High Court of Ireland Decisions

1. The Plaintiff seeks an interlocutory injunction restraining the Defendants and each of them from in any manner or fashion howsoever publishing, disseminating or circulating an article intituled "Operation Night-cap causes John Reynolds sleepless nights as cops raid Club". the article in question is contained in the first issue of a new magazine called "Patrick".

2. The Plaintiff is a company director who is involved in the running of two nightclubs one called "Pod" and the other "Red Box", both of which carry on business in Dublin.

3. The first Defendant describes himself in his Affidavit as a journalist and is described in the body of the magazine as its editor. The second Defendant has no existence but is the first of two purported authors of the article in question. At the hearing it emerged that the name Declan Murray is a pseudonym for the first named Defendant Elio Malocco.

4. The third named Defendant has no existence either even though he purports to be the second author of the article in question. The name Frank White is a pseudonym for a gentleman called Luciano Magliocco who is a relation of Elio Malocco.

5. Little information is available as to the fourth named Defendant. He is described in the magazine under the heading "publisher's letter" as the publisher with an address given simply as "London". He is also described in the body of the magazine as "the boss". His address in the Plenary Summons is give as Foxrock Post Office Dublin. Notwithstanding his assertion in the body of the magazine to be its publisher, it emerged in the course of the hearing that a company called Fanville Limited holds itself out to be such publisher and indeed the owner of the magazine.

6. Fanville Limited is a limited liability company which was formed on the 20th January, 1998. It has two directors, one of whom is Margaret Magliocco and the other is Colette Kerr. It has a paid up capital of £2. Both issued shares are owned by a limited company. Miss Kerr appeared before me and indicated that she was the Secretary of Fanville Limited. She also swore an Affidavit on behalf of that company. However, in light of the decision of the Supreme Court in Battle v. Irish Art Promotion Centre Limited (1968 IR 252) I was obliged to rule that she could not appear on behalf of the limited liability company. She accepted my ruling and took no further part in the proceedings.

7. Mr Elio Malocco appeared personally as did Luciano Magliocco under the pseudonym Frank White. Mr Laur was not represented.

8. The article to which exception is taken by the Plaintiff commences at page 31 of the magazine and concludes at page 33. Apart from the heading which I have already reproduced in the first paragraph of this judgment, the other parts of the article in respect of which complaint is made read as follows:-

9. On the first page of the article there is a photograph of the Plaintiff in the company of a woman whose face has been excised from the picture. It bears the legend "Reynolds continues to run the POD". On the third page of the article there is a photograph of the Plaintiff's Porsche motor car. This picture bears the legend "Reynolds enjoys the high life".

10. The Plaintiff complains that the above extracts defame him in two respects. He says that the words in the natural and ordinary meaning or by innuendo allege (a) that he has been charged with permitting the sale of drugs in his nightclubs and/or that he permits the sale of drugs on the premises and is benefiting therefrom. Alternatively, he is turning a blind eye to the sale of drugs on his premises and (b) that he is a homosexual.

11. Mr Malocco contends that insofar as the first of these complaints is concerned the words do not bear the meanings ascribed to them. If they do, he says that he will plead justification at the trial of the action. Insofar as the second complaint is concerned he says that the words do not bear the meaning contended for. He has stated in open Court that the Plaintiff is not a homosexual nor did he ever intend to allege such.

12. The Plaintiff says that the libel is so serious that it is a case in which the Court ought to intervene by the grant of an injunction. Without such injunction it is said the Plaintiff will suffer loss which is incapable of being compensated in damages.

13. The Defendants say there should be no injunction because there is no libel and even if there is one concerning the drugs their intended plea of justification is fatal to the Plaintiff's case.

14. I will shortly have to consider these contentions but before doing so it is necessary to deal with the principles applicable to the grant of interlocutory injunctions in cases of this type.

15. The judicature (Ireland) Act 1877 confers jurisdiction on the High Court to grant injunctions in all cases where it appears just and convenient to do so, and on such terms as the Court sees fit. Order 50 Rule 6 of the Rules of the Superior Courts authorises the grant of interlocutory injunctions.

16. The exercise of this power by the Court has been the subject of numerous Court decisions and it is possible to divine from these the relevant principles which the Court applies in deciding to grant or withhold interlocutory injunctive relief.

