THE SUPREME COURT
[Supreme Court Record No. 456/2011]
[Court of Appeal Record No. 2014/325]
[High Court Record No. 2008/11103P]
MacMenamin J.
Dunne J.
Peart J.
KEVIN TRACEY
PLAINTIFF/APPELLANT
V.
INDEPENDENT NEWSPAPERS (IRELAND) LIMITED,
GERRY O'REGAN, STEPHEN REA, AND TIM HEALY
DEFENDANTS/RESPONDENTS
Judgment of Mr. Justice John MacMenamin dated the 30th day of July, 2019
Background
1. This judgment should be read in conjunction with the judgment delivered today in proceedings entitled Kevin Tracey, plaintiff/appellant v. Irish Times Limited, Geraldine Kennedy & Eoin McVeigh , defendants , High Court Record No. 2008/11101P, Supreme Court Record No. 454/2011, [2019] IESC 62. The appeal relates to an article published in the Evening Herald on Friday, 17th September, 2004. The article, accompanied by a photograph, was printed on an inside page of the Evening Herald. It was headed "Silly Incident: Judge uses Probation of Offenders Act, 1907 after row over street football". Beneath that was the sub-heading "Assault by noise action neighbour". The text of the article read:
"A man who last year took a noise nuisance action against his neighbour, Circuit Court Judge Michael White, has been convicted of assaulting another neighbour.
Kevin Treacey [sic], an engineer from Park Lane, Chapelizod, Dublin, was given the Probation Act because the assault was of a minor nature, Judge Michael Connellan ruled. In March of last year, Mr. Treacey was ordered to pay the €1,500 legal costs of an aborted noise nuisance action against his next door neighbour, Judge 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.
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.
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 nearby Phoenix Park.
The ball eventually hit one of Mr. Treacey's windows, though not breaking it, and he went out and picked up the ball. Mrs. Skinner asked for the ball back, and during the confrontation she was pushed by Mr. Treacey, who denied touching her.
Judge Connellan said it was a case that arose out of "something very silly".
"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 said.
The judge granted leave to appeal, saying that, even though there was no penalty, the Probation Act was still a criminal conviction."
2. The appellant, Mr. Tracey, pleads the article was false and malicious, and falsely stated he had been convicted of assault. Mr. Tracey pleads that the article contained extraneous matters which have nothing to do with the case of assault brought against him, and which was dismissed under the Probation of Offenders Act, 1907. He submits that the newspaper interlaced its reportage of the case at hand with several references to the extraneous matters. He says that to aggravate the injury, it is also stated in the article that he was convicted of assaulting another neighbour, when the Probation of Offenders Act, 1907 was applied.
3. There are significant differences in the correspondence which took place between the appellant and the respondents in this case. I do not think it is necessary to outline these for the purposes of this judgment.
4. Again, the issue is as to the nature of the order which should be made, bearing in mind the principles and considerations outlined in the Irish Times judgment delivered today. To my mind, there is no significant distinction to be drawn between the relevant considerations arising here on this motion, and the other cases, even though there are small divergences in the text, and the coverage also contains a photograph of the appellant. The headlines obviously differ. But, in its essentials, the considerations and circumstances remain the same. The general considerations applicable are the same as those contained in the Irish Times judgment.
5. For the same reasons set out in the Irish Times judgment, I would hold that the President of the High Court erred in that regard, that the appeal be allowed, and the motion remitted to the High Court for hearing. The same observations as are made in the Irish Times judgment as to the rights and entitlements of the parties are also applicable in this case, as they are in each of the defamation appeals, identified in the Irish Times judgment.
6. For these reasons, therefore, I would remit the matter to the High Court for re-hearing.
