THE SUPREME COURT
[Record No. 454/2011]
[High Court Record No. 2008/11101P]
MacMenamin J.
Dunne J.
Peart J.
KEVIN TRACEY
PLAINTIFF/APPELLANT
V.
IRISH TIMES LIMITED, GERALDINE KENNEDY
AND EOIN McVEIGH
DEFENDANTS
Judgment of Mr. Justice John MacMenamin dated the 30th day of July, 2019
1. On the 27th October 2011, the High Court, (Kearns P.), dismissed four defamation proceedings, along with two other cases which had been initiated by the appellant. The appellant appealed these orders. The appeals were originally brought to this Court. They were subsequently remitted to the Court of Appeal under the 33rd Amendment to the Constitution. Later, they were remitted back to this Court, pursuant to Article 64. On the 20th and 21st June, 2019, this Court dealt with this appeal, along with the other appeals brought by the appellant concerning similar High Court orders made on the same day. The six appeals, therefore, fall into two categories. The first group of four will be referred to simply as the "defamation appeals". They arise from coverage of a District Court proceeding; the second group of just two, concern other forms of proceedings.
The Defamation Appeals
2. The defamation appeals are:
• Kevin Tracey v. Irish Times Limited, Geraldine Kennedy & Eoin McVeigh (High Court Record No. 2008/11101P, Supreme Court Appeal No. 454/2011, [2019] IESC 62). This concerned an article in the Irish Times.
• Kevin Tracey v. Independent Star Limited & Gerard Colleran (High Court Record No. 2008/11102P, Supreme Court Appeal No. 455/2011, [2019] IESC 67). This concerned an article in the Irish Daily Star.
• Kevin Tracey v. Independent Newspapers (Ireland) Limited, Gerry O'Regan, Stephen Rea and Tim Healy (High Court Record No. 2008/11103P, Supreme Court Appeal No. 456/2011, [2019] IESC 68). This concerned an article in the Evening Herald.
• Kevin Tracey v. Independent Newspapers (Ireland) Limited, Philip Molloy, Paul Dunne, Gerry O'Regan & Michael Denieffe (High Court Record No. 2008/11104P, Supreme Court Record No. 456/2011, [2019] IESC 69). This concerned an article in the Irish Independent.
For reference purposes, the other appeals are: The Defamation Appeals: Context 3. All the articles in the defamation appeals were published on 17th September, 2004, the day after District Court proceedings in which the appellant was prosecuted for assault, but received the benefit of s.1(1)(i) of the Probation of Offenders Act, 1907. In each case, the defendants, who are now the respondents in this appeal, pleaded that the press coverage was privileged as being covered by s.18 of the Defamation Act, 1961, or the common law protection regarding contemporaneous reportage of court proceedings.
4. This judgment concerns the first of the defamation proceedings, where the Irish Times, Geraldine Kennedy and Eoin McVeigh are the respondents. It gives consideration to tests or principles applicable in a situation such as this. This judgment will be referred to in the other judgments delivered today as the " Irish Times judgment".
The Irish Times Article
5. The Irish Times article was printed on an inside page of the newspaper on the 17th September, 2004. It was headed "Man guilty of assault took action against judge". The appellant's last name was incorrectly spelt throughout the article. The text of the article, some parts of which are now emphasised, read:
" A man who last year took a noise nuisance action against his neighbour, Circuit Court Judge Michael White, was yesterday convicted of assaulting another neighbour.
Kevin Treacey [sic], an engineer from Park Lane, Chapelizod, Dublin, was given the Probation Act because the assault, a push, was of a minor nature, Judge Michael Connellan ruled. In March last year, Mr. Treacey was ordered to pay €1,500 legal costs of an aborted noise nuisance action against White. Mr. Treacey had claimed he suffered nuisance from Judge White's children playing their musical instruments.
