[2025] IEHC 284
THE HIGH COURT
Record No. 2023/3833P
BETWEEN
CATHERINE LOGAN
PLAINTIFF
-AND-
PETER WILSON AND DAVID GODWIN
DEFENDANTS
JUDGMENT of Mr Justice Oisín Quinn delivered on the 15th day of May, 2025
I. Introduction
1. In these proceedings the plaintiff claims damages for defamation arising out of three publications made on 3 August 2021 (two emails from the first defendant and one telephone call made by the second named defendant) and she also claims damages for defamation in respect of one email sent by the first named defendant on 14 July 2023. In addition, the plaintiff claims the publications were made maliciously and she also seeks aggravated and punitive damages and an injunction to restrain the defendants from publishing any similar statements. The plenary summons issued on 2 August 2023.
2. This judgment concerns an application, issued by the plaintiff on 1 August 2024, for a direction pursuant to s.11(2)(c) of the Statute of Limitations, 1957 (as amended by s.38(1)(a) of the Defamation Act, 2009) extending the normal one year limitation period to two years, in other words up to the 2 August 2023, to thereby bring the plaintiff's claim in respect of the 3 August 2021 publications within the statutory limitation period.
3. As the plaintiff's claim also concerns an email sent on the 14 July 2023 by the first named defendant, the proceedings as against the first named defendant are obviously within time in relation to that email irrespective of the outcome of this motion.
4. This application was heard on the 2 May 2025. The plaintiff and the second named defendant were legally represented and the first named defendant represented himself.
II. Background
5. The plaintiff lives in Malahide and has been a voluntary board member of the charity known as the Jack and Jill Foundation since 2018. She previously provided interiors, communications and marketing consultancy services to a company called Lefgem Ltd ("Lefgem"). The plaintiff explains that she is married to the owner of Lefgem, Barry English. Lefgem owns the Johnstown Estate and the hotel there, known as the Johnstown Estate Hotel.
6. There is significant background information set out in the plaintiff's affidavit about the Johnstown Estate by way of context for the publications which are the subject of the defamation proceedings. In summary the Johnstown Estate and Hotel were acquired by Lefgem in June 2015. The plaintiff explains that at the rear of the Johnstown Estate Hotel there are a number of luxury holiday lodges which were sold to investors in 2004. It was intended that these investors would get the benefit of holiday home tax relief and that the lodges would be operated as part of the Johnstown Estate Hotel with the owners receiving a certain amount of income from the rental of the properties. It appears that it was planned that the lodges would then be repurchased ultimately by the Johnstown Estate Hotel and the legal arrangements apparently included a put and call option to facilitate this.
7. In her affidavit, the plaintiff explains that due to financial issues encountered by the former owners of the Johnstown Estate and Hotel this put and call option was not exercised. However, by virtue of the original plan, it appears that no provision was made for the supply of services such as gas, water, electricity or sewage services to the lodges separate to the supply of such services to the Johnstown Estate. The plaintiff says that Lefgem does not have an obligation to provide the lodges with any such services. She explains that in June 2015 the sale of the Johnstown Estate Hotel to Lefgem did not include the lodges but that since then Lefgem has acquired twenty nine of the lodges and has the use of three others. She then explains that the Johnstown Estate Hotel had no obligation to provide services to the properties over which it had no interest and that it adopted a policy of disconnecting services from these lodges once it was informed that the lodge would not be available to be used by the Johnstown Estate Hotel.
8. The plaintiff says that she believes that the first defendant acquired an interest in a lodge in June 2020 and that the second named defendant acquired an interest in another lodge in December 2021. The lodges of the first and second named defendants have been, the plaintiff explains, disconnected from services. This has led to a dispute which is the subject of other proceedings between Lefgem and the owners of those lodges which were issued by Lefgem in 2023. The plaintiff says that these owners have engaged in a campaign to pressurise Lefgem into providing services for their lodges. From the plaintiff's perspective she says she has no day to day involvement in the operation of the Johnstown Estate or the commercial decisions of Lefgem.
III. The three publications of 3 August 2021
9. The plaintiff complains of two emails sent on the 3 August 2021 by the first named defendant to both the CEO and the Head of Fundraising at the Jack and Jill Foundation.
10. The first of these emails read as follows:-
"Dear Maeve,
I, along with many other private owners of the Johnstown House Estate, have some pictures we would like to share with you, one is my childs bedroom and also my livingroom. The other photos are from outside. We are surprised to say the very least the company your great charity keep, Many thanks for looking.
The peace loving private owners Johnstown House Estate."(sic)
This email is said to have forwarded an earlier email of 26 June 2021 together with some photographs.
11. The second email, which it is said the first named defendant also sent to the CEO and Head of Fundraising at the Jack and Jill Foundation, reads as follows:-
"Please find attached
As you can see Catherine proudly advertises her association with both yourselves and her beloved hotel. As they have spent the last year constantly harassing and attempting to drive all private owners from their properties. Cutting water pipes to private residences erecting hoardings and now parking shipping containers stacked and welded together outside our houses. Myself and my eleven year old daughter cannot stay in our home due to these actions by the hotel owners. Which your board member actively states she proudly owns with her husband. Im shocked to say at the least your fine charity would be associated with people like this" (sic).
