The Supreme Court has dismissed Dermot Desmond’s defamation proceedings against M.G.N. Limited, publisher of the Irish Mirror, after allowing the company’s appeal over a lengthy delay in prosecuting the case. The ruling did not determine whether the articles at issue were defamatory.
The case arose from Irish Mirror articles published on 8 and 9 January 1998 about claims concerning Desmond and former Taoiseach Charles Haughey. Desmond’s solicitors sought an apology and damages, and he issued proceedings in May 1998. M.G.N. delivered a defence in February 1999, pleading, among other matters, no libel, justification and fair comment. The pleadings then closed, and the case remained inactive until Desmond served a notice of intention to proceed in February 2005.
M.G.N. applied to dismiss the claim for want of prosecution. The High Court found the delay inordinate but excusable and refused the application on 11 July 2005. On appeal, Desmond’s counsel said he had chosen to “park” the proceedings while awaiting the Moriarty Tribunal’s examination of matters covered by the articles. M.G.N. had not been told of that decision.
Delivering judgment on 15 October 2008, Mr Justice Kearns held that the delay was both inordinate and inexcusable. He said a defamation plaintiff has a particular responsibility to pursue proceedings promptly, and that waiting for the outcome of a tribunal was not a valid excuse for leaving the case dormant. He also found that the High Court had not considered the requirement, under the European Convention on Human Rights, that cases be heard within a reasonable time.
The Supreme Court was not persuaded by most of M.G.N.’s claims of specific evidential prejudice. It questioned whether the deceased Haughey or several former newspaper employees would have assisted the defence, and accepted that the missing reporter’s notes might have had little relevance because the articles drew on material published elsewhere. However, it considered that the passage of time had created general prejudice: a jury would have to assess events from the late 1980s and early 1990s, and the court said changing levels of defamation damages added uncertainty for the defendant.
Taking the delay, the lack of notice that the case had been parked and the resulting prejudice into account, the court concluded that the balance of justice favoured M.G.N. It allowed the appeal and dismissed the proceedings for want of prosecution. The court did not decide the merits of the defamation claim or finally determine whether M.G.N. would rely on its pleaded justification defence.