He withdrew the complaint before it went to hearing, saying the nuisance had abated since the court case was initiated. He was ordered to pay the legal costs of the action because he failed to turn up in court to say he was doing so.
Yesterday's case arose out of a dispute over local children playing football outside the Treacey home in April last year, shortly after the noise nuisance action had finished.
Dublin District Court heard Mr. Treacey went out three times to ask them to move away when the ball hit the wall of his house. The children, including two whose mother was the injured party, Mrs. Gabby Skinner, had to play on the street because there were young people drinking in the only other area available.
The ball eventually hit one of Mr. Treacey's windows, and he went up and picked the ball up. Mrs. Skinner asked for the ball back, and during the confrontation she was pushed by Mr. Treacey, who denied touching her.
Judge Connellan said "As far as I am concerned, I am satisfied there was an assault on Mrs. Skinner, but it was of a very technical nature. The judge granted leave to appeal, saying that, even though there was no penalty, the Probation Act was still a criminal conviction." (Emphasis added)
A question which arises later in this judgment is whether, arguably, the emphasised parts of the article may not be covered by the defence of privilege.
6. The events described in this judgment, and the proceedings which followed, were initiated prior to the passing of the Defamation Act, 2009. They therefore fall to be considered under the terms of the Defamation Act, 1961. Section 17 of the Defamation Act, 2009 also contains a fuller provision. It is unnecessary to quote it. Although the publication in question took place on 17th September, 2004, the Irish Times proceedings were initiated on the 23rd December, 2008, more than four years afterwards. The appellant, who appears on his own behalf, pleaded that the article damaged him in his good name, and professional reputation. He sought damages under various headings. A statement of claim followed more than a year later, on the 3rd February, 2010. There, Mr. Tracey claimed that, as a result of the article, he had suffered psychological damage and trauma, and contended the article was actuated by malice.
7. But one plea in the statement of claim is relevant to this appeal; it was to the effect that, in fact, the District Court prosecution had actually been dismissed under the Probation of Offenders Act, 1907 on the 16th September, 2004. Thus, Mr. Tracey submits he was not " convicted " of the assault.
The Extent of the Legal Protection
8. Section 18 of the Defamation Act, 1961 provided:
"A fair and accurate report published in any newspaper or broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station within the State or in Northern Ireland of proceedings publicly heard before any court established by law and exercising judicial authority within the State or in Northern Ireland shall , if published or broadcast contemporaneously with such proceedings, be privileged . …" (Emphasis added)
9. But, as the leading textbooks point out, this section does not specifically set out whether the privilege provided by the section is absolute or qualified in nature. (See Cox and McCullough, "The Law of Defamation", Clarus Press, 2014, Chapter 7-54; and also McMahon & Binchy, "Law of Torts", 4th Edition, Bloomsbury 2013, Chapter 34.173). The extent to which this statutory provision was, or is, supplemented by a common law privilege is also an open question. (On this, generally, also see Hayward v. Hayward [1886] 34 Ch.D 198; and Gatley on Libel & Slander, 12th Edition, p.310 - 320).
10. Relying on s.18, the respondents in this appeal pleaded that the article contained a fair and accurate report of proceedings publicly heard in a court established by law, and exercising judicial authority within the State. They pleaded that the article was absolutely privileged, or, alternatively, was protected by qualified privilege. The form and extent of the protection provided by 1961 Act, and its application to this case, is obviously a legal issue of some significance.
The Defence
11. The defence, therefore, also contained a preliminary objection, to the effect that the action should be struck out on the basis that the claim was unsustainable, bound to fail, frivolous and vexatious. The respondents pleaded the statement of claim did not disclose any reasonable cause of action, and reserved the right to make application to have the proceedings struck out, either pursuant to the provisions of O.19, r.28 of the Rules of the Superior Courts, or the inherent jurisdiction of the Court.
