 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Guerin v O'Doherty (Approved) [2025] IEHC 140 (12 March 2025) URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC140.html Cite as: [2025] IEHC 140 |
||
[New search] [Printable PDF version] [Help]
THE HIGH COURT
[2025] IEHC 140
RECORD NO. 2019 / 7009P
BETWEEN
JAMES GUERIN
PLAINTIFF
AND
GEMMA O'DOHERTY
DEFENDANT
JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 12th day of March, 2025
INTRODUCTION
1. This matter comes before me on application of the Defendant seeking an order striking out these proceedings on grounds that they are malicious, vexatious, frivolous, based on fraud, perjury and deception, are a grave attack on press freedom, have no cause of action and are bound to fail pursuant to Order 19 Rule 28 and/or the inherent jurisdiction of the Court.
2. The application is the latest in a series of applications brought in these proceedings. The proceedings are now in a list to fix dates for the purpose of assigning a new hearing date, a previous trial before judge and jury having resulted in a hung jury.
3. Several judgments have been delivered in respect of applications brought in these proceedings. The judgment of Humphreys J. on an application in respect of service delivered on the 12th of October, 2020 (neutral citation of [2020] IEHC 490) addresses some of the issues sought to be raised again on this application. In another judgment in November, 2023, the trial judge first assigned to preside at trial listed for the first week in November, 2023, recused himself in a reasoned judgment.
4. The trial proceeded instead before O'Connor J. commencing on the 21st of November, 2023, and finishing on the 27th of November, 2023, but the jury were unable to agree on a verdict.
5. Subsequently, in a judgment (O'Connor J.) delivered in writing on the 23rd of February, 2024 (with neutral citation of [2024] IEHC 110), a series of different applications made following the conclusion of the first trial and in advance of an intended retrial were addressed. In this judgment, the reasons for making interlocutory restraining orders in relation to the conduct of the Defendant are explained. The said orders had been sought in circumstances where complaint had been made that the Defendant had been "posting" about the Plaintiff and his legal representatives in a damaging manner.
6. By Order made on the 23rd day of January 2024 (O'Connor J.) the Defendant was restrained pending the trial of the action or until the determination of further interlocutory applications by the parties from maintaining, repeating or publishing through any medium of communication any posts which assert or imply that any member of the Plaintiff's legal team had told lies or committed crimes in relation to these proceedings or maintaining, replicating, or publishing online or through any medium of communication photos or images of any and all members of the Plaintiff's legal team.
7. Although she was legally represented at earlier stages of these proceedings, the Defendant's former solicitors came off record in January, 2024, after the conclusion of the first trial. They applied to come off record at a time when injunctive relief was being pursued against the Defendant in respect of her continuing commentary in various publications on the merits of a case which she is involved in and which is still before the Courts. She now represents herself.
8. In circumstances where the case has already proceeded to hearing before a judge and jury in November, 2023, running for several days and resulting in a hung jury and has been the subject of multiple applications before different judges, it is clear that these proceedings have already consumed considerable judicial resources. Despite now applying to have the Plaintiff's claim as against her struck out, the Defendant wishes to maintain a counterclaim she makes in these proceedings.
BACKGROUND
9. The Plaintiff is a brother of the late Veronica Guerin and a politician. The Defendant describes herself as an investigative journalist.
10. On the 11th and 12th of July, 2019, the Defendant took to Twitter to comment in relation to a court case involving a brother of the late Veronica Guerin. She was then met with these proceedings for defamation which were instituted on the 9th of September, 2019.
11. At the heart of the proceedings as instituted is the Plaintiff's claim to have been defamed by the Defendant in a publication which referred to the "paedophile brother of Veronica Guerin". It is claimed this publication is defamatory of the Plaintiff in the absence of full and clear publication of the identification particulars of the correct brother.
12. Publication of the material complained of in these proceedings has been admitted by the Defendant and is not in issue. The said admission as to publication was made in advance of the previous hearing and the Defendant had the benefit of legal advice - solicitor, senior and junior counsel when making the admission. The position concerning admitted publication has not changed since they ceased to act following the first trial in November, 2023.
13. The proceedings were heard by O'Connor J. with a jury for four days commencing on the 21st of November, 2023, and ending on the 27th of November, 2023, and culminating in a hung or deadlocked jury on the 28th of November, 2023. On the 28th of November, 2023, at the conclusion of the first trial, it was indicated to the Defendant and her legal team that the Plaintiff would seek to have the matter heard again at the April 2024 Jury Sessions.