17. In an ordinary case the Court considers whether the Plaintiff has raised a fair or serious issue to be determined at the trial of the action. If it considers that such a question has been raised it goes on to decide whether damages would adequately compensate the Plaintiff in respect of any loss or damage which may be suffered as a result of the activity which is sought to be enjoined. If it decides that damages would not be an adequate remedy it then proceeds to consider whether on the balance of convenience an injunction should be granted or not. (See the decision of the Supreme Court in Campus Oil v. Minister for Industry and Commerce (No 2) [1990] I.R. 88 and the decision of the House of Lords in American Cyanamid Co v. Ethicon Limited (1975 AC 396).

18. These principles have a wide but not a universal application. In a small number of cases special rules which are not encompassed by these principles apply. One such type of case arises in the field of contracts of employment. Normally Courts will not grant an injunction to restrain breaches of covenant in a contract of employment if that would amount to indirect specific performance of such a contract or would perpetuate a relationship based on mutual trust which no longer exists. Another exception to the general principles which I have already described arises in cases of the type in suit.

19. A Plaintiff in an action such as this, in order to obtain an interlocutory injunction must show not merely that he has raised a serious issue concerning the words complained of but that there is no doubt but that they are defamatory. Furthermore, if the Defendant intends to plead justification or any other recognised defence, normally an injunction of this type will be refused.

20. The jurisdiction to grant interlocutory injunctions to restrain publication of defamatory statements has been described as one "of a delicate nature" which "ought only to be exercised in the clearest cases " (see the judgment of Lord Esher M.R. in Coulson v. Coulson (1887) 3 TLR 846).

21. That approach was expressly approved by the Supreme Court in Sinclair v. Gogarty (1937 IR 377). In the course of his judgment Sullivan C.J. with whom all four other members of the Court agreed said:-

22. The reason for the reluctance on the part of the Courts to grant interlocutory injunctions in cases of this sort is grounded in the importance attached to the right of free speech. This has been the position from at least as far back as the decision in Bonnard v. Perryman where Lord Coleridge said:-

23. The sentiments expressed by Lord Coleridge have been heeded by the Courts and nowadays are fortified by the provisions of Article 10 of the European Convention for the protection of human rights and fundamental freedoms.

24. Lord Coleridge went on to say:-

25. It is therefore clear that the first matter which I must enquire into is whether or not the Plaintiff's complaints are made out with the degree of clarity required so as to enable me to conclude that the words complained of are undoubtedly defamatory.

26. If I so conclude in favour of the Plaintiff, I then have to consider whether, in the light of the Defendant's stated intention to plead justification concerning the drug dealing allegation, an injunction can be granted at all.

27. The reason why I have to consider this aspect of the matter arises because of the decision in Bonnard v. Perryman . As I have already pointed out, the decision in that case was approved by the Supreme Court in Sinclair v. Gogarty . The rule established by that decision is that where a defendant in a libel action intends to plead justification, a Court will not grant an interlocutory injunction to restrain publication of the statement complained of.

28. The question then arises as to whether a bald statement of intent to plead justification is sufficient to debar a plaintiff who might otherwise be entitled to an injunction from such relief. If it is, then the Plaintiff's application in respect to the drug dealing activities must be doomed to failure. Counsel on behalf of the Plaintiff urges me not to adopt this approach but rather to conduct an examination of the Defendant's evidence so as to establish whether the plea of justification has any substance or prospect of success.

29. There appear to be two conflicting decisions in this jurisdiction as to the proper approach to take on this topic.

30. On the one hand there is the decision in Gallagher v. Tuohy (1924) 58 ILTR 134 where the matter complained of consisted of a circular containing defamatory statements concerning the plaintiff in his business capacity. Murnaghan J. stated:-

31. On the other hand, the decision of the Supreme Court in Cullen v. Stanley (1926) IR 73 demonstrates a different approach. There the Plaintiff sought an interlocutory injunction to restrain the publication of statements by the Defendants to the effect that he had acted as "scab" on the occasion of a bakers' strike. The Plaintiff deposed that the statements were absolutely false and that he believed the publication was for the purpose of prejudicing his position as a candidate in an election. One of the Defendants submitted an Affidavit stating that all the allegations were true, and that he would prove this at trial. The Supreme Court nonetheless granted an interlocutory injunction. O'Connor J referred to the argument of the Defendant to the effect that the rule in Bonnard v. Perryman automatically precluded the grant of an interlocutory injunction once the defence of justification was raised. He said

32. The judge then examined the detailed Affidavit of the Plaintiff, which he contrasted with the "baldest Affidavit" of the Defendant. He held that on the evidence before that Court there was nothing to support the plea of justification.