Correspondence
12. Between the 3rd February, 2010 to the 18th November, 2010, there was active correspondence between Mr. Tracey, the respondents, and later their solicitors. In the course of this correspondence, Mr. Tracey claimed damages in the sum of €1,500,000. The basis of his claim for this very substantial sum is unclear.
13. After the respondents filed their defence on the 29th June, 2010, they brought a motion seeking to have the motion struck out, either under O.19, r.28, or, alternatively, pursuant to the inherent jurisdiction of the Court. The evidence is that, in the same month, Mr. Tracey fell ill. He did not ever swear a replying affidavit in the motion, or substantively engage with the contention that his proceedings were bound to fail. Mr. Tracey remained ill for a considerable period of time thereafter. There is no evidence to the contrary.
Adjournments
14. The motion came before the President of the High Court on the 4th May, 2011. The respondents sought the relief claimed in the notice of motion. But, on that occasion, Kearns P. acceded to an adjournment application made on behalf of Mr. Tracey by a person describing himself as a "McKenzie friend", a Mr. Justin Morahan. The motions were adjourned peremptorily against the appellant for hearing on the 27th October, 2011. In adjourning the matter, Kearns P. made it entirely clear that, if there was to be any future application for an adjournment, there would have to be compelling medical evidence before the court.
The 27th October, 2011
15. On the 27th October, 2011, the appellant was not present in court. He was, however, again represented by Mr. Morahan, who applied for a further adjournment. Before the President were two medical reports, to the President, to the effect that Mr. Tracey was ill, and could not attend court. There was also an affidavit from the appellant's wife, Karen Tracey, filed on the 19th October, 2011, deposing that her husband remained ill.
16. In a report furnished to this Court for the appeal, Kearns P. stated that he had regard to this material, in particular, a medical report dated the 19th August, 2011, from Dr. Sarah McDonnell, and a further report dated the 7th September, 2011 from the Royal Victoria Eye & Ear Hospital, as well as Ms. Tracey's affidavit. Having considered this material, the President refused the application for a further adjournment. He then heard submissions from counsel for the respondents on the main questions in the motion to strike out the proceedings. Having heard submissions from counsel, Kearns J. ordered that these proceedings be dismissed on the grounds that the claim was bound to fail by reason of the protection contained in s.18 of the 1961 Act. The order was based on the inherent jurisdiction of the court.
17. Despite his illness, the appellant was in a position to file a detailed notice of appeal to this Court on the 29th November, 2011. The notice of appeal contained some matters which had no basis. There was an allegation of bias. The fact that Kearns P. had previously made strike out orders in other proceedings brought by Mr. Tracey was not relevant. There was no reason for the President to recuse himself. The mere fact that a judge has previously made an order, or orders, adverse to the interests of a party, on other occasions, does not indicate bias. Far more would be necessary; for example, that a judge had expressed strong or fixed views as to the truthfulness of evidence given by a party. The allegations of bias against the President should not have been made. Thereafter, the appeal remained before this Court for a considerable period of time. It was remitted, and then returned to this Court.
18. The questions now for this Court are whether the President erred in law in proceeding to hear the application in the absence of the appellant; and whether he then erred in dismissing the proceedings. These questions are interlinked. First it is necessary to consider some case law.
The Legal Background: Other Considerations
Tracey v. McDowell
19. The procedural issue before the Court in this appeal is not entirely without legal precedent. The facts bear some resemblance to the circumstances which obtained in the case of Tracey & Anor. v. McDowell & Anor [2016] IESC 44, (Clarke C.J., MacMenamin J., Charleton J.), (McDowell). That case concerned a decision by Kearns P. to dismiss six, quite separate, proceedings in which Mr. Tracey and his wife, Karen Tracey, were plaintiffs. Mr. and Ms. Tracey had commenced these earlier proceedings by issuing a plenary summons, wherein they claimed that between the 14th August, 1999 until on or about the 14th March, 2002, claiming they had been subjected to a conspiracy and collusion of malicious prosecution, and abuse of the legal process, including false summonses, prosecutions, fines, endorsement of licence, prison sentence, and assaults.
