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Cite as: [2008] IEHC 65

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Judgment Title: Desmond -v- Doyle & Ors

Neutral Citation: [2008] IEHC 65

High Court Record Number: 1998 4771 & 5045 P

Date of Delivery: 14 March 2008

Court: High Court

Composition of Court: Mac Menamin J.

Judgment by: Mac Menamin J.

Status of Judgment: Approved

Neutral Citation Number: [2008] IEHC 65

THE HIGH COURT

[1998 No. 4771 P]

BETWEEN/

DERMOT DESMOND

PLAINTIFF

AND

TOM DOYLE

DEFENDANT

AND

THE HIGH COURT

1998 No. 5045 P

BETWEEN/

DERMOT DESMOND

PLAINTIFF

AND

TIMES NEWSPAPERS LIMITED,
RORY GODSON AND JOHN BURNS

DEFENDANTS

Ex Tempore Judgment of Mr. Justice John MacMenamin dated the 14th day of March, 2008.

1. This is an application by the defendants in both proceedings to strike out these proceedings for want of prosecution. On 1st March, 1998 the Sunday Times newspaper published an article under the headline:
“Desmond was not the man behind IFSC idea, Tribunal told”
This article referred to the plaintiff in these proceedings, the well-known businessman, Dermot Desmond. Mr. Desmond contends that the article contained material concerning himself, suggesting that he was not the original author of the idea of the Irish Financial Services Centre and that the defendant in the first set of proceedings had previously proposed a similar idea (albeit located in Shannon) in 1985, prior to the return of Mr. Haughey to office in 1987.
2. In the proceedings against Times Newspapers (‘the Times proceedings’), the plaintiff submits that the words by inference or innuendo might be understood to mean that he had wrongly taken credit for the idea of the Financial Services Centre; that in fact he had obtained the idea for the Centre through a leak in the Department of Finance; that other persons were excluded by himself in collusion with others from acquiring a block in the Centre and that as a consequence he is to be considered a corrupt or dishonest person.
3. In the first set of proceedings, the defendant, Tom Doyle is sued. He is represented by the same solicitor and counsel. It is alleged that words to the same effect were contained in a letter sent to the Moriarty Tribunal of Inquiry; were also sent or given to John Burns, a journalist working with the Sunday Times, and as a consequence were published in the edition referred to earlier of which the second defendant was then editor.
4. The proceedings differ in some respects. In the first, (the Doyle proceedings), it was alleged the material in question was published by Mr. Doyle maliciously. Consequently, in the Reply it is alleged that he is not entitled to rely upon qualified privilege. One issue in these proceedings, therefore, may appertain to the defendant’s state of mind at the time of alleged publication.
5. It is to be noted that in the defences, a number of issues are outlined which, it is contended by the defendants, would be sufficient to permit them to be relied upon in mitigation of damages. These refer to alleged adverse findings by the Inspector appointed to investigate transactions which led to the sale of the former Johnston Mooney & O’Brien site to Telecom Éireann; certain adverse findings allegedly made by this Inspector and a plea that the plaintiff wrongfully enriched himself as a result of these transactions.
6. A further issue relied upon by the defendants, and said to be in mitigation of the claim, is the contention that the plaintiff had, allegedly by his own admission, made substantial advances and payments to the children of Mr. Haughey since 1987 and had made unspecified payments to Mr. Haughey himself in and after 1994. Further matter in the defence, stated to be in mitigation of damages, is an assertion to the effect that the plaintiff had sought to dissuade Mr. Ben Dunne from giving evidence to the Tribunal of Inquiry (Dunne’s payments). Other pleas under article 10 of the European Convention on Human Rights are immaterial to this application.

Chronology
The following relevant dates are identified by the defendant in the Doyle proceedings:
February, 1998 Alleged publication of impugned words by the defendant
22nd April, 1998 Proceedings commenced
12th May, 1998 Appearance entered
20th May, 1998 Statement of claim delivered
29th May, 1998 Defendants seek further particulars of claim
21st July, 1998 Replies to particulars delivered
14th December, 1998 Defence filed
7th April, 1999 Reply
6th August, 1999 Notice of change of solicitor (defendants)
12th December, 2005 Notice of intention to proceed served by the plaintiff
2nd July, 2007 Motion for discovery issued by the plaintiff

24th October, 2007 Motion to dismiss for want of prosecution issued by the defendants.

