Court confirms jurisdiction to extend time in defamation proceedings retrospectively

The High Court (Butler J), in a recent decision delivered on 15 December 2020 [Keith McKenna vs Kerry County Council and Angela McAllen] held that a court has jurisdiction to grant an extension of time in defamation proceedings, retrospectively i.e. after the expiration of the extended two year limitation period for defamation proceedings, where proceedings have already issued within that two year period. The plaintiff was however unsuccessful in obtaining an extension of time from the court for the reasons set out below.

The case involved the defendants’ appeal of a circuit court order granting the plaintiff an extension of time to bring defamation proceedings under s.11(2)(c) of the Statute of Limitations 1957 (the “Act”) as inserted by s.38(1)(a) of the Defamation Act, 2009. S.11(2)(c) sets a limitation period of one year for the bringing of defamation proceedings but permits a court to extend that period for a further year if certain statutory criteria, as set out in s.11(3A) of the Act, are satisfied.

Judge Butler’s decision also considered:

• The impact of a plaintiff failing to file an Affidavit of Verification in defamation proceedings;
• Reliance on the negligence of one’s own solicitor as a reason for seeking an extension of time; and
• The impact of a defence of truth on an extension of time application.

Timeline of Events

• 6 December 2013: Alleged defamatory comments were made by the second named defendant to the plaintiff. Both were employees of the first named defendant.
• Unknown date in December 2013: Plaintiff sought legal advice from a solicitor he had already engaged to act on his behalf in employment proceedings against the first named defendant.
• January 2014: Plaintiff had a consultation with counsel who was also acting for him in the employment proceedings.
• 31 March 2014: Letter of claim issued to the defendants.
• June 2014: Plaintiff’s solicitor instructed counsel to draft defamation proceedings. Due to personal circumstances, counsel was unavailable to deal with the matter.
• 8 December 2014: Alternate counsel was instructed. By this time, the one-year time period for bringing defamation proceedings had passed.
• 10 December 2014: Proceedings issued.
• 14 July 2015: Appearance entered on behalf of both defendants.
• 28 January 2016: The defendants delivered their defence which pleaded that the ‘proceedings were statute barred.

Retrospective application for an extension of time

By the time the defence was delivered on 28 January 2016, the two-year extended period pursuant to the statute of limitations had lapsed. The defendants argued that once the one-year period had expired, the plaintiff had to successfully apply for an extension of time before proceedings could issue within the two-year period and that as that two year period had now passed, the plaintiff was out of time to make any such application. The plaintiff submitted that the statute didn’t have a bearing on his right to sue, either within or after the period of limitation and that it is only when a defendant elects to rely on the statute as a defence that the remedy sought by a plaintiff may be defeated.

Judge Butler considered the Quinn case[2] and agreed with Judge Barton’s decision in that case - that after the expiry of the one year limitation period, proceedings may issue without an order extending time and that such an application only becomes necessary if and when a statute plea is raised by way of defence.

While there was a suggestion in the subsequent decision of Judge Ní Raifeartaigh in O’Brien v O’Brien[3] that Judge Barton had laid down a principle precluding the bringing of an application for extension of time in advance of issuing proceedings and until a statute defence is raised, Judge Butler was of the view that it was unclear that this was Judge Barton’s intention. She concluded that while proceedings must be issued within two years, the plaintiff is neither required to, nor precluded from seeking a direction extending time either prior to or simultaneously with the issuing of proceedings or, as here, retrospectively. She disagreed with the suggestion that a plaintiff had to await a statute plea before seeking an extension of time.

Failure on the part of the Plaintiff to file an Affidavit of Verification

The defendants argued that the proceedings were not properly before the circuit court when the order extending time was made because the plaintiff had not filed an Affidavit of Verification which, pursuant to s.8 of the Defamation Act 2009, has to be sworn and filed within two months of service of the proceedings.

Judge Butler found that this did not have a material bearing on the central issue (whether the plaintiff was entitled to make an application retrospectively for an extension of time) and she was not prepared to treat the absence of this Affidavit as an irregularity which would fundamentally undermine the plaintiff’s proceedings or be fatal to his application for an extension of time.

Court’s discretion to grant the extension based on the statutory criteria:

S.11(3A) of the Act provides that a court shall not extend time unless it is satisfied that (a) the interests of justice require the giving of the direction (b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given, and the court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within one year and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.

Relying on your own solicitor’s negligence as a reason to seek an extension of time and Plea of Truth

The plaintiff here offered only one reason for his delay in issuing proceedings, namely the negligence of his solicitor. While his solicitor swore two affidavits on this point, the plaintiff swore none. The defendants submitted that there had been no finding of professional negligence made against the solicitor in question, that the evidence which the plaintiff had put before the court was vague and incomplete and that reliance on solicitor’s negligence as a reason for failure to institute proceedings on time was impermissible. They relied on the decision in Proudfoot[4] on the latter point in which Judge Barr found that in principle, a client cannot not rely on the negligence of his own solicitor for failing to issue proceedings on time. A person who instructs a solicitor is deemed to know the relevant limitation period, because the solicitor is their agent. The defendants also submitted that if there was negligence on the part of the solicitor, then the plaintiff had a cause of action against that solicitor. The plaintiff argued that a claim in negligence against his solicitor would not serve to vindicate his reputation. He also argued that Proudfoot should not be followed as the defendants had pleaded a defence of truth and that plea should not be allowed to go unchallenged as a result of the delay in issuing the proceedings.

Judge Butler accepted that the making of a plea of truth is a relevant factor to be taken into account when the court is assessing the interests of justice and noted that it would also go to the level of prejudice that a Plaintiff would suffer if an extension of time was not given. However, she was hesitant to allow a plea of truth such significance in the context of s.11(3A) as she felt it may be thereafter inferred that a defendant raising a plea of truth was thereby waiving any entitlement it might have to rely on the Statute of Limitations.

Judge Butler concluded that she was bound by Proudfoot and held that the plaintiff could not rely on an allegation of solicitor’s negligence as the reason for not instituting proceedings on time and further concluded that even if she was not bound by Proudfoot, she was not satisfied that the plaintiff had discharged the evidential burden which rested with him in seeking an extension of time. He had not made out a sufficiently clear case or provided the court with all relevant information, including information as regards his own actions during the relevant period. She was not satisfied that the plaintiff established he would suffer prejudice if the direction were not given and that such prejudice would significantly outweigh the prejudice that the defendants would suffer if the action was allowed to proceed. Judge Butler accepted that if the plaintiff is correct as regards his former solicitor, then he has a cause of action against that solicitor which provides him with a potential remedy.

Judge Butler ultimately refused the direction for an extension of time, allowed the defendants’ appeal and set aside the order of the Circuit Court granting the extension of time.

Comment

While the court agreed with the plaintiff about the entitlement to seek an extension of time retrospectively, it ultimately set aside the Circuit Court order extending time for the reasons set out above. It, therefore, continues to be an uphill battle for plaintiffs when they seek extensions of time to bring defamation proceedings, based on the decisions in this area since the Defamation Act 2009 was enacted.

The full decision can be read here: https://www.courts.ie/acc/alfresco/199ae681-630e-4b27-b594-b0e4823ecd9c/2020_IEHC_687.pdf/pdf#view=fitH

[1] [2019] 283 CA

[2] Quinn v Reserve Defence Forces Representative Association [2018] IEHC 684

[3] [2019] IEHC 591

[4] Proudfoot v MGN Limited [2019] IEHC 871