The Court of Appeal has allowed Kevin Tracey’s appeals against orders for preliminary hearings in four defamation actions against newspaper publishers and journalists. It held that the dispute over whether the articles fairly and accurately reported District Court proceedings should be addressed in the trial process, rather than decided in a preliminary hearing on the record before it.
The cases arise from articles published on 17 September 2004 about an assault prosecution against Tracey the previous day. The articles said he had been convicted and dealt with under the Probation Act. Tracey’s claim is that the charge was dismissed without a conviction and that the reporting, including a photograph in one publication, was malicious. Those are allegations, not findings in this appeal.
The District Court order, drawn up in 2008, recorded that the facts were proved but the charge was dismissed without proceeding to a conviction under the Probation of Offenders Act 1907. The Supreme Court in 2019 set aside earlier High Court orders dismissing the actions as bound to fail and remitted the cases for rehearing. It said the legal issues concerning privilege were arguable, without deciding them.
On remittal, the newspapers sought preliminary hearings on whether the publications were protected by statutory or common-law privilege. The High Court granted those orders. The Court of Appeal found there was no procedural irregularity in the newspapers reformulating their motions after the Supreme Court remittal. However, it held that the High Court erred in directing the preliminary hearings.
The Court of Appeal said the material before it disclosed a factual dispute about what the District Court judge said and whether the articles accurately reflected the hearing. It also noted Tracey’s objections to material in the articles beyond the account of the assault proceedings. Whether a report was fair and accurate is ordinarily a question for a jury where there is some evidence of unfairness or inaccuracy; the trial judge must first decide whether that threshold is met. The Court of Appeal did not determine whether the articles were fair or accurate.
The court also distinguished the proceedings on the pleadings. The Irish Times action had a defence on file, allowing that publisher to seek a preliminary point under Order 25, rule 1. The other three actions did not have defences properly served for that purpose. The court did not finally decide whether a preliminary hearing could be ordered under Order 34, rule 2 or the court’s inherent jurisdiction, but said such a step in defamation cases would require exceptional circumstances, agreed facts and a clear legal issue. It found those conditions were not present.
The appeal court did not decide whether the publications were defamatory, whether privilege applied, or whether any privilege was absolute or qualified. It said the latter question is for a judge, while factual questions remain for the jury where appropriate. Tracey was presumptively entitled as a litigant in person to reasonable outlay and out-of-pocket expenses. The newspapers were given 14 days to make written submissions seeking a different costs order; Tracey would then have a further 14 days to respond.