paragraphs the subject of this dispute, deals with the claim for aggravated damages brought by the plaintiff. The

fourth named defendant then denies any interference with the plaintiff’s proceedings and states that since the fourth named

defendant had reputational interests in the hearing and the outcome of the motion it was on this basis that its representatives had

standing to intervene in the hearing. If this matter is to be raised at the plenary stage of these proceedings counsel submits that he

is entitled and obliged, on behalf of the fourth named defendant, to set out a response to this claim in the defence.

19. Counsel for the Fourth named defendant submits that the claim made by it in para. 55 of the defence, as to the adverse publicity

allegedly garnered by the plaintiff as a result of the intervention of the fourth named defendant in the interlocutory motion hearing, is

a pleading of fact. It was necessary to include the phrase “had an entirely counterproductive effect of generating significant

additional publicity by virtue of the decision made by him on legal advice to seek injunctive relief” (emphasis added) since there is

going to be a plea under s. 35(1)(h) of the Civil Liability Act 1961, in relation to contributory negligence, that if a plaintiff seeks

damages for injury arising out of an unsuccessful motion brought by him the damage is either a result of the plaintiff’s own actions or,

if the motion was brought on legal advice despite it having no reasonable prospect of success, the result of the advice of the legal

representatives and an action in damages should lie against the legal advisor in such a case rather than against the original

respondent to the motion. In order for this submission to be made at the plenary hearing of these proceedings, it must be pleaded in

the defence and, given the terms of s. 35(1)(h) of the Civil Liability Act 1961, a “concurrent wrongdoer,” in this case the legal

advisors for the plaintiff in the interlocutory motion, must also be referred to in the defence.

20. Counsel for the Fourth named defendant also relies on the decision of Clarke J. in Ryanair v. Bravofly and Anor [2009] IEHC 41 in

which it was stated at para. 5.19 that:

“There is obviously, in many cases, a very fine line between facts and the evidence by reference to which those facts

might be proved. In cases where it is obvious that the relevant pleading concerns evidence rather than facts, then it may

well be appropriate for the court to strike out the pleading concerned. On the other hand where the relevant pleading lies

in what might be reasonably be described as a grey area between fact and evidence, it seems to me that a court should

err on the side of allowing the pleading to stand. I, therefore, make no order in respect of that aspect of the claim.”

Counsel on behalf of the Fourth named defendant submits that in this instance the paragraphs in question plead facts but that if

there is any doubt, and it is submitted that there is not, that the pleadings refer to evidence, then the benefit of the doubt should

fall in favour of the Fourth named defendant as described by Clarke J. in Bravofly.

21. It is further submitted on the fourth defendants behalf that no reply to the defence has yet been delivered by the plaintiff.

22. Counsel for the plaintiff submits in response that the statement that the plaintiff was acting on legal advice in taking this motion

is speculation and should not be found in the defence.

Conclusion

23. Order 19, rule 28 of the Rules of the Superior Courts applies in relation to applications to strike out part of a pleading, as opposed

to the entirety of a pleading, on the basis that it is frivolous or vexatious. The court enjoys a relatively broad discretion under rule 27,

as stated by Clarke J. in Bravofly and Anor [2009] IEHC 41, which allows pleadings which are unnecessary, scandalous or prejudicial

to be struck out.

24. The Court must take a balanced approach in applying rule 27 to a case before it. As was stated by Chatterton V.C. in Morony v.

Guest (1878) 1 LR I.R. 564 at pp. 570-571:

“the rule is not to be abused, nor are pleadings to be scanned too finely…nor can a party dictate to his opponent how he

ought to plead. The court must in each case consider whether the pleading substantially comes within the terms of the

rule.”

25. The test which was set out by Clarke J. in Bravofly and Anor [2009] IEHC 41, and which is to be applied by the court in

addressing an application under rule 27, is centered on the relevancy of the matter pleaded. In this regard in considering para. 47 of

the plaintiff’s statement of claim and the submissions of counsel for the plaintiff in regard thereto, it is clear that the plaintiff seeks

aggravated damages against the fourth, fifth, sixth, seventh and eighth defendants, inter alia, on the basis as is set out at para.