It appears that four pictures were attached to this email.
12. It is then alleged that the second named defendant telephoned the Jack and Jill Foundation and spoke to an Alie Sheridan who is the Jack and Jill Foundation's Head of Fundraising (and who was one of the recipients of the two aforementioned emails) and during the course of this call it is alleged that the second named defendant spoke the following words (or words to like effect) said to be defamatory of the plaintiff:-
"... the Jack and Jill Foundation should be concerned about being associated with the plaintiff considering the issues raised in the 26th June, 2021 Email".
13. An earlier email it seems had been sent to a number of people on the 26 June 2021 and had been forwarded along with some photos with the first email referred to above of 3 August 2021.
14. The plaintiff contends that the aforementioned two emails of 3 August 2021 and the telephone call had the following meanings:-
i. That the plaintiff had harassed and was continuing to harass families who lived in privately owned properties on the Johnstown Estate.
ii. That the plaintiff had behaved and was behaving in an unconscionable and/or unlawful manner towards families who lived in privately-owned properties on the Johnstown Estate.
iii. That the plaintiff had caused the cutting of water pipes to private residents on the Johnstown Estate, the erection of hoardings and the parking of shipping containers outside private residences on the Johnstown Estate for the purpose of making it impossible for private owners to remain in their properties.
iv. That the plaintiff was a disreputable person who behaved in an unethical, dishonourable, and unlawful manner, and is not an appropriate or suitable person to be on the board of, or associated with, the Jack and Jill Foundation or any other reputable charity.
IV. The July 2023 publication
15. The proceedings complain of an additional publication made on the 14 July 2023 by the first named defendant only. This is an email sent by the first named defendant to the general Jack and Jill Foundation contact email address as follows:-
"Dear Sir or Madam,
I note with utter surprise that Catherine Logan remains as a member of your board. Despite the fact that she could be! Deeply involved in the harassment and intimidation of her neighbours at the lodges at Johnstown House Hotel and Estate County Meath.
She in her own words admits she is involved in the design and development of the Estate. Therefore is she? Involved in the placement of containers around private lodges to harass and intimidate and cause alarm and distress to these private owners. Clearly she spends most evenings with her husband Mr. Barry English who is the beneficial owner of Lefgem Ltd who in turn owns the hotel and a number of lodges,,, But no all.
We are disgusted that a mainline charity does not distance itself from situations like this. Meath County Council have issued an enforcement notice for the containers to be removed. Yet they ignore the council and in fact placed more.
Please find attached latest photos.
Shame on you Jack and Jill Foundation." (sic)
This email also appears to have had images attached to it.
16. The plaintiff alleges that this email meant and was understood to mean that:-
(i) That the plaintiff had harassed and intimidated and was continuing to harass and intimidate those persons occupying privately owned lodges on the Johnstown Estate.
(ii) That as part of a campaign to harass and intimidate and distress the owners of the privately owned lodges the plaintiff had directed or was involved in, or responsible for the placement of shipping containers around these lodges.
(iii) That the plaintiff had ignored an enforcement notice which had been issued by Meath County Council and was unlawfully refusing to remove the shipping containers.
(iv) That the plaintiff was a person who does not observe her legal obligations.
(v) That the plaintiff is a disreputable person who behaves in an unethical, dishonourable and unlawful manner and is not an appropriate or suitable person to be on the board of, or associated with, the Jack and Jill Foundation or any other reputable charity."
17. There is no claim for damages for defamation as against the second named defendant in relation to the email of 14 July, 2023.
V. The history of the proceedings
18. The plaintiff accepts that she did not at any stage send any letter of claim or complaint to either defendant about either of these emails or the telephone call.
19. The plaintiff accepts that the plenary summons which issued almost two years later on the 2 August, 2023 issued without any warning of any sort to either defendant.
20. It does not appear to be in dispute and was not in dispute at the hearing of the motion that the first named defendant was not notified in any way of the proceedings until June 2024. From the plaintiff's perspective this was said to be due to difficulties in serving the first named defendant who lives in Spain.
21. The second named defendant was apparently served with the plenary summons in August 2023 but without any letter of claim.
22. The plenary summons was then amended to take account of the fact that the first named defendant was not resident in Ireland but in Spain and an order to that effect was made on the 18 December 2023 and the summons was then amended on the 2 February 2024.
23. According to an affidavit sworn by a solicitor for the plaintiff there were difficulties serving the first named defendant and ultimately personal service was made on him on the 4 June 2024 when the first named defendant was in Dublin in relation to the other proceedings concerning Lefgem.
24. A statement of claim was prepared and was dated the 31 July 2024 and was apparently delivered in August 2024.
25. The first time either defendant was given any indication as to what was alleged to have been said in the telephone call of the 3 August 2021 was when the statement of claim was delivered in August 2024.
26. The plaintiff only issued this motion seeking to extend time to allow the proceedings to be brought in relation to the communications of the 3 August 2021 in August 2024.
27. This notice of motion issued on the 1 August 2024 with an initial return date of the 11 November 2024 and thereafter was assigned a hearing date before this court on the 2 May 2025.
28. Both the plaintiff and the second named defendant were legally represented and prepared written submissions which along with the oral submissions of counsel were of considerable assistance to the court. The first named defendant represented himself and attended via remote link as he was abroad. This was done with the permission of the court.
