Darryl Broderick: Little leeway for tardy Irish defamation claimants
Ronan Daly Jermyn partner Darryl Broderick and trainee solicitor Sinéad Harrington examine the Irish courts’ general reluctance to grant an extension of the one-year limitation period in defamation cases.
In a previous insight here, RDJ examined the 2018 case of Nóirín O’Sullivan v Irish Examiner where the High Court refused former Garda Commissioner Nóirín O’Sullivan an extension of time within which to issue defamation proceedings. The judicial trend of refusing such applications has continued, largely unabated, since that decision.
More recently, in the judgement of Proudfoot v MGN Limited (delivered in December 2019), the High Court also refused an application to extend the one year limitation period for defamation actions provided for under section 38 of the Defamation Act 2009. Despite the difference in facts between the two cases, this most recent judgment confirms the Irish courts’ general reluctance to grant an extension of the one-year limitation period in defamation cases.
Defamation cases in this jurisdiction must be brought within one year of the offending publication. However, it is open to the Irish courts, in certain circumstances, to grant an extension of time to allow a claimant to initiate defamation proceedings within two years from publication.
In deciding whether to grant an extension of time the courts look at, amongst others, the validity of the reason for not suing within 12 months of publication and whether the prejudice that a claimant would suffer if the extension was not given would significantly outweigh the prejudice the defendant would suffer if the direction was given.
Application of the law
The case of Proudfoot v MGN Limited related to a newspaper article about the applicant who was appearing in a criminal trial in France in January 2018. The Daily Mail reported that “the court heard the football coach was a known dealer and was under surveillance in his home country”. The applicant alleged that the statement was untrue and defamatory, insofar as the issues set out had not arisen during the course of the French proceedings. However, the applicant failed to issue the proceedings within one year of the date of the publication of the article.
He relied on the following in support of his request for an extension to the limitation period:
- A seven-month jail sentence he had served during the twelve-month period from January to August 2018 meant he was unable to issue proceedings during that time period; and
- his solicitor, who despite having detailed instructions to issue proceedings in October 2018, failed to respond to him until February 2019, at which point the limitation period had then expired.
The High Court, in refusing the application, ruled that the applicant had failed to establish that the interests of justice necessitated the extension of the one-year limitation period. Although the judge accepted the applicant would not have been able to issue proceedings while incarcerated, he noted the sufficient time he had do so between the months of August 2018 and January 2019 following his release.
The judge went on to find that the applicant had not established sufficient prejudice which would significantly outweigh the prejudice that would be suffered by the defendant in permitting the claim to proceed. Any prejudice the applicant had suffered could instead be offset through the issuance of negligence proceedings against his former solicitor.
One exception to the judicial trend in this area was the 2019 case of O’Brien v O’Brien whereby the High Court granted the applicant an extension of time within which to bring a defamation claim against the respondent. This case concerned two allegedly defamatory statements that were made in 2017 by one brother to An Garda Síochána in March and the second in July to a company called Dolmen Securities. The judge, in granting the extension, distinguished cases where the reasons relied upon by the applicant were a lack of knowledge of the time limit or some allegation that the solicitor had fallen short in his duties to advance the case appropriately.
In the O’Brien case, the judge accepted that although the applicant was aware of the time limit, his argument instead was grounded on an unwillingness to sue his brother rather than a lack of knowledge of the time-limit or diligence on the part of the solicitor. The judge, acknowledging the applicant’s unwillingness to litigate a sensitive family matter in public, was persuaded that this reason reached a sufficient threshold of validity and that the court should proceed to consider the other aspects in the case relevant to the application for an extension of time.
O’Brien can be distinguished on its facts for a couple of reasons:
- As this was not a media publication, the issue of freedom of expression was not relevant; and
- there were two different instances of defamation, one of which was within the 12-month statutory period since publication, which the court found were linked and the court had to consider the prejudice the applicant would suffer if evidence surrounding the first instance of defamation was deemed inadmissible.
In the 2019 case of Oakes v Spar (Ireland) Limited, the applicant had issued proceedings against Spar (Ireland) Limited arising out of an incident at a Spar shop in Dublin when in fact he should have sued the individual proprietor of the shop who was legally responsible for operating the shop. Ultimately the judge refused to grant the extension of time holding that “the correct identity of the defendant is a matter which should have been attended to by the plaintiff’s solicitors at an earlier stage. It would not have required much by way of inquiry to identify the fact that it is the individual franchisees/proprietors, and not Spar (Ireland) Limited, who are responsible for the operation of the individual shops”. This offers a salutary less to applicants’ solicitors to establish the correct legal identity of the publisher quickly.
On a separate note in Oakes, the judge noted the debate that exists in this jurisdiction as to whether an application for a direction prolonging the limitation period must be made prior to the institution of proceedings outside the initial one-year period. He concluded that the Defamation Act 2009, on its correct interpretation, requires that an application for a direction be made prior to the institution of proceedings outside the initial one-year limitation period.
In Oakes, the judge stated that “the uniquely short limitation period applicable to defamation actions is indicative of a legislative policy that such proceedings must be instituted and prosecuted with expedition”. He noted further the contradiction that would occur to this legislative policy if an intended litigant, who has failed to institute proceedings within the one-year limitation period, be entitled to institute proceedings belatedly without reference to the court. This would lead to the defendant having to undergo the unnecessary trouble and expense of defending the incurring proceedings. Therefore, he held that the appropriate procedure in the context of these applications, is that the application for an extension of time be determined in advance of the institution of proceedings.
In what are difficult times for many members of the media, exacerbated now by the COVID-19 pandemic, the case of Proudfoot v MGN Limited will offer some bit of comfort that the defamation landscape in this jurisdiction is not entirely lopsided.
The approach adopted by the judge indicates a continuing willingness by the Irish courts to adhere to the statutory limitation period, which should only be departed from in exceptional circumstances.
While this aspect of the defamation legislation is being applied in a manner which can often favour the media, the same cannot be said for the balance of that legislation which is in urgent need of review and amendment if the media are to be allowed to continue their invaluable watchdog role.