Defamation case dismissed by Court of Appeal due to delay

By Darryl Broderick
6 February, 2017

A defamation case brought by communications consultant, Monica Leech, has been dismissed by the Court of Appeal on grounds of delay in prosecuting the case. The proceedings related to an article in the Sunday Independent newspaper in January 2005. Ms Leech issued proceedings in April 2005 and after Notices were filed by Ms Leech in 2006 and 2008 indicating her intention to proceed with the case, the proceedings became largely dormant until 2014 when Independent Newspapers issued a Motion seeking to strike out the proceedings on grounds of delay.

The test which the Irish Courts apply in such cases is to decide if the delay is inordinate and inexcusable and if those parts of the test are satisfied the Court must determine if the “balance of justice” requires the proceedings to be struck out.

In the High Court the Judge held that the delay was inordinate and inexcusable but nevertheless that Ms Leech should be allowed to continue with her proceedings as the “balance of justice” favoured permitting her to continue with her claim. Independent Newspapers appealed the High Court decision to the Court of Appeal, which delivered its decision on 27 January 2017.

In the Court of Appeal, Ms Leech did not dispute that the delay was inordinate and inexcusable but argued that Independent Newspapers had acquiesced in the delay and also that it was not prejudiced by the delay. The Court found that Ms Leech had deliberately “parked” the case while she pursued two other defamation cases against Independent Newspapers. The Court held that Ms Leech had not communicated her decision to park the case to Independent Newspapers and anyone acting in a similar manner bore the risk of being penalised. Further there was no positive acquiescence on the part of Independent Newspapers in the delay. In addition, the Court held that Independent Newspapers was prejudiced as the editor of the newspaper at the time of the article had since died and could not give evidence at any trial. Further, the memories of journalists who authored the article in question had faded over time, which hindered their ability to give evidence on behalf of the newspaper.

Lastly, the Court held that the jury would find it difficult to fairly assess the “public interest” defence relied on by the newspaper given that ten years had passed since publication of the article and the attendant difficulty of establishing what was of public importance at the time of the article. The time lag could, in this regard, lead to a “precarious result” in the litigation. Therefore, the Court found that there were grounds to dismiss Ms Leech’s defamation proceedings.

Comment
It is reasonable to expect that claimants who allege that they have been defamed would act with reasonable haste to attempt to restore their reputations. There is an expectation on the part of the Irish Courts that if a claimant is to be allowed to avail of Court procedures and claim for damages, then once they commence proceedings they should not be dilatory in seeing those proceedings to a conclusion. A claimant who delays in prosecuting their proceedings to a swift conclusion bears the risk of not being allowed to pursue their claim through the Courts. Further the decision clarifies that a defendant who simply does nothing in the hope a claim will die away, cannot be deemed to have acquiesced in any delay by the claimant.

While the decision is welcome to the media and other defendants in defamation cases, generally the ability of a defendant to successfully strike out proceedings on grounds of delay will depend on the defences on which the defendant seeks to rely and the events in the intervening period since proceedings issued e.g. the availability of witnesses to give evidence at trial. While there is a general reluctance on the part of the Irish Courts to strike out proceedings, and thus to deprive a Claimant of access to justice via a court hearing, in light of this decision it may be possible for defendants in defamation cases to have proceedings struck out even where the delay is less than that in the Leech case provided the particular circumstances support such an application.

For more information on the content of this Insight contact:
Darryl Broderick, Partner, darryl.broderick@rdj.ie,