Neutral Citation Number: [2017] IECA 164
[2016 No. 326]
The President
Irvine J.
Barr J.
BETWEEN
WILLIAM JONES
APPELLANT
RESPONDENT
JUDGMENT of the President delivered on 25th May 2017
Introduction
1. This is an appeal by Mr. William Jones from a decision of Costello J. in the High Court refusing a declaration and interlocutory injunctions in proceedings against his former employers, Coolmore Stud (“Coolmore”). He worked at Coolmore over a period of nine years until late 2014. After he resigned, he wrote a book and privately published it in November 2015. Coolmore’s solicitors corresponded with distributors and booksellers endeavouring to prevent them disseminating the book. They first alleged, before they saw the book, that it might be defamatory or in breach of an agreement between the parties. When they read it, they confirmed those protests and also claimed that it infringed the good name and interests of the Stud and the rights of employees, clients and others. Coolmore did not, however, sue Mr. Jones for libel; he said that if it did, he would defend his book line by line, which is probably just what Coolmore did not want to happen. Mr. Jones brought High Court proceedings seeking injunctions restraining Coolmore from adopting these measures to prevent or restrict dissemination of the book. He also wanted the court to declare that his book was not defamatory. His case was that Coolmore was not entitled to adopt those measures in relation to third parties when there had not been any determination of libel.
2. The High Court refused the reliefs that Mr. Jones sought in an interlocutory application. Costello J. held that Coolmore was entitled to take the steps it did to protect its interests. Specifically, it was legally permissible to write in the terms of the solicitors’ letters to distributors and sellers with a view to closing those avenues of dissemination. She said that the court could not in any case make the declaration of non-defamation that he wanted. In the circumstances, Mr. Jones had not made out a fair case to be tried, which was required for an injunction, much less a strong case which he would need for a mandatory order. Neither had he shown that damages were not an adequate remedy for any wrong he might establish. And finally, the court held that Mr. Jones, by his conduct in regard to an agreement he had made with Coolmore, had disentitled himself from equitable relief, even if the other proofs had been present.
3. Against these orders Mr. Jones appeals to this Court. He appears before the court as a litigant in person who is possessed of considerable literary and presentational skills as well as an impressive capacity for legal research. At the same time, his unfamiliarity with legal procedures and the way courts operate has also been evident. This would be a difficult case for an experienced lawyer and the challenge is so much greater for somebody not versed in the ways of courts, lawyers and judges.
4. The central question, although not the only one for determination, is whether it was legally permissible for the solicitors acting for Coolmore to correspond as they did with distributors and booksellers alleging possible or actual defamation and other wrongs with a view to dissuading them from dealing with Mr. Jones’s book. The judgment appealed against and the submissions of Coolmore rely heavily on s. 27 of the Defamation Act 2009, and the implications that are said to arise from its provisions in relation to innocent dissemination. Because this statutory defence is open to a person who only distributes or sells a book and who does not know that it is or might be defamatory, it is legitimate as Coolmore argues for a person who apprehends that he may be libelled to notify the distributor. The section provides as follows: -
“27. — (1) It shall be a defence (to be known as the “defence of innocent publication”) to a defamation action for the defendant to prove that—
(a) he or she was not the author, editor or publisher of the statement to which the action relates,
(b) he or she took reasonable care in relation to its publication, and
(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.
(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if—
(a) in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,
(b) in relation to a film or sound recording containing the statement, he or she was responsible for the processing, copying, distribution, exhibition or selling only of the film or sound recording,
(c) in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.
(3) The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did caused or contributed to the publication of a defamatory statement, have regard to—
(a) the extent of the person’s responsibility for the content of the statement or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the person.
5. The facts of the case are set out in detail in the judgment of the High Court including details of the correspondence between Coolmore and Mr. Jones and Coolmore and Amazon and other distributors or sellers. It is unnecessary for the purpose of the appeal to repeat this history. Although Mr. Jones is very critical of the High Court judge and the judgment - a matter which I will address at a later stage - he does not challenge any of the facts that are central to the dispute. They are in truth relatively simple in their essential facts.
