THE COURT OF APPEAL
Finlay Geoghegan J.
Peart J.
Irvine J.Record No.:2014/4861P
Court of Appeal No. 2016/161
Patrick Benedict Gilchrist
PLAINTIFF/RESPONDENT
AND
Sunday Newspapers Limited, Colm MacGinty And Nicola Tallant
DEFENDANTS /APPELLANT
Record No.:2014/4862P
Court of Appeal No. 2016/162
Isabel Rogers
PLAINTIFF/RESPONDENT
AND
Sunday Newspapers Limited, Colm MacGinty And Nicola Tallant
DEFENDANTS /APPELLANT
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 21st day of June 2017
1. These appeals concern the jurisdiction of the Court to strike out part of a plaintiff’s claim for defamation pursuant to its inherent jurisdiction upon the grounds that the pursuit of such a claim is an abuse of process. In particular the appellants seek to persuade the Court that it should follow the approach of the English courts and strike out claims for damages for defamation as an abuse of process where the probable benefit to the plaintiffs, if successful, is minimal and disproportionate to the costs of the proceedings and use of court time. Particular reliance is placed on the judgment of the English Court of Appeal in Jameel (Yousef) v. Dow Jones & Co. Inc. [2005] QB 946 and explanation therein of the English Courts’ approach to striking out libel claims as being an abuse of process.
2. These appeals were heard at the same time as two appeals in relation to applications pursuant to s.14 of the Defamation Act, 2009 in 2013 defamation proceedings brought by the same plaintiffs against the same defendants in respect of which a separate judgment is being delivered by the Court today.
Background facts
3. For the purposes of these appeals it is sufficient to state that the plaintiff Mr. Gilchrist is a former member of An Garda Síochána who had attained the rank of Detective Inspector and was engaged by the force as an operative in the force’s witness protection programme. He retired from the force in 2008 with a certificate of exemplary service. The plaintiff Ms. Rogers is a psychotherapist who resides in England and provided professional services, as a psychotherapist to An Garda Síochána and in particular the witness protection programme. The plaintiffs are now married to each other.
4. The proceedings in which these appeals occur were commenced in May, 2014. Each plenary summons claims damages for defamation in respect of two sets of statements. First, statements allegedly published by the third named defendant (whilst carrying out her employment duties for the first defendant) on 28th March, 2014 to Mr. John O’Brien, a retired Detective Chief Superintendent. Second, damages for defamation in respect of statements contained in a newspaper article published by the first named defendant in the Sunday World on 30th March, 2014. There is a further claim for damages for defamation in relation to further online publication in respect of the statements in the said article.
5. Following an exchange of pleadings the defendants brought a motion in each proceeding in the High Court seeking:
1. An order pursuant to the inherent jurisdiction of the Court striking out the paragraphs in each of the plaintiffs’ statements of claim relating to the statements published to Mr. O’Brien on 28th March, 2014 on the grounds that the pursuit of the claims in those paragraphs amounts to an abuse of process.
2. Further or in the alternative, an order pursuant to the provisions of O. 19, r. 27 of the Rules of the Superior Courts striking out the same paragraphs in each statement of claim on the grounds that the said paragraphs contain pleas which are unnecessary.
6. The two motions were heard in the High Court by MacEochaidh J. at the same time as the two motions in the 2013 proceedings seeking orders pursuant to s. 14 of the Defamation Act, 2009.
7. In a short ex tempore judgment delivered on 15th March, 2016, MacEochaidh J. dismissed the application to strike out the claims in respect of the publication on 28th March, 2014. His decision was that the pursuit of those claims in the proceedings was not an abuse of process. It is not clear from the judgment whether the application pursuant to O. 19, r. 27 was pursued in the High Court. In any event it is not an issue relied upon in the notice of appeal and therefore does not require to be considered on the appeal.
8. The trial judge dismissed the applications essentially for two reasons. Firstly, having set out briefly his understanding of the abuse of process jurisdiction explained in Jameel he stated “I am not of the view that the Jameel authority is good law in Ireland”. Notwithstanding that view he continued to consider, if he was wrong in that view, whether the defendants had discharged the burden of persuading the Court in accordance with the approach in Jameel that the pleas in question should be struck out and concluded that they had not done so. In the course of doing so he stated:-
“I take the strong view that if a person has been defamed twice they’re entitled to litigate both occasions of defamation and even if they are very, very similar, and even if one of the occasions was to one person only, they are entitled to their day in Court in respect of that matter.”
