Judgment Title: Desmond -v- MGN Limited
Composition of Court: Geoghegan J., Kearns J., Macken J.
Judgment by: Kearns J.
Status of Judgment: Approved
THE SUPREME COURT
[S.C. No. 371 of 2005]
This is an appeal against the refusal of the High Court (Hanna J.) on 11th July, 2005 to dismiss the plaintiff’s claim for want of prosecution either pursuant to Order 27 the Rules of the Superior Courts or pursuant to the inherent jurisdiction of the court.
On 8th January, 1998 the defendant’s newspaper, The Irish Mirror, published an article under the heading “Tycoon Desmond ‘picked up tab for Charlie’” which said article comprised the Irish Mirror’s presentation of a lengthy article concerning Charles Haughey’s finances which was published on that date by Magill Magazine.
The article published in the Irish Mirror on 8th January, 1998 commences as follows:-
The top businessman shelled out several sums of money – including one six figure amount, after Haughey left office in 1992, according to a magazine published today. The cash was paid to offset the shamed former premier’s extravagant household and living expenses, sources claim.
Current affairs magazine, Mcgill (sic) also claimed Mr. Desmond sought donations for Fianna Fail in the late 1980’s while Mr. Haughey was still head of government.”
The plaintiff issued a statement on 8th January, 1998 in response to the Magill article. On the following day, 9th January, 1998, the defendant followed up with a further front page article in the Irish Mirror, under the headline “I did give cash to Charlie”. This article noted on page 2 that the Moriarty Tribunal was “taking a detailed look at the 71 year old statesman’s financial affairs” (being a reference to Charles Haughey).
The plaintiff’s solicitors wrote to the defendant on 28th January, 1998 seeking an unqualified apology and damages on the basis that the contents of the two articles were defamatory of him. A follow-up letter was sent on 17th February, 1998 and a further letter was sent on 22nd March, 1998 to which a response was sent by the defendant on 13th March, 1998.
The plaintiff instituted proceedings by way of plenary summons on 12th May, 1998. Thereafter a statement of claim was delivered on 25th June, 1998. Following two motions for judgment in default of defence, the defendant delivered a defence on 1st February, 1999. The defence as delivered pleaded, inter alia, no libel, justification and fair comment.
No reply having been delivered within fourteen days of the delivery of the defence, the pleadings were thus deemed to be closed in February, 1999.
Thereafter nothing further occurred until a notice of intention to proceed was served on behalf of the plaintiff in February, 2005. This initiative to reactivate proceedings which had been dormant for six years prompted the present application brought by the defendant on 25th May, 2005 to dismiss the plaintiff’s claim for want of prosecution.
In the course of the appeal before this Court, Mr. Bill Shipsey, Senior Counsel for the plaintiff, candidly admitted that a decision was taken by his client to “park” the proceedings to await the outcome of the Moriarty Tribunal’s investigations into the matters which were covered by the articles in suit. He said that the plaintiff took this decision following legal advice. Mr Shipsey submitted that the articles contained a series of allegations which were to be the subject of enquiry by the Moriarty Tribunal and that it would clearly have been of assistance to the plaintiff to have the allegations “aired in evidence” in the Tribunal’s proceedings and to be the subject of a report. Such findings and such evidence as might be given would be potentially highly relevant material for the purposes of the preparation and conduct of the libel proceedings. Ultimately, however, due to the protracted nature of the hearings in the Moriarty Tribunal, the plaintiff took the view in February, 2005 that he should re-activate his defamation proceedings. It was acknowledged on the part of the plaintiff that the defendant had not been notified of the decision to “park” the defamation proceedings but it was contended that as the defendant was on full notice of the case which the plaintiff sought to make it had ample opportunity to marshal and preserve any evidence or other material in support of its defence.
Mr. Shipsey submitted that in exercising his discretion to refuse the relief sought, Hanna J. had acted within reasonable parameters for the exercise of that discretion. Once this Court was satisfied that the High Court judge had so acted, he submitted that it should not intervene to interfere with that decision. In this regard Mr. Shipsey placed reliance upon the decisions of this Court given in Martin v. Moy Contractors Limited (Unreported, Supreme Court, 11th February, 1999) and Stevens v. Paul Flynn Limited  IESC 4.