The Agreement of 12th December 2014
6. The appellant was an employee of the defendant for nine years. In circumstances that are not before the court, in 2014, he brought a claim arising from his employment to the Labour Relations Commission. The matter was compromised and parties reached agreement with the assistance of a Rights Commissioner and made a written agreement in the following terms:
“1. It is agreed the claimant will retire on Friday 16 January ’15 as per his normal retirement date and all staff of the respondent will be informed accordingly.…
3. The claimant accepts he was provided with the opportunity to get professional advice prior to signing this agreement but he declined this offer and that he was happy to sign this as written.
4. The claimant accepts he has no further claim against the respondent under any other relevant employment legislation (including, but not limited to, Unfair Dismissals, Employment Equality and Protected Disclosures Acts), Personal Injuries or common law whatsoever.
5. He withdraws his claim r 147483-ir-14 which is before the Rights Commissioner
. . .
7. This agreement is strictly private and confidential to the parties involved except where called upon by the statutory bodies or by law. Confidentiality is an essential term of this agreement on both parties.
8. It is a term of this agreement that no records relating to animals or clients will be disclosed by the claimant.
9. Both parties agree they will not make any derogatory comments about each other at any time in the future.…
12. The respondent will pay to the claimant the sum of €30,000 (net) as a gesture of appreciation (which shall be inclusive of redundancy) and no further sums are due to the claimant.”
7. On 23rd November 2015, the appellant published the book. It was advertised on Amazon.com before publication and Coolmore became apprehensive that its contents might be defamatory of the Stud and its personnel. They believed that Mr. Jones was severely restricted in what he could write because of the agreement and its confidentiality provision, and also the term prohibiting the making of derogatory comments about Coolmore. Arthur Cox Solicitors on behalf of Coolmore wrote to Mr. Jones asking to see an advance copy to clear it for offending material, but he refused. By letter dated 8th June 2015, Arthur Cox reminded him of his contractual obligations, in particular clauses 7, 8 and 9 of the Agreement of 12th December 2014. The plaintiff replied by e-mail stating that he had “received barrister’s advice about what I can and can’t refer to and I have, accordingly, complied with the terms of the Agreement”.
8. The solicitors also wrote to Amazon and other distributors and booksellers with a view to dissuading them from dealing with the book because of Coolmore’s apprehensions about the likely contents. Following publication, the Stud became even more concerned and redoubled its efforts, this time giving some details about the matters that it considered to be defamatory in the book. The solicitors now told their correspondents that they had instructions from their clients to consider suing for defamation in the event that they went ahead with distribution or sales. These efforts proved successful. Although Mr. Jones published the book himself and was able to achieve some level of distribution, Amazon and other distributors and booksellers declined to stock or market the book. Coolmore did not sue anybody; its solicitors’ letters were effective in substantially restricting the circulation of the book through normal sales channels. Mr. Jones’s plans for his book to be widely available were thus thwarted.
9. Coolmore did not sue Mr. Jones; he has maintained at all times and continues to do so that his book is not defamatory and that if sued, he will defend it line by line on the basis that it is true. This is the very thing that Coolmore seeks to avoid happening and which Mr. Jones may indeed welcome as an opportunity to vindicate his position and justify his allegations. In this action, he challenges the entitlement of Coolmore to circumvent suing him and avoid a libel action and yet succeed in restricting the circulation of his book and inhibiting references to the material in it. In response to the activities of Coolmore, through its solicitors, Mr. Jones instituted High Court proceedings seeking various reliefs, including injunctions restraining Coolmore from approaching third parties in the manner in which it did so and ordering it to undo the results of its efforts. Following an application for an interim injunction, he moved on notice to Coolmore for interlocutory injunctions to undo what he perceived as the harm that had been done to him.
The High Court Proceedings
10. The appellant sought four injunctions against the defendant as follows:-
“(i) Preventing the defendant and/or its representatives from threatening any bookshops or websites with legal action for defamation relating to the book, ‘The Black Horse Inside Coolmore’;
(ii) Compelling the defendant and its representatives to immediately withdraw in writing all threats of legal action previously made to bookshops and Amazon in relation to ‘The Black Horse Inside Coolmore’;
(iii) Declaring that ‘The Black Horse Inside Coolmore’ is not defamatory on the face of it and may be sold in outlets where books are sold; and
(iv) Instructing the defendant to provide the plaintiff in this action all evidence without exception relating to their claim that ‘The Black Horse Inside Coolmore’ is defamatory and if they refuse to do so they will pay the plaintiff’s costs unless the court decides the refusal is reasonable”.