7. While the dates in the second set of proceedings against Times Newspapers vary slightly, such distinction is immaterial. The critical point is the elapse of time after the steps taken in 1999.
8. By letter dated 6th September, 2000, Messrs. Beauchamps Solicitors wrote to Donal T. McAuliffe & Company, solicitors for the plaintiff, referring to the amendment in the Rules of the Superior Courts relating to discovery made in or about that time, and noting that it might be necessary to agree specific categories of discovery. This was replied to in a letter of 10th October, 2000 stating that no categories of discovery were required by the plaintiff. However, no timeframe for the completion of discovery was agreed at that time. The defendants state that nothing further was heard from the plaintiff’s solicitors until a notice of intention to proceed was delivered under cover of a letter dated 16th December, 2005, some five years later, followed by a letter of 25th August, 2006, actually seeking specific categories of discovery. This was contrary to the agreed format for discovery set out in the earlier letter of 10th October, 2000. A further request was then made by letter of 21st September, 2006, followed by reminder letters. It was submitted that these are indicative of the plaintiff’s belated attempts to reactivate these proceedings.
9. On 25th August, 2006 the plaintiff’s solicitors, McAuliffe & Company, wrote to the Minister for Finance seeking third party discovery of documents from the Minister. The defendants became aware of this through contact made by the Chief State Solicitor’s office (on behalf of the Minister) to Messrs. Beauchamps.
10. Ms. Clare Callinan, (solicitor and partner in Messrs. Beauchamps) in the course of an affidavit sworn on behalf of Times Newspapers states that nothing further was heard from the Chief State Solicitor or from the plaintiff’s solicitors in relation to the request for discovery revised in the manner described.
11. The defendants contend that the steps taken in 2006 were a matter of concern as they had concluded that the proceedings were long since dormant. They add that from the date of a further reminder letter of 16th December, 2006 relating to discovery, until the service of a notice of motion for discovery referred to in the chronology earlier, nothing further was heard. They contend there has been inordinate and inexcusable delay in the prosecution of the proceedings and there has been prejudice deriving from the natural dimming of memory. The defendants also express further concern in that they made efforts in obtaining documentation from the Department of Enterprise, Trade and Employment. It is believed they may no longer be in the possession of that Department, although previously having been in existence in the period 1984 and 1985, when it is said, Mr Doyle discussed a project of a financial services centre with the Department in question.
12. In a replying affidavit sworn on behalf of the plaintiff Mr. McAuliffe avers that the Moriarty Tribunal was sitting from in or around October, 1997. He avers that the terms of reference of that Tribunal gave rise to a belief that the Tribunal would most likely make determinations relevant to the allegations being made in the “offending letter” regarding the question of whether the plaintiff or the defendant originally had the idea for the financial services centre. Mr. McAuliffe states that Mr Desmond was advised by leading senior counsel acting in the proceedings that no further steps should be taken with either of these actions but rather the plaintiff should await the findings of the Moriarty Tribunal.
13. The evidence goes no further than stating that by in or around 16th December, 2005 the plaintiff, Mr Desmond determined that the Tribunal findings were still some way off and that he had waited long enough. For this reason on 16th December, 2005 the notice of intention to proceed was served. It is contended that the defendant was aware that the plaintiff was reviewing the proceedings from in or about 5th October, 2005, did not object, and only served their notice of motion to strike out for want of prosecution after the issue of discovery had been mooted on more than one occasion. The defendants in turn state that they are strangers to any advice which was tendered to Mr. Desmond with regard to deferral of the proceedings. They state no such excuse was ever communicated to them and as such could not be a valid justification for the plaintiff’s failure to take substantive steps to prosecute the proceedings for approximately seven years.
14. It appears that the advice given by senior counsel was oral in nature. It is not said whether any additional advices were given regarding the conditions in which such advice would become non-operative. The defendants say that it would be surprising if the plaintiff had been furnished such advices to pursue proceedings up to the point of discovery, and then to cease the prosecution thereof, without giving any explanation to the defendant or seeking a consent. They say that it is by no means clear upon what basis the plaintiff says he inferred the Tribunal would make determinations likely to be relevant to the allegations being made in the article or how relevant they would be to the proceedings. It appears undisputed that the Tribunal did not go into public sittings on this issue.