VI. The reasons provided by the plaintiff for the delay
29. In her two affidavits filed in support of the application the plaintiff essentially offers two reasons for not issuing the proceedings within one year of the 3 August 2021.
30. Firstly she explains that she did not want to cause trouble and problems for the Jack and Jill Foundation during a time when the charity was struggling due to the problems created by the Covid 19 pandemic. Accordingly, she felt that "she had to put up with the situation until the normal operation of the Foundation resumed". In her second affidavit she explains that while the restrictions effectively ended by January and February 2022 that "things were not fully back to normal for a further 12 months afterwards", in other words by March 2023 at the latest. She explains that "while I am still very concerned at the potential reputational damage to the Foundation and the disruption to its work which these proceedings may cause, I believe that the position of the Foundation is now sufficiently stable that any such damage or disruption will not be acute". This reason was characterised as the "principal reason" for the failure to issue the proceedings within one year. In that context the plaintiff explains that since the media reports that followed the 2021 publications did not refer to the Jack and Jill Foundation, she "did not want to stir up a hornets' nest".
31. An additional reason put forward on affidavit is that she had to home school her three young children during the pandemic and that as a result "the statements made by the defendants did not receive the consideration they perhaps deserved". This reason was characterised as being on the "lower end" of reasons for delay by the plaintiff's counsel.
VII. Relevant law
(i) Relevant statutory provisions
32. Section 11(2)(c) of the Statute of Limitations, 1957 (as amended by the Defamation Act, 2009) provides that:
"A defamation action within the meaning of the Defamation Act 2009 shall not be brought after the expiration of—
(i) one year, or
(ii) such longer period as the court may direct not exceeding 2 years,
from the date on which the cause of action accrued."
33. Section 11(3A) of the Statute of Limitations is the critical section that governs the power of the court to give a direction pursuant to subsection 2(c)(ii) extending the time and it provides as follows:-
"The court shall not give a direction under subsection (2)(c)(ii) (inserted by section 38 (1) (a) of the Defamation Act 2009) unless it is satisfied that—
(a) the interests of justice require the giving of the direction,
(b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given,
and the court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the period specified in subparagraph (i) of the said subsection (2)(c) and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced."
34. Section 11(3)(B) of the Statute of Limitations provides that-
"for the purpose of bringing a defamation action within the meaning of the Defamation Act 2009 the date of accrual of the cause of action shall be the date upon which the defamatory statement is first published".
(ii) Relevant principles in the jurisprudence
35. A number of very helpful authorities were opened to the court together with extracts from Cox & McCullough, Defamation Law and Practice, 2nd Edition.
36. Firstly, no issue was taken by counsel for the second named defendant about the question that has on occasion, vexed the courts as to whether or not an application to extend time should be brought within the two year period and/or before the proceedings have issued; see the comprehensive discussion of these issues in the judgment of Phelan J. in Reidy v Pasek [2022] IEHC 366 from para.s 30-47. Counsel for the second named defendant accepted that in principle it appeared to be appropriate to issue the proceedings and to then issue a motion seeking to extend the time, albeit he contended that the overall delay caused by such an approach may nonetheless be relevant. This latter contention has support in the jurisprudence; see Whelan J. for the Court of Appeal in Morris v Ryan [2019] IECA 86 at para 62:-
"In considering the principles to be applied to the exercise of discretion it is appropriate in the first instance to consider the delays that have accrued prior to the application being brought before the High Court."
37. Next, the authorities make it clear that in considering such an application the court must have regard to the policy underpinning the statutory amendment; see Morris v Ryan, para 56:-
"In considering an application for a direction pursuant to s.11(2)(c)(ii), the court must have regard for the policy of the legislature in bringing about significant changes to the limitation period for defamation in 2009".
38. The policy that underpins the amendment was to reflect the then growing jurisprudence that emphasised that defamation actions should be brought (and progressed) expeditiously; see Morris v Ryan, para.s 57-60 and the Supreme Court in Ewins v Independent Newspapers [2003] 1 IR 583, where Keane C.J. states at page 590:-
"A plaintiff in defamation proceedings, as opposed to many other forms of proceedings, is under a particular onus to institute his proceedings instantly and without delay and, of course, not simply because he will be otherwise met with the response that it cannot have been of such significance to his reputation if he delayed so long to bring the proceedings but also in his own interest in order, at once, to restore the damage that he sees to have been done to his reputation by the offending publication."
39. The authorities make it clear that the onus of proof is on the plaintiff to adduce and advance clear and cogent evidence for the granting of the extension; see Morris v Ryan, at para 61.
40. In addition, the plaintiff must provide full and adequate information as to the particular reasons for the delay relied upon; see Ní Raifeartaigh J. in Rooney v Shell E&P Ireland Ltd. [2017] IEHC 63 at para. 21 as follows:-
"...a person seeking to persuade the court to exercise its discretion in his favour must provide full and adequate information as to the particular reasons for delay that he relies upon to support his application."
and at para. 22:-
"...the onus is on the plaintiff to explain the delay, and that the evidence offered in support of the explanation must reach an appropriate level of detail and cogency."