11. The appellant commenced the proceedings by way of plenary summons issued on 13th April 2016, and by an ex parte motion docket dated 8th April 2016, he sought reliefs in the same terms as the general endorsement of claim. No interim relief was granted, but instead, the matter proceeded before Costello J. as an application for interlocutory injunctions.
Judgment of Costello J.
12. Costello J. applied the standard tests for injunctive relief and held that Mr. Jones had failed to satisfy any of them. She decided that he had not shown that there was a fair case to be tried or that damages would not be an adequate remedy or that the balance of convenience lay in his favour. The judge had regard to the serious complaints made in the affidavits filed on behalf of Coolmore as to the nature of the defamatory material, which it alleged was in Mr. Jones’s book. She considered that there was evidence that he was in breach of the agreement in respect of confidentiality by revealing information about clients and animals of the Stud. In addition, as she found, Coolmore had put before the court allegations of plagiarism and breach of copyright supported by affidavit evidence of authors and publishers.
13. The judge held that a person was entitled to protect his rights by asserting that he had been defamed and calling on the party to remedy the alleged wrong before a court ruled whether the material was defamatory or not. The right to send a letter of that kind was inherent in the right of access to the courts. It was also implicit in s. 27 of the Defamation Act 2009. The section gives publishers of potentially defamatory material a fair opportunity either to withdraw the publication or to proceed, but in the latter case, in the knowledge that innocent publication may not be available as a defence: “I do not accept that it was wrong, much less an actionable wrong, for the defendant to instruct its solicitors to write in the terms of the letters quoted above to the retailers of the plaintiff’s book”.
14. The fact that Mr. Jones claimed that he could prove the truth of everything in the book did not give rise to a cause of action on his part against Coolmore for having their solicitors write the letters. It is possible that a letter written in bad faith in order to damage another person, rather than in defence of rights, might give rise to a cause of action, but that was not the case here. Coolmore sought to defend itself and others associated with it from defamation and to rely on the Agreement of 12th December 2014, which were legitimate grounds for writing the letters. The High Court also found it unnecessary for the complaining party to set out exhaustively all the matters in the publication that they claimed to be defamatory or otherwise wrongful.
15. These determinations by the High Court meant that Mr. Jones had not established an arguable cause of action against Coolmore and he was therefore not entitled to an interlocutory injunction as he sought. A fortiori he did not have a strong case which outruled mandatory orders in reliefs 2 and 4 of the motion.
16. The judge also held that Mr. Jones had not established that damages were not an adequate remedy, which was another reason why injunctive relief should be denied.
17. Finally, Costello J. held that Mr. Jones had behaved in a manner that disentitled him to equitable relief because his book appeared to be a breach of the Agreement of 12th December 2014, as well as giving rise to other complaints including breach of copyright and plagiarism.
Mr. Jones’s Appeal
18. In his notice of appeal, Mr. Jones lists as his grounds breach of rights and rules under the Irish Constitution and European Convention on Human Rights. He made extensive arguments in a lengthy affidavit, but as a result of a Directions hearing, he produced a concise list including bias; breach of the right to freedom of speech and expression; promoting censorship and various errors of law.
The Appellant’s Written Submissions
19. Mr. Jones submits that the trial judge did not allow him to present his full narrative in a way he would have liked, thereby breaching his rights to natural justice under Article 40-44 of the Constitution along with Article 6 of the ECHR. In BOI v. O’Donnell [2015] IECA 73, the Court of Appeal was happy to rely on written and oral submissions alone. Affidavits and replying affidavits were not necessary. Mr. Jones submits that he was subject to undue criticism by the judge and opposing Counsel on the basis that he attempted to allude to facts not sworn on affidavit, but which were the subject of his book.
20. He had sought injunctive relief based on the respondent’s sending of letters to booksellers and its failure to provide full details of alleged defamation. He wanted a declaration that his book was prima facie compliant with the law on defamation, which he said was legally possible because such relief was given in a case where there was a positive finding of defamation: Watters v. Independent Star Ltd (trading as Irish Daily Star on Sunday)[2010] IECC 1.
