The Court of Appeal has dismissed an appeal by Sunday Newspapers Limited and Eugene Masterson against a High Court order granting judgment to Paul McNamara in default of defence. The order was made at the second application for judgment; it did not determine damages, which remain to be assessed.
McNamara’s claim arose from statements and photographs published in the Sunday World on 21 December 2014. He sought, among other relief, damages for defamation. The appeal judgment says the details of the allegedly defamatory material were not relevant to the appeal.
Under Order 27, rule 8(1) of the Rules of the Superior Courts, the court has discretion on a first application for judgment in default. On a subsequent application, it must grant judgment unless satisfied that special circumstances explain and justify the failure to deliver a defence.
The defendants had received a three-week extension by consent after the first application, but did not deliver a defence within that period. The plaintiff’s solicitor later sent further correspondence, and a second motion was issued in September 2015. The defendants then made an offer to make amends under section 22 of the Defamation Act 2009, in a letter dated 30 October 2015—after the second motion had issued.
The defendants argued that the plaintiff’s failure to accept or reject the offer justified waiting to deliver a defence. They also argued that some of the declaratory relief sought was not available in the High Court. The High Court judge rejected those grounds as special circumstances and granted judgment, directing that damages be assessed by a judge and jury.
On appeal, the Court of Appeal agreed that the defendants had not shown special circumstances. They had filed no affidavit responding to the second motion in the High Court, and the appeal affidavit did not provide an adequate explanation for the delay or for unanswered letters. The court considered that the offer could have been made much earlier and said the defendants could not rely on their own delay as a special circumstance.
The court also rejected the defendants’ argument that the plaintiff’s response to the offer caused their predicament. It did not decide whether the offer was adequate or valid, saying that question would have to arise in another case. The appeal was dismissed. The judgment left damages to be assessed; it did not set an amount.