20. As in this case, a representative appeared in the High Court to apply for an adjournment. But the medical reports were terse and unspecific. Again, Kearns P. delivered a judicial warning as to the consequences of non-appearance. The medical reports furnished did not address the real questions which the Court had to determine, which included the likely duration of the illness, and the fact that the President had previously made a specific direction that further medical reports were to be in sufficient detail as to allow him to make a clear decision as to when the case might proceed. Kearns P. decided to dismiss the proceedings. Mr. Tracey had appealed these decisions.
21. Delivering judgment in the appeal in this Court, Clarke C.J. took the opportunity to reiterate that the courts retain the power to ensure that litigation is conducted in a timely fashion, an obligation deriving both from the inherent power of the courts themselves, and also arising from the necessity to comply with ECHR requisites. He held that such duties devolve on the State as a whole, and all of its organs of governance, including the courts. Thus, a failure to put in place and maintain a system which permits the timely resolution of proceedings in a Convention-compliant manner, may create a situation where the State becomes liable under the ECHR for delay, even in the context of the common law "party led" litigation system. Thus, the Chief Justice pointed out, there may well be cases where a significant or persistent failure to comply with express court orders, or directions, might justify dismissal as a proportionate consequence, as a result of major procedural non-compliance. (See paras. 5.5, 5.6 and 5.8 of Tracey v. McDowell [2016]). The Chief Justice went on to point out that, in considering applications such as these, the duty of a court is to take into account the rights and interests of all parties, rather than one party, and that to adjourn a case as a result of one party's non-attendance has the potential to affect the rights of other parties well beyond the individual on whose health status a doctor may be required to report. The judgment emphasises that a court is required to balance all the rights involved, and that, in order to achieve this end, a court will often require more information than is sometimes proffered in order to enable it to carry out that task properly. (para. 6.4). Specifically, there should be full information on the likely length of any indisposition on the part of a litigant. On the subject of medical evidence, Clarke C.J. made clear:
"… a bald medical certificate stating that Mr. X or Ms. Y is unfit will frequently be of very little assistance to the court in balancing the rights and interests involved. The court will need to know just what it is that the person concerned can and cannot do, for how long that condition is likely to last, with what degree of confidence can a prognosis for recovery (or at least a sufficient recovery to allow the proceedings to continue) be made and any other matters which might reasonably influence the court's judgement". (para. 6.7).
He went on to point out that, in extreme cases, a doctor who is given full instructions by, or on behalf of a client, but who does not engage with those instructions in a sufficient way to provide the court with enough information to enable an appropriate assessment to be made, may himself or herself be required to attend court to fill in the gaps.
22. But to this I would add that it would first be necessary to clearly show that a proper full request had been made in a timely manner to the doctor concerned. A party who makes reasonable and timely efforts to ask a doctor setting out what was required should not suffer if a doctor does not furnish a report. But as a corollary, a party must show they made a timely application for that medical report setting out why exactly a person cannot attend, and for how long?
23. In this 2016 judgment, this Court accepted that the trial judge was entitled to conclude there had been a failure on the part of Mr. Tracey to comply with the previous directions of the court concerning the filing of an appropriate medical report. Clarke C.J. did note, however, that medical reports had been furnished, which did advance matters somewhat beyond the position which had pertained on the previous occasion. These identified the medical conditions from which Mr. Tracey was suffering. There was at least a form of report from a consultant (or the consultant's registrar). But Clarke C.J. pointed out that the trial judge was nonetheless more than entitled to consider that the medical evidence was insufficiently detailed, and entitled to conclude there had been inordinate and inexcusable delay. (para. 7.4, 7.5 and 7.6).