21. He alleged that Coolmore attempted to frustrate his application with reference to the Rights Commissioner’s Agreement and alleged breaches of copyright which are unrelated to the defamation suit. The agreement as to confidentiality amounted to an attempted gagging order regarding Coolmore’s alleged breaches of employment law. In Tillery Valley Foods v. Channel Four Television, Shine Ltd [2004] Chd 18, the court did not allow a claim of confidentiality to be used to support an application for injunctive relief which was in reality one of defamation. The alleged copyright breaches are similarly side issues in disguise. In Service Corporation International PLC v. Channel Four Television, Shine Ltd [1999] ChD EMLR 83, the court rejected an attempt to restrain the broadcast of material on the basis that the copyright claim was little more than an attempt to get around the difficulties in a defamation action. The question is not whether these are legitimate claims of themselves, but rather if they are parallel claims that should have no impact on the defamation action. They must be the subject of separate proceedings.
22. Mr. Jones submits that he was not bound by the Rights Commissioner’s Agreement as he signed it under duress through “the realisation that there [was] no other practical choice open to him”, as articulated by Lord Scarman in Universe Tankship v. International Transport Workers Federation, the Universe Sentinel [1983] AC 366.
23. He claims that Coolmore’s refusal to give particulars of the defamatory material is problematic in circumstances where it has been tacitly accepted that the material is defamatory and letters have been sent to booksellers alleging same. Costello J’s judgment does not leave open the possibility that defamation may not have occurred or that Mr. Jones may have a defence in law. Mr. Jones argues that the failure to provide particulars is grounded on an illogical assumption on Coolmore Stud’s part that as the author of the material, he knows what is defamatory.
24. Mr. Jones submits that the effect of the judgment is that someone can allege defamation, but the originator of that purportedly defamatory statement cannot challenge it, unless the alleging party sues them directly. In allowing that to happen, the learned trial judge effectively decided the case outright by holding that Mr. Jones has no case against Coolmore Stud in respect of alleged wrongs against third party retailers. In Bonnard v. Perryman [1891] 2 Ch 269, Lord Coleridge emphasised the importance of upholding free speech up until the point when there had been a ruling that libel had, in fact, been committed.
25. He argues that allowing letters to act as the solution to a disagreement concerning defamation is to go against the principles outlined in American Cynamid Co v. Ethicon Ltd [1975] AC 396. Coolmore has made it clear that it has no intention of taking a case against Mr. Jones to prove the defamation. It is suggested that the balance of convenience lies in reverting to the position when the book was first published and before the letters were sent.
26. Mr. Jones submits that the High Court was wrong to dismiss his action as lacking a serious question to be tried. The learned trial judge held that truth, in defamation proceedings, is a defence and not grounds for a legal action in and of itself. However, it would be inconceivable if someone claiming the defence of truth could not bring an action where their freedom of expression was being unconstitutionally infringed.
27. Turning to the adequacy of damages, Mr. Jones notes that the respondent is attempting to use its own privileged position against him. It is submitted that by its own admission, Coolmore has sought to limit circulation of Mr. Jones’s book, despite there being no injunction prohibiting its sale. It takes this position because its expenses and prospective damages would be more than that of a lay litigant. In doing so, it has engaged in conduct contrary to the spirit of Barron J’s statement in Currust Financial Service v. Loewe-Lac-Werk [1994] IR 450, “a rich man has never been entitled to buy out the rights of a poor man just because he wishes to do so”.
Oral Submissions
28. Mr. Jones began by noting that the disputed work had been published and was out in the world for those who could find it. Coolmore has not taken any direct defamation action against him personally; instead, it has opted to allege defamation to would-be distributors of the material. The attempt by the respondent to restrict the sale of his book amounts to unlawful censorship.
29. The appellant submitted that the trial judge had acted in a biased fashion, contrary to constitutional justice, in circumstances where he was a lay litigant taking on a powerful company. Mr. Jones suggests bias because of the way the judgment is written. He complained about interruptions by the trial judge, attempting to direct his submissions temporally and substantively, contrary to his right to run the case his own way. Mr. Jones also claimed that more time and deference was given to Mr. Paul Gallagher SC, Counsel for the respondent. It is emphasised that all that is required is the perception of bias in order for it to be successfully invoked.