41. In terms of evaluating the prejudice, the court should consider the nature of the alleged defamation in general and the circumstances surrounding the disputed event that forms the basis of the claim; see Morris v Ryan at para 80.
42. The jurisdiction to extend the time is for exceptional cases; see Cox & McCullough at para 13-344 and Barrett J. in Watson v Campos & anor [2016] IEHC 18 who states at para 6:-
"... when it comes to bringing a defamation action, as defined, a one-year limitation period is standard, more than one year is exceptional."
43. In addition a question arose at the hearing as to whether or not in the event that the application was unsuccessful the plaintiff would seek to rely on the publications of the 3 August, 2021 in support of the plea that the publication in July 2023 was made maliciously. Counsel for the plaintiff confirmed that this would be so and this approach gets some support in Cox and McCullough at para. 8-202 and in the case of Barrett v. Long (1851) 3 HLC 593 where Baron Parke at p. 162 states as follows:-
"We are all of the opinion that under such a plea, the publication of previous libels [some more than six years before the publication complained of]on the plaintiff by the defendant is admissible evidence to show that the defendant wrote the libel in question with actual malice against the plaintiff. A long practice of libeling the plaintiff may show in the most satisfactory manner that the defendant was actuated by malice in the particular publication and that it did not take place through carelessness or inadvertence; and the more the evidence approaches to the proof of a systematic practice the more convincing it is. The circumstance that the other libels are more or less frequent, or more or less remote from the time of the publication of that in question, merely affects the weight, not the admissibility, of the evidence."
44. A summary of the overall statutory test is set out by Barton J. in Quinn v. Reserve Defence Force Representative Association [2018] IEHC 684 where Barton J. states at para 13 that:-
"The wording of s.11(3A) imposes on the Court a requirement to carry out a qualitive assessment of the reason or reasons proffered for the delay. This involves a consideration of the quality and nature of the reason or reasons advanced and a weighing of the respective prejudices. The onus is discharged (a) by an explanation which amounts to a reasonable excuse for the delay sufficient to satisfy the Court that the interests of justice are best served by granting the relief sought so as to permit the case to proceed and (b) by satisfying the Court that the prejudice which the Plaintiff will suffer if the direction is refused would be significantly greater than the prejudice which the Defendant will suffer if the direction is granted."
45. Finally, there is authority for the proposition that in considering the nature of the case, the court should assume that the plaintiff will be successful; see Dignam J. in Joyce v Mayo Travellers Support Group [2023] IEHC 84 at para.s 50-51:-
"50. It is clear from these judgments that one of the factors to be considered when examining prejudice is the nature of the alleged defamation and its gravity. The surrounding circumstances are also relevant. I have therefore had regard to the nature of the alleged defamation and the nature and extent of the potential damage and the particular allegations made by the applicant. I have also had regard to the nature of the defence.
51. Obviously, the Court makes no findings in respect of the substance of the case. For the purpose of this part of the part of the exercise I assume that the applicant will prove all aspects of the substantive case." (underlined for emphasis).
VIII. Submissions
Plaintiff's submissions
46. Detailed written submissions were filed and helpful oral submissions were made by Counsel for the plaintiff. Careful attention was drawn to the reasons being offered by the plaintiff for failing to issue the proceedings within one year. These reasons are described above in section VI of the judgment above. The concerns in relation to the charity were characterised as the primary reason.
47. In addition, during the hearing, Counsel for the plaintiff submitted that the publications in August 2021 were carried out in concert and were designed by the defendants to put pressure on the plaintiff and to paralyse the plaintiff in the context of the Lefgem proceedings (albeit that same did not commence until 2023) and that they did have a paralysing effect on her and that it was only by July 2023 that the plaintiff recovered her courage.
48. Counsel contended, by analogy with the jurisprudence relating to security for costs, that the defendants could not therefore "pray in aid delay caused by the paralysis which their actions were designed to provoke".
49. Counsel for the plaintiff also indicated that the inevitable inference of the sequence of events was that the plaintiff would probably never have sought to sue the defendants in relation to the August 2021 publications were it not for the July 2023 email sent by the first named defendant.
50. The plaintiff's counsel submitted to the court that the appropriate test was set out by Barton J. in Quinn described above.
51. It was submitted that the nature of the defamatory publications was very grave and that "if uncorrected, the 2021 Defamatory Statements have the potential to cause very serious damage to the Plaintiff"; see Plaintiff's written submissions at para 38 thereof.
52. On behalf of the plaintiff it was submitted that there was no real prejudice to the defendants if the application was granted, whereas the second named defendant would appear to have a full defence on the Statute if the application was refused.
First named defendant's submissions
53. The first named defendant represented himself. He had not filed submissions but made a number of oral arguments. He had filed an affidavit denying that he had defamed the plaintiff and, in general terms, disputing what was in the plaintiff's affidavit. His affidavit also focussed on some of the matters concerning the dispute with Lefgem.
54. In oral argument he pointed out amongst other things the fact that he was only ever notified of the claim for the first time in June 2024. This was "the first I heard of it" he complained. He said he had never published any defamatory statements about anybody. He cast doubts on the cogency of the reasons given by the plaintiff and submitted that he doubted them.
55. Accordingly, he asked for the application to be refused.
Second named defendant's submissions
56. The second named defendant swore a number of affidavits and was legally represented at the hearing. Counsel filed helpful written submissions and made helpful oral arguments.