24. Clarke C.J. then went on to pose the rhetorical question, as to whether a dismissal of each of the relevant proceedings, rather than some lesser measure, was within the range of proportionate responses which it was open to the court to take in all the circumstances? He pointed out that, in all such cases, the court is required to determine where the balance of justice lies. The factors which may be relevant to such a consideration may vary from one type of case to another. In doing so, a court will bear in mind whether there is prejudice to any particular party. (paras. 7.6 and 7.7). The judgment commented that, while the President's description of Mr. Tracey as a "serial litigant", while not perhaps an ideal way of putting it, it was nonetheless relevant to the point that Mr. Tracey's experience of litigation allowed the court to require a higher standard of compliance from him than might be the case in respect of a litigant who had no litigation experience whatsoever. Bearing in mind this, and Mr. Tracey's subsequent good attendance record, this Court determined that the appeals should be allowed, on the basis that the High Court order had not considered the issue of proportionality of the order, which was disproportionate in effect. This Court directed that the case, along with the others, should be remitted to the High Court.
Court of Appeal Jurisprudence
25. Subsequently, the Court of Appeal has also subsequently had to consider issues of this type. (See Hanrahan v. Gladney [2018] IECA 403, Irvine J., and Kildare County Council v. Gerard Reid , a judgment delivered by Peart J. [2018] IECA 370. Both these judgments make clear that litigants must now recognise that courts owe duties to all parties, rather than one; and that the courts will require clear and cogent medical evidence precisely identifying why the appellant cannot appear and conduct the case, the duration of indisposition for the purposes of an adjournment application. These are a necessary requirement whether a litigant appears in person or is represented.
26. The observations of the courts must be seen in a context where, on occasion, the courts have been left in a situation where some litigants, whether represented or unrepresented, seemed to think the mere proffering of any medical report might be sufficient to obtain an adjournment. That is a fundamental misconception. Subject to reasonableness, the courts are entitled to ensure that, under the Constitution and Convention, the business of litigation proceeds in an orderly fashion, even in circumstances where litigants do not attend. A court will also consider whether there is a pattern of non-attendance, or other conduct such as the late and unexplained discharge of legal advisors, and retainer of new ones. A court is entitled to draw its own conclusions from such conduct, and, if it decides to adjourn, to set clear conditions on the adjournment.
Tracey v. McDowell [2018] IESC 45
27. Tracey v. McDowell & Others [2018] IESC 45 is a slightly different case. There this Court had to consider whether the High Court judge, Hedigan J., had been correct in striking out Mr. Tracey's proceedings against two out of a number of named defendants in difficult proceedings now before this Court. The application was brought under O.19, r.28 RSC 1986. The judgment of this Court upheld the High Court order in part, but reversed in part. It considered the case against each of the moving parties in the motion individually, and distinguished the circumstances. It held the case against one defendant should be struck out under the Rules, but that the case against the other defendant should be remitted back to the High Court for re-hearing. It is relevant to this appeal, in that it shows that, in order to make a just order, an appeal court, as well as looking at the fact of an adjournment, is also entitled to consider the substance or merits of the case which has been struck out.
A Range of Orders
28. The jurisprudence, therefore, establishes a spectrum of instances where, when appropriate, or on appeal, a court may simply remit a case to the High Court for consideration, or, alternatively, having considered the issue raised in the pleadings (O. 19, r.28), or by the case more generally , (inherent jurisdiction), make whatever order is appropriate.
29. It is well established that the jurisdiction of the courts to strike out proceedings falls under two general headings. First, under O.19, r.28, a court may direct a stay or dismiss an action where a statement of claim fails to disclose a reasonable cause of action. Similar considerations may apply where what is pleaded does not amount to a defence. Additionally, proceedings may be struck out if they are frivolous or vexatious. (c.f. the discussion in Tracey v. McDowell , cited earlier). The inherent jurisdiction of the Court to strike out proceedings involves a somewhat broader scope of inquiry, which is not confined to the pleadings. The jurisdiction is to be exercised sparingly, and only in clear cases. If, having considered the case, a court is satisfied that a plaintiff's case must fail, then it is a proper exercise of its discretion to strike out or dismiss proceedings, the continued existence of which cannot be justified, and which may manifestly cause irrevocable damage to a defendant. The order in this case was based on inherent jurisdiction. On the basis of the defence raised under s.18 of the 1961 Act, he concluded that the appellant's case was "bound to fail".