30. Mr. Jones submits that the judge did not give due credit to his defence of truth. In cases alleging defamation, the burden of proof lies with the defendant to prove they have not committed such an act. However, as no defamation proceedings have been brought against him, this does not apply. Mr. Jones sought a declaration that there had been no ruling that he committed defamation. He also wanted the particulars of the alleged defamatory statements which the trial judge denied him.
31. Mr. Jones suggests that Costello J. mistook his passion for a frustration with the tactics employed by Coolmore i.e. its failure to sue him personally. He submitted that the respondent engaged in DIY defamation by sending letters threatening legal action if retailers sold the book in question. No legal action has been taken to date because it would fail.
Respondent
32. It is submitted that Mr. Jones was allowed to make his submissions as he saw fit, but he was restricted where appropriate when he went outside the scope of the affidavits. The interjections from the learned trial judge were there for the purpose of clarity and procedure. It was inappropriate for the appellant to criticise Costello J’s allocation of time. As a lay litigant, Mr. Jones may not have fully understood the trial judge’s role. Where there is a lay litigant and a fear of imbalance, the court endeavours to assist them to bring focus to their submissions.
33. In the case of Orange Communications, it was emphasised that the judgment itself cannot be the basis for an allegation of bias. It had to be something external to the process. It would be contrary to principle to hold otherwise. If there are errors in a judgment then the appropriate response is to appeal those errors of law or fact, rather than alleging bias. If bias becomes apparent during a hearing, a litigant may ask the judge to recuse themselves, this was not entered into.
34. The respondent submits that the declaration sought by Mr. Jones could not be given at the interlocutory stage, particularly in circumstances where the evidence given by Mr. David Gleeson indicates that the book was highly defamatory. It would be defamatory even if it was true. It is suggested that Mr. Jones misunderstands the law as truth is merely a defence to legal action in defamation; it does not make the statement less defamatory.
35. Coolmore argues that it is entitled to protect its interest in any way it deemed necessary and appropriate. Notification is an implicit remedy, particularly where the maker of the defamatory statements is not a mark for damages. It allows for the notified party to consider the position themselves and assess whether or not they wanted to defend the claim. In circumstances where Amazon and other conglomerates were among those served with these notices, it is unlikely they were intimidated by the letter. Coolmore did not engage in threatening tactics, it merely protected its good name in the manner it thought best. One cannot be forced to issue proceedings and damages would not be an adequate relief for the respondent. In contrast, damages for loss of sales would be an adequate remedy should Mr. Jones ultimately succeed in his claim.
36. With respect to freedom of expression, Coolmore notes that the law of defamation acts as a limiter on publication and speech. It is accepted that Mr. Jones, through self-publication, has already sold out the book’s first printing, but it does not follow that he must be assisted in expressing his view or distributing it further. Putting the booksellers on notice is legitimate where it is done bona fide as it has been in this case.
37. It is submitted that any allegation of bias or a breach of fairness is unfounded. The trial judge only interjected to ask relevant questions. Furthermore, no objections or suggestion of bias was brought up during the course of the hearing itself.
38. In order for a claim of bias to succeed, there must be an external element that impacts the decision maker’s judgment and Mr. Jones fails to allege any such extraneous factor. Hogan and Morgan emphasise that neither the conduct of the proceedings or the “perversity” of the decision itself are grounds for a claim of bias. The locus classicus, Orange Communications Ltd v. Director of Telecommunications Regulation (No.2) [2000] 4 IR 159 outlines the two-step test that must be proven on the balance of probabilities:
“First, that the adjudicator is affected by some factor external to the subject matter of his decision and, secondly that in relation to the particular decision the external factor operated as to tilt the judgment in favour of the successful party. The distinction is crucial…” [At p.241]
39. The alleged errors of law stem from a misunderstanding of the nature of an application for interlocutory injunctions. There is a distinction between Costello J. noting that he was not entitled to assert the contents of his book as established fact when they were not included in an affidavit.
40. Bank of Ireland v. O’Donnell [2015] IECA 73 does not hold that a litigant may introduce oral evidence in a hearing by affidavit, rather that oral submissions may assist an application for relief.
41. Nothing in Costello J’s judgment amounts to a finding that Mr. Jones has committed defamation; it was not a hearing of the substantive issue, but rather one for interim reliefs which were rejected. The court’s interjections were aimed at ensuring same. The trial judge simply stated that for the purposes of the application that an arguable case had not been put forward.