57. He said the reasons put forward by the plaintiff were not compelling and did not explain various matters such as the failure to send a letter of claim or to issue but not serve a summons.
58. Attention was drawn to the overall delays and the delay in providing any details of the alleged telephone call. There was still a lack of the precise words alleged to have been used; which is required by the jurisprudence and he referred to Cox & McCullough at pages 625-626. All of this had caused the second defendant prejudice as set out in his affidavits.
59. He submitted that there was no averment indicating actual damage to the reputation of the plaintiff. He pointed out that the plaintiff's role in the charity was unaffected and that there was no evidence or even suggestion that the 2023 Lefgem proceedings had been interfered with in any way. He said the publication (the telephone call) was to one person only and there was no suggestion that this had any, not to mind any grave, effect on the plaintiff.
60. He said there was no material difference between the meanings alleged to arise from the publications in 2021 and the 2023 email, so there was no prejudice to the plaintiff in being refused the application.
61. Accordingly he submitted that the application should be refused.
IX. Decision
Introduction
62. By virtue of section 11(3B) of the Statute, the cause of action in relation to the relevant publications accrued on the 3 August 2021.
63. As can be seen from section 11(3B) (which provides that the cause of action in a defamation action accrues "upon the date when the defamatory statement is first published") there is a strictness to the statutory time limits in relation to a defamation action. Even though in some instances (for example, a private letter or email, or a statement made at a meeting at which the potential plaintiff is not present) a potential plaintiff maybe wholly unaware of a communication said to be defamatory, there is no equivalent provision to the "date of knowledge" provisions contained in sections 2 and 3 of the Statute of Limitations (Amendment) Act, 1991 in relation to claims concerning personal injuries. Clearly, sections 11(2)(c) and 11(3A) provide a court with some scope to ameliorate injustices that may arise in such situations, see for example Rooney v Shell where the plaintiff only discovered the allegedly defamatory communication following a data request months later; although of course the provisions are in no way limited to such scenarios.
64. Accordingly, by virtue of section 11(2)(c)(i), in the ordinary course, the time period for bringing a defamation action in relation to those publications expired on 2 August 2022.
65. By virtue of section 11(2)(c)(ii) the court has the power to extend the time up to the 2 August 2023 which would thereby bring the issued plenary summons within time in respect of the 3 August 2021 publications.
66. The legal principles make it clear that the onus is on the plaintiff and the court must be "satisfied" that the "interests of justice require" the giving of the direction and that the jurisdiction is in general only exercised in exceptional cases.
67. The court must also be satisfied that the prejudice to the plaintiff if the direction is not given would "significantly outweigh" the prejudice to the defendants if the direction is given.
68. In carrying out its analysis, the court is required to have regard to the reasons given for the failure to bring the action within the one year period and to the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.
69. I propose to consider the reasons offered by the plaintiff and the effect of the delay on any evidence, and then move to consider those matters in the consideration of the issues identified at section 11(3A)(a) and (b).
Consideration of the reasons
70. I am not satisfied that the reasons given by the plaintiff are particularly cogent or persuasive. In this case I am of the view that the matter needs to be assessed both by reference to the specific reasons given and then assessed considering them together and, in the round and in the overall context of the situation.
71. It may in some cases be understandably difficult to precisely identify a reason why a person fails to take a particular action (in this case to commence proceedings) because there may be a variety of factors and which factor is the one which tips the person into not acting may be genuinely difficult to identify. The starting point is to look at what the plaintiff herself deposes are the reasons.
72. The primary reason given (a concern to wait until the charity was back on a normal footing) ceased to be a factor by March 2023 at the absolute latest and yet no proceedings issued at that juncture or for another four months.
73. The secondary reason (the home schooling responsibilities during the Covid 19 pandemic) ceased to be a factor, presumably, during 2022 when the lockdown restrictions ended. These reasons lack cogency, therefore.
74. However, even on their own terms either separately or together or when considered in the round, they are unimpressive reasons. Many people have employers or organisations for whom they work that they might feel anxious about, in the context of launching a defamation action in the scenario here. To decide to delay proceedings because the organisation who received the publications complained of, and who the putative plaintiff works for, is going through a difficult financial period (even if the organisation is pursuing charitable or other purposes for the public benefit) is a very weak reason in this context. For starters, if the "difficult financial period" is of an uncertain duration (as it was in this case, given that in 2021 it was not clear when the Covid-19 pandemic restrictions would fully end) it means the period during which no proceedings might issue could drift on indefinitely.
75. However, even in general terms, in the context of publications to only one or two or indeed a small, limited number of recipients who are known to a potential plaintiff, there are few enough scenarios where any potential plaintiff will not understandably give careful consideration as to whether to launch a defamation action. However, once the publication has occurred and if a person believes that it did actually cause damage to a putative plaintiff's reputation, then it is critical to initiate the proceedings quickly, if an apology and retraction are not forthcoming. As Keane C.J. states in Ewins at p590:-
"A plaintiff in defamation proceedings, as opposed to many other forms of proceedings, is under a particular onus to institute his proceedings instantly and without delay and, of course, not simply because he will be otherwise met with the response that it cannot have been of such significance to his reputation if he delayed so long to bring the proceedings but also in his own interests in order, at once, to restore the damage that he sees to have been done to his reputation by the offending publication." (underlined for emphasis)
76. Even though the onus in this application is on the plaintiff, in this case the plaintiff did not explain when she sought or took advice about commencing a claim.
