The High Court has set aside a Circuit Court order extending time for Keith McKenna to pursue defamation proceedings against Kerry County Council and the council’s Finance Officer, Angela McAllen.
In a judgment delivered on 15 December 2020, Ms Justice Butler held that an application to extend the limitation period could be made retrospectively where proceedings had been issued within the statutory two-year period. But she refused the extension after finding that McKenna had not shown that the prejudice he would suffer significantly outweighed the prejudice to the defendants.
The case concerns comments McKenna alleges McAllen made at a retirement function on the evening of 6 December 2013, continuing into the following morning. The pleaded comments concerned the cost of a printer bought for the council in 2004. McKenna says they suggested he had acted dishonestly and breached financial controls and his duties to his employer. These allegations were not findings by the court.
McKenna sought legal advice within weeks of the event. His solicitor instructed counsel to draft proceedings in June 2014, but that counsel could not complete the work because of family circumstances. Another counsel was instructed on 8 December, after the one-year limitation period had expired. Proceedings were issued on 10 December 2014.
The defendants argued that an extension had to be obtained before proceedings were issued and could not be sought after the two-year period expired. Justice Butler rejected that jurisdictional argument. She held that the proceedings had been issued within the period in which the court could extend time, and that the statute did not prevent a later application. She also rejected the argument that the absence of a verifying affidavit made the application fatally irregular.
On the merits of the extension request, McKenna relied on alleged negligence by his former solicitor. The judge said she was bound by the High Court’s decision in *Proudfoot v MGN Limited* that a plaintiff could not rely on their own solicitor’s negligence to defeat a limitation defence. She also found the evidence insufficiently clear and detailed, noting that McKenna had not given evidence about his dealings with the solicitor during the period of delay.
The judge considered prejudice to be finely balanced. She was not satisfied that the prejudice to McKenna from refusing the extension significantly outweighed the prejudice to the defendants from granting it. The court therefore refused the direction to extend time, allowed the defendants’ appeal and set aside the Circuit Court order. It did not decide the truth of the alleged comments or the defamation claim itself.