42. The central issue is whether or not the respondent can take pre-emptive measures to protect its good name before the material is declared defamatory in a court of law. Section 27 of the Defamation Act 2009, through the creation of a defence of innocent publication, provides an inherent entitlement to notify third party publishers of potentially defamatory material, prior to the outcome of a court case. Coolmore was within its rights to issue such letters to various book retailers.
43. It is argued that damages are more than adequate a remedy for addressing Mr. Jones’s claims should he prove successful, particularly in circumstances where he himself did not deny the adequacy of damages, but merely noted that they would be difficult to calculate.
44. Coolmore suggests that Mr. Jones’s motivation in seeking interim relief is “the legitimisation of breaches of negative covenants” found in the Rights Commissioner’s Agreement. In such circumstances, Costello J. would have been entitled to deny equitable relief by virtue of Mr. Jones’s conduct i.e. issuing derogatory statements against the company or persons associated with it. Additionally, Mr. Jones’s book prima facie infringes the copyright of a number of individuals.
45. The respondent highlights that Mr. Jones cannot claim duress so as to void the agreement when he has derived benefits from it. Furthermore, no sworn evidence was given alleging duress on his part and Mr. Jones accepted he was given the opportunity to seek legal advice before signing the agreement. In short, he cannot take the good and disregard that which does not suit him.
46. Finally, it is not open to the court to declare Mr. Jones’s book non-defamatory at this stage. The reliance on Watters v. Independent Star Ltd [2010] IECC 1 is misguided as this is not a defamation action, but rather an attempt to restrict Coolmore’s ability to send letters of notification pursuant to s. 27 of the Defamation Act 2009. Even if it was defamation action with respect to the contents of the letter, then the respondent has a defence in that the contents are true.
Discussion
47. The High Court held that Mr. Jones was not entitled to an injunction or injunctions restraining Coolmore from communicating with booksellers with a view to preventing them from selling his book. The court was satisfied on a prima facie basis that Coolmore had established a contract with Mr. Jones to the restrictive effect, as above outlined, and also that the book was prima facie defamatory, at least in some respects, and that it was derogatory of the Stud, at least to some extent or in some respects, and that it was or might be revelatory of confidential information about the owners of horses being trained at Coolmore. Moreover, the court was impressed to some extent by the fact that Coolmore had enlisted a number of writers of other books who complained that Mr. Jones had plagiarised their works in writing his own book. Mr. Jones’s major complaint that gave rise to his proceedings and is the central plank of his application for injunctive relief was that Coolmore did not sue him as he contends they ought to have done. They did not allege defamation, as to which he says that he can defend his book line by line. Neither did the Stud sue him for breach of the agreement that the parties executed, as to which he said that he signed it under duress. His central point is that Coolmore was not and is not entitled to approach booksellers, bypassing him and for the purpose of suppressing the distribution of his book.
48. The decisive question in the case is whether Coolmore was entitled to write to distributors and booksellers warning or threatening them with legal action in the event that they proceeded to deal with Mr Jones’s book. If it was legitimate for Arthur Cox to communicate the concerns of their client and its possible intentions as to litigation in the event of refusal to abide by Coolmore’s wishes, it is impossible to see how Mr. Jones could have succeeded in obtaining the relief he sought in the High Court or how he could now have the orders made by Costello J reversed.
49. Section 27 of the Defamation Act, 2009 affords a statutory defence of innocent publication. Coolmore has sought to exploit this provision by putting potential distributors and retailers on notice of their claim that the book is defamatory so as to make it clear to those parties that they will not be able to avail themselves of the defence in the event that the matter proceeds to a determination of an action for defamation. Also material is the entitlement of a person or body claiming to be defamed to proceed directly against distributors and sellers and to do so without making the author a defendant. He or she may not be a mark for damages or the potential plaintiff may think it less likely that their protests will be contested by commercial entities with no personal interest in the truth of the contents of the publication.