14. The matter was called on for hearing on the 14th of December, 2023, and the 21st of March, 2024. In subsequent court appearances, it was also agreed that the parties would refrain from and "temper" commentary in relation to the matter.
15. An unusual feature of these proceedings is that, despite admonitions from the trial judge in relation to behaviour, the Defendant's conduct in publishing other material concerning the Plaintiff said to be in breach of the sub judice rule and after the initial hearing, has resulted in an Order of 23rd of January, 2024 (O'Connor J.) restraining the Defendant from continuing to publish material of and concerning the Plaintiff's legal team.
16. In compliance with further directions (O'Connor J.) given on the 23rd of January, 2024, an Amended Statement of Claim was served on the Defendant on the 12th of February, 2024.
17. The Defendant was directed to deliver an Amended Defence on the 21st of March, 2024, (direction of Owens J.).
18. On the 24th of April, 2024, four weeks after the Notice of Motion now before me for determination, a Defence and Counterclaim (entitled: "Response to Plaintiff's Amended Statement of Claim and Defendant's Counterclaim") was delivered.
19. A previous application to strike out proceedings as showing no reasonable cause of action brought by the Defendant returnable to the 28th of March, 2024, was "withdrawn" or struck out at the request of the Defendant on the 24th of June, 2024.
20. A separate Motion returnable to the 27th of January, 2025, seeking recusal of a judge was struck out for no appearance by the Defendant.
21. This application was assigned for hearing to me on the 5th of March, 2025. At the time of the hearing of this application and delivery of this judgment, the case awaits retrial having been adjourned from time to time while various applications (including this one) were decided and a new date could be fixed.
THE CLAIM(S)
22. I do not propose to parse at any length the full particulars contained in the pleadings in this case, but it is appropriate that I give some flavour of the claims and counterclaims to properly contextualise this application.
23. In a Statement of Claim delivered on the 2nd of February, 2021, the Plaintiff claims damages for defamation to include aggravated and punitive damages for social media publications on the 11th of July, 2019, and 12th of July, 2019, which were said to constitute "a campaign of defamation" by the Defendant. The claim is that words used by the Defendant were understood to mean, inter alia, that "the Plaintiff is a paedophile" and "has concealed the case from the general public for five years".
24. A Defence and Counterclaim was delivered on behalf the Defendant and the case was set down on the 31st of March, 2022. The Defendant maintains in her Defence and Counterclaim that the Plaintiff has circulated untrue, scandalous and malicious claims about her which claims have been published across the Irish media. She pursues a counterclaim against the Plaintiff in respect of these claims. At paragraph 5 of the Defence and Counterclaim delivered on the 1st of March, 2021, it is pleaded that:
"The Defendant's words at all times were clearly intended and understood to refer to Martin Guerin who is a well-known and well-publicised paedophile."
25. The Defence and Counterclaim referred at paragraphs 24 and 25 to: -
"... intentional misdirection by the Plaintiff and his legal representatives".
Those representatives are named.
26. Reference is also made to "deceitful statements presented to the High Court by the legal representatives of" the Plaintiff. Those pleas were the subject of an unsuccessful application by the Defendant to set aside an order for substituted service and are addressed in the judgment of Humphreys J. delivered on the 12th of October, 2020, [2020] IEHC 490. That judgment was not appealed.
27. In the Amended Statement of Claim delivered pursuant to Court order, additional and extensive particulars are given of allegedly false and malicious publication of defamatory content concerning the Plaintiff between the 28th of November, 2023, and the 26th of January, 2024, on various online platforms and a free sheet newspaper which the Defendant edits. It is pleaded that the words used in relation to the Plaintiff meant and were understood to mean that the Plaintiff was a corrupt councillor, had lied to a jury and is guilty of criminal offences.
28. It is expressly pleaded that the publication and extensive distribution of defamatory material was done by the Defendant in the full knowledge that these proceedings were not concluded and were set down for trial. It is further expressly pleaded that the Defendant was motivated by malice in relation to all the publications complained of the proceedings and intentionally set out to defame the Plaintiff.
29. In addition, it is pleaded that between the 28th of November, 2023, and the delivery of the amended Statement of Claim, the Defendant had published in excess of 85 discrete publications concerning the Plaintiff on various platforms concerning the subject mater of the proceedings and concerning her views of or about the Plaintiff. The claim is now advanced that the Defendant's conduct in these proceedings has aggravated and extended the defamatory impact, sting and damage of the initial publications.
30. In an amended Defence and Counterclaim (entitled: "Response to Plaintiff's Amended Statement of Claim and Defendant's Counterclaim") delivered on the 24th of April, 2024, many of the claims made in the various publications which the Plaintiff has identified as defamatory of him are repeated and the Defendant seeks to rely on the truth of her assertions.
