The High Court has set aside a default judgment against Proton Technologies AG in a defamation case brought by DRM Contract Administration Limited, finding that the proceedings had not been served in accordance with the rules. The court also set aside an earlier order requiring the company to identify the user of an email account, while allowing the plaintiff to renew its summons so it can serve the proceedings properly.
The dispute concerns two emails, allegedly sent through Proton’s email service in May and August 2018 under the pseudonym “ConcernedTaxPayer11”. The emails allegedly accused the plaintiff company’s managing director, Darragh Quinn, of fraud and conflicts of interest relating to the N56 Kilkenny to Letterilly road project. Those allegations have not been determined in this case.
The plaintiff began proceedings in October 2018, seeking damages for defamation, including aggravated and exemplary damages. The summons was sent to Proton in Switzerland by email and tracked post. Although Proton received it, the plaintiff had not used the prescribed procedure for service abroad and had sent the summons itself rather than notice of the summons.
Proton did not enter an appearance. The court said the company had made a tactical decision to ignore the case, expecting the Irish courts to dismiss it on their own initiative, and described that conduct as disrespectful to the process. In July 2020, the court entered judgment in default of appearance, leaving damages to be assessed. Proton later applied to set the judgment aside.
Justice Garrett Simons found the service irregular. He also considered the alternative question of whether the judgment should be set aside even if service had been effective. At this stage, he was satisfied that Proton had a credible defence with a real chance of success under Irish rules implementing the EU Electronic Commerce Directive. Those rules may exempt intermediary service providers from damages liability for certain transmission or temporary storage of information. The judge did not finally decide whether Proton qualifies for an exemption or whether it is liable for defamation.
The court set aside the default judgment under Order 13, rule 11 and Order 13A. It also set aside the Norwich Pharmacal disclosure order made in January 2019, finding that the proceedings had not been properly served and that the requirements for that order had not been met.
The plaintiff was granted leave to renew its summons. The court said this would give it an opportunity to serve the case in accordance with the rules and preserve the benefit of the original October 2018 filing date for limitation purposes. The court’s stated view was that the plaintiff should receive the adjudicated costs of the earlier applications; it invited written submissions on the costs of the two motions and listed the matter for final orders on 20 October 2021.