Court of Appeal: Limitation Period in Defamation Proceedings

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Introduction

The issue of the limitation period of a defamation claim was considered by the Court of Appeal in the decision of Ms. Justice Maire Whelan in Morris v Ryan [2019] IECA 86 in which Orpen Franks acted for the respondent.

Background

The Appellant’s claim in defamation arose from an incident which occurred in February 2010 in a Dublin hotel. In the High Court, the Appellant alleged that he was defamed in front of a number of witnesses while in the hotel.

The Appellant issued a Plenary Summons on 25th January 2012 (almost two years after the cause of action).  Orpen Franks promptly entered an appearance on 1st February 2012 stating that the defamation action was statute barred and inviting the appellant to file a Notice of Discontinuance in relation to the case. The Appellant took no further step to prosecute the case until January 2013 in the context of separate litigation.

The Law

Under the Defamation Act 2009, by default, the limitation period for taking an action is one year after the publication (by any means) of the defamatory statement. However, section 38(1) (a) of the Defamation Act 2009 amended section 11(2) (c) of the Statute of Limitations Act, 1957 allowing a Court to extend the limitation period to two years if it is satisfied that an extension is required in the interests of justice and where the prejudice suffered by the plaintiff would significantly outweigh the prejudice to the defendant.

High Court

The High Court found that there was “no cogent or sustainable reason as to why proceedings were not issued within one year of the date of the accrual of the action” and that asking the court for such a direction (in 2016) was unstateable and an abuse of the courts process.

Accordingly, the Appellant’s motion for a direction that he be permitted to proceed with the defamation proceedings issued outside of the one-year period of limitation, was refused. The High Court also imposed an Isaac Wunder order on the Appellant in order to restrain him from instituting further legal proceedings against the Respondent.

Court of Appeal/Limitation Period Defamation

The case was appealed where the Appellant argued, inter alia, that the determination of the High Court had “failed to consider the entire evidence before the Court”. The Respondent disputed this and contended that the issue for determination was whether the High Court was correct in determining that the Appellant’s proceedings were statute barred.

In her Judgment, Ms Justice Whelan noted that the common law historically recognised a distinct cohort of cases where the expiry of the period of limitation extinguished the Appellant’s right entirely.  The learned Judge noted that defamation suits, however, fall clearly within the category of cases where the operation of the Statute of Limitations extinguishes only the remedy, leaving the right of action otherwise untouched.

Ms Justice Whelan found that, even by the standards that obtain in ordinary litigation, the delays in this case were very substantial and the lack of vigour in instituting proceedings called for an explanation.

The Appellant was found to be “gratuitously dilatory” in allowing the primary limitation period to expire without issuing a plenary summons. The jurisprudence from the Courts of England and Wales make it plain that, in defamation proceedings, where the purpose of the legal action is a vindication of a plaintiff’s reputation, there is an onus on the plaintiff to proceed with speed.

Weighing Prejudice

Ms Justice Whelan weighed the respective prejudice to the Appellant and Respondent if the direction was given to permit the defamation claim to proceed. The Appellant would be deprived of the opportunity to pursue his defamation claim.

On the other hand, the prejudice to the Respondent were the extension of time to be granted would be very significant – and a defendant is entitled not to have to defend stale proceedings. Ms Justice Whelan found the delay in taking the defamation action to be overwhelming and, accordingly, the decision of the High Court was upheld.

Conclusion/Isaac Wunder Order

It was noted that the constitutional right of access to the courts is not an absolute one and, with evidence that the appellant habitually and persistently instituted proceedings of a frivolous or vexatious nature against the Respondent and entities connected with him, Ms Justice Whelan found that the making of the Isaac Wunder order to be both proportionate and necessary.

Brian Kitt

Daragh O’Donovan
Partner
Tel.:+353 1 637 6200
Email: Daragh.ODonovan@orpenfranks.ie

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