33. Of these two approaches I prefer the latter. I do not think that a rule which permits a Defendant to in effect oust the ability of this Court to intervene by way of injunction in an appropriate case by the simple expedient of expressing an intention to plead justification at the trial of the action is consistent with the obligations imposed on the Court under the Constitution. Furthermore, the application of such a rigid rule, without an ability on the part of the Court to ascertain whether the plea of justification had any substance or not, would provide a happy hunting ground for unscrupulous defamers.

34. I am therefore satisfied that it is open to the Court to examine the evidence adduced by the Defendant in support of the justification plea so as to ascertain whether it has any substance or prospect of success.

35. I turn now to consider the complaints made by the Plaintiff.

36. In looking at these allegations I note that the Plaintiff accepts that he, together with 19 other nightclub operators in the Greater Dublin Area, has received notification from the police concerning drug activity and conduct relating to drugs on his club premises.

37. I have carefully read and re-read the parts of the article in respect of which complaint is made under this heading. Mr Malocco contends that in their natural and ordinary meaning the words in question do not allege any criminal activity on the part of the Plaintiff. In that regard I believe him to be correct. Even if I am wrong on that and the words do, in their natural and ordinary meaning, make such allegations, they certainly do not do so with the degree of clarity required to enable me to say that the words are without doubt defamatory of and concerning the Plaintiff.

38. I therefore must now turn to the contention of the Plaintiff to the effect that by innuendo the words complained of amount to allegations of the wrong-doing alleged. The Plaintiff's Counsel says that that is the clear inference which is to be drawn from the article. Amongst other things he says that whilst the article purports to deal with drugs in clubs (as is apparent from the cover of the magazine) in fact it is directed almost exclusively at the Plaintiff. A fair reading of the article supports this contention. The article speaks of the Plaintiff being "in big trouble". It alleges that his premises has been visited by the police who bought drugs there on several occasions. It speaks about this not being the Plaintiff's first brush with the law, but of him now facing difficulties which are "far more serious". It alleges that the Plaintiff "is seriously worried". It speaks of the consequences for him of a successful prosecution. It then resorts to a device frequently used by journalists of citing anonymous "sources close to" the Plaintiff, and indicating that the Plaintiff is concerned that "if convicted" other business interests he has might also suffer. In the same paragraph it goes on to point out that it would not be the first time that a nightclub owner was jailed. It then deals with a Donegal owner who was imprisoned for three years for allowing drugs to be sold on his premises.

39. Later in the article it speaks about it remaining to be seen if any premises are to be closed down or licensees jailed. In the same paragraph it mentions that cynics believe that no club owners will ever be jailed and that those club owners who are directly involved in drugs will continue for some time to make vast profits from allowing their venues to be used as drug havens. This paragraph is juxtaposed close to the photograph of the Plaintiff's car where it speaks of him enjoying "the high life".

40. True it is that the article then goes on to say that it is unlikely that the owners of these clubs knew of these particular drug dealings as they have all adopted additional security measures to prevent the transactions in question. That statement comes in the final paragraph of the article.

41. I have come to the conclusion that looking at the parts of the article which are complained of as a whole, there is present an innuendo to the effect contended for by the Plaintiff. Furthermore I am of the view that such an innuendo is clear and that in the absence of a successful plea of justification a jury would say that the matter complained of was libellous. If they did so I do not believe that the Supreme Court would set aside the verdict as unreasonable. If the jury did not do so its decision would be likely to be set aside. I do not think that the inclusion of a single sentence in the final paragraph of the article would have much prospect of neutralising the sting contained in the remainder of it.

42. It seems to me that the article is carefully written so as to avoid making the direct allegation of criminal wrong-doing whilst at the same time creating in the mind of the reader a clear impression that the Plaintiff has connived at the use of his premises for drug dealing with considerable gain to himself.

43. If, of course, the Defendants can satisfy me that they have a prospect of success in their plea of justification then there can be no question of an injunction being granted in favour of the Plaintiff.

44. Apart of the stated intention to plead justification what admissible evidence is there to support that plea? I refer to "admissible evidence" because earlier in the hearing I struck out portions of the Defendants' principal replying Affidavit together with the Affidavit of Luciano Magliocco pursuant to Order 40 Rule 12 of the Rules of the Superior Courts because of the scandalous material contained in them.

