The Court of Appeal has ordered Susan Stein and Susan Gorrell to provide a total of €150,000 as security for costs in their defamation proceedings against Dana Rosemary Scallon. The sum is to be divided equally between the two respondents. The court said it would hear the parties on how much time should be allowed to lodge it.
The decision allows Scallon’s appeal from a 2016 High Court refusal to order security. Whelan J. delivered the Court of Appeal judgment on 30 November 2018. The proceedings arise from remarks Scallon made in a TV3 interview on 14 October 2011. Stein and Gorrell each began proceedings seeking damages for alleged defamation. TV3 was also named as a defendant, but the appeal concerned Scallon’s application for security for costs.
Both respondents were ordinarily resident in Iowa, in the United States. The Court of Appeal noted that the High Court had found Scallon had a bona fide, prima facie defence capable of succeeding at trial, and that there had been no unnecessary delay in bringing the security application. Those findings were not challenged by cross-appeal. The High Court had also found that the respondents had not established their alleged inability to pay costs.
The High Court refused security on the basis that the comments had been made during a presidential campaign and that there was public value in litigating claims arising against a background of sexual-abuse allegations. The Court of Appeal held that the underlying cases were private defamation claims between family members, not civil proceedings against the person alleged to have committed abuse. That person was not a party. It found no exceptional public-interest issue that justified refusing security.
The appeal court also said the High Court had erred by assessing whether parts of Scallon’s defence of truth were actually true at this interlocutory stage. Questions of fact in the defamation cases were for a jury. It further held that the High Court should not have relied on excerpts from an affidavit discussed in an unrelated Supreme Court case when that affidavit was not before it.
The respondents had previously relied on after-the-event insurance policies, but those policies were no longer in place by the appeal hearing. The Court of Appeal considered the parties’ competing estimates of likely costs and concluded that Scallon’s estimate was more realistic. It set security at €150,000, noting that the two actions were likely to proceed together and that security was customarily limited to about one third of likely costs.
The order concerns security for costs only. The Court of Appeal did not determine the merits of the defamation claims, which are to proceed to trial before a jury.