77. In addition she did not explain anything about the interactions she may have had with the two recipients of the relevant publications. In her affidavits, at no point does she explicitly say that the publications have actually caused her a difficulty with the charity or the people to whom the communications were made.
78. It seems highly likely she did speak to the two recipients (the CEO and the Head of Fundraising) as the Head of Fundraising has supplied details of the telephone call and has supplied an affidavit and presumably would have discussed this with her CEO. The plaintiff has not even given a general sense of how the communications were received by those persons.
79. While the tort of defamation is actionable without proof of special damage (section 6(5) of the Defamation Act, 2009), the lack of this information has a bearing on the analysis required by the section. For example, if an employer received an unsolicited email from some hitherto unknown party about a senior colleague, the spectrum of potential responses is very broad. At one end, the employer might simply put the email in the bin, paying it no serious heed. In others, they might have a quick word with the colleague and then put the email in the bin. At the other end of the spectrum, some type of enquiry might be launched, and the senior employee might feel under a cloud until the matter is cleared up. In this case, the plaintiff gives no information about this and certainly does not suggest that any difficulty arose with either the CEO or the Head of Fundraising.
80. It may well be the case that in many scenarios where a person claims to have been defamed by an email to two persons with whom they work that they "do not wish to disturb the hornets' nest" by issuing proceedings, but that is not a sufficiently good reason to justify failing to issue proceedings and then seeking an extension of time when a different decision is then made.
81. Turning now to the second reason offered by the plaintiff, while home schooling young children during the Covid pandemic was undoubtedly a demanding role, there are many potential plaintiffs who have very demanding roles or responsibilities at work, in the home or with family members.
82. In that context, the task of supplying a solicitor with copies of the emails and details of the telephone call would not have been time consuming. The process of simply issuing a summons seeking damages for defamation is, in the hands of a competent solicitor, extremely straight forward in a case such as this where there was no difficulty in ascertaining the identity of the defendants or the contents of the emails or the call. The summons would not even have to be served for up to a further year; see Order 8, rule 1 of the Rules of the Superior Courts.
83. The plaintiff in her affidavits did not offer any explanation as to why a letter of claim had not been sent or a plenary summons issued and not served. Counsel sought to contend that these may have been avoided because of the risk of publicity. However even if that were true a plenary summons could have been issued and not served until March 2023 when the charity had, according to the plaintiff, "got back to normal".
84. While the reasons given by the plaintiff both considered separately or together lack cogency and while there is an absence of information about matters that seem inevitably to have occurred (namely the full nature of the interactions with the recipients and the timing of instructing a solicitor), the actual timing of the issue of the writ is consistent with it being in some way linked to the July 2023 email. Indeed Counsel for the plaintiff accepted in submissions that it was reasonable to infer that were it not for the July 2023 email the plaintiff would probably have never sued over the August 2021 publications.
85. Finally, the argument of counsel during the hearing that the publications had a paralysing effect on the plaintiff and that it was only by July 2023 that the plaintiff recovered her courage is not consistent with the averments in the plaintiff's affidavits. Firstly, while there may be some scenarios where such a situation could arise (for example, such as in certain personal injuries cases involving historic abuse, or cases where a potential plaintiff is in the care of, or significantly under the influence of, or dependant on the putative defendant), then, if it does and it is to be relied upon by a plaintiff, it must be supported by proper, cogent evidence. There was no remote suggestion in the plaintiff's affidavits in this application of anything approaching a condition that could have justified the deployment of the concept of psychological paralysis.
86. Even if the argument is considered as having been made with obvious hyperbole and intended to be understood as shorthand exaggeration, at no point do the plaintiff's actual averments support some lesser form of inhibited decision making. For example at paragraph 24 of her first affidavit the plaintiff states "I was extremely anxious to avoid doing anything which would draw attention to the defamatory comments which had been made by the defendants and which might - at a time of severe downward pressure on fundraising - do anything which could negatively affect the operation of the charity. Regardless of the extent of my personal upset, I felt that I had to put up with the situation until the normal operation of the Foundation had resumed". Then at paragraph 25 of her first affidavit, when referring to the home schooling commitments, the plaintiff goes further and characterises the publications as "less immediately important matters" and that accordingly they "did not receive the consideration they perhaps deserved". She concludes in her first affidavit in the final substantive paragraph by stating "I did not issue proceedings relating to the 2021 statements sooner due to the pressure of Covid on the running of the Jack and Jill Foundation and on my home life. I also did not want to bring adverse attention to a charity which does enormously important work." In her second affidavit in paragraph 8 she expressly disputes that she is suggesting as a reason that she did not issue proceedings due to the effect of the covid pandemic on her; she continues "instead it was the effect that Covid-19 had on the operation and funding of the Foundation and on the education and care of my three young children which were relevant factors in the proceedings not issuing". She then says in paragraph 11 of her second affidavit that the email of 14 July 2023 "made me realise that the defendants would continue making false statements about me until they were stopped, or until they received what they wanted regarding their properties on the Johnstown Estate. It was this realisation which prompted me to, very reluctantly, issue proceedings against the Defendants. While I am still very concerned at the potential reputational damage to the Foundation and the disruption to its work which these proceedings may cause I believe that the position of the Foundation is now sufficiently stable that any such damage or disruption will not be acute." While the 14 July 2023 email cannot in itself explain the failure to issue the proceedings during the one year following the 3 August 2021, this averment again refers back to the plaintiff's reason (described as the primary reason) that she held off issuing proceedings during the first year, namely because of her concern about the potential impact of the proceedings on the charity at a time during the Covid pandemic when its fundraising was significantly adversely affected.