HIGH COURT DECISION
In the course of an ex tempore judgment in the High Court, Hanna J. found that there had been inordinate delay in this case. He did, however, find the delay was excusable and stated as follows:-
Now there did come a point where the balance had to be struck between waiting for the end of the Moriarty Tribunal and proceeding to vindicate the plaintiff’s good name. It was this step (i.e. service of notice of intention to proceed) that inspired the defendant into action.
I began by referring to the words of O’Dalaigh C.J. in Dowd v. Kerry County Council  I.R. 27. Of course, the primary onus rests on the plaintiff in pursuing his or her proceedings, and more particularly so in defamation cases where any waiting around may be prejudicial. There is an onus to proceed with speed. But it is not all one way. If there was any seriously perceived prejudice as a result of the delay, this motion should have been brought years ago. The fact that it was not brought until stimulated by the plaintiff’s solicitors causes me to doubt whether there was any prejudice at all. There is nothing to suggest anything but that the delay was entirely justified. There is nothing to suggest that the balance of justice would lie anywhere other than with the plaintiff proceeding with the claim”.
RELEVANT LEGAL PRINCIPLES
The Court’s jurisdiction to dismiss proceedings for delay arises (a) pursuant to Order 27 of the Rules of the Superior Courts 1986 where there has been a want of prosecution on the part of the plaintiff and (b) pursuant to the inherent jurisdiction of the court where it is established that there is a real and serious risk of an unfair trial. In this case the defendants have brought their application by reference to both sources of relief.
In Rainsford v. Limerick Corporation  2 I.L.R.M. 561, Finlay P. reviewed the existing authorities to that point and said (at p.567):-
(1) Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and even if inordinate has it been inexcusable. The onus of establishing that delay has been both inordinate and inexcusable would appear to lie upon the party seeking a dismiss and opposing a continuance of the proceedings.
(2) Where a delay has not been both inordinate and inexcusable it would appear that there are no real grounds for dismissing the proceedings.
(3) Even where the delay has been both inordinate and inexcusable the court must further proceed to exercise a judgment on whether in its discretion on the facts the balance of justice is in favour of or against the proceeding of the case. Delay on the part of a defendant seeking a dismiss of the action and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution may be an ingredient in the exercise by the court of its discretion.
(4) Whilst the party acting through a solicitor must to an extent be vicariously liable for the activity or inactivity of his solicitor, consideration of the extent of the litigant's personal blameworthiness for delay is material to the exercise of the court's discretion.”
(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;
(d) in considering this latter obligation the court is entitled to take into consideration and have regard to
(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,
(iii) any delay on the part of the defendant — because litigation is a two party operation, the conduct of both parties should be looked at,
(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,
(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant
(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business.”
Of some considerable significance in this context is the fact that the legal landscape with regard to delay has undoubtedly altered following the coming into operation of the European Convention on Human Rights Act, 2003. Section 4 of that Act requires that judicial notice be taken of the Convention provisions. Article 6(1) of the Convention for the Protection of Human Rights & Fundamental Freedoms provides that:-
Having considered the matter I am satisfied that the two central tests remain the same. The Court should therefore:
(2) If it is so established the Court must decide where the balance of justice lies.
REVIEW OF DISCRETIONARY ORDERS
In upholding the decision of Clarke J. in Stevens v. Paul Flynn Limited  IESC 4, this Court confirmed, firstly, that where a judge of the High Court makes a discretionary order this Court should not interfere with such order unless it is clear that the discretion is not being exercised within the parameters of what might be described as a reasonable exercise of that discretion. This Court again adopted with approval the views expressed by Lynch J. in Martin v Moy Contractors (Unreported, Supreme Court, 11 February, 1999) in which he stated at p.13:-
In the course of his judgment (which allowed the appeal) Budd J observed (at p. 29):-
Applying these general principles to the facts of the present case, it is clear that the defendant has met the requirement to establish that the plaintiff’s delay has been inordinate. Indeed this is not contested by or on behalf of the plaintiff.
