The High Court has refused Michael Maher’s request to set aside a notice directing that his dispute with Malcomson Law be tried by a judge sitting alone. The ruling concerns how the case will be tried; it does not determine whether any alleged defamation, unlawful picketing, negligence or breach of fiduciary duty occurred.
The firm’s solicitors, Raymond Bradley, Terence Doyle and Patricie Crosbie, practising as Malcomson Law, sued Maher over a dispute about the administration of his late uncle’s estate. The firm alleged that placards used in picketing and posts on the Rate Your Solicitor website falsely accused it of withholding €150,000 from the estate for more than five years, among other claims. It also alleged that website posts encouraged further picketing and disclosed personal details of firm members. These remain allegations in the judgment.
In October 2008, the firm obtained an interlocutory injunction restraining Maher from making further website entries, picketing or besetting its premises, and distributing leaflets about matters concerning the parties. The firm’s claim seeks damages for libel and slander, damages and other relief concerning alleged interference with its premises and business, and costs and interest. Maher filed a defence and a counterclaim seeking damages for negligence and breach of fiduciary duty.
Maher argued that he was entitled to a jury trial at least on the defamation claims. The judgment recognised that defamation claims in the High Court ordinarily carry a jury entitlement, but said the court has discretion over how related claims in one set of proceedings should be tried. It considered three options: a single trial without a jury, separate jury and judge-only trials, or a hybrid trial in which a jury would decide some issues and a judge others.
The judge found a significant likely overlap between the evidence on defamation, the firm’s other claims and Maher’s counterclaim. Separate trials risked repeating evidence, wasting court time and expense, and creating difficulty if a judge later had to assess facts already considered by a jury. A hybrid trial also risked requiring witnesses and evidence to be revisited and could leave the judge uncertain about the precise factual basis for the jury’s conclusions.
The court was not satisfied that the claims had been joined improperly to deprive Maher of a jury trial. It also said his status as a litigant in person did not affect the decision on trial format. Concluding that a single trial without a jury was the fair course, the judge declined to set aside the notice of trial. The judgment made no determination of liability or the counterclaim’s merits.