50. A party is not obliged to sue any particular person such as the author of allegedly libellous material before taking steps in relation to other persons to protect his reputation. In this case, Coolmore’s solicitors, by notifying the relevant parties of their client’s concerns, put them in the position of having to elect between abandoning the further distribution of the book or going ahead with publication thus jeopardising their ability to successfully claim the defence of innocent publication available to a secondary disseminator under s. 27 of the Defamation Act 2009. That was a legitimate legal manoeuvre in the circumstances and the trial judge was correct in so holding. The result followed that Mr. Jones was not entitled to injunctions in restraint. As to the declaration of non-defamation, the High Court could not have made that order on the motion, as the judge said in her judgment.
51. Mr. Jones is wholly mistaken on the question of bias. There is simply no basis for his allegations that the trial judge was biased in either of the senses of the term. The law on this topic is correctly set out in the respondent’s submissions. Although he could not be faulted for the courteous manner that he displayed towards this Court, Mr. Jones’s criticisms of the trial judge were extreme and intemperate, going far beyond anything that could be considered necessary or appropriate for an argument that the judge was in error in her decision. It is perhaps possible that he believes that for an appeal to succeed, it is necessary to demonstrate that the trial judge was biased, in either of the legal senses in which the concept exists, which could perhaps account for some of the imputations that Mr. Jones makes. In his submissions, Mr. Jones sets out the correct test and notes the distinction between objective and subjective bias, but it is in the application of the tests that Mr. Jones embarks on a wholly unwarranted, unjust and frankly irrational attack on the trial judge. I do not think that this is done wilfully or maliciously, but is, rather, the result of a serious misunderstanding on the part of a lay litigant. It may indeed be the case that Mr. Jones’s unfamiliarity with the processes of the court and the way judges interact with Counsel and litigants, as well as the outcome of the case and his study of the transcript of the proceedings in the trial court, has led him to make this argument, but it is wholly groundless and mistaken.
52. I should perhaps add a comment on a point raised by Mr. Jones in his enumerated points and in the submissions. He says that the behaviour of Coolmore interferes with his constitutional right of freedom of expression. I do not agree. In the first place, he is free to express his views and to publish them, subject of course to the law of defamation and other lawful inhibitions on expression. The fact that he is unable to insist on distribution in a particular manner is not a restriction on his freedom. It is also the case that other parties are entitled to their rights including their reputations and they may legitimately take steps to vindicate those rights or to inhibit attacks on them.
53. My conclusions may be summarised as follows.
54. The defence of innocent dissemination is now been embodied in statutory form in s. 27 of the Defamation Act, 2009 set out above. It is implicit in the defence that a person who apprehends that a publication may contain defamatory material about him is entitled to communicate that to the distributor or seller or other person involved who is not the author, editor or publisher. The protection afforded to a person for his reputation would be seriously reduced if he was not entitled to head-off publication or distribution by putting such person in the position of knowing the complainant’s allegations about the material.
55. The fact that it has not been established in a court that the publication is defamatory is irrelevant. There is no obligation on a person claiming to have been defamed to sue any particular defendant. He is free to choose between persons having liability so as to proceed against one or more and not against others. There are obvious practical reasons why this should be so but it is also available as a matter of principle. An author cannot insist that a person claiming to be defamed in his work has to sue him as well as others or instead of others. This is the mistake that Mr. Jones is making in this case.
56. The complainant’s protest about publication and endeavours to prevent it or to restrict distribution is no more than an allegation. The person to whom the letter is directed does not have to comply with the request or demand. He may proceed to distribute and the only thing the complainant can do in those circumstances is to sue for damages for defamation unless he can bring himself within the very restricted class of cases in which an injunction will be granted.
57. The distributor on receipt of correspondence alleging libel has a choice to make. He can proceed to distribute or follow the path of prudence and comply with the request to desist. If it subsequently transpires in an action against him that the publication was indeed defamatory, as claimed by the injured party, he will be in real difficulty in seeking to invoke the defence of innocent distribution in view of the explicit notice that the complainant gave. That, of course, is the purpose behind writing the letter but it is a legitimate legal purpose.
58. It follows, therefore, that there is no valid objection in law to a person seeking to protect his good name by notifying a distributor or other secondary disseminator of his complaint of defamation with a view to preventing distribution. Decided cases focus on the means of knowledge of the defendant claiming innocent dissemination. The defence will be jeopardised if the distributor has been expressly informed of a claim by a person alleging defamation and yet he has proceeded with distribution.
59. I am also satisfied that the other subsidiary grounds of appeal are unsustainable.
