The High Court has refused an application by MGN Limited to set aside orders that substituted it as defendant in a libel action, while making clear that the company can still plead that the claim is out of time.
The plaintiff, Sean Fitzgerald, issued proceedings in July 2009 against Mirror Group Newspapers Limited over an article published in the Irish Daily Mirror in July 2003. He believed that company was the newspaper’s publisher. MGN Limited later told him that it published the paper and that the proceedings had been brought against the wrong company.
The six-year limitation period expired shortly after the original proceedings were issued. In January 2010, Fitzgerald obtained an order on an ex parte application to substitute MGN Limited as defendant. He obtained a further order in February to amend the summons with MGN’s registered office and information concerning service outside Ireland. After the amendments were made, MGN entered an appearance to protect its position and sought to have both orders set aside.
The company argued that this was a substitution of a different defendant, not correction of a clerical error, and that the January order took effect after the limitation period had expired. Fitzgerald, representing himself, said he had believed the original company was the correct defendant and pointed to service of the summons on an employee at an address associated with MGN.
Mr Justice Michael Peart agreed that the mistake was not clerical. But he said the application’s procedural route did not determine the central issue: whether a party could be substituted under Order 15 of the Rules of the Superior Courts when a limitation defence might be available.
The judge followed the approach in an earlier High Court decision, *Kinlon v. Córas Iompair Éireann*. Under that approach, adding a defendant does not make it a party from the date the original proceedings began. MGN became a party only when the substitution order was made on 18 January 2010, and its right to plead the Statute of Limitations was not reduced by the amendment.
The court did not decide whether such a defence would succeed. That question had not yet been pleaded, and the judge said it was not for the court to prejudge it at this stage. He warned Fitzgerald that if the claim were later dismissed after a successful limitation defence, he could face an order for costs.
The court refused MGN’s application to set aside the orders of 18 January and 8 February 2010. The judgment did not determine the underlying libel claim or the limitation defence.