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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McKeogh -v- John Doe 1 & Ors [2014] IEHC 454 (16 July 2014)
URL: http://www.bailii.org/ie/cases/IEHC/2014/H454.html
Cite as: [2014] IEHC 454
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Judgment Title: McKeogh -v- John Doe 1 & Ors Neutral Citation: [2014] IEHC 454 High Court Record Number: 2012 254 P Date of Delivery: 16/07/2014 Court: High Court Composition of Court: Judgment by: Gilligan J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 454 THE HIGH COURT [2012 No. 254 P] BETWEEN EOIN MCKEOGH PLAINTIFF AND
JOHN DOE 1 (USER NAME DAITHII4U) AND JOHN DOE 2 AND JOHN DOE 3 (TAXI EIRE.LEFORA.COM) AND FACEBOOK IRELAND LIMITED AND GOOGLE IRELAND LIMITED AND GOOGLE INC (AS SUBSTITUTED BY ORDER OF THE COURT DATED 27 JANUARY 2012) AND YOUTUBE AND YOUTUBE LLC AND YAHOO! (UK) LIMITED AND CROWDGATHER INC DEFENDANTS JUDGMENT of Mr. Justice Gilligan delivered on the 16th day of July, 2014 1. The plaintiff in these proceedings is a student. In the latter part of December, 2011 a video of people allegedly evading a taxi fare on the night of 13th November, 2011, was posted online on Youtube and Facebook and a number of other websites. The plaintiff was identified by the video as the person evading the taxi fare. Through the creation of a fake Facebook profile on the 28th December, 2011, by a third party, purportedly in the name of the plaintiff himself, a number of defamatory statements were published alleging, inter alia, that the plaintiff was involved in criminal activity. This video was viewed by a large number of people over various social media networks and other websites. 2. On 11th January, 2012, the plaintiff sought interlocutory injunctive relief restraining the publication of this defamatory material and directing that the identity of the sources of this material be disclosed to the plaintiff. An interim injunction was granted by this Court (Peart J.) on 11th January, 2012, restraining the defendants and other third parties on notice from further defaming the plaintiff or republishing the videos in question. Yahoo! UK Limited and Cowgather Inc dealt with the matter by agreement with the plaintiff. The first, second and third named defendants also apologised and removed the offending material from their sites and were excused from further appearance. However, the remaining defendants, Google, Youtube and Facebook Ireland Limited resisted the application for injunction. The relevant part of the relief sought is an order directing the fourth to the tenth named defendants, and any other party nominated by the court, to “disclose the identity of the web users who have defamed the plaintiff via their websites to enable the plaintiff to protect his good name.” 3. On 16th May, 2013, Peart J. delivered judgment in this matter, granting mandatory injunctive relief to the plaintiff preventing and restraining the publication of defamatory material and other orders including an order that “Facebook provide an electronic copy of the fake Facebook Profile” as the plaintiff had sought. The fourth named defendant has, as yet, not provided the plaintiff with this information and has indicated that it is not in a position to do so. The terms of the order of Peart J. made on 16th May, 2013, which is under appeal to the Supreme Court, are as follows:
1. Facebook Ireland Limited the fourth named defendant do provide to the Solicitor acting on behalf of the plaintiff by email…as soon as is reasonably practicable an electronic copy of the fake Facebook profile as sought by the plaintiff…” 5. The plaintiff to these proceedings in this application seeks an order by way of notice of motion pursuant to Order 42, rule 7 or Order 44 of the Rules of the Superior Courts, or both, directing the attachment and committal of Ms. Sonia Flynn, Managing Director of Facebook Ireland Limited, for contempt in the face of the order of this Court (Peart J.) granted on 16th May, 2013, and perfected on 22nd May, 2013 for failing to provide an electronic copy of a fake Facebook profile or swear an affidavit as directed by the court, other than a hearsay affidavit by lawyers for the fourth named defendant, setting out the manner in which the fake profile came to be deleted or permanently destroyed and the date on which such took place. The plaintiff also seeks an order directing the attachment and committal of Ms. Flynn for contempt of the order of the court for failing to provide a full explanation in relation to the manner in which the profile in question was deleted or the date on which the deletion took place. The plaintiff further seeks directions in relation to these reliefs. An order is also sought under Order 19, rule 27 of the Rules of the Superior Courts 1986 as amended striking out paragraphs 54, 55 and 56 of the Defence of the Fourth Named defendant on the grounds that it contains material which is scandalous, vexatious, malicious and/or an abuse of process. 6. During the hearing of this motion it was accepted by counsel for the plaintiff that it was not possible to proceed with the first two reliefs sought, namely the orders for attachment and committal of Ms. Flynn for breach of a court order, there being no order made against her and she not having been served with the proceedings or any relevant orders of this Court. The orders made in these proceedings are addressed to Facebook and Facebook Ireland Limited, the latter being a limited liability company and the employer of Ms. Flynn. An order for substituted service or an order for sequestration of the corporate property of the company could have been sought under Order 42, rule 32 of the Rules of the Superior Courts rather than an order for attachment and committal of an individual under Order 42, rule 7. 