Case Law
30. There is considerable jurisprudence on this topic. In Lac Minerals v. Chevron Mineral Corporation , the High Court, 6th August, 1993, a judge acceding to an application to dismiss must be confident that, no matter what may arise on discovery or the trial of the action, the plaintiff's claim cannot succeed. (Approved in Supermacs Ireland Limited v. Katesan (Naas) Limited [2000] IESC 17; [2004] I.R. 273, 277; Lawlor v. Ross [2001] IESC 110, at 9, per Finlay J.; Superwood Holdings Limited v. Ireland [2005] IEHC 232; [2005] 3 IR 398; AF v. SF [2007] 4 IR 326, 322; Salthill Properties Limited v. Royal Bank of Scotland Plc. [2009] IEHC 207, at 7). But a court will exercise caution if it considers a claim would admit of amendment which might "save" it and the action founded on it. (See Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425, at 438, McCarthy J., and see, generally, Civil Procedure in the Superior Courts, Fourth Edition, Delaney & McGrath, Chapter 16.12, et seq.). In particular, a claim will be struck out where, on admitted facts, or undisputed evidence, it is clearly unsustainable or bound to fail. (See DK v. King [1994] 1 I.R. 166; O'Neill v. Ryan [1993] ILRM 557, 561; Ennis v. Butterly [1996] 1 IR 426, 430). However, this may be a difficult test to satisfy, as it will be necessary for the moving party - defendant to establish that the plaintiff's claim cannot succeed. A court should make clear whether it is exercising powers under the Rules, or under inherent jurisdiction.
A Balancing Process: First Consideration
31. As pointed out in Tracey v. McDowell in 2016, the High Court should carry out a balancing exercise, involving an assessment of two main points: first, the prior conduct of the litigant, and the explanation for non-attendance.
32. In an extreme case, a court will be justified in dismissing a case where there is an unexplained, or insufficiently explained, absence of a litigant. But, as alternatives, a court may also wish to consider whether a case will stand dismissed, unless a party complies with orders made by a court, or direct that an order be stayed until a particular date. Ancillary orders might comprise directions which are strictly time limited, or a striking out, or adjourning generally, with any application for re-entry to be entered by way of a notice of motion brought on cogent affidavit evidence with exhibits justifying what non-attendance and showing the case is at least arguable.
33. Since the time of the delivery of the judgments of this Court and the Court of Appeal cited earlier, the courts will now closely scrutinise applications for adjournment arising in circumstances such as these. Litigants should not assume that a court will simply adjourn a case in their absence. A court may make such orders as are in the interests of justice. A "bare minimum" medical report, or inadequate explanation, will not suffice as an explanation.
Second Consideration
34. As a second consideration, in situations such as this, a court may also consider the case itself with a view to determining whether or not the case can succeed? If a case simply cannot succeed, then, even if there is unexplained, or inadequately explained, non-attendance, a court may be justified in making whatever order is just; but should still bear in mind the principle of proportionality, that is, whether a more limited or nuanced order, rather than outright dismissal, might be justified. But, if a court does conclude that there is at least an " arguable " case, does not, of course, mean that an application to strike out in the absence of a litigant should be simply refused; rather, the duty is to assess what appropriate order should be made, having regard to the circumstances of the case. But it must be remembered that, at the extreme end of the spectrum, a court will retain the power to strike out or dismiss a claim outright for a failure of compliance, or unexplained non-attendance.