31. In this document, the Defendant maintains that she has been falsely accused by the Plaintiff of seeking to and intending to cause hurt by raising questions about the murder of his sister. She pleads, inter alia, that he has defamed her by describing her as behaving in a 'poisonous way' by asking questions in respect of the late Veronica Guerin. She further pleads that he has alleged that the Defendant has been deliberately untruthful, seeking 'cheap publicity' in a manner which is defamatory of her, that statements by the Plaintiff to the effect that her comments were deliberately insulting to the memory of Veronica Guerin and that she had tortured the families of murder victims were disseminated widely across the Irish media gravely damaging her reputation.
32. A further contention pursued in the Defendant's "Response to Plaintiff's Amended Statement of Claim and Defendant's Counterclaim" is that the Plaintiff has deliberately misconstrued the Defendant's published commentary as defamatory to damage her reputation and to silence her in relation to other matters. In this regard she invokes her right to freedom of expression.
LEGAL PRINCIPLES
33. The Court's strike out jurisdiction under Order 19, Rule 28 of the Rules of the Superior Courts has been the subject of recent consideration in the decision of Simons J. in Mohan v. Revenue Commissioners, Ireland and the Attorney General [2025] IEHC 63 and I gratefully adopt his summary of the applicable legal principles.
34. As Simons J. outlines, Order 19, Rule 28 of the Rules of the Superior Courts was amended with effect from the 22nd of September, 2023, by the Rules of the Superior Courts (Order 19) 2023 (SI No. 456 of 2023). The amended Order 19, Rule 28(1) now reads as follows:
"The Court may, on an application by motion on notice, strike out any claim or part of a claim which: (i) (ii) (iii) (iv) discloses no reasonable cause of action, or amounts to an abuse of the process of the Court, or is bound to fail, or has no reasonable chance of succeeding."
35. Order 19, Rule 28(3) provides, in relevant part, that the court may have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application. As Simon J. observed, prior to the amendment, most strike out applications were made pursuant to the court's inherent jurisdiction rather than pursuant to the unamended version of Order 19, Rule 28. This was because the unamended rule had been directed to the content of the formal pleadings rather than to the underlying merits of the proceedings and had been designed to deal with circumstances where the case as pleaded did not disclose any cause of action.
36. On an application under the old Order 19, Rule 28, the court was required to assume that the facts - however unlikely that they might appear—were as asserted in the pleadings. By contrast, in an application pursuant to the court's inherent jurisdiction, the court could, to a very limited extent, consider the underlying merits of the case. If it could be established that there was no credible basis for suggesting that the facts were as asserted, and that the proceedings were bound to fail on the merits, then the proceedings could be dismissed as an abuse of process pursuant to the court's inherent jurisdiction.
37. The amendment to Order 19, Rule 28 was considered by Simons J. to have the practical effect of eroding the previous distinction between the jurisdiction to strike out and/or to dismiss proceedings pursuant to (i) Order 19 of the Rules of the Superior Courts, and (ii) the court's inherent jurisdiction. Nevertheless, the earlier case law continues to have a relevance. The Supreme Court has consistently stated—in its case law on inherent jurisdiction applications—that whatever might or might not be the merits of some form of summary disposal procedure, an application to dismiss proceedings as being bound to fail is not a means for inviting the court to resolve issues on a summary basis. Thus, in Keohane v. Hynes [2014] IESC 66 (at paragraphs 6.5 and 6.6) the Supreme Court stated as follows:
"[...] the underlying basis of the jurisdiction to dismiss as being bound to fail stems from the court's inherent entitlement to prevent an abuse of process. Bringing a case which is bound to fail is an abuse of process. If it is clear to a court that a case is bound to fail, then the court has jurisdiction to prevent that abuse of process by dismissing the proceedings. However, as again noted by Murray J. in Jodifern, whatever might or might not be the merits of some form of summary disposal procedure, an application to dismiss as being bound to fail is not a means for inviting the court to resolve issues on a summary basis. It is for that reason that all of the jurisprudence emphasises that the jurisdiction is to be sparingly exercised and only adopted when it is clear that the proceedings are bound to fail rather than where the plaintiff's case is very weak or where it is sought to have an early determination on some point of fact or law. It is against that background that the extent of the court's entitlement to look at the facts needs to be judged."