7. The third relief as sought is no longer relevant since the plaintiff may take whatever approach to these issues which is deemed appropriate by his legal representatives. The leave of this court is not necessary in order for any other motions to be instituted, in respect of the alleged destruction of the Facebook profile or the alleged failure of any of the defendants to comply with the orders of this Court. 8. Therefore, the court must determine the remaining relief sought by the plaintiff on this application, namely the application for an order pursuant to Order 19, rule 27 striking out paragraphs 54, 55 and 56 of the Defence of the Fourth Named defendant on the grounds that it contains material which is scandalous, vexatious, malicious or an abuse of process. 9. The relevant paragraphs of the plaintiff’s statement of claim are as follows:-
47. Further and or in the alternative and without prejudice to the foregoing, the plaintiff claims aggravated damages and or exemplary damages against the Fourth, Fifth, Sixth, Seventh and Eighth Named defendants by virtue of the manner in which they have failed, neglected and or refused to comply with the said injunctions and thereby facilitated publications and or published material defamatory of the plaintiff when they were fully aware of the nature of the said material and the on-going damage such publication would cause to the plaintiff. In support of same, the plaintiff will rely on the following facts and matters:- (a) The fourth named defendant, allowed, permitted or failed to prevent the republication of the material defamatory of the plaintiff on its side, contrary to the injunction and orders obtained. (b) The fourth named defendant interfered in the plaintiff’s separate proceedings as against other parties, by addressing the court when it had no locus standii to do so and alleging that the plaintiff was seeking a “super injunction” as against those parties, and engaging in a media interview whereby that allegation was repeated, thereby escalated, inflaming and prolonging the proceedings against the present defendants, and the plaintiff’s separate proceedings against other parties. (c) The defendants resolutely and continuously refused to remove material published on their websites and to comply with the court orders obtained on 11th January, 2012, and the ongoing repetition and maintenance of the position that they did not understand the court orders obtained and the reliefs sought by the plaintiff obliged the plaintiff to retain experts to restate the plaintiff’s position to that defendant, and to present it to the court. (d) The defendants, by their failure to supervise and check its site for the specific material defamatory of the plaintiff, notwithstanding the fact that it, its servants or agents, had been made specifically aware of the defamation, and furthermore, once the injunctions were in place, permitted or allowed further republication of material defamatory of the plaintiff on its website which would not have taken place otherwise.”
55. In point of fact, insofar as the plaintiff complains at Paragraph 47(b) of the Statement of Claim about the receipt of adverse publicity, this followed as a natural consequence of the plaintiff electing to bring before the High Court an application for injunctive relief against the publishers of seven national newspapers, which application (a) manifestly had no reasonable prospect of success, and (b) had the entirely counter-productive effect of generating significant additional publicity which he had obtained for himself by virtue of the decision made by him, on legal advice, to seek injunctive relief against the publishers of The Irish Independent, The Sunday Independent, The Evening Herald, The Irish Times, The Examiner, The Star, and The Sunday Times. As was inevitable, the plaintiff failed to obtain any such injunctive relief, and having brought an application that was, on any reasonable view of the law, doomed to failure, it is not open to him to criticise the Fourth Named Defendant which took the decision to participate in the media injunction precisely because it feared that the injunction hearing would be used as a vehicle to wrongfully criticise the Fourth Named Defendant to a very wide audience, as did in fact occur. 56. If, which is denied, the plaintiff’s reputation has suffered the alleged or any damage as a consequence of the matters complained of, same has occurred as a consequence of the manner in which the plaintiff has conducted the within proceedings, and in particular his objectively irrational decision to bring a doomed application for injunctive relief against the publishers of seven national newspapers. To the extent that the plaintiff has suffered a financial or reputational loss arising out of that decision, the plaintiff, by declining to sue any party who advised him to bring such a doomed injunction application, has discharged the liability of such parties with whom he has entered into an accord and satisfaction. Thus, to the extent that it is necessary for the Fourth Named Defendant to do so, it shall plead reliance upon Section 35(1)(h) of the Civil Liability Act, 1961 and shall rely upon the acts of such parties other than the plaintiff that were in fact responsible for any financial or reputational loss that the plaintiff has suffered as a result of the manner in which this litigation has been conducted as additional evidence of negligence and/or contributory negligence on the part of the plaintiff.” 11. Ms. Walley, on behalf of the plaintiff, submits that the relevant paragraphs of the defence issued by the Fourth Named Defendant should be struck out under Order 19, rule 27 of the Rules of the Superior Courts. The rule provides:
13. Counsel for the plaintiff submits that the decision of Smyth J. in Riordan v Hamilton & Ors. (Ex Tempore, High Court, 26th June, 2000) is relevant to the matter currently before the court. In that case an application to strike out the plaintiff’s application under Order 19, rule 28 of the Rules of the Superior Court was brought by the defendants. Smyth J. stated:
“A party is not to be called upon to answer statements which are irrelevant to the case, or which are pleaded in an unfair, ambiguous, or prolix manner; but the court should confine the rule to cases which come within it.” Chatteron VC, however, also cautioned that:- “The Rule is not to be abused, nor are pleadings to be scanned too finely, with regard to the power of the amendments conferred, nor can a party dictate to his opponent how he ought to plead.” 4.5 The primary test used in judging whether a pleading contains unnecessary or scandalous matters is the relevancy of the matter pleaded to the proceedings between the parties; whether the pleadings concerned seek to introduce extraneous matters for purposes and motives unconnected with the subject matter of the dispute between the parties. Allegations are not scandalous where they would be admissible in evidence to show the truth of any allegation in the pleadings which is material to the reliefs claimed. This test was formulated in Christie v Christie (1873) L.R. 8 Ch App 499, and approved in Riordan v Hamilton (Unreported, High Court, 26 June 2000, (Smyth J) where at p. 5 of his judgment, he stressed that:- “The purpose of pleadings is to convey what the nature of the action is. Pleadings should not be used as an opportunity of placing unnecessary or scandalous matters on the record of the court, or as an opportunity of disseminating such matters when they have nothing to do with any dispute between the parties” 4.6 In Riordan v Hamilton, the plaintiff sought certain reliefs against the defendants who were all members of the Supreme Court. In his pleadings, he had made a number of serious and intemperate allegations against the defendants, and Smyth J., having considered the pleadings, concluded that they should be struck out as scandalous. Smyth J. held that allegations are not to be considered scandalous where they would be admissible in evidence to show the truth of any allegation in the pleadings which is material to the relief claimed. 4.7 At the same time, not all facts which have relevance to the proceedings may be properly pleaded and matters set out in pleading must comprise facts that are relevant to the action between the parties and must not comprise the evidence by which it is hoped that such facts may be proved. In Hanly v Newsgroup Newspapers Ltd [2004] 1 IR 471, at page 475 , Smyth J stated that only material facts and not the evidence on which they are to be proved should be pleaded. This principle is also expressed in O. 19, r. 3 of the RSC, which states as follows:- “Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to prove…” 4.8 A further type of problem to which O. 19 r. 27 is directed is where pleadings are found to be prejudicial. This may occur for a number of reasons. However the principal focus is again on materiality. In Hanly Smyth J. held, at p. 475, that the matters pleaded were scandalous, prejudicial and embarrassing in that they sough to “introduce immaterial matters which would lead to the introduction of irrelevant evidence at the trial of the action.” 16. Counsel for the plaintiff submits that in this instance the defence issued by the fourth named defendant is being used as a platform for making comments which would otherwise be defamatory of individuals and which were also an attempt to undermine the plaintiff’s confidence in his legal advisors under the privilege of the courtroom and that this is exactly the form of pleading which Order 19, rule 27 is intended to prevent. 17. Counsel for the plaintiff also refers to para. 5.10 of the decision of Clarke J. in Ryanair v. Bravofly and Anor [2009] IEHC 41 at which it was stated:
18. Mr. Gardiner on behalf of the fourth named defendant refers to the statement of claim delivered by the plaintiff to these proceedings and in particular to paragraphs 43(k) and 47. The plaintiff has sought aggravated damages for the alleged intervention of the Fourth named defendant in the hearing of an earlier motion in this Court (Peart J.) brought against various members of the press by the plaintiff seeking to restrain the respondents from publication of information concerning the plaintiff. The plaintiff was unsuccessful in this application but significant publicity was drawn to the details of the plaintiff’s case as a result of this motion. It is alleged that the intervention of representatives for the Fourth Named defendants worsened the negative effects of this publicity for the plaintiff and, in effect, caused injury to him. Counsel on behalf of the Fourth named defendant states that, as this allegation is clearly made in the statement of claim delivered by the plaintiff, the fourth named defendant must adequately meet and deal with all aspects of this claim in its defence. This is what it has endeavored to do in the paragraphs in question; they are merely a response to the claim raised by the plaintiff. The defence denies the claim in para. 43(k) of the statement of claim at para. 48(1) of the defence and then, in the paragraphs the subject of this dispute, deals with the claim for aggravated damages brought by the plaintiff. The fourth named defendant then denies any interference with the plaintiff’s proceedings and states that since the fourth named defendant had reputational interests in the hearing and the outcome of the motion it was on this basis that its representatives had standing to intervene in the hearing. If this matter is to be raised at the plenary stage of these proceedings counsel submits that he is entitled and obliged, on behalf of the fourth named defendant, to set out a response to this claim in the defence. 