The Supreme Court dismissed MGN Limited’s appeal against a decision allowing Dermot Desmond’s defamation action to proceed, despite finding that the delay in bringing it was both inordinate and inexcusable.
In his judgment delivered on 15 October 2008, Mr Justice Geoghegan agreed with the judgment of Ms Justice Macken and the reasons she gave. He said the balance of justice nevertheless favoured allowing the action to continue, in the absence of serious prejudice to the defence.
The case concerned a newspaper report disputed by Desmond, who had also made submissions before the Moriarty Tribunal. Geoghegan J said Desmond could not be excused for failing to proceed with the action for tactical reasons without notifying MGN. On that point, he disagreed with the trial judge.
The judge gave weight to MGN’s plea that the words complained of were true in substance and in fact. He said that if the action were struck out, the plea of justification would remain on the record and could never be disproved. He considered suggestions that the plea might be amended, or that a “Reynolds defence” might be added, irrelevant to the weight of the existing plea. He adopted Macken J’s view that the reasons advanced for alleged prejudice to the defence were not valid.
Geoghegan J also agreed with Macken J that the established principles for striking out an action for delay, set out in Rainsford v. Limerick Corporation and Primor Plc v. Stokes Kennedy Crowley, remained substantially unaltered. He said the European Convention on Human Rights case law did not justify reconsidering or modifying those principles, and that they should continue to be treated as good law unless changed by the Supreme Court in an appropriate case.
On appeals from discretionary orders, he said appellate courts must give great weight to the trial judge’s views. But where substantial issues are at stake, the Supreme Court must seriously consider whether, in the interests of justice, it should exercise the discretion differently. He concluded by dismissing the appeal. The judgment records that order; it does not determine the merits of the underlying defamation claim.