9. The appellants in their grounds of appeal and submissions contend that the High Court judge erred in refusing to strike out the relevant paragraphs in the statements of claim as an abuse of process principally by reference to the line of authority in Jameel. They also rely upon the judgment in McSorley v. O’Mahony (Unreported, High Court, Costello P., 6th November, 1996) in support of following the Jameel approach in this jurisdiction. They seek an order from this Court striking out the relevant paragraphs in each statement of claim “on the grounds that the inclusion of the said paragraphs amounts to an abuse of process.” They do so in a context where they make no objection to the continuation of the remainder of the claims in relation to the article published in the Sunday World and on the internet.
10. The parties informed the Court at the hearing that there is no written judgment in this jurisdiction on what they term the “Jameel point”.
Discussion and decision
11. The claims brought by the plaintiffs are for damages for the alleged commission of torts of defamation as now defined in s. 6 of the Defamation Act 2009. Section 6(2), (4) and (5) provide:
12. It is not in dispute that each of the plaintiffs has pleaded in the relevant paragraphs in the statements of claim the making of allegedly defamatory statements by the third defendant to Mr. O’Brien on 28th March, 2014. The defences admit the making of the statements and plead (1) that the words complained of were true in substance and in fact, (2) deny certain of the meanings pleaded and (3) that they were published on an occasion of qualified privilege both at common law and pursuant to s. 18 of the 2009 Act.
13. Accordingly, it is not in dispute that each plaintiff has pleaded a claim for damages for what arguably constitutes the tort of defamation within the meaning of the 2009 Act in relation to the statements made on 28th March, 2014. The have also pleaded claims in relation to the alleged defamation by the publication of the article in the Sunday World 30th March 2014 and on the internet.
14. The trial judge in his short reasoning in relation to his rejection of the approach in Jameel referred to the constitutional right of access to the courts. That constitutional right of access to the courts is of course not an absolute right and it is well established that it may be controlled by the courts inter alia in reliance upon its inherent jurisdiction to strike out or stay proceedings which constitute an abuse of process.
15. The first question is what is the “Jameel point” or as sometimes termed “Jameel abuse of process”. It is perhaps best understood by considering the conclusion reached at para. 69 of the judgment of the Court, delivered by Lord Philips of Worth Matravers MR, in Jameel:-
“69 If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.”
16. That conclusion must be understood firstly in the context of the facts of Jameel in which a claim was made in respect of an article posted by the defendant on web servers in New Jersey. The only publication in England was a publication to five persons who had accessed the article, three of whom were connected with the plaintiff. The defendant Dow Jones did not object to the jurisdiction of the English courts. .
17. Notwithstanding that the decision in Jameel may be considered to have been influenced by a view that no substantial tort was committed in England, it appears clear from certain of the reasoning of the Court that the pursuit of a libel claim will be considered to be an abuse of process in England where the probable costs which may be incurred in the proceedings and the use of judicial and court resources will be disproportionate to the damages and vindication which may be achieved by the plaintiff if successful. This appears from the explanations given earlier in the judgment in Jameel at paras. 55 and 57:-
“55. There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more proactive. The second is the coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, in so far as it is possible to do so…
…
57. In Schellenberg v British Broadcasting Corpn [2000] EMLR 296 the claimant had settled defamation actions against the “Guardian” and the “Sunday Times” on disadvantageous terms, when it seemed likely that he was about to lose. He then pressed on with this almost identical action against the BBC. Eady J struck this out as an abuse of process. He rejected the submission that he should not do so as this would deprive the claimant of his “constitutional right” to trial by jury. He said, at p 318:
“I see no reason why such cases require to be subjected to a different pre-trial regime. It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality. Here there are tens of thousands of pounds of costs at stake and several weeks of court time. I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile. ”
He added that the overriding objective's requirement for proportionality meant that he was bound to ask whether “the game is worth the candle”. He concluded, at p 319:
“I am afraid I cannot accept that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources.”
18. I understand from the above that the “Jameel point” is the recognition and exercise by English courts of an inherent jurisdiction to strike out as an abuse of process a libel (or a defamation) claim which may yield a plaintiff some benefit but where the probable damage to the defendants in terms of costs and the impact on court resources will be disproportionate to the probable benefit for the plaintiff in succeeding. It has subsequently been applied in England in this way. (See inter alia Noorani v. Calver [2009] EWHC 561 (QB) and Cammish v. Hughes [2012] EWCA Civ 1655 per Arden L.J.)
