10-year-old libel claim against Sunday Times thrown out

Five separate libel actions launched against Times Newspapers and three of its former journalists by Irish businessman Dermot Desmond have been struck out by judge at the High Court in Dublin for lack of prosecution.

Desmond had sued over a series of stories which appeared in The Sunday Times between June 1997 and August 1998. After he launched the cases his solicitors wrote to the defendants in October 2000 – then took no further action.

Desmond did pursue two other actions – one against Mirror Group Newspapers, over articles which appeared in the Irish Daily Mirror, and another against Times Newspapers.

Both were launched in 1999, but it was not until 2005 that he took any steps to revive them.

Mirror Group Newspapers then applied to the High Court to dismiss the action for lack of prosecution, but both the High Court and the Supreme Court held that Desmond could go ahead with that action, despite the six years of inaction.

He also tried to revive the further action against Times Newspapers. A High Court judge made an order dismissing those proceedings, but placed a stay on it subject to some conditions. The defendant is appealing this decision to the Supreme Court.

Mrs Justice Elizabeth Dunne has now dismissed Desmond’s other five actions against Times Newspapers.

The articles in The Sunday Times were headlined: “Telecom cash paid Haughey’s boat bill”, “Just good friends”, “Desmond rescued Haughey’s son’s firm” and “DPP under fire from missed cases”.

‘Inexcusable delay’

The defendants denied defamation and pleaded justification, and argued Desmond of an inordinate and inexcusable delay and exposing them to the risk of prejudice because none of the reporters involved worked for the newspaper, and because the passage of time meant that memories would have faded.

Desmond said he had not pursued the actions on legal advice that he should wait until the conclusion of the Moriarty Tribunal, which was expected to cover some of the issues involved in the litigation, but had subsequently decided that the tribunal was taking too long to report.

He also argued that the decision of the Supreme Court that his case against Mirror Group Newspapers could go ahead despite six years of inaction supported his application to keep the cases alive.

The MGN decision was in part founded on the fact that the defendants were pleading justification, which the Supreme Court said was an important factor.

Mrs Justice Dunne said the “most obvious” distinguishing feature between the facts of these cases and those of the other case against Times Newspapers and that against MGN was that Mr Desmond had made no attempt to reactivate the proceedings.

It was difficult to understand this failure in the light of Mr Desmond’s claim that his instructions at all times had been to bring the cases on for trial as soon as possible.

The delay in these proceedings was far greater than that in the other two cases.

‘Claimant must act quickly’

Desmond had placed much reliance on the Supreme Court’s decision in his case against MGN. But it was clear in that case that the defendant was claiming to be prejudiced by the loss of the notes on which it was relying to support its plea of justification.

Mrs Justice Dunne said: “I think it is fair to say that the Desmond v MGN decision is not an authority for the proposition that a case cannot be dismissed if there is a plea of justification made in defamation proceedings unless there is a specific prejudice as a result of the delay in prosecution of the proceedings.”

She added: “There is no doubt that a plea of justification is an important factor to be borne in mind in considering and assessing where the balance of justice lies.

“The fact that a plea of justification has been made in defamation proceedings is not, however, a licence to a plaintiff to allow proceedings to languish indefinitely without any activity.

“The essence of defamation proceedings is the vindication of an individual’s good name. A person’s reputation is at the heart of such proceedings.

“That is why it is necessary for a plaintiff to act quickly in the prosecution of defamation proceedings for the longer a defamatory statement remains unchallenged, the greater the potential damage to a person’s reputation.

“In my view the defendants in these cases became entitled to apply to have the proceedings dismissed when the plaintiff failed to reactivate these proceedings in 2005 or within a reasonable period thereafter, having reached the decision that it was no longer appropriate to await the outcome of the Moriarty Tribunal.”

The judge added: “There has been inordinate and inexcusable delay in the prosecution of these proceedings. Although the plaintiff took steps to re-activate other proceedings, no such steps were taken in these proceedings notwithstanding the plaintiff’s stated instructions.

“There is no explanation for this failure. This failure is a matter to which I attach significant weight.

“There is nothing to show that the plaintiff intended to re-activate these proceedings other than his averment to which I have previously referred and which averment is at odds with his conduct of the proceedings.

“Notwithstanding the fact that there are pleas of justification in these proceedings, I am of the view that at this stage the balance of justice favours the defendants.

“The defendants herein are entitled to have finality in relation to this matter. In the circumstances I am satisfied that these proceedings should be dismissed.”

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