87. In the round therefore, and in the broader context of the situation here, the reasons fall short of the sort of reasons and context that might engage the exceptional nature of the statutory power involved here.
The extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced
88. Aside for the general prejudice caused by the delays described above (it is now almost 3 years and 9 months since the publications complained of), the main matter of significance in this regard is the second named defendant's understandable claim that he no longer has any specific recollection of the alleged telephone call.
89. This claim is entirely plausible in the context here where, as a result of the approach adopted by the plaintiff, the second named defendant was only first ever made aware of the claim on 29 August 2023 (more than two years later) and was only ever given any specifics of what he was alleged to have said in the telephone call in August 2024 (three years later) when he was served with the statement of claim.
90. Even then, the specifics in the statement of claim fall short of a purported verbatim account of what the second named defendant is alleged to have said. The precise words pleaded are not the same as what is set out in the affidavit of Ms. Sheridan, the recipient of the telephone call.
91. This is the only publication in respect of which the second named defendant is facing a claim for damages for defamation. This wholly unsatisfactory state of affairs should be contrasted with the fact that the plaintiff appears, according to Ms. Sheridan, to have been informed about the telephone call later that same day. Accordingly, she could have sent a letter, or a solicitor's letter, to the second named defendant very shortly thereafter with the details of what it was claimed to have been said and calling on him to desist and/or taking issue with the contents of the call and/or explaining why she felt the words used carried the meanings complained of.
92. Even if the points of the second named defendant about being unable to access his telephone records at this stage are not correct, or could be got around, it does not take away from the likelihood that the second named defendant could not be reasonably expected to remember what he may have said on a telephone call three years ago. In that regard, the second named defendant's averment that he "cannot remember exactly the form or choice of words used on the phone call ... or who I spoke with or if it even definitively took place on 3 August 2021" is hardly surprising. That said, he asserts "I did not say anything wrong or defamatory of the Plaintiff".
93. Aside from the foregoing, from the first named defendant's perspective he was, it is accepted, first notified in any manner about the claim in respect of the emails of 3 August 2021 in June 2024. This kind of delay goes against the strictures set down in the jurisprudence above about commencing and progressing defamation actions expeditiously. He did not however identify any lack of evidence as a result of the delay.
Do the interests of justice require the extension and does the prejudice that the plaintiff would suffer if the application were refused significantly outweigh the prejudice to the defendants if the application is granted?
94. The foregoing analysis of the cogency of the reasons offered by the plaintiff and the potential difficulties caused in adducing evidence both feed into the required broader consideration of the interests of justice and the analysis of the prejudice. In addition, in this context, the matter is, according to the jurisprudence, to be approached on the basis that the plaintiff would, absent a plea of the Statute, succeed in relation to the potential defamation claims concerning the August 2021 publications.
95. Firstly, as described above, at no point does the plaintiff actually claim that either the emails complained of or the telephone call actually damaged her reputation with the recipients of those communications.
96. While the tort of defamation is actionable without proof of special damage, in the context of the jurisdiction engaged here, the plaintiff should have explained what actual effect the publications had on the recipients, if she was aware of same. As one of the recipients swore an affidavit in support of this application for the plaintiff it seems implausible that the plaintiff has not had some interaction with the recipients. Indeed, Ms. Sheridan avers that she spoke to the plaintiff after the phone call "later that day".
97. In addition, the plaintiff did not identify that she had any actual difficulties in her role as a board member of the Jack and Jill Foundation. The furthest her affidavit goes is to say that the publications "were capable of causing very severe damage to my personal and professional reputation"; see para 21 of the plaintiff's first affidavit.
98. It is also important to view this application in the context of another aspect of the case. The primary purpose of a defamation action is to vindicate the reputation of the plaintiff. The plaintiff has a claim which is within time in relation to the email of 14 July 2023 and which her counsel describes as "of a piece" or "no more serious" as the publications complained of in August 2021 (this is despite the fact that additional defamatory meanings are said to flow from the 14 July 2023 email).
99. Accordingly, she has the prospect of being publicly vindicated in respect of a similar publication as against the same person who published the two earlier emails. This has to count as a significant matter both from the plaintiff's perspective and from the point of view of the Jack and Jill Foundation, albeit that the plaintiff has not suggested either recipient in that organisation holds any lower view of her as a result of the two earlier emails or the telephone call. The plaintiff can be vindicated in respect of the same meanings complained of in respect of the earlier publications if she succeeds in relation to her claim in respect of the 14 July 2023 email.
