The High Court has dismissed an appeal by a man whose Circuit Court defamation claim was struck out after he alleged that his former partner’s new partner made a defamatory statement during a child welfare investigation.
In an ex tempore judgment delivered on 28 June 2018, Mr Justice Noonan affirmed the Circuit Court order. He held that the claim was an abuse of process because it arose solely and directly from family proceedings held in camera. He also concluded that the alleged statement was covered by absolute privilege.
The judgment anonymises the parties as R.C., the plaintiff, and K.E., the defendant. It refers to the plaintiff’s former partner as K.B. and their child as A.B. After the relationship ended, K.B. formed a relationship with K.E.
District Court family proceedings concerning custody and access to A.B. included an order under section 20 of the Child Care Act 1991 for an investigation into the child’s circumstances. The Child and Family Agency, also known as TUSLA, appointed a social worker to conduct it.
The plaintiff alleged in his civil bill that K.E. told the social worker he had previously abducted a woman and detained her without consent for several days. He further alleged that the social worker later disclosed this information to him. The plaintiff then brought defamation proceedings in the Circuit Court.
K.E. applied to strike out the claim, arguing that it breached the in-camera rule and was an abuse of process, and that the alleged statement was absolutely privileged. The Circuit Court dismissed the claim. On appeal, the plaintiff argued that striking it out before a defence had been delivered was premature. Mr Justice Noonan rejected that argument, holding that a defence was not required before an abuse-of-process application could be decided.
The judge said the claim’s connection to in-camera proceedings was sufficient to make it an abuse of process and that striking it out was among the steps available to protect the court’s process. Separately, he held that absolute privilege applied because the alleged statements were made in contemplation of litigation and following a court order. He said the common-law privilege applied and that sections 17(2)(g) and 17(2)(w) of the Defamation Act 2009 were also relevant.
The plaintiff’s counsel had argued that the statements had no connection to the childcare proceedings or the child’s welfare. The judge expressed no view on whether that was correct, saying that requiring courts to assess the relevance of statements made in the course of preparing for proceedings could fetter witnesses. The High Court dismissed the appeal and affirmed the Circuit Court order.