38. The effect of the amendment introduced by the Rules of the Superior Courts (Order 19) 2023, was identified by Simons J. in Mohan v. Revenue Commissioners, Ireland and the Attorney General, as being to codify the existing jurisprudence. He supported this conclusion with reference to the language used under the amended rule including phrases such as "bound to fail" and "no reasonable chance of succeeding" which he correctly observed echo the language used in the previous case law to describe the limits of the inherent jurisdiction.
39. It follows, as Simons J. found, that the court hearing a strike out application may, to a limited extent, consider the underlying merits of the case. If it can be established that there is no credible basis for suggesting that the facts are as asserted, and that the proceedings are bound to fail on the merits, then the proceedings can be struck out pursuant to the amended rule.
40. Accordingly, to be successful on this application the Defendant must persuade me that the case against her, discloses no reasonable cause of action, or amounts to an abuse of the process of the Court, or is bound to fail, or has no reasonable chance of succeeding.
41. In considering these questions in this case, it requires to be borne in mind that these are proceedings in defamation, already heard before judge and jury and due to be reheard, giving rise to special considerations on a strike out application not least the constitutional status of protection afforded to a person's right to a good name. In this regard, the Plaintiff placed emphasis in argument on the decision in Gilchrist v. Sunday Newspapers & Ors. [2017] IECA 190, [2017] 2 I.R. 701 because, like this case, it involved an application to strike out in defamation proceedings.
42. In her judgment for the Court of Appeal in Gilchrist, Finlay Geoghegan J. addresses the tort of defamation and its constituent elements, noting that the tort is actionable without proof of special damage. This is a particular consideration on this application as it lessens the evidential burden on a plaintiff in defamation proceedings.
43. In her decision, Finlay Geoghegan J. acknowledged that the constitutional right of access to the courts in vindication of a right to a good name by pursuing defamation proceedings is not absolute and may be controlled by the courts in reliance upon its inherent jurisdiction to strike out or stay proceedings which constitute an abuse of process. She identified the core question as being whether, in accordance with the principles applied in this jurisdiction, it would be an abuse of process for a plaintiff to pursue a claim for defamation where as a matter of probability if he succeeds he will obtain some benefit but where the probable benefit appears disproportionate to the costs for the parties of litigating the claim and the impact on court resources. At paras. 29-30 of her judgment she said:
"It therefore appears to me that on present authority, the jurisdiction of the Irish courts to strike out proceedings as an abuse of process where the plaintiff has no ulterior purpose in pursuing the claim (and it is not frivolous or vexatious or repeat litigation or bound to fail) is where a defendant establishes that there is no benefit to the plaintiff in successfully pursuing the claim. Whilst I have noted that Hardiman J. uses the phrase "no tangible benefit", I do not understand him to use it in a sense which would include an award of damages which may be minimal or small vindication of a reputation as he considered the absence of a tangible benefit would mean the proceedings would be pointless or moot. That is the threshold which a defendant must meet.
The issue must, however, be decided by reference to the plaintiff's claim alone. It is only where a defendant can persuade a court that the plaintiff can obtain no benefit or no tangible benefit (in the sense used by Hardiman J.) from the proceedings that they may be struck out as an abuse of process. Essentially it is because the proceedings are then pointless and, in those circumstances, it would be an abuse of process to permit them to proceed and in doing so cause detriment to the defendant or abuse the use of court time."
She continued (at para, 32):
"This conclusion is informed by the fact that the jurisdiction to strike out proceedings or a claim without a hearing on the merits is one which limits the constitutional right of access to the courts. Also, it is of course a jurisdiction which must be exercised sparingly and only in clear cases: Barry v. Buckley [1981] I.R. 306 and Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425."
44. Accordingly, she found that the jurisdiction of the Irish Courts to strike out proceedings as an abuse of power was limited to cases, not otherwise frivolous or vexatious or bound to fail, which cannot provide a tangible benefit to the Plaintiff. She recognised that a finding that a plaintiff had been defamed, even without a substantial or any award in damages, could constitute a tangible benefit sufficient to resist proceedings being struck out as an abuse of process.
45. I conclude, based on all the foregoing, that in making a strike out order it is not enough for me to be satisfied that the case is a very weak one and is likely to be successfully defended. Rather, I must be satisfied that the proceedings disclose no cause of action and/or are bound to fail. Furthermore, as found in Jeffrey v. Minister for Justice, Equality and Defence [2019] IESC 27, [2020] 1 I.L.R.M. 67 (at paragraph 7.4) cited by Simons J. at para. 12 of his judgment in Mohan v. Revenue Commissioners, Ireland and the Attorney General, a strike out application will not be appropriate where the issues of law raised are not straightforward.