45. Having examined the remaining portions of the Affidavit evidence it seems to me that the only real evidence which could amount to justification is that contained in paragraph 15 of the first named Defendant's Affidavit. He says

46. I do not think that that averment goes anywhere near demonstrating the existence of an arguable prospect of making out the defence of justification.

47. Throughout the article the Plaintiff is referred to on a number of occasions as a "gay bachelor". He says that in its natural and ordinary meaning, the word gay is nowadays taken as meaning homosexual. He says that that is clearly defamatory of and concerning him and on this aspect of the matter it is to be noted that the Defendants disavow any intention to plead justification. On the contrary they accept that the Plaintiff is not homosexual but say that they never alleged that he was. In support of this contention they make a number of arguments which I will deal with in turn.

48. First, they say that the term "gay" is an adjective used to describe a person's demeanour as in "lively, cheerful, vivacious, light-hearted, fond of pleasure and gaiety".

49. Had this argument been made thirty years ago it would probably have succeeded. But it is an absurd proposition to put to the Court in 1998.

50. Language is a living thing and words can change their meaning over the years. Sometimes the primary meaning of a word will undergo subtle or even profound changes. On other occasions the word may acquire a secondary meaning which it did not formerly have. The word "gay" falls into the second category. Over the last thirty years or so it has come to be synonymous with homosexuals and homosexual activity. One would have to be resident on the moon not to be aware of this. Not merely has it acquired this secondary meaning but it has in fact eclipsed the primary meaning so that nowadays one rarely hears the term used other than a denoting homosexuals or homosexual activity. I reject the Defendants' contention that the word is confined to the meanings asserted by them which I have reproduced in parenthesis above.

51. The next contention is that the use of the word "gay" (as an adjective) qualifying the noun "bachelor", is a term in common use to refer to men who are happily unmarried. The Defendants contend that when the term "gay bachelor" is used it never indicates that the person is a homosexual. Again it seems to me that this argument could be made with telling force had this case occurred in 1968 rather than 1998. It is true that the term "gay bachelor" or "bachelor gay" may still be used with slightly more frequency than the word "gay" in its original meaning. Nonetheless it seems to me that nowadays the term has practically fallen out of use largely because of the secondary meaning of the word "gay". I therefore reject the contention made by the Defendant that this term could not be defamatory.

52. The next contention made by Mr Mallocco is to the effect that even if he is wrong in these contentions to allege of a person that he or she is "gay" is not harmful to reputation. Mr Malocco says "homosexuality is an accepted part of Irish life and the days are long gone when homosexuals were simple tolerated; they are now accepted and integrated into the fabric of Irish life like other minorities and this magazine fully endorses that reality". Mr Cooney S.C. for the Plaintiff says that this argument holds no water. He says that an allegation of being gay is an allegation of deviant sexual practice which many people in Irish society find repellent. He therefore argues that it is clearly defamatory.

53. No cases were cited by either side in support of the conflicting positions which they argue for.

54. My own researches have however discovered a decision of the Court of Appeal in England which is of assistance. In Regina -v- Bishop (1975) 1 QB 274 that Court had to consider a case where a Defendant was tried at first instance on a charge involving theft from a bedroom. In evidence he explained the presence of his fingerprints in the room by saying that he had had a homosexual relationship with a prosecution witness, which that witness had denied. The prosecution sought leave to ask the Defendant questions tending to show that he had been convicted of offences other than that charged because the nature and conduct of the defence was such as to involve imputations on the character of the witness for the prosecution within Section 1(f)(II) of the Criminal Evidence Act, 1898. The Defendant objected on the grounds that, in view of Section 1(1) of the Sexual Offences Act, 1967, an allegation that a man was a homosexual or practised homosexuality was not an imputation on his character within Section 1(f)(II) of the Act, 1898, and in any event the allegation had been made for the purpose of explaining the Defendant's presence in the room and not for that of discrediting the testimony of the prosecution witness. The objection was rejected, questions about the Defendant's previous convictions were asked, and he was convicted. He appealed to the Court of Appeal on the grounds that his objections to the evidence of his previous convictions had been wrongly rejected.

55. That Court (Stephenson L.J. MacKenna and O'Connor J.,J.) dismissed the Appeal. The Court held that the character of a witness was impugned by an allegation of homosexual conduct made against him and an imputation of homosexual immorality against a witness might reflect on his reliability, generally or in the witness box. The Court also held that a Defendant who made such an attack but disclaimed the intention to discredit the testimony of the witness nevertheless was still subject to the risk of cross-examination as to his own record. In the course of delivering the judgment of the Court Stephenson L.J. said:-

56. Whilst this last statement is very much on point in respect of the issue that I have to deal with here it is of course a statement made obiter. Nonetheless it does appear to me to represent the legal position in England and in my view it also represents the legal position in Ireland.