Was it inexcusable? In my view it was inexcusable for two reasons. Firstly, there is a particular onus on a plaintiff who brings defamation proceedings to advance those proceedings without delay to restore any alleged damage to his reputation caused by an offending publication. This requirement was underlined by this Court in Ewins v. Independent Newspapers (Ireland) Ltd.  1 I.R. 583), where in the course of his judgment Keane C.J. stated as follows (at p.590):-
Secondly, the defendant was never informed of the plaintiff’s decision to ‘park’ the case nor was it invited to acquiesce in it. The lengthy delay almost certainly gave them reasonable grounds to believe that this litigation had simply “gone away” and would never be brought before any court.
BALANCE OF JUSTICE
In considering what course a balancing exercise dictates, one must bear in mind a number of factors.
In Anglo Irish Beef Processors Ltd v. Montgomery  3 IR 510 (at p.519), Fennelly J. said:-
In such circumstances, when the court comes to strike that balance of justice in application of the comprehensive list of considerations set out in the judgment of Hamilton C.J., it will need to find something weighty to cancel out the effects of the plaintiffs' behaviour. It will attach weight to the character of the claim and to the character of the plaintiffs. When considering any allegation of delay or acquiescence by the defendants, it will be careful to distinguish between any culpable delay in taking any step in the action and mere failure to apply to have the plaintiffs' claim dismissed.
It must also be stressed that this is not a case where there was any acquiescence on the part of the defendant who delivered its defence within eight months of the service of the proceedings. Had the decision to do nothing in relation to the claim been notified or communicated to the defendant, it would at least have had reason to challenge the validity of that decision in correspondence or ultimately by application to the court. The defendant was effectively kept in the dark as to the reasons for the delay while the plaintiff kept all his options open. The defendant, having no idea whether anything at all would ever happen was in my view entitled after a silence of 6 years to assume that the proceedings would not be progressing further.
The defendant has also invoked considerations of specific and general prejudice arising from the delay. At the outset let me say that I am not very impressed by the complaints of specific prejudice. The defendant claims that it is deprived of possibly useful evidence from Mr Haughey but while Mr Haughey has since died, it is difficult to see how he could have assisted the defendant in any meaningful way. The defendant further asserted in the High Court that it anticipated calling a number of witnesses to give evidence as to the circumstances surrounding the publication of the material complained of. In this regard the Court was told that Mr. Craig McKenzie was editor of the Irish Mirror at the time of publication in January, 1998. He left the defendant’s employ in May, 2005 and is now residing in the United Kingdom. It is stated that he is unlikely to co-operate with the defendant for the purpose of giving evidence. Mr. Piers Morgan was London based editor and chief of Mirror Titles at the time of publication. He received the initial correspondence and determined the defendant’s attitude to the claim and thereafter corresponded with the plaintiff’s solicitors. However, he had no editorial role as regards the content of the Irish Mirror and would not have had any input with regard to the publication of the article that is the subject of the within proceedings. He is no longer in the roles he occupied at the time.
It is difficult to see how either of these witnesses would have been of assistance to the defendant even if available and willing to give evidence at trial, notably in circumstances where the article complained of was effectively lifted from Magill Magazine.
The reporter who wrote the piece complained of, Mr. Neil Leslie, left the defendant’s employ in August, 2000. It is stated that at the time of the motion to dismiss he no longer had the shorthand notes from which he had written the piece and despite searches those notes could not be found. I would agree with the findings of the learned High Court judge and specifically with his finding that it was very much open to question whether these notes had any material relevance in this case having regard to the fact that the articles were, in the words of Hanna J., “just … a rehashing of material published elsewhere.”
However, insofar as general prejudice is concerned, I think the defendant is correct in the contention that any jury hearing the case at this remove would be significantly disadvantaged by the lapse of time as the matters described in the material complained of occurred in the late 1980’s and early 1990’s. The events of Mr. Haughey’s career have receded into history. This turns a stale case like this one into something of a lottery. Part of that lottery is the fact that jury awards of damages have increased very significantly since 1998 when the material complained of was published. Some recent awards have, by way of contrast, been of such dimensions as to provide a basis in fact for grave apprehensions on the part of any defendant who elects to contest a defamation case. The current turmoil in financial markets adds a further element of uncertainty to this mix. Delay may thus be seen as being capable of far greater prejudice to a defendant than to a plaintiff.
