The Supreme Court has rejected MGN Limited’s appeal to strike out Dermot Desmond’s defamation proceedings over two Irish Mirror articles published in January 1998, leaving the High Court order allowing the claim to proceed in place.
In a judgment delivered on 15 October 2008, Ms Justice Macken found that Mr Desmond’s delay in progressing the case was “wholly inordinate” and inexcusable. But after weighing the parties’ interests, she concluded that the balance of justice favoured allowing him to pursue his claim.
The appeal concerned a High Court decision made on 11 July 2005. MGN had sought to have the proceedings dismissed because of delay. The High Court accepted that the delay was inordinate but considered it excusable in light of advice to wait for the Moriarty Tribunal’s work on overlapping subject matter. It also found that, even if the delay were inexcusable, the balance favoured letting the case continue.
The Supreme Court disagreed that the delay was excusable. Mr Desmond’s solicitor had said the proceedings were put on hold on legal advice while the tribunal examined matters that included payments made by Mr Desmond and others to the late Charles J. Haughey. The court said that decision had not been disclosed to MGN, which was left to believe the claim had been abandoned. It also stressed that defamation claims seeking to vindicate a person’s reputation should be pursued with particular diligence.
However, the court found that MGN had not shown that the missing or unavailable witnesses and materials created a substantial risk that it could not receive a fair trial or caused serious prejudice to its defence. It considered the absence of former editors and the late Mr Haughey, and the loss of reporter Neil Leslie’s shorthand notes. The judgment said the extent and importance of the missing notes had not been established.
The court also considered MGN’s defence, which included pleas of justification and fair comment. It said the justification plea meant Mr Desmond’s claim involved a serious reputational issue: if the proceedings were struck out, the plea would remain unchallenged. In the unusual circumstances, the court held that permitting the claim to continue was the just result.
The Supreme Court rejected the appeal and affirmed the High Court order. It did not decide whether the articles were defamatory or whether MGN’s pleaded defences would succeed; those matters remained for the proceedings to determine.