19. Counsel for the Fourth named defendant submits that the claim made by it in para. 55 of the defence, as to the adverse publicity allegedly garnered by the plaintiff as a result of the intervention of the fourth named defendant in the interlocutory motion hearing, is a pleading of fact. It was necessary to include the phrase “had an entirely counterproductive effect of generating significant additional publicity by virtue of the decision made by him on legal advice to seek injunctive relief” (emphasis added) since there is going to be a plea under s. 35(1)(h) of the Civil Liability Act 1961, in relation to contributory negligence, that if a plaintiff seeks damages for injury arising out of an unsuccessful motion brought by him the damage is either a result of the plaintiff’s own actions or, if the motion was brought on legal advice despite it having no reasonable prospect of success, the result of the advice of the legal representatives and an action in damages should lie against the legal advisor in such a case rather than against the original respondent to the motion. In order for this submission to be made at the plenary hearing of these proceedings, it must be pleaded in the defence and, given the terms of s. 35(1)(h) of the Civil Liability Act 1961, a “concurrent wrongdoer,” in this case the legal advisors for the plaintiff in the interlocutory motion, must also be referred to in the defence. 20. Counsel for the Fourth named defendant also relies on the decision of Clarke J. in Ryanair v. Bravofly and Anor [2009] IEHC 41 in which it was stated at para. 5.19 that:
21. It is further submitted on the fourth defendants behalf that no reply to the defence has yet been delivered by the plaintiff. 22. Counsel for the plaintiff submits in response that the statement that the plaintiff was acting on legal advice in taking this motion is speculation and should not be found in the defence. Conclusion 24. The Court must take a balanced approach in applying rule 27 to a case before it. As was stated by Chatterton V.C. in Morony v. Guest (1878) 1 LR I.R. 564 at pp. 570-571:
26. The defence of the fourth named defendant goes on to allege that the application against the various media outlets was as a matter of law not going to be successful and proceeded to plead reliance on s. 35(1)(h) of the Civil Liability Act 1961, and to rely upon the acts of such parties other than the plaintiff that were allegedly in fact responsible for any financial or reputational loss that the plaintiff has suffered as a result of the manner in which this litigation has been conducted. 27. In essence, the plaintiff in his statement of claim specifically sets out as against the fourth named defendant that they should not have engaged in the separate proceedings as taken by the plaintiff against the various media outlets and that they had no locus standi. The defendants counteract this allegation in their defence by setting up a defence that they were entitled to address the court, that they did have locus standi in the particular circumstances, that the application was as a matter of probability unlikely to succeed in law and that if as the plaintiff maintains in the statement of claim he is entitled to additional and aggravated damages because of the events that occurred in and after the application in open court, they propose to rely on the provisions of the Civil Liability Act and I do not consider in the particular circumstances that the relevant paragraphs of the fourth named defendants defence are irrelevant. Further, I consider that they are material in reply to the direct allegation as made on the plaintiff’s behalf in the statement of claim and that in order to rely on the relevant provision of the Civil Liability Act, the defence does no more than to set out a general outline of the position and I do not consider that any of the paragraphs that are sought to be struck out relate to actual evidence that may be offered on the fourth named defendants behalf. 28. I do not consider that the relevant paragraphs of the defence are in any way prolix nor do I consider that this is a case which gives rise to a discussion as to whether or not there was an argument to be made out as between facts and evidence that may be referred to in the defence by reason of which such facts may be proved, but even if such was the case, which I do not consider it to be, this Court would rely on and follow the statement of Clarke J. in Brav Fly and Anor [2009] 1 IEHC 41 at para. 5.19 wherein he stated:-
30. In my view the relevant paragraphs at issue in the defendants defence do no more than meet the specific claim as made by the plaintiff. 31. Further, I do not consider the defendant pleadings can be said to be prejudicial of the plaintiff’s interest or of the plaintiff’s right to a fair trial of his action since they are relatively precise and are not vague in any way. In fact, the contrary is the position as the plaintiff’s allegation is made directly against the fourth named defendants legal advisers, and the defendants defence is likewise very directly made against the plaintiff’s legal advisers. 32. In these circumstances the various reliefs as sought on the plaintiff’s behalf in this motion do stand refused.
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