The High Court has allowed John McAuley’s defamation action against journalist Brenda Power and Times Newspapers Ltd to proceed on some of the meanings he says were conveyed by a Sunday Times article. It struck out two pleaded meanings, but refused the defendants’ application to dismiss the rest of the claim.
The judgment, delivered by President of the High Court Kearns P. on 27 April 2012, concerns an article published after McAuley’s Circuit Court action over filming during the birth of his daughter. That earlier action sought damages for breach of contract against a midwife and Mount Carmel Hospital. The Circuit Court dismissed it at the end of McAuley’s case. Its judge described the events as an emergency medical procedure and found McAuley’s evidence incapable of establishing a breach of contract.
Power’s Sunday Times article criticised McAuley’s decision to film during the birth and described the circumstances in which the baby needed emergency intervention to breathe. McAuley’s statement of claim alleged that the article meant, among other things, that he had shown no care for his partner or baby, had failed to comfort his partner, and had acted selfishly and irresponsibly. Those were pleaded allegations, not findings in the High Court judgment.
The defendants asked the High Court to strike out or dismiss the claim, arguing that the pleaded meanings were not reasonably capable of being defamatory. They also argued that the article was privileged as a report of court proceedings or was fair comment.
Kearns P. held that the pleaded meanings that the newborn baby had failed to breathe while McAuley continued filming, and that he had acted “immorally”, could not carry a defamatory meaning. The court struck out those portions of the claim. The remaining pleaded meanings were capable of being defamatory, the judge ruled, but it would be for a jury at trial to decide whether the article did convey them.
The judge rejected the claim of privilege for reporting court proceedings, finding that the article was commentary prompted by the case rather than a contemporaneous report of it. He also declined to decide at this stage whether the defence of fair comment would succeed. The court said that issue, including disputes raised about the article’s subject and alleged malice, should be left for trial.
The defendants’ application was therefore refused except for the portions of the statement of claim the court struck out. The judgment did not decide whether the surviving meanings were in fact conveyed or whether the defendants would ultimately be liable.