Findings
15. No inference can be drawn from the correspondence that the defendants had agreed deferral of the proceedings or to their reactivation.
16. It is not established that the plaintiff had a reasonable basis for expecting that relevant findings to the proceedings would be made by the Tribunal. Nor had the plaintiff a reasonable basis for concluding in what manner or in what time sequence the Moriarty Tribunal would approach its onerous duties.
17. It is said that the case relates fundamentally to legal issues as opposed to oral testimony based on recollection. I do not believe that it can be accurately stated that the issues in the case are necessarily confined to matters of law. Quite clearly, a number of the issues identified earlier relating to the circumstances of publication of the letter, and the ‘mitigation’ issues identified, have a significantly wider range than simply matters of law. They will rely on evidence. Issues of recollection and perforce dimmed recollected by reason of the elapse of years may well come into play here.
18. However, there is no plea of justification or fair comment in either of the proceedings which might broaden further the scope of the proceedings and raise other issues of recollection. It is not shown that any relevant witness is deceased or has no recollection of the events. Thus, substantial prejudice in its classical sense is not established.
The law
Inordinate delay
19. The starting point of consideration of the legal principles in an application of this type is the authoritative judgment of the Supreme Court in Primor PLC v. Stokes Kennedy Crowley [1996] 2 I.R. 459. First, the court will consider whether the actual delay in prosecuting the claim is inordinate. I consider that the delay from 1998 and the dates following in the chronology is inordinate. This issue is of particular importance in the light of the nature of the proceedings, that is to say libel where a particular onus devolves upon the plaintiff to prosecute his claim with expedition. It is in the interest of the plaintiff to ensure that his or her good name be vindicated when a wrong has been committed. Such issues frequently involve questions of recollection.
20. Equally it is in the interests of a defendant to ensure that proceedings are not allowed to linger over a substantial number of years. The primary onus in the balance lies on the plaintiff.

Inexcusable delay
21. Having concluded that the delay which has occurred in these proceedings is inordinate, it is then necessary to consider the second element of the Primor test, that is to say whether the delay which has occurred is excusable. This involves a consideration of whether or not the course adopted was justified in the context of the somewhat incomplete evidence regarding counsel’s advices to effectively await the outcome or report of the Moriarty Tribunal, or the plaintiff’s decision to await such outcome in itself.
22. In two connected cases reported in June, 2007, Gilligan J. had to consider a somewhat similar issue. These proceedings were Concast International Holdings Inc. & Ors. Plaintiff v. The Minister for Public Enterprise and Others, Defendants [2001] No. 9288 P and proceedings with the same title [2001] No. 15119 P. A third and connected set of proceedings were also the subject matter of the judgment.
23. These sets of proceedings arose from the first named defendant’s decision of 25th October, 1995 to award the second GSM mobile telephone licence to ESAT Digiphone. Serious allegations including corruption, misfeasance in public office, fraud and deceit were made. The plaintiffs were aggrieved by the determination to award the licence to ESAT and at a late stage issued proceedings challenging the lawfulness of the Minister’s decision. The proceedings appeared to have advanced as far as the Statement of Claim stage at the time of the bringing of the application to dismiss for want of prosecution.
24. Again, as here, the plaintiffs in defence of the motion sought to rely upon significant elapse of time caused by the necessity for the Moriarty Tribunal to deliberate on a number of issues over a significant number of years.
25. In the course of his judgment Gilligan J. held that:

“The inquisitorial inquiry before the Moriarty Tribunal could have no bearing on the outcome of these proceedings in the High Court and accordingly . . . the taking of evidence from large number of interested parties, the consideration of the voluminous documentation that necessarily must be involved and final report are not relevant and play no role in the context of these proceedings which are adversarial before a court of law whereas the Moriarty Tribunal involves in essence an expression of opinion in relation to matters considered by the Chairman of the Tribunal.”

26. Gilligan J. criticised the fact that the plaintiffs in those proceedings adopted a ‘wait and see’ approach and waited until the ‘eleventh hour’ within the six-year time limitation before they even instituted proceedings and again waited until the eleventh hour within the one-year period prescribed for the service of the plenary summons. They then failed to deliver a statement of claim within the time prescribed by the Rules of Courts allegedly awaiting developments before the Moriarty Tribunal. These are distinguishing features from the instant case, where the proceedings were outset prosecuted with expedition and then came to a halt which can only be explained by the legal advices tendered.
27. In the course of his judgment, Gilligan J. relied on the judgment of Clarke J. in Stephens v. Paul Flynn Limited [2005] IEHC 148 where that judge observed that there had been a shift in emphasis in respect of the manner in which delayed proceedings are to be approached in an application such as is now before the court. Clarke J. found:

“The calibration of the weight to be attached to various factors in the assessment of the balance of justice and, indeed, the length of time which might be considered to give rise to an inordinate delay are the matters which might go to excuse such delay or issues which need to be significantly reassessed and adjusted in the light of conditions now prevailing.”