47(b) that the fourth named defendant interfered in the plaintiff’s separate proceedings as against other parties by addressing the

court when it had no locus standi to do so, and alleging that the plaintiff was seeking a super injunction and engaging in a media

interview whereby the allegation was repeated thereby escalating, inflaming and prolonging the proceedings against the present

defendants and the plaintiff’s separate proceedings against the other parties. It is clear from the submissions of counsel for the

plaintiff that this aspect of the claim is directed at one of the legal representatives for the relevant defendants against a background

whereby while the relevant defendants may not have been a party to the separate application for injunctive relief against several

media outlets, the presiding judge did allow counsel for the relevant defendants to address the court and as in accordance with the

relevant provisions of the Constitution, the particular application was heard in open court and was always open to public and media

scrutiny and comment. Insofar as it is alleged that a media interview was engaged in whereby the allegation in respect of the super

injunction was repeated, the trial judge will have the opportunity of considering as to whether or not any aspect of the media

interview went outside those matters which were dealt with in open court before Peart J. The relevant paragraphs of the defendants

defence which the plaintiff seeks to have struck out specifically plead that the nature of the injunctive proceedings against the

various media outlet defendants did have many of the characteristics of what is known in the United Kingdom as a super injunction,

and that in the circumstances the fourth named defendant as a party to the proceedings in which the injunction was sought

manifestly had locus standi to appear to defend its reputational interests. In any event, the court heard counsel for the fourth named

defendant in open court on a de bene esse basis.

26. The defence of the fourth named defendant goes on to allege that the application against the various media outlets was as a

matter of law not going to be successful and proceeded to plead reliance on s. 35(1)(h) of the Civil Liability Act 1961, and to rely

upon the acts of such parties other than the plaintiff that were allegedly in fact responsible for any financial or reputational loss that

the plaintiff has suffered as a result of the manner in which this litigation has been conducted.

27. In essence, the plaintiff in his statement of claim specifically sets out as against the fourth named defendant that they should not

have engaged in the separate proceedings as taken by the plaintiff against the various media outlets and that they had no locus

standi. The defendants counteract this allegation in their defence by setting up a defence that they were entitled to address the

court, that they did have locus standi in the particular circumstances, that the application was as a matter of probability unlikely to

succeed in law and that if as the plaintiff maintains in the statement of claim he is entitled to additional and aggravated damages

because of the events that occurred in and after the application in open court, they propose to rely on the provisions of the Civil

Liability Act and I do not consider in the particular circumstances that the relevant paragraphs of the fourth named defendants

defence are irrelevant. Further, I consider that they are material in reply to the direct allegation as made on the plaintiff’s behalf in

the statement of claim and that in order to rely on the relevant provision of the Civil Liability Act, the defence does no more than to

set out a general outline of the position and I do not consider that any of the paragraphs that are sought to be struck out relate to

actual evidence that may be offered on the fourth named defendants behalf.

28. I do not consider that the relevant paragraphs of the defence are in any way prolix nor do I consider that this is a case which

gives rise to a discussion as to whether or not there was an argument to be made out as between facts and evidence that may be

referred to in the defence by reason of which such facts may be proved, but even if such was the case, which I do not consider it to

be, this Court would rely on and follow the statement of Clarke J. in Brav Fly and Anor [2009] 1 IEHC 41 at para. 5.19 wherein he

stated:-

“There is obviously, in many cases, a very fine line between facts and the evidence by reference to which those facts

might be proved. In cases where it is obvious that the relevant pleading concerns evidence rather than facts, then it may

well be appropriate for the court to strike out the pleading concerned. On the other hand where the relevant pleading lies

in what might be reasonably be described as a grey area between fact and evidence, it seems to me that a court should

err on the side of allowing the pleading to stand.”

29. Insofar as the submission is made that the relevant paragraphs of the defence are scandalous, I do not consider that there is any

question of the pleadings in question being deliberately used for the purpose of trying to advance some view which does not accord

with fairness, commonsense, justice, constitutional right or with any modicum of decency.

30. In my view the relevant paragraphs at issue in the defendants defence do no more than meet the specific claim as made by the

plaintiff.

31. Further, I do not consider the defendant pleadings can be said to be prejudicial of the plaintiff’s interest or of the plaintiff’s right

to a fair trial of his action since they are relatively precise and are not vague in any way. In fact, the contrary is the position as the

plaintiff’s allegation is made directly against the fourth named defendants legal advisers, and the defendants defence is likewise very

directly made against the plaintiff’s legal advisers.

32. In these circumstances the various reliefs as sought on the plaintiff’s behalf in this motion do stand refused.