The Supreme Court has allowed Kevin Tracey’s appeal against the dismissal of his defamation action over an Irish Times report, finding only that the claim was arguable and should be considered by the High Court.
The judgment, delivered by Mr Justice John MacMenamin on 30 July 2019, concerned a report published on 17 September 2004. It said Tracey had been “convicted of assaulting” a neighbour after a District Court case, and referred to an earlier noise nuisance action he had brought against his neighbour, Circuit Court Judge Michael White. The newspaper misspelled Tracey’s surname throughout.
Tracey’s claim was that the report damaged his good name and professional reputation. He argued that the District Court prosecution had been dismissed under the Probation of Offenders Act 1907, so he had not been convicted. The newspaper and the other defendants relied on statutory and common law privilege for fair and accurate reports of court proceedings. They said the article was a contemporaneous and accurate account.
The High Court dismissed the proceedings in October 2011, after refusing an adjournment sought on Tracey’s behalf. It ruled that the claim was bound to fail because the report was protected by section 18 of the Defamation Act 1961. Tracey appealed, raising whether the High Court was entitled to proceed in his absence and whether it was right to dismiss the case.
The Supreme Court said the material before the High Court offered some explanation for Tracey’s absence, though it was insufficiently detailed. Given the timing of the events and the legal guidance then available, his conduct did not by itself require outright dismissal. The court then considered whether the claim had any arguable chance of success.
It identified unresolved legal questions, including whether the privilege was absolute or qualified and whether it covered the entire article. The court said it was at least arguable that the Probation of Offenders Act allowed a court to make an order without proceeding to conviction, and that the accuracy of the newspaper’s wording could therefore be debated. It stressed that it was not deciding the law or the merits of the defamation claim, and noted there were counterarguments.
The Supreme Court allowed the appeal on narrow grounds and remitted the case to the High Court for determination in accordance with law. The defendants remain entitled to renew their application to dismiss the proceedings. The judgment did not determine whether the article was privileged, whether it was defamatory, or the ultimate outcome of the case.