The operators of a nursing home at Leas Cross, Swords, Co Dublin, yesterday lost a last-minute High Court bid to prevent the screening last night by RTÉ of a Prime Time programme on nursing homes which featured claims of "sub-standard" care at the Leas Cross premises.
In a decision delivered at 7pm, just hours before the Prime Time programme was due to be screened, Mr Justice Frank Clarke refused an application by John Aherne, Georgina Aherne and Sovereign Projects Ltd, for an order to prevent the broadcast. The Ahernes are directors of Sovereign which operates the home.
A separate application for a similar restraining order by Denise Cogley, the director of nursing at the home, was also rejected. The judge said he would give a full judgment on June 8th as the case raised important issues.The programme, which was viewed in private by the judge, included footage secretly filmed inside the Leas Cross home by an RTÉ reporter, who is also a qualified care worker and who had worked for some weeks at the home as a care assistant.
The judge refused the applications on grounds that damages were an adequate remedy if either applicant is successful in any future claim for damages.
He adopted a previous court decision to the effect that damages were a normal remedy in defamation cases and that injunctions were not.
He also said, given the right to freedom of expression and that the programme raised matters of important public interest, the court should be slow to grant prior restraint orders.
He said he was satisfied this was not such a clear case of defamation to justify the granting of an order restraining the programme. He was also not saying this was not a case where the plaintiffs would not succeed in establishing defamation.
Mr Justice Clarke remarked that the programme was at least open to the view that it portrayed Ms Cogley as having to cope with trying to improve a situation that started from a very bad base. Most of the specific cases in the programme appeared to have occurred before she had any involvement.
The judge noted that the operators of the nursing home had complained that Prime Time had trespassed and obtained material by subterfuge in that it had secretly filmed inside the premises and that an RTÉ reporter had obtained employment at the home for a number of weeks without disclosing that he was engaged in research for RTÉ.
If the plaintiffs were successful in any subsequent action for damages, the circumstances in which the material was obtained from the nursing home might be relevant to any determination of damages, the judge said.
The use of such material in circumstances where that material was subsequently not proved could leave a media organisation involved open to a claim for exemplary damages.
Earlier, Mr Justice Clarke was told the programme alleged patients received sub-standard care at the home, that bedding was not changed when wet, that force was used to try and compel a patient to take medication and there was a failure to ensure trained staff were available.
Frank Callanan SC, for Ms Cogley, argued the programme contained material which was "grossly defamatory" of his client. This was not a fly-on-the-wall documentary, but a product of deception which contained "explosive" claims and included two serious libels of his client.
Mr Callanan said Ms Cogley had been appointed director of nursing at Leas Cross late last March last and was assistant director of nursing from November 2004. On her appointment, she had identified work practice issues to be addressed and had initiated new practices.
She had expressed concerns about the quality of care at Leas Cross to the reporter Cathal Gallagher, whom she trusted.
Patrick Keane SC, for the Ahernes and Sovereign Projects Ltd, argued the programme breached the rights to privacy of his clients and of staff and patients at the home. It was also defamatory. RTÉ, he added, had engaged in trespass and subterfuge and obtained material by unlawful means.
Mark Connaughton SC, for RTÉ, said Gallagher was a qualified care worker. Mr Aherne and others were offered an opportunity to be interviewed about matters raised in a letter from RTÉ of May 19th last but had not done so.