100. In Ewins, the plaintiff's case was dismissed for delay relating to the prosecution of the proceedings (which were issued in time) and the Supreme Court, in considering the "balance of justice" as part of the Primor test, took the view that it was a relevant factor that Mr. Ewins had additional claims against other defendants in relation to the same issue; see Keane C.J. in Ewins where he states at p590:-
"It is undoubtedly a factor to which one is obliged to have regard that there are in being proceedings which, if the plaintiff was, in fact, wrongly and falsely defamed by the defendants in these proceedings, would afford him a remedy in those other proceedings."
101. In addition, it is at least arguable that the plaintiff will be entitled to adduce in evidence the earlier publications, at least the emails, in the trial about the July 2023 email. After all, the plaintiff is seeking an injunction to restrain any further similar publications. The plaintiff's counsel appeared to contend that this could be done and there is certainly some authority to support that view; see Cox & McCullough, Defamation Law & Practice, 2nd Edition, para. 8-202 and Barrett v Long (1851) 3 HLC 395. Obviously, such a matter would be for the trial and nothing in this judgment is intended to indicate any view about the appropriate outcome of any argument in relation to that potential issue.
102. Accordingly, it is by no means clear that the interests of justice "require" that the direction be made. If the plaintiff succeeds in relation to the 14 July 2023 email against the first named defendant, then she will have achieved a public vindication in relation to her reputation in relation to a publication which she says is essentially "of a piece" with the earlier publications.
103. In addition there is authority to support the idea that an alleged history of "ill will", as is contended for here by the plaintiff, can be referred to as evidence of the alleged malice which is pleaded by the plaintiff. It may also be relevant to any consideration of the application for an injunction.
104. The case against the second named defendant for defamation will fall away, but that claim only ever related to a single telephone call about which the plaintiff made no complaint for more than two years and only ever supplied the details of three years later. In addition, the plaintiff has not complained of any additional 'sting' or meaning arising from the telephone call above and beyond those claimed in relation to the emails, including the July 2023 email.
105. Accordingly, the plaintiff will still be able to pursue a defamation action against the first named defendant in relation to that email and if she is successful, she will be vindicated in relation to the attack on her reputation as she sees it.
106. On the other hand if the time is extended then the defendants are facing at this remove a defamation action in relation to two emails and in the case of the second named defendant a telephone call, all made three years and nine months ago. This delay rests wholly at the door of the plaintiff.
107. This is not a case in which the plaintiff only discovered the existence of the emails much later, such as in the case of persons who obtain emails following a data access request or are otherwise told of the communication or document at some later remove.
108. This is a plaintiff who was aware of the emails and the telephone call on the day they occurred and who appears to have made a conscious decision not to take action in relation to them until almost two years later.
109. Even if it could be said that the first named defendant should, in theory, be in just as a good a position to defend himself in relation to the earlier emails as he should be in relation to the July 2023 email on the basis that, according to the plaintiff, they are "of a piece" (and that is not completely clear given the additional meanings pleaded in relation to the 2023 email and the existence of the Lefgem proceedings in 2023), it is not clear that the prejudice to the plaintiff if the direction is not given significantly outweighs the prejudice to the first named defendant if the direction is given.
110. The position in relation to the second named defendant is even more stark. If the direction is given he will be facing a defamation action in relation to a telephone call which he quite reasonably claims he does not remember, given that no complaint whatsoever was made to him about the telephone call for at least two years, and no details were given to him of what was alleged to have been said in the telephone call for at least three years.
111. The legislative provisions require the plaintiff to satisfy the court of the two matters in section 11(3A) (a) and (b). The plaintiff has not done so. I am not satisfied that the prejudice the plaintiff will suffer if the time is not extended would significantly outweigh the prejudice that the defendants will suffer if the direction is given. The plaintiff can achieve vindication in relation to a later 2023 publication with the same meanings as she sees it. She can, her counsel submits, seek to refer to the earlier publications in support of a claim for aggravated damages and / or an injunction and there is authority to support that view. In relation to the 2021 publications there is no evidence that the publications actually damaged the plaintiff's reputation in the minds of the recipients. On the other hand the defendants will be obliged to defend a claim concerning publications in August 2021 issued well out of time and the detail of which was only notified to them in 2024.
112. Accordingly, in relation to the substantive heart of the matter the plaintiff is still in a position to pursue a defamation action in relation to the email of July 2023 as against the first named defendant. She may well be able to seek to adduce evidence of the earlier communications in support of her plea of malice or in support of her claim for an injunction in relation to that email. That would of course be a matter for submissions and arguments at the trial.
113. Having had regard to the reasons given for the failure to bring the action within one year I am not satisfied that these are cogent or significantly or substantially persuasive. They are in fact unconvincing. I am also satisfied that the significant lapse of time between the telephone call of the 3 August 2021 and the second named defendant being notified for the first time of what was alleged to have been said in relation to that telephone call is gross and excessive and quite understandably has put him in difficulty in terms of giving a recollection as to what may or may not have been said by him.
114. Accordingly, I am not satisfied that the interests of justice require the giving of the direction or that the prejudice to the plaintiff significantly outweighs the prejudice to the defendants if the direction is given.
X. Conclusion
115. For the foregoing reasons the application is refused and I will hear from the parties in relation to the form of order and costs.