19. The overriding objective of the English Civil Procedural Rules (CPR) referred to by Lord Phillips at para. 55 of Jameel and by Eady J. in Schellenberg set out above is relevant to an understanding of the jurisdiction now exercised in England. Rule 1.1(1) provides that the CPR is a new procedural code with “ the overriding objective of enabling the court to deal with cases justly and at proportionate cost”. Further Rules 1.1(2)(b)(c) &(e) provide that:-
“(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable-
. . .
(b) saving expense;
(c) dealing with the case in ways which are proportionate -
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
…
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
20. Further, insofar as the obligations on the courts pursuant to s. 6 of the Human Rights Act 1998 is relied upon by Lord Phillips it is relevant to observe that there is no similar provision in the European Convention on Human Rights Act 2003 in this jurisdiction. The courts are expressly excluded from the definition of organs of the State for the purposes of the 2003 Act. Further no submission was pursued before us in reliance on the European Convention on Human Rights as implemented by the 2003 Act. Thus, it would appear that neither of the recent developments referred to by Lord Phillips in Jameel expressly apply in this jurisdiction.
21. However, the question is whether, in accordance with the principles applied in this jurisdiction, it would be an abuse of process for a plaintiff to pursue a claim for defamation where as a matter of probability if he succeeds he will obtain some benefit but where the probable benefit appears disproportionate to the costs for the parties of litigating the claim and the impact on court resources.
22. The inherent jurisdiction of the Irish Courts to restrict the constitutional right of access to the Court by striking out or placing a stay on a claim which is an abuse of process is, as already stated, well established. The plaintiffs drew attention to the summary of the established bases for striking out proceedings as an abuse of process in Hogan and White, J.M. Kelly: The Irish Constitution, 4th Ed., (Dublin, 2003) at para. 7.3.138:-
“The right to litigate must be read subject to the judicial power to strike out an action so as to prevent an abuse of judicial process. If it is established that proceedings are frivolous or vexatious or if it is clear that the plaintiff’s claim must fail, the court has an inherent jurisdiction, in addition to a jurisdiction conferred by the Rules of the Superior Courts, to stay the action, though this jurisdiction must be exercised sparingly and only in clear cases. The court may also strike out an action if it has been taken for a purpose that the law does not recognise as a legitimate use of the remedy sought [such as bringing proceedings to gain an advantage over a competitor] or if there has been an inordinate and inexcusable delay in pursuing a claim that prejudices the defendant and makes the conduct of a fair trial impossible. Moreover both the High and Supreme Courts may restrain a person from instituting legal proceedings without first obtaining the consent of the respective court where this is necessary in order to prevent an abuse of court processes or the pursuit of vexatious litigation.”
23. The appellants relied upon a test as to what might constitute an abuse of process enunciated by Costello P. in McSorley v. O’Mahony:
“It is an abuse of the process of the courts to permit the court’s time to be taken up with litigation which can confer no benefit on a plaintiff. It is also an abuse to permit litigation to proceed which will undoubtedly cause detriment to a defendant and which can confer no gain on a plaintiff.”
24. On the facts of that case prior to stating the above Costello P. had concluded that the action should be stayed on the grounds both that it was “vexatious and an abuse of the Court’s process”. He analysed two causes of action one of which by reasons of events which post dated the commencement of the proceedings no longer existed and the second from which he concluded the plaintiff could obtain “no benefit from maintaining these proceedings for the purpose of obtaining an award against the defendant”. That conclusion was by reason of an award of damages already made against another defendant, Cork Corporation in the same proceedings which the trial judge observed was not insolvent.
25. I draw attention to the fact that the test stated by Costello P. is of proceedings which can confer “no benefit” or “no gain” on the plaintiff.
26. This same test was considered by Hardiman J. in the Supreme Court in Grant v. Roche Products (Ireland) [2008] 4 IR 679 in a judgment with which Murray C.J. and Geoghegan J. concurred. The claim in those proceedings was for damages for an alleged wrongful death pursuant to Part IV of the Civil Liability Act 1961. The defendants made an open offer without admission of liability for the maximum amount payable pursuant to s. 49 of the 1961 Act and the funeral expenses and costs but without admission of liability. They then sought to have the proceedings struck out upon the basis that their continuation would be an abuse of the process of the Court.
