Delay can Defeat the taking of a Defamation Claim
A recent High Court decision illustrates that Plaintiffs bear the burden of explaining a delay in taking a defamation claim

 

In the recent case of Neil Rooney v Shell E&P Ireland Limited [2017] IEHC 63, the High Court refused to allow a Plaintiff to benefit from the two year extension of limitation period in defamation proceedings. Here the Plaintiff's cause of action accrued on 7 March 2014, but defamation proceedings were not issued until October 2015, with proceedings then served in January 2016. The High Court decided not to grant the Plaintiff an extension of time under s.38 (1) (a) of the Defamation Act 2009 as he had not satisfactorily explained the delay.

The introduction of a one year limitation period by the Defamation Act 2009 (the "Act") for the bringing of defamation proceedings was welcomed by newspapers and other media defendants. The previous limitation period of six years post publication was felt by Defendants to be extremely long, particularly in circumstances where a journalist may not have retained their notes and witnesses would have a diminished recollection of events. In the interests of protecting Plaintiffs in defamation proceedings, Section 38(1) (a) of the Act amended section 11(2) (c) of the Statute of Limitations Act, 1957 allowing a Court to extend the limitation period to two years if it was satisfied that:

  1. the interests of justice required the extension of time; and
  2. the prejudice the Plaintiff would suffer would significantly outweigh the prejudice the Defendant would suffer if the period of limitation was extended.

The Court must have regard to the reason for the failure to bring the action within the one year period and the extent of which any evidence is no longer capable of being adduced when making its decision.

The Plaintiff in this case outlined that he was advised by his solicitors in early January 2015 that he had until 15 October 2015 to initiate proceedings and that he had instructed his solicitors to issue proceedings immediately. He was unhappy with the speed at which his case was progressing and his file was transferred to his current solicitors on 1 September 2015 who noted that the date of publication was 7 March 2014. A Plenary Summons issued in early October 2015 and proceedings finally served in January 2016.

The Defendant criticised the lack of clarity and precision on the part of the Plaintiff as to the instructions given to his original solicitors, the absence of any explanation of the further delays that occurred, the absence of a letter of claim and the further three month delay before the plenary summons was served.

Ní Raifeartaigh J. reviewed the authorities and held that the onus is on the Plaintiff to explain the delay and that the evidence offered in support of the explanation must reach an appropriate level of detail and cogency. She found that the Plaintiff had provided a minimal explanation and very little detail as to the reason for not issuing before 7 March 2015. As to the issue of prejudice she made reference to the existence of a defence of qualified privilege and the fact that the Plaintiff has an alternative remedy against the solicitor that misadvised him. She felt that the prejudice to the Plaintiff in being prevented from bringing the proceedings would not significantly outweigh the prejudice of the Defendant in losing its statute of limitations defence. Overall, she found the matter to be rather finely balanced, but felt the Court's discretion should be exercised so as to refuse the Plaintiff's application. 

This case highlights that a Plaintiff looking to extend the limitation period to two years will have to satisfactorily explain the delays leading to issuing and serving proceedings. 

Contributed by Fiona Barry

Key Contacts

Fiona Barry Partner

Related Practice Areas

Related Industry