While these various considerations persuade me that on a balance of justice test the defendant’s appeal should succeed there is one other matter to which I wish to refer. The defendant appears to have raised the defence of justification in its defence, a step which is never lightly undertaken in defamation proceedings and one which undoubtedly heightens the obligations and responsibilities on a defendant. I say ‘appears to have raised the defence’ because when pressed by this Court to indicate clearly if justification was in reality being relied upon, counsel for the defence prevaricated to some considerable degree, adopting the position that the words complained of did not have the meanings pleaded in the statement of claim. The Court was left in an uncertain state as to whether justification would ever ultimately have been relied upon, particularly as counsel indicated that if matters proceeded further an application would be made to the court for an amendment to the defence to incorporate a plea of qualified privilege as elucidated in Reynolds v Times Newspapers Ltd  3 WLR 1010.
However, while I recognise that it is most unsatisfactory that the plea of justification is left hanging in the air (even if it is in a watered down version) I am also of the view that the inclusion of this plea equally imposed a particular obligation on the plaintiff to prosecute his claim vigorously and expeditiously if it was his intention to avail of these particular proceedings to vindicate his reputation.
I would allow the appeal and dismiss these proceedings for want of prosecution.
JUDGMENT of Mr. Justice Geoghegan delivered the 15th day of October 2008
I find myself in complete agreement with the judgment of Macken J. and the reasons which she gives. In particular, I am in agreement with her and indeed with Kearns J. in his judgment that the delay at issue was both inordinate and inexcusable. I take the view, however, as does Macken J., that the balance of justice favours, nevertheless, the action being allowed to proceed.
There are three aspects of the case on which I would like to make some observations of my own.
The first relates to the plea of justification. I entirely agree with Macken J. that as she puts it “in assessing where the balance of justice lies as between the parties,…the scope and ambit of the defence .. is a factor which, in an appropriate case, may be taken into account.” The plea of justification in a defamation action has always been considered to be a most serious plea and certainly not one to be made likely. In this case, the appellant pleaded that the words in their natural and ordinary meaning were true in substance and in fact. Macken J., in her judgment, refers to the fact that during the course of exchanges before the court, senior counsel for the appellant suggested that in some way it was not a full justification plea and that at any rate it might be amended to a modified plea of some kind. In my view, no significance can be attached to that submission. If the action was to be struck out now the plea of justification would remain on the record and it could never be disproved. There was also a suggestion coming from counsel that the pleadings might be amended to include what has become known in England as “the Reynolds defence” deriving from the libel action brought against the Sunday Times by the former Taoiseach, Mr. Albert Reynolds. Again, I think that that is entirely irrelevant to the weight to be attached to the plea of justification in considering the balance of justice.
Further significance can be attached to it in the light of the respondent’s submissions before the Moriarty Tribunal. At all material times, the newspaper report complained of was being disputed by the respondent albeit before that tribunal. I am satisfied that the respondent could not be excused for failing to proceed with his action for his own tactical reasons (I would not really call them legal reasons) without giving any notice of his intention to the appellant and that is why I agree that the delay was not only inordinate but also inexcusable. On this point I therefore disagree with the views of the learned trial judge. But, for the reasons which I have indicated and especially in the light of the plea of justification, I am satisfied that there are just reasons for allowing the action to go ahead in the absence of serious prejudice to the defence. I do not think that the reasons put forward for such alleged prejudice are valid. I adopt the views in this regard of Macken J.
The second matter on which I wish to comment relates to the views expressed by Kearns J. in his judgment that the jurisprudence well established by two Supreme Court decisions in relation to when an action should be struck out for delay have somehow now to be modified having regard to the European Convention on Human Rights incorporated into domestic law by the 2003 Act. This view which has been expressed in one or two other judgments exclusively derives, as far as I am aware, from the dicta of Hardiman J. in Gilroy v. Flynn  1 ILRM 290 as set out in the judgment of Kearns J. On my reading of that case, these dicta can be regarded as obiter dicta. Macken J., in her judgment, expresses the view with which I fully agree that the basic principles as set out in Rainsford v. Limerick Corporation  2 I.L.R.M. 561 and Primor Plc v. Stokes Kennedy Crowley  2 I.R. 459 remain substantially unaltered. I do not think that the case law of the Court of Human Rights relating to delay justifies reconsideration of those principles or in any way modifies those principles. I do not know of any relevant case of the Court of Human Rights dealing with when an action should be struck out for delay.
