The Supreme Court has by a two to one majority cleared the way for businessman Dermot Desmond to pursue his libel action over two articles published in the Irish Mirror10 years ago about the late Taoiseach Charles Haughey's finances.
The majority court ruled that while Mr Desmond's delay in prosecuting his action was both "inordinate and inexcusable", the balance of justice lay in allowing the case go ahead and permitting Mr Desmond vindicate his good name.
This was especially so because the
Irish Mirrorwas maintaining a plea of justification, even if a modified plea, about the material published and that plea would stand if the case was dismissed at this stage, the court said. In assessing whether a case should proceed, the scope of the defence was one of the factors which may be taken into account.
The court also stressed a party pleading justification must remain at all times in possession of evidence, including reporters notes, which go to support that plea. Failure to keep evidence at least to the expiry of a limitation period may well constitute negligence or even gross negligence, Ms Justice Fidelma Macken said.
In this case, the articles, apart from a partial response of Mr Desmond, were "effectively lifted" from
Magillmagazine and the no longer available notes of reporter Neil Leslie did not appear to be critical to the defence, she added.
She said the libel, according to Mr Desmond's statement of claim, was serious in that it was said to consist, among other things, of offences under the Prevention of Corruption Act 1906.
If the case was not allowed proceed, the claim of defamation fell while the plea of justification, although it would never be litigated, would remain unchallenged. That would be "a serious injustice" to a person seeking to vindicate their good name, even after a delay.
She was delivering the court's majority judgment rejecting Mirror Group Newspaper's appeal against a High Court decision allowing Mr Desmond proceed with his case. Mr Justice Hugh Geoghegan agreed while Mr Justice Nicholas Kearns dissented.
Mr Justice Geoghegan said a justification plea in a defamation action was "a most serious plea not to be made lightly". While the newspaper had suggested the plea might be later modified, no significance could be attached to that. If the action was struck out now, the plea would remain on the record and could never be disproved.
Mr Justice Geoghegan and Ms Justice Macken both disagreed with Mr Justice Kearns view that the Irish courts' jurisprudence in relation to when a court action should be struck out because of delay has to be modified given the coming into law here of the European Convention on Human Rights Act 2003.
Mr Justice Geoghegan said he was not convinced it was either necessary or desirable to "revisit"the principles under which the Irish courts consider whether cases should proceed where there has been delay. Those principles "have served us well" and represented good law, he said.
In his dissenting judgment, Mr Justice Kearns agreed the delay was inordinate and inexcusable but held the balance of justice was against allowing the action proceed. The delay had generally, though not specifically, prejudiced the newspaper's defence as the matters complained of in the articles occurred in the late 1980s and early 1990s and the events of Mr Haughey's career had receded into history.
These factors turned "a stale case" like this into "something of a lottery" and jury awards of damages for defamation had increased significantly since 1998, the judge noted.
While the
Mirror"appeared" to have raised the defence of justification, its counsel had prevaricated when asked if it was relying on that defence, he added. This left the court uncertain whether justification would ultimately have been relied upon.
The judge also said the legal landscape with regard to delay had "undoubtedly altered" following the coming into operation of the 2003 Act. He believed the requirements of the Convention must be one of the factors to which the Irish courts have regard when deciding delay cases.
Mr Desmond issued proceedings in 1998 against Mirror Group Newspapers alleging he was defamed in two articles published in the
Irish Mirroron January 8th and January 9th 1998. Mr Desmond subsequently put the libel action on hold to await the outcome of the Moriarty Tribunal which was investigating matters referred to in the articles.
In February 2005, Mr Desmond's solicitors notified MGN they intended to proceed with the libel action and MGN took court proceedings aimed at preventing the case proceeding on grounds of delay. The High Court in July 2005 ruled the delay was inordinate but just about excusable and, in any event, the balance of justice lay in allowing the case proceed.
Yesterday, all three Supreme Court judges found was both inordinate and inexcusable. Ms Justice Macken said both sides in a libel action, but especially the plaintiff, were obliged to progress it speedily. Mr Desmond had in this case retained to himself the right unilaterally to take no further steps in the case for an indeterminate period and had not told the newspaper of his decision. There were also obligations under the ECHR to progress cases speedily.
All three judges also rejected the newspaper's argument that the delay had caused it specific prejudice in that Mr Haughey had died, other witnesses including former editors Craig McKenzie and Piers Morgan were outside the jurisdiction and reporter Neil Leslie no longer had his notes concerning the articles.