And furthermore:

“The balance of justice may be tilted, imposing greater obligations of expedition and against inquiry the same level of prejudice as heretofore.”

28. The delay which arose in Comcast was very significant, some ten to twelve years between the matters complained of at the time of the applications. The defendants had difficulty in identifying any specific prejudice or in identifying whether there were any witnesses which were unavailable. Gilligan J. considered that the prejudice which had been established by the defendants could be typified as “moderate”. Nonetheless, having regard to the overall circumstances, Gilligan J. concluded applying the Primor test that the delay that occurred had been inordinate and inexcusable.
29. In Comcast, such considerations were not outweighed by balance of justice considerations. Gilligan J. rejected the contention that inaction on the part of the defendants in failing to react to the delivery of statements of claim would be seen as being of real significance. The reliance on the outcome of other proceedings cannot afford an adequate excuse for delay.
30. There is no suggestion that the defendant newspaper in correspondence indicated that it would be appropriate that the plaintiff defer proceeding in his action against that newspaper to await the outcome of proceedings elsewhere to the same general issue against a television company. A decision taken by a plaintiff for tactical reasons absent the consent or participation of a defendant is not available in an application of this type as an answer to whether the delay was excusable. I am satisfied the delay is inexcusable although the circumstances fall to be considered in the balance of justice test.

Balance of justice
31. This test involves consideration of all the factors. There is no prejudice of the fundamental type found in Ewins v. Independent Newspapers (Ireland) Limited [2003] 1 I.R. 583 (death of witness). There are no other proceedings relevant to the main issue in being which have been referred to in evidence.
32. In Kategrove Limited v. Anglo Irish Bank Corporation & Ors., The High Court, Unreported, 5th July, 2006, Clarke J.
33. That judge cited the previous decisions of Stephens v. Flynn [2005] IEHC 148, Rodgers v. Michelin Tyre PLC & Anor [2005] IEHC 294 and Wolfe & Anor. v. Wolfe & Ors. [2006] IEHC 106, Finlay Geoghegan J., all authorities in this aspect of law.
34. Clarke J. concluded in Kategrove that in a case where the defendant applicant satisfies the court that there has been inordinate and inexcusable delay, the court should go on to consider where the balance of justice lies by reference to the factors identified in Primor but with a stricter approach to compliance. These factors are not separate tests but merely matters which need to be taken into account in the overall assessment of the justice of the case.
35. In Anglo Irish Beef Processors v. Montgomery [2002] 3 IR 510, Fennelly J. observed that “each case must be judged on its own merits” (p. 520) and also at p. 518:

“… The court should aim in appreciation of the interests of justice and should balance all the considerations as they emerge from the conduct and the interest of the parties to the litigation. The separate considerations mentioned by Hamilton C.J. should not be treated as distinct cumulative tests but as related matters affecting the central decision as to what is just.”

36. The central test here is where does justice lie on the facts of the case? The reference to “the considerations mentioned by Hamilton C.J.” is that of Primor. The court must therefore have regard to the following matters in determining the balance of justice. These are in summary:
(i) implied constitutional principles of basic fairness of procedures;

(ii) whether the delay and consequent prejudice in the case are such as to make it unfair to the defendant to allow the action to proceed and to make it unjust to drag out the plaintiff’s action;

(iii) any delay on the part of the defendant: litigation is a two-way 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) where the conduct by the defendant induced the plaintiff to incur further expense in pursuing the action;
(vi) whether the delay would give rise to substantial risk that it is not possible to have a fair trial or is likely to cause serious prejudice to the defendant; and
(vii) the fact that the prejudice to the defendant referred to may arise in many ways other than that merely caused by the delay, including damage to a defendant’s reputation and business.
I have examined this case in the light of these factors insofar as they arise. The first to fifth principles do not arise for particular consideration. They lie in the balance on the facts. But despite the substantial delay which has occurred in this case, the defendant has not been able to identify any issue which conclusively constitutes significant prejudice within the sixth and seventh test, other than the delay itself and possible unavailability of documents, the effect and relevance of which unavailability is not yet determined. I do not think that it has been established that the prejudice alleged is within the category of “moderate”. Rather it seems that it is marginal or potential. It is not yet established the material submitted to the Department in 1984 is not absolutely unavailable and remains so. The effect of its possible absence is not so sufficiently clear as to be determinative. It is not established that the content of the documents cannot be established otherwise in evidence. It is not established that the defendant has been deprived of witnesses or that any particular witness is unavailable, although one no longer works for the defendant newspaper. It has not been suggested, however, that this witness would render himself unavailable.