The dicta of Hardiman J. to which I have already referred indicate that his view is that application of those principles should now change or indeed that the principles themselves might have to be “revisited”. I am not convinced that that would be either necessary or desirable. It would seem to me that those principles have served us well. Unless and until they are altered in an appropriate case by this court, I think that they should still be treated as representing good law and in that respect, I entirely agree with Macken J.
The third matter is something which has arisen in a peripheral way in this case and is the approach which this court should adopt on an appeal from a discretionary order. Traditionally the common law view was that a discretionary order should not be interfered with by an appellate court unless the judge at first instance made an error of law in the exercise of the discretion. In a landmark case cited by Kearns J. in his judgment in Bonis Morelli: deceased; Vella v. Morelli  I.R. 11. It was pointed out by this court that an appeal lay from every decision of the High Court to the Supreme Court unless otherwise provided for by law. Any rule by which the court was inhibited from interfering with a discretionary order was not therefore compatible with the Constitution. However, in the Morelli case as Kearns J. points out, Budd J. indicated that the court would have to give “great weight to the views of the trial judge”. I think that that is the true legal principle in the light of the Constitution now. But there is an added factor in my opinion. The expression “discretionary order” can cover a huge variety of orders, some of them involving substantive rights and others being merely procedural in nature including mundane day to day procedural orders such as orders for adjournments etc. I think that in reality over the years since Morelli this court has exercised common sense in relation to that issue. The court would be very slow indeed to interfere with the High Court judge’s management of his or her list, but in a case such as this particular case where much more substantial issues are at stake the court, while having respect for the view of the High Court judge, must seriously consider whether in all the circumstances and in the interests of justice it should re-exercise the discretion in a different direction.
As indicated, I would dismiss the appeal.
This is an appeal from the judgment of the High Court (Hanna, J.) delivered ex tempore on the 11th July 2005, and from the order made thereon pursuant to a Notice of Motion dated the 25th May 2005, by which the appellant sought relief under Order 122, Rule 11, of the Rules of the Superior Courts 1986 as amended, or in the alternative pursuant to the inherent jurisdiction of the court, seeking to strike out the plaintiff’s proceedings on the grounds of inordinate and excusable delay.
According to the agreed note of counsel of the decision of the learned High Court judge, he found that while there had been inordinate delay in the plaintiff progressing his case to a hearing, nevertheless, having regard to the circumstances surrounding the subject matter of the proceedings, it was “understandably prudent” advice to the plaintiff that he should stay his hand and that this had generated “just about sufficient excuse” for the delay. Although the learned High Court judge found the delay excusable, he nevertheless went on to find that, even if inexcusable, in seeking to strike a balance between the interests of the plaintiff and those of the defendant, that balance was in favour of permitting the plaintiff to proceed with his claim.
Against that finding the appellant seeks to set aside the judgment and order of the High Court and asks this court to strike out the proceedings, on the basis that the learned High Court judge failed correctly to apply the law to the facts arising on the application.
The Facts and the Proceedings
A brief summary of the facts is sufficient for the purposes of this judgment. An article was published in a newspaper known as the Irish Mirror dated the 8th January 1998 under the headline “Tycoon Desmond picked up tab for Charlie” and a further article on the following day under the headline “I did give cash to Charlie”, both articles appearing prominently on the front and immediate inside pages of that newspaper on those dates. The respondent considered that these articles were defamatory of him, and by a plenary summons dated the 12th May 1998, which followed an exchange of letters between his advisors and the appellant and/or its advisors, proceedings issued in respect of the alleged libel. A memorandum of appearance was entered and the statement of claim was delivered on the 25th June 1998. Following on two motions for judgment brought by the respondent against the appellant arising from its failure to deliver a defence, in October 1998 and January 1999, the defence was delivered on the 1st February 1999. That defence included, inter alia, the following plea:
In the grounding affidavit sworn in support of the motion to strike out the proceedings Karyn Woods, a solicitor on behalf of the appellant swore, an affidavit dated the 24th May 2005 in which she averred, inter alia, as follows:
“8 In August 2000 my firm categorised the matter as dormant, no steps having been taken in the proceedings by the plaintiff for a period of a year and a half, and archived the files. It appeared that the plaintiff did not intend to proceed with this claim in light of the defence filed.”