35. All litigants must understand that the same rules will apply to every party, whether they are represented or not. Cases will not be permitted to come to a halt, simply because litigants fail to appear, or fail adequately to explain their absence.
36. There is, too, a further consideration. Litigation involves the expenditure of time and money. In considering an application, either to strike out or re-enter, a court may make such order as to costs as shall be appropriate.
Assessment of this Case: A First Consideration
37. In this case, the evidence covering non-attendance and illness is similar to that to be found in the judgment delivered by Clarke C.J. in Tracey v. McDowell in 2016. But, additionally, there is another time consideration; that the events which now fall for consideration by this Court pre-dates the judgments of this Court in McDowell , and judgments of the Court of Appeal in Kildare County Council v. Gerard Reid [2018] IECA 370; and Hanrahan v. Gladney [2018] IECA 403). Each of these judgments lay renewed emphasis on the duty of a litigant to fully provide a court with the necessary information in the event of illness or indisposition. Seen in this context, the conduct of the appellant seen within the relevant timeframe was not so extreme as in itself to require that, ipso facto , the proceedings be dismissed outright. The President did have before him material which, albeit insufficient, sought to give some explanation as to the reasons for the appellant's absence. It is necessary to consider the second test, that is, whether the case had any conceivable chance of success.
Assessment of this Case: Second Consideration
38. The second consideration must be whether this is an arguable case? Counsel for the respondents has put his case with force. He submitted that the President correctly held the defence of absolute privilege, pursuant to s.18 of the 1961 Act, and its successor, manifestly applied, and provided a complete defence to the claim. Counsel submits that the unchallenged evidence before the High Court included an affidavit from the relevant journalist, Tim Healy, which was to the effect that the publication was, in fact, contemporaneous report, which accurately described proceedings which had been publicly determined by a court in the jurisdiction.
39. Counsel points out that the President did not "strike out" the proceedings because of the appellant's absence, but rather because he was satisfied that the proceedings were bound to fail, having regard to the "obvious" applicability of the then s.18 of the 1961 Act. He emphasises that, even now, the appellant has not ever sworn a replying affidavit, or engaged substantively with the matter of the application that these proceedings were bound to fail. Counsel submits that the only evidence before the court is that the report in the newspaper was fair and accurate . This is true, insofar as it goes. But these issues are not questions of evidence, but rather matters of law. There are a number of questions. These include:
40. While the Court has been referred to legal authorities, such as the High Court decision on the issue of privilege, Philpott v. Irish Examiner [2016] IEHC 62, Barrett J., I am not persuaded that the legal precedents entirely assist the case which counsel must make. The article in question said that the appellant had been " convicted of assaulting " a neighbour. At another point, it is said the judge granted leave to appeal, saying that, even though there was no penalty, " the Probation Act was still a criminal conviction. " But it is, at least, arguable s.1(1)(i) of the Probation of Offenders Act, 1907 provides that a District Court may, in certain circumstances, hold that it is " inexpedient " to proceed to a conviction, and may make orders without proceeding to conviction. Whether the report is, therefore, "fair or accurate" is, therefore, a point where, at least, an argument can be made. It cannot be sufficiently emphasised that this judgment does not purport to determine the law on the issue; there are many counter arguments, perhaps very strong ones.
41. It is sufficient to say that I think, on this occasion, the President erred when he decided simply to dismiss the case as having no chance of success. It is arguable that it has some chance of success, though I go no further. In the circumstances, the President should have given consideration to an order with lesser effect.
42. Under the Rules of the Superior Courts, as recently amended, this Court is entitled to substitute its own order for an erroneous High Court order. But I do not think this is an appropriate case to apply that rule. The legal issues in question are of some significance, and concern both the rights of these parties, but also, potentially, concern the broader rights of newspapers and other media to publish material contemporaneously or otherwise, with court proceedings. Additionally, there is the issue of the extent of the protection in this article, where the question of what was said in court, and the extent of privilege in that situation, also may arise. The parties are entitled to have these issues determined by a court of first instance.