37. In Katgrove at paragraph 3.5, Clarke J. added:

“I should finally add that it seems to me that in coming to a conclusion as to what is just; the court also needs to give consideration to whether there are any measures, short of the striking out of the entirety of the plaintiffs’ claim, which might meet the justice of the case. Thus, for example, in

Rogers,

I was satisfied that part of the plaintiffs’ claim could properly proceed, because the prejudice applicable to that aspect of the case was not sufficient to warrant it being struck out. Similarly in

Wolfe,

Finlay Geoghegan J. was satisfied that the justice of the case lay in favour of permitting the plaintiffs to proceed, but on a conditional and limited basis involving, on the facts of that case, an ‘unless order’. Having regard to the serious consequences for any plaintiff who may find that their case be struck out otherwise than on its merits, the court should be always mindful to ascertain whether there is some lesser order which may meet the legitimate interests of the aggrieved defendant, while falling short of a striking out of the entirety of the plaintiffs’ claim.”

38. I consider these observations to be of particular assistance here for reasons I will explain later.
39. But first I must have regard also to the alternative claim made by the moving parties in this case, reliant upon the inherent jurisdiction of the court. (See Manning v. Benson & Hedges [2004] 3 IR 556, Geoghegan J., O Domhnaill v. Merrick [1984] I.R. 151, Toal v. Duignan (No. 1) [1991] I.L.R.M. 135 and Toal v. Duignan (No. 2) [1991] I.L.R.M.140.)
40. It seems to me that the tests in Manning are also those to be applied here. They are in summary:
(1) has the defendant contributed to the lapse of time;
(2) the nature of the claim;

(3) the probable issues to be determined by the court; in particular whether there will be factual issues to be determined or only legal issues;

(4) the nature of the principal evidence; in particular whether there will be oral evidence;

(5) the availability of relevant witnesses;

(6) the length of elapse of time and in particular the length of time between the acts and omissions in relation to which the court will be asked to make factual determinations and the probable trial date.

41. In considering these principles, I do not consider that there is any additional factor, apart from those which have been identified earlier which would lead to a different conclusion. A substantial elapse of time has occurred but otherwise the prejudice is limited. There will be significant oral evidence. But it is not said the issues are in a specific way beyond recall although there is an assertion generally.
42. I return then to the general issues in the context of both sets of principles. As matters stand, I do not consider that any portion of the case must or should be severed from the remainder. While the pleas in the defences may tend to broaden the actions in scope, it would be particularly inappropriate to penalise the defendant by limiting the scope of the case. Primarily, the obligation to prosecute this libel claim expeditiously lay with the plaintiff in order to vindicate his good name and mitigate damage. (See the judgment of Keane C.J. in Ewins). But one must not lose sight of the observation made by Finlay C.J. in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561, that a factor to be placed in the balance is the effect of a dismissal on procedural grounds, even in the light of the substantial developments which have taken place in the jurisprudence, particularly the judgment of the Supreme Court in Gilroy v. Flynn [2005] 1 ILRM 290.
43. One cannot ignore either the legal advice issue. In the balance of justice t may appear that this was entirely reasonable to follow in its temporal context in1998 or 1999. Advice must always be subject to review in the light of changed circumstances. It is, nonetheless, a factor to be borne in mind. The situation evolved. The proceedings, issued promptly in this case, were deferred. While this may not provide an adequate excuse on the second Primor test, is a factor to be weighed on the third aspect that is the balance of justice.
44. On balance, therefore, I have not been satisfied that the claim should be dismissed without condition. The effect of delay in the many forms which may arise is not sufficiently established. What stands, is essentially, substantial elapse of time without any more than marginal or potential prejudice.
45. I propose to make an order dismissing the plaintiff’s claim. However, I will place a stay on such order on condition (a) that all costs of each of these two motions from one year after the date of the reply to the defence of 7th April, 1999 will be discharged. This is when the legal advice might have been reviewed first. The said costs are to be taxed in default of agreement, payment to be made within fourteen days of the presentation of the taxed bill of costs on a party and party basis. There will be liberty to apply to this Court any outstanding issue; (b) any outstanding issues on discovery will be listed within twenty-one days. The case should be ready to be listed for hearing not later than 5th June, 2008. I will hear counsel on default provisions should there be any failure to comply with deadlines fixed, and on the form of the order.