27. Hardiman J., in considering whether or not the continuation of the claim in respect of the alleged wrongful death of the deceased would constitute an abuse of process, referred firstly to what he termed “the classic and long-established definition of an abuse of process” as being that set out by Isaacs J. in Varawa v. Howard Smith Company Ltd. (1911) 13 C.L.R. 35 at p. 91:-
“In the sense requisite to sustain an action, the term ‘abuse of process’ connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate, they are regarded as an abuse of process for this purpose …”
28. He then observed that the Varawa test was not relied upon by the defendants as it was conceded that the plaintiff had no ulterior or improper purpose in pursuing the proceedings (as is the position in these appeals) but rather that they submitted that they could meet the less onerous test derived from the judgment of Costello P. in McSorley in respect of which Hardiman J. stated:-
“This is the test that there is quite simply ‘no tangible benefit’ which the plaintiff can hope to gain by pursuing the proceedings. They are therefore, it is submitted, pointless and thus an abuse of process. In another sense they are moot by reason of this lack of tangible benefit.”
29. It therefore appears to me that on present authority, the jurisdiction of the Irish courts to strike out proceedings as an abuse of process where the plaintiff has no ulterior purpose in pursuing the claim (and it is not frivolous or vexatious or repeat litigation or bound to fail) is where a defendant establishes that there is no benefit to the plaintiff in successfully pursuing the claim. Whilst I have noted that Hardiman J. uses the phrase “no tangible benefit”, I do not understand him to use it in a sense which would include an award of damages which may be minimal or small vindication of a reputation as he considered the absence of a tangible benefit would mean, the proceedings would be pointless or moot. That is the threshold which a defendant must meet.
30. The issue must, however, be decided by reference to the plaintiff’s claim alone. It is only where a defendant can persuade a court that the plaintiff can obtain no benefit or no tangible benefit (in the sense used by Hardiman J.) from the proceedings that they may be struck out as an abuse of process. Essentially it is because the proceedings are then pointless and, in those circumstances, it would be an abuse of process to permit them to proceed and in doing so cause detriment to the defendant or abuse the use of court time.
31. What does not appear permissible on an application to strike out proceedings as an abuse of process is to conduct what is referred to in Mullis and Parkes, Gatley on Libel and Slander, 12th Ed., (London, 2015) at para. 30.48 in relation to the Jameel abuse of process as “in essence a cost-benefit calculation” between the potential probable benefit to the plaintiff if successful and probable costs and use of court time if the proceedings continue and determine whether it is proportionate to permit the proceedings to continue.
32. This conclusion is informed by the fact that the jurisdiction to strike out proceedings or a claim without a hearing on the merits is one which limits the constitutional right of access to the Courts. Also, it is of course a jurisdiction which must be exercised sparingly and only in clear cases: Barry v. Buckley [1981] I.R. 306 and Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425.
33. Accordingly, I have concluded that the trial judge was correct in deciding that the approach of the English courts, as explained in Jameel, to striking out a defamation claim as an abuse of process where the potential benefit to a plaintiff is disproportionate to the probable costs and use of court resources is not a basis upon which the Irish courts will exercise an inherent jurisdiction to strike out proceedings as an abuse of process.
34. There is no other basis upon which the claims in question may be struck out as an abuse of process. The applications, as already stated were not to strike out the entire defamation proceedings brought by each plaintiff. Rather they were to strike out only one distinct claim in each relating to the defamation alleged by the publication to Mr. O’Brien on 28th March 2014. Much emphasis was placed by the appellants upon the fact that this was a publication to one person only and that he was a person, it was to be inferred, sympathetic to the plaintiffs as they were made aware of the publication to him. The fact that it was a publication to one person only, does not detract from it potentially being a commission of the tort of defamation as defined by s. 6(2) of the Defamation Act 2009 which expressly includes in its definition publication “to one or more than one person”. Section 6(5) of the 2009 Act also expressly provides that the tort of defamation is actionable without proof of special damage.
35. I consider the trial judge was correct when he concluded:-
“. . . if a person has been defamed twice they’re entitled to litigate both occasions of defamation and even if they are very, very similar, and even if one of the occasions was to one person only. . .”.
36. It is not suggested that any provision in the 2009 Act or any principle of the law of defamation precludes the plaintiffs from pursuing claims for damages and to vindicate their good name in relation to the distinct torts alleged to have been committed by the publications on 28th March notwithstanding a similarity with the content of the statements in the articles published on 30th March 2014. Any restriction on a person’s rights to pursue each such claim is a matter for the Oireachtas.
37. The appellants have not established that these distinct claims in relation to the publications on 28th March will yield no benefit to the plaintiffs if successful. Accordingly it is not an abuse of process on the facts herein for the plaintiffs to pursue the claims pleaded in relation to the publications on 28th March 2014 together with the other claims in the proceedings.
38. Accordingly, I would dismiss the appeals.
