Out of time: Nóirín O’Sullivan -V- Irish Examiner
By Darryl Broderick
22 November, 2018
Earlier this month, the High Court (Judge Pilkington) refused former Garda Commissioner Noirin O’Sullivan an extension of time within which to issue defamation proceedings. Ms. O’Sullivan had consciously decided to delay issuing defamation proceedings due to a set of circumstances that she was dealing with at the time of and after the publication the subject matter of her intended defamation proceedings.
The Irish Examiner, for whom Ronan Daly Jermyn acted, published an article on 4 October 2016 in relation to protected disclosures that had been made by members of An Garda Siochana, which alleged that senior Garda management conducted a campaign to “destroy” a whistleblower within the force. Ms. O’Sullivan was not named in the article. The Irish Examiner did not receive a complaint relating to the article until September 2018 and an application was issued the same month seeking an extension of time to issue defamation proceedings outside of the one year statutory time limit set out in the Defamation Act, 2009. Ms. O’Sullivan’s reason for not issuing proceedings within the statutory time limit was that she did not believe that she was in a position to consider any steps she might take in relation to the article until the conclusion of the public hearings of the Disclosures Tribunal.
The Defamation Act, 2009 requires that defamation proceedings are issued within 12 months from the date of publication or “such longer period as the Court may direct not exceeding two years”. The Act also provides that the Court may not extend the time within which to issue proceedings unless it is satisfied that:
(a) "The interests of justice require the giving of the direction; and
(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”.
The Act goes on to provide that in deciding whether to give such a direction the Court shall have regard to the reason for the failure to bring the action within the one year period and the extent to which any evidence relevant to the matter is, by virtue of the delay, no longer capable of being adduced.
Legal Submissions of the Parties
Counsel for Ms. O’Sullivan argued that even if the Court found that the reason for the delay was inexcusable it could nevertheless grant the extension of time if it considered that the interests of justice required it and that the balance of prejudice favoured the applicant. That no argument was being advanced that there was any evidence relevant to the matter which was no longer capable of being adduced by virtue of the delay. It was also clear that Ms. O’Sullivan became aware of the publication immediately after the date of publication. The Irish Examiner argued, amongst others, that it had a good defence to the proceedings and if the intended proceedings were issued they would not provide the vindication the applicant was seeking but rather revolve around nuanced debates of meanings as to whether the applicant was identified in the article or whether the articles were published in the public interest etc.
The Judge found the facts of this case distinguishable from other similar applications that had come before the High Court since the enactment of the Defamation Act, 2009. Unlike those other cases, the applicant was aware of the publication immediately after the article was published, had access to legal advice and was not unaware of the time limits for issuing defamation proceedings. The Court noted that in none of those other cases was there a finding of an inexcusable delay but nevertheless a determination that the interests of justice and the balancing of the respective prejudices could nevertheless result in a direction to dis-apply the one year statutory time limit.
As regards the balance of prejudice, the Judge found that both parties would be prejudiced because if the extension was granted the newspaper would be facing a defamation claim and would not be able to rely on the statute of limitations defence. Conversely if the extension was refused the plaintiff would be denied the opportunity to pursue her defamation proceedings.
In deciding to refuse the application, the Judge had regard to the reasoning behind the one year extension period and the impact of a longer statutory period on freedom of expression. While the Judge accepted that the reasons for delay advanced by the applicant were sincerely and genuinely held she found they were insufficient to dis-apply the one year statutory time limit. The Judge stated that “to make a decision not to deal with matters within a time limit imposed by a statute is in my view an insufficient reason to now grant an extension of it.
While the facts of this case are different to other cases in which similar applications have been made, the result was the same. The High Court has consistently refused to grant an extension of time to applicants who have failed to issue proceedings within 12 months of publication. That is not to say there will never be circumstances in which an extension of time will be granted. However, it seems those situations will be few and far between. Certainly, this decision shows that any person who makes a conscious decision not to issue defamation proceedings within the 12 months’ time limit does so at their peril.