About this case:

• Citation:
  [2024] IEHC 348
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Rory Mulcahy

Delivering judgment for the High Court, Mr Justice Rory Mulcahy clarified: “The seven paragraphs of the article about which the plaintiff complains are untrue. That is unfortunate, but the tort of defamation and the 2009 Act do not provide a remedy simply because an untrue statement is made about a person, even if the untrue statement causes that person upset. To obtain a remedy in tort, a plaintiff must establish that the untrue statement tended to injure their reputation.”

Enoch Burke appeared as a litigant in person. Ronan Lupton SC and Lewis Mooney BL appeared for the defendants, instructed by Fergus Foody.

Background

On 9 October 2022, the Sunday Independent newspaper published both printed and online articles stating in their headlines that the plaintiff had been moved to a new jail cell as he was “annoying other prisoners”. The articles further stated inter alia that the plaintiff was outspoken on his religious views and beliefs and that he had been moved to the ‘Progression Unit’ which was a safer environment. The articles were accompanied by a photograph of the plaintiff.

The plaintiff issued defamation proceedings alleging that the first seven paragraphs of the articles were defamatory. On 1 January 2023, the defendants published a correction and apology online and in print stating inter alia that the cell change had occurred for operational reasons only.

The proceedings were discontinued against the second and third defendants, with the remaining defendants denying that the untrue words were defamatory and relying upon the defence of fair and reasonable publication in s.26 of the Defamation Act 2009 (as amended).

The matter was heard by Mr Justice Mulcahy sitting alone.

The High Court

Mr Justice Mulcahy firstly considered the plaintiff’s status as a contemnor for breaches of High Court orders restraining him from attending the premises of Wilson’s Hospital School, from teaching at the school and from trespassing on school property.

Noting that no formal application had been made on behalf of the defendants objecting to the plaintiff’s prosecution of the proceedings, the court considered that it was not appropriate for the court of its own motion to determine that the plaintiff could not obtain relief on the basis that he was in breach of a court order.

Considering the parties’ applications for a ruling pursuant to s.31(6) of the 2009 Act and Order 1B, rule 10 of the Rules of the Superior Courts on the defendants’ entitlement to rely on certain evidence in mitigation, Mr Justice Mulcahy noted “an apparent tension between the statutory provision and the rule of court”.

The defendants served a notice on 22 April 2024 setting out the particulars of evidence upon which they wished to rely, with the plaintiff relying upon Hill v Cork Examiner Publications Limited [2001] 4 IR 219 and Scott v Sampson (1882) 8 QB 491 in his submission that any evidence post-dating the articles was inadmissible as was evidence specifying acts of misconduct tending to show character or disposition.

The court agreed with the analysis in Defamation Law and Practice, Cox and McCullough, 2nd ed. (Clarus Press, 2022) that s.31(6) was intended to change the law, allowing any matter to be potentially admissible, subject to relevance to the issues to be determined and its connection to the defamatory statement. The court clarified that “a defamatory statement may have been published at a particular time but the damage to reputation caused thereby may have an ongoing impact and therefore matters occurring after the date of defamation have the potential to be relevant”.

The court recounted that it had declined to permit the defendants to put newspaper articles into evidence as evidence of the truth of their contents, but did not preclude them on the basis inter alia that they postdated the date of the alleged defamatory statement, noting that “any evidence postdating the date of publication of the article was potentially admissible for the purpose of considering the question of damages. It remains the case, however, that for the purpose of determining whether the article tended to injure the plaintiff’s reputation, the relevant date for assessment is the date of the publication of the article.”

Turning to the central issues to be determined, Mr Justice Mulcahy considered the meaning of the words in the articles. Examining the context of the articles, the judge observed that the plaintiff was in contempt of court and was “in a different category from most, if not all, of the other inmates. He was not, as was obvious, in his usual environment, or engaging in his usual activity, as a teacher in a secondary school. Moreover, his imprisonment had followed a dispute with the school which, in his view, arose from the school’s insistence that he comply with a direction that would violate his religious beliefs…”

Agreeing with the plaintiff that the ordinary and natural meaning of the words was that “he had been sufficiently annoying to prompt the prison authorities to be concerned that a prisoner or prisoners would be violent towards him”, Ms Justice Mulcahy embarked on a consideration of whether the impugned words tended to injure the plaintiff’s reputation as required by s.2 of the 2009 Act.

Opining inter alia that “a reasonable member of society would expect that a person unused to a prison environment, a person who, unusually, was imprisoned for civil contempt, might be more likely to encounter difficulties navigating the prison environment than others”, the court concluded that “online commentary could never be a proxy for the view of the reasonable member of society, the benchmark set by the 2009 Act, and could not serve to establish that the published article tended to injure Mr Burke’s reputation. In my view, the natural and ordinary meaning of the words were not capable of being defamatory.”

Finding it unnecessary to consider any further issues, Mr Justice Mulcahy nonetheless clarified why the articles did not injure the plaintiff’s reputation.

Emphasising that it was well known to any reasonable member of society that the plaintiff had breached a court order, was imprisoned for contempt and had not purged his contempt, the judge determined that these facts wholly undermined “any suggestion by Mr Burke that his reputation has been damaged by the article. It must be the case that any person’s reputation is diminished in the eyes of a reasonable member of society if they simply refuse to comply with a court order.”

The judge continued: “He had behaved and was continuing to behave in a way which significantly adversely affected his reputation. The suggestion that he severely annoyed his fellow prisoners by the repeated expression of his religious beliefs is, in those circumstances, a whisper in the hurricane of noise which his actions in September 2022 created.”

Having regard to McDonagh v Sunday Newspapers [2017] IESC 59; [2018] 2 IR 79 and noting that “even a blemished reputation can be injured”, Mr Justice Mulcahy recognised that “where the allegedly defamatory statement is not inconsistent with the person’s actual reputation, indeed, is very much less serious than the matters which give rise to the plaintiff’s actual reputation, then in my view, no injury to reputation has occurred”.

The court also considered the defendants’ defence of reasonable publication pursuant to s.26 of the 2009 Act. Having regard inter alia to Desmond v Irish Times [2024] IEHC 134, the judge concluded that “although Mr Burke was no doubt a public figure at the time that the article was published and stories about him were newsworthy, it is difficult to discern any public interest discussion that this article could be said to be furthering or any public benefit which the article sought to deliver” and indicated that he would not have accepted that defence.

Conclusion

Accordingly, the High Court dismissed the plaintiff’s claim.

Enoch Burke v Mediahaus Ireland Ltd & Ors [2024] IEHC 348