57. Quite apart from the decision which I have just cited it does not appear to me to be sound to suggest that merely because an activity is no longer prohibited by the criminal law an allegation of engaging in such activity cannot be defamatory. The commission of adultery is not a criminal offence but nobody could seriously suggest that an allegation of adultery could not be defamatory. Similarly, to lie is not a criminal offence, but again can it be seriously suggested that to call a person a liar is not defamatory?

58. I reject the Defendant's contentions in this regard.

59. The Defendant does however say that the photograph of the Plaintiff with a woman (albeit with her face blocked out) on his arm, and the suggestion that the Plaintiff is "featured regularly in the tabloid gossip columns where the names of his latest model girlfriends are plugged" makes it plain that no allegation of homosexuality is being made. I do not agree. It seems to me that it would be perfectly open to a jury to hold that the use of the word "gay" in relation to the Plaintiff either in its natural or ordinary meaning or by innuendo was an allegation of homosexuality. A jury would be entitled to find in the Plaintiff's favour in that regard and if they did it does not appear to me that their verdict could be regarded as perverse. I do not think that the sting is removed by the reference to the appearance of the Plaintiff in the tabloid gossip columns or the photograph which accompanies the article.

60. As there is no plea of justification in respect of this complaint it follows that the Plaintiff has made out a sufficiently strong case in my view to satisfy the test required for the grant of an interlocutory injunction.

61. Having so concluded it does not automatically follow that an injunction should be granted.

62. The grant of injunctive relief is always discretionary.

63. In the present case I now have to consider, having found in favour of the Plaintiff in respect of the complaints concerning the libels alleged, whether or not an injunction ought to be granted.

64. I would not wish to set out in a hard and fast manner the factors which the Court should or could take into account in the exercise of this discretion. It is sufficient if I identify one item of particular importance which affects me in the exercise of my discretion in this case.

65. If I refuse the Plaintiff this injunction, it is clear that the article will be published and the Plaintiff will be left to his remedy in damages at a trial to be held at some time in the future. Damages are the normal remedy for defamation and injunctions are not. Nothing in this judgment should be taken to dilute that approach. In the present case, however, the question arises as to what damages the Plaintiff would be likely to recover against the Defendants at trial.

66. The first named Defendant, has, on his own admission, recently completed a lengthy prison sentence imposed for offences of dishonesty. He formerly practised as a solicitor but that option is no longer open to him. There is uncontroverted evidence that he has unsatisfied judgments against him for a sum of money in excess of £40,000. It is also uncontroverted that he has other outstanding liabilities arising from the period when he practised as a solicitor. It seems to me, as a matter of probability, that the prospects of the Plaintiff ever recovering other than a paper judgment against Mr. Malocco are remote.

67. From the information that emerged at the hearing on Monday and Tuesday of this week, Messrs Murray and White do not exist.

68. There remains the curious figure of Mr. Laur. He did not appear either personally or through Counsel. Whilst in the magazine he gives his address as "London", the only address to which the proceedings could be directed was at Foxrock Post Office. He describes himself as being the magazine's publisher yet we now know that the publisher is Fanville Limited, the added Defendant. It seems to me that the shadowy figure of Mr. Laur is unlikely to prove to be any better prospect for the recovery of damages than Mr. Malocco.

69. Finally, there is Fanville Limited. this two pound company with both shares held by another limited liability company seems unlikely to make any judgment which the Plaintiff may obtain against it any less hollow than the judgment against the other Defendants.

70. In these circumstances I am quite satisfied that my discretion must be exercised in favour of granting an injunction rather than refusing it. To refuse it would be to consign the Plaintiff to a trial where damages would be an inadequate remedy because of the virtual impossibility of ever recovering any sum awarded.

71. It follows that the Plaintiff is entitled to interlocutory relief and I therefore grant until trial an Order restraining the Defendants and each of them, their servants or agents or any person acting in concert with them or any person with notice of the making of this Order from in any manner or fashion howsoever publishing of or concerning the Plaintiff an article entitled "Operation Night-cap Causes John Reynolds Sleepless Nights As Cops Raid Club" or any matter contained therein defamatory of the Plaintiff's reputation.