“4 While the Moriarty Tribunal has not yet delivered any report, weighing the lapse of time against the fact that the plaintiff has long since given his evidence, it was decided to proceed in February this year.”
As to Delay:
While it might have been acceptable and even prudent for the plaintiff to have taken advice from his legal advisors as to overlapping matters which might arise both in the proceedings and before the Moriarty Tribunal, and in certain exceptional circumstances to have taken a particular approach in relation to the proceedings, I do not consider that the approach actually taken in this case renders the delay, and certainly not the delay in question, excusable. The case law, including that invoked by the learned High Court judge, namely Dowd v Kerry County Council  2 IR 27, makes its clear that there is an obligation on both parties to proceedings, but in particular on a plaintiff, to progress proceedings to conclusion within a reasonable period of time. A failure to do so has as its inevitable consequence that justice may not be capable of being done to the other party. It is, moreover, axiomatic that in the case of a claim to vindicate the reputation of a person, the rule is that proceedings such as those for defamation must be progressed with extra diligence. That may mean, in a particular case, moving proceedings with even more speed than is required under the Rules of the Superior Courts. Such a requirement is well established also in certain types of judicial review proceedings, for example. On the issue of defamation proceedings in particular, the appellant relies, inter alia, on the following extract from the English case of Wakefield v Channel 4 Television Corporation and Others  EWHC 2410:
Quite apart from the specific requirement of a plaintiff in a libel action to progress his claim with real diligence, there are also, as is recalled by the appellant, obligations to progress proceedings, which may be traced to the provisions of the European Convention on Human Rights and to certain jurisprudence of the European Court of Human Rights. While accepting that is undoubtedly so, I do not think it necessary for the resolution of this appeal to invoke that jurisprudence, there being ample extant Irish jurisprudence on the matter without doing so. The extent to which that jurisprudence of the European Court of Human Rights supports an automatic striking out of proceedings due to delay is not, in my view, yet established. Nor am I aware of any jurisprudence of that court which suggests that where inexcusable delay is found, the balancing exercise established in Irish jurisprudence is inappropriate. I am satisfied that the tests mentioned by Clarke. J. in Stephens v Flynn Limited, (unrept’d the High Court 28th April 2005) remain those applicable, namely:
1. Ascertain whether the delay in question is inordinate and inexcusable; and
2. If it is so established the court must decide where the balance of justice lies.
In the circumstances which arise in this appeal, I am satisfied that the delay was wholly inordinate and, having regard to the above history and the nature of the unilateral decision made, inexcusable. I find that the learned High Court judge in making the finding which he did, although understandably he found the delay to be “just within the limit of excusability”, erred in law in failing to have sufficient regard to the fact that, in these defamation proceedings the decision taken remained entirely undisclosed to the opposing party, thereby depriving it of its entitlement, inter alia, to apply to the High Court for appropriate relief.
As to the Balance to be Struck Between the Competing Interests:
In light of my finding that the delay was both inordinate and inexcusable, the case law compels me to have regard nevertheless to the appropriate balance to be struck, having regard to the effect of that delay on, and likely prejudice to a defendant who seeks to strike out proceedings, and the prejudice which would arise in the case of a plaintiff being precluded from proceeding further with his claim. I refer in that regard to the long standing jurisprudence enunciated in Rainsford v Limerick Corporation  2 ILRM 561 and as further developed in Primor v Plc Stokes Kennedy Crowley  2 IR 459 and adopted in several cases since.
In the decision of this court in the case of Primor, supra., Hamilton, C.J. stated:
(c) Even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion on the facts the balance of justice is in favour of or against the proceeding of the case.
(b) In considering this latter obligation the court is entitled to take into consideration and have regard to
(i) the implied constitutional principles of basic fairness of procedures
(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff’s action.
(iii) Any delay on the part of the defendant – because litigation is a two party operation, the conduct of both parties should be looked at.
(iv) Whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff’s delay.
(v) The fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not in law constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case.
(vi) Whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant.
(vii) The fact that the prejudice of the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to the defendant’s reputation and business.” (emphasis added)
While certain, and even more recent, case law is also referred to by both parties, the above basic principles appear to me to remain substantially unaltered.
