The High Court has upheld an extension of time for John O’Brien to pursue a defamation claim against his brother, Conor O’Brien, over an alleged complaint to An Garda Síochána that John O’Brien forged a land transfer.
Ms Justice Ní Raifeartaigh ruled on 4 July 2019 that the interests of justice required the extension. She also found that the prejudice John O’Brien would suffer without it significantly outweighed the prejudice to his brother. The decision concerns the time limit for bringing the claim; it does not decide whether the allegation was defamatory or whether it was true.
The dispute arose from transfers of land in Clondalkin, County Dublin. The judgment records that Conor O’Brien had brought proceedings in 2008 alleging fraud in connection with the transfers, but those proceedings appear to have been discontinued that year. In March 2017, John O’Brien became aware of a complaint to Gardaí alleging that he had forged the transfer in 1996. The judgment says the Garda file was sent to the Director of Public Prosecutions, who directed that no prosecution be brought.
John O’Brien also complained of statements made during a July 2017 call to Dolmen Securities, which administered his mother’s account under a power of attorney. Those statements allegedly referred to irregularities with the power of attorney, his mother having dementia when it was obtained, and the “fraud squad”. The court records that a claim concerning the July communication was within the applicable time limit. The application before the High Court concerned whether the separate March 2017 allegation could also be included.
The statutory time limit was one year from publication, with a court able to extend it up to two years if the interests of justice required and the balance of prejudice favoured the plaintiff. The court treated the extension application, issued in June 2018, as stopping time. The one-year limit for the March 2017 communication had expired about three months earlier.
John O’Brien said he delayed because he was reluctant to sue his brother and hoped to avoid taking a bitter family dispute into public litigation. The judge considered that explanation valid in the circumstances. She also noted that the defendant had not asserted that relevant evidence had become unavailable because of the delay, and that the July claim meant some of the family dispute would be litigated in any event.
The defendant’s solicitor had submitted that the communications were protected by qualified privilege and that malice would be denied. The judge said those competing positions could not be resolved on the evidence then available and would remain for trial. She granted the extension after considering the short delay, the gravity of the alleged forgery, the connection between the two communications and the defendant’s refusal to undertake not to repeat the allegation. The judgment does not determine the eventual outcome of the defamation action.