An Observation
43. The law of defamation is legally quite complex. Mr. Tracey has some experience of the courts, though I go no further. He has chosen to represent himself in this case. As matters stand, he is entitled to make that choice, even in an area of legal complexity. But the legal issues which arise here may have application well beyond this case. The issue of press freedom is fundamental to a democratic society. The extent of legal protection for the media in coverage of court proceedings now goes beyond the scope of s.18 of the 1961 Act, and comes under s.17 of the Defamation Act, 2009. The meaning of the terms "fair and accurate" is a significant legal issue in this context, and generally, both to the public and the media. Whether the interests of justice, and the public interest, will best be served when a litigant in person is asked to argue an important and complex legal issue must be an open question, which itself may raise constitutional and ECHR issues.
44. The balance of justice requires that this important issue should be remitted to the High Court for determination in accordance with law. This judgment and the order proposed does not, in any sense, predetermine an outcome. The respondents remain entitled to remake their case on this notice of motion in the High Court. The appellant, in turn, is now well on notice of the case which the respondents wish to advance. The High Court may be asked to make orders and determinations not arising from the notice of motion. But what tilts the balance in this appeal is that the case is, in fact, not "doomed to fail", although again I refrain from going any further. For the avoidance of any doubt, I should add that, if the application or order had been framed within the terms of Order 19, Rule 28, I would have reached the same conclusion.
45. The proceedings should not be allowed to linger further. The decision of the Court on this appeal is based on very narrow grounds, as outlined. I would, therefore, allow this appeal, for the reasons set out in this judgment.
Some general observations
46. I take the opportunity at the conclusion to make a number of more general observations, reflecting what is contained in the Rules of the Superior Courts, and in the jurisprudence of the courts. These observations are not some form of imposition, but express views on what is sometimes necessary in a common law system, to protect the rights of litigants and the public.
47. It needs reiteration and emphasis that the courts are entitled to take such steps as they are obliged under the Rules, the law, the Constitution and the ECHR, in order to protect the integrity of their own processes. But this duty also devolves on the parties to a case. Bringing legal proceedings imports duties, obligations, and consequences, as well as rights. First, the right includes a constitutional right of access to the courts. But there are, too, duties, and litigation is not a one-way or cost-free activity. Unsuccessful parties, be they plaintiffs or defendants, represented or unrepresented, may be obliged to face applications for costs which may be followed by the consequences of enforcement or execution of such orders. Parties incur costs in defending unmeritorious litigation. Second, only necessary parties should be sued in a legal proceeding. Parties who are joined unnecessarily should apply to be taken out of proceedings at the earliest opportunity. Third, as has been said before, the courts may assist litigants, whether represented or not, by requiring them to put their case succinctly in writing, and also, where necessary, ensuring compliance with strict time limits in making submissions or filing affidavits. Fourth, submissions, pleadings, or affidavits, which are prolix, verbose, or irrelevant to the issues in the case, should be struck out. Fifth, it is necessary to remember that, in a common law system, parties are not only entitled to, but should, make early applications to give effect to these duties. This should be done promptly. Parties should resist the temptation simply to let a case linger, or leave dealing with issues of this type to a time when a case may revive, at greater cost. Sixth, submissions should be addressed to the court in clear language. They should concern only legal issues which are recognised under the law of the State. Seventh, courts retain the power to strike out proceedings for abuse of process, which may generally arise in the form of vexatious, oppressive, or repeated litigation of the same issue under different guises. (See Riordan v. Ireland (No. 5) [2001] 4 I.R. 463). It follows, therefore, that a litigant, whether represented or not, who engages in repeated conduct in contravention of these Rules faces the possibility of a response from other parties, and a proportionate order from the courts. I take the opportunity to make these observations, not in the context of this case, but more generally in the light of some recent experience of cases coming before the courts.