Some of the several factors that are set out in the judgment of the Chief Justice in Primor do not really apply in the present proceedings, because of the facts of the case. However the appellant quite properly invokes certain specific matters of prejudice which it claims establish, on balance, that the terms of (i)(ii)(vi) and (vii) all apply to the particular facts of the present case and ought to have been accepted by the learned High Court judge, but were not, as being sufficient to support a finding that the respondent’s proceedings should have been struck out.
In particular the appellant relies on the absence of certain named witnesses, on the absence of notes of the journalist in question, and on the death of the late Charles J. Haughey as being specific matters which would seriously prejudice it in its defence. The learned High Court judge found that the evidence of one of the witnesses, Craig McKenzie, who was the editor of the Irish Mirror at the time of publication of the offending articles, was not obviously relevant to the defence raised by the appellant. On the evidence, he made decisions concerning “the inclusion of content, layout and positioning of the material published”. He had left the defendant’s employ prior to the motion to dismiss in May 2005. I agree with the finding of the High Court judge as to the likely effect of this witness’s evidence for the defence of the case, there being no sufficiently convincing argument on appeal to support any error in that finding.
In his ex tempore judgment the learned High Court judge did not come to an express view as to the relevance or otherwise of a second person, Piers Morgan, also no longer in the employ of the defendant. He was, according to the evidence of the appellant, the London based editor in chief of the Mirror Group at the time of publication, received the initial correspondence and determined the appellant’s attitude to the claim as well as corresponding with the respondent’s solicitors. The submissions filed state “he had no editorial role as regards the content of the Irish Mirror and would not have had any input as regards the publication of the article that is the subject of the within proceedings”. It is said, and accepted, that he was dismissed by the defendant in 2004. According to counsel for the appellant neither Mr. Morgan nor Mr. McKenzie is within the jurisdiction and the appellant would have to rely on their cooperation as potential witnesses, which cooperation is considered by the appellant to be unlikely. It is not evident to me how Mr. Morgan in his above described role would have contributed as a witness to the defence as delivered, nor is it claimed that he is an essential witness for the defence. In passing, I should say that while I do not rest my judgment on it, had I considered either of them to be an essential witness for the defence I would have found it difficult to accept the absence of any evidence as to likely obligations placed on either witness towards the appellant in the event of proceedings being commenced against it. It must be part and parcel of everyday life of a newspaper that it will be sued, and equally part and parcel of every editor’s terms and conditions of employment that he make himself available to his publisher/employer in respect of all actions involving matters, especially libel matters, which occur during his reign as editor.
The learned High Court judge did not either deal specifically with the absence of the late Charles J. Haughey as a witness. Senior Counsel for the respondent, Mr. Shipsey, argues that his evidence, if it were available, would undoubtedly be more favourable to the respondent to the appeal and not evidently or clearly in favour of the appellant’s defence in the proceedings. The loss therefore to the respondent is far greater than any perceived loss to the appellant, he contends. The evidence on his lack of availability is limited to the averment by Ms. Woods that in substance he could have been cross-examined by the defence to its considerable advantage. This is undoubtedly true, but it is based on the probability that he would be called as a witness for the respondent, and on the possibility, not at all certain, that the benefit of a cross-examination would far outweigh the likely disadvantages arising from the same. On balance I am of the view that the respondent’s argument is a more correct reflection of the effect of the absence of this witness on the proceedings.
In relation to the foregoing witnesses it seems to me that, as to the witnesses other than Mr. McKenzie, although not dealt with specifically in the ex tempore High Court judgment on the motion, the appellant did not establish before this court on appeal that the absence of such witnesses in the running of its defence would give rise to a substantial risk that the defendant could not have a fair trial, or that their absence would cause serious prejudice to it in mounting its defence, as set out at (b)(iv) of the judgment of Hamilton, C.J. in the Primor case, supra.
I now turn to the last of the witnesses. He is reporter Neil Leslie, and it is unchallenged that he left the appellant’s employ in August 2000, not long after the close of the pleadings. It appears clear that he is available to the appellant to give evidence, but the appellant raises an issue of absent materials in relation to him. The evidence is that at the time of the motion to dismiss in 2005 Mr. Leslie no longer had the shorthand notes in relation to the articles complained of.
It seems to me that there are two factors to be considered in relation to the matter of absent notes. The first is the likely extent of such possible notes. It is submitted by the respondent to the appeal, and not really challenged by the appellant, that the material published on the 8th January 1998 was “lifted” from an article in a publication known as “Magill”. No affidavit was filed by Mr. Leslie but in her affidavit of the 24th May 2005, Ms. Woods confirms having made inquiries of him, refers to his belief that his notes were left in a filing cabinet at the appellant’s Dublin offices on his leaving his position, and to his confirmation that the appellant moved to new offices in 2001, and she avers that any papers that had been left by Mr. Leslie could no longer be found. The extent of such notes is not averred to in any affidavit sworn on behalf of the appellant, and it is not evident to me what they might consist of other than editorial amendments of the original article. I do accept that notes probably existed in relation to the article published on the 9th January 1998, since it seems this article appears to reflect but only in part, a response from the respondent. The appellant does not, however, set out the criticality to the defence, as filed, of any notes which may have been made by Mr. Leslie of that response, and given that the first and most serious article complained of is one which, with some slight modification it would appear, first appeared in the above referred to publication, they do not appear to be critical.
In assessing where the balance of justice lies as between the parties, I consider also that the scope and ambit of the defence as filed by the appellant is a factor which, in an appropriate case, may be taken into account. The defence includes, according to the appellant itself, a plea of justification. In the above affidavit of Ms. Woods, she swears at paragraph 7, also set out above, inter alia, that the defendant “pleaded that the words in their natural and ordinary meaning were true in substance and in fact”. Further, in the outline submissions filed as late as the 16th June 2008 the appellant refers to the defence delivered on the 1st February 1999 and describes it as “defence delivered pleading inter alia no libel, justification and fair comment”. During the course of exchanges before this court, however, Senior Counsel for the appellant, Mr. O’Braonain, suggested that the justification plea was in some sense a modified plea, or might be amended to a modified plea of justification, but a consideration of the defence as filed, and bearing in mind the foregoing matters, makes it more than evident that justification is pleaded in some form or other. Tellingly, although prudently, counsel was not prepared to concede that justification was no longer part of the defence of the appellant. A plea of justification it is particularly important, having regard to the nature of the obligations imposed in that regard, for the law makes it very clear, as Kelly, J. stated in Cooper Flynn v Radio Telefis Eireann citing Lord Denning M.R. in Associated Leisure v Associated Newspapers  Q.B. 450 at 456:
Even allowing for a modified form of justification which counsel for the appellant now appears to contend for, it is axiomatic that there is an obligation on a party pleading justification to remain at all times in possession of all the evidence, including notes, which go to support the plea, as well as all the meanings contended for, at the time of the delivery of the defence. A failure to do so in my view may well constitute, depending on the circumstances, negligence, even gross negligence, on the part of the party invoking such a plea who fails to ensure that the evidence is in fact maintained, at least to the expiry of a limitation period.
As for the respondent, a plea of justification now lies against his claim for damages for libel. The libel, according to the statement of claim, is serious in that it is said to consist, inter alia, of offences under the Prevention of Corruption Act 1906. In the ordinary course of events, if the proceedings are struck out his claim for defamation falls. However, the plea of justification included in the defence, although it will never be litigated, remains unchallenged. That is, on any view, a serious injustice to a person seeking to vindicate his good name and reputation, even after a delay. If he is prevented from doing so where a defence of justification is pleaded, and the pleader successfully relies on an absence arising from his own fault, of the very notes it claims would support the plea, the taint of clear wrongdoing of a very serious nature, would remain.
Balancing the interests of each of the parties, having regard to the above principles, it seems to me that that balance lies in favour of the respondent being permitted to vindicate his name. Although I have applied the above principles in Primor, supra., even if I were to follow the principle of “countervailing circumstances” found in some of the other jurisprudence cited, such as was applied in the case of Anglo Irish Beef Processors Ltd v Montgomery  3 IR 510, I would nevertheless consider that, although not falling within the very limited range of examples there described, these have been established by the respondent, in the very unusual circumstances of the present case, such that the respondent should be permitted to continue to prosecute his claim.
In the circumstances, I reject the appeal, and affirm the order of the High Court.