46. Accordingly, the burden on a defendant in moving a strike out application is a high one and my jurisdiction falls to be sparingly exercised and with due regard to constitutionally protected right of access to the courts and, in defamation proceedings, to the constitutional protection afforded a person's good name.
DISCUSSION AND DECISION
47. In these proceedings each party has pleaded a claim for damages for what arguably at least constitutes the tort of defamation within the meaning of the Defamation Act, 2009 [hereinafter "the 2009 Act"] in relation to a variety of statements made since July, 2019, up to and including January, 2024.
48. Beyond the short summary provided above, I have decided not to repeat the details of the allegations made by the Defendant in moving this application insofar as they concern the character and conduct of the Plaintiff and his legal team, their conduct of the proceedings and their purpose in maintaining the proceedings. I similarly will not repeat the allegations which the Defendant claims have been made against her, although she showed no such restraint at the hearing of this application before me.
49. I take this approach deliberately in circumstances where allegations made are not supported by evidence on the application before me. It is surprising, indeed in my view quite improper, to see such serious matters ventilated in open court on an application of this kind without as much as a scintilla of evidence, beyond assertion on affidavit. I am very concerned that serious allegations were bandied about in court without due regard to the seriousness of what is suggested or for the solemnity of the court process. While latitude is given in cases involving lay litigants, it is not acceptable for the court room to be treated as though it were some kind of soap box or stage. It is not for me to decide on the truth or otherwise of any allegation or counter allegation made in these proceedings and so I can be circumspect in how I treat them.
50. The Defendant's complaint that the action against her is spurious, vexatious, malicious and designed purely to achieve her character assassination, such that the courts are being used by the Plaintiff and his lawyers to put what the Defendant describes as "egregious falsehoods" into the public domain about her, in breach of her right to a fair trial and good name as protected under the Constitution of Ireland and the European Convention of Human Rights, is somewhat ironic. During the hearing before me, I observed the Defendant to be the party rehearsing the detail of allegations and counter-allegations both against her and by her against the Plaintiff and not vice versa.
51. In responding to the application, counsel for the Plaintiff managed, in the main, to resist descending into the fray and instead properly relied on legal principles and authority without becoming embroiled in an inappropriate exchange with the Defendant across the court room.
52. In contending that the proceedings are bound to fail, the Defendant's position is that it was obvious that in her reports she was not referring to the Plaintiff but to a third party and that no-one was misled into believing that it was the Plaintiff. This is a contention upon which the Plaintiff joins issue and is clearly a matter for evidence and which properly falls to be determined at plenary hearing.
53. The Defendant also claims that her report about a person she describes as a "convicted paedophile" is fully protected in law by the provisions of s. 17 of the 2009 Act pursuant to which privilege applies in certain prescribed circumstances. She maintains that she has a full defence to the Plaintiff's claim on the basis that reports which represent a fair, accurate and truthful account of proceedings publicly heard in a Court established by law and exercising judicial authority within the State are absolutely privileged. For his part, however, the Plaintiff contends that the Defendant did not adopt correct and proper journalistic procedures by carefully naming the proper accused — nor was she present in court at the time of the proceedings.
54. While the Defendant claims to be protected by privilege pursuant to s. 17 of the 2009 Act, this is not accepted on behalf of the Plaintiff to be correct as a matter of law and fact. It is appropriate to stress that the privilege conferred by s. 17(2)(i) in relation to court reporting applies only in respect of "fair and accurate report of proceedings publicly heard before, or decision made public by, any court" and in consequence privilege does not apply automatically and without enquiry as to the fairness or accuracy of the report. The Plaintiff relies on the express requirement of the legislation that reports of the nature suggested must be both fair and accurate and maintains that the Defendant's reports were neither fair nor accurate but manifestly failed to identify with precision to whom she was referring in accordance with proper journalistic practice. Accordingly, an issue arises for determination upon evidence properly adduced as to whether the reports were fair and accurate.
55. It seems to me that it is a matter for the jury to decide whether the publications identified are protected in law as fair and accurate reporting of proceedings publicly heard before, or decision made public by, any court or some other defence, provided the trial judge is satisfied the matter should go to the jury on the evidence. It is patently not a question that I can or should decide on the papers grounding this application, particularly in circumstances where a jury deliberating on the same issues has already failed to agree a verdict with the result that it cannot be concluded that the outcome of the proceedings is clear either way. Indeed, the fact of previous jury disagreement, in and of itself, is capable of being dispositive of this application unless I can be persuaded that the proceedings are otherwise subject to a strike out jurisdiction because, for example, they constitute an abuse of process or are bound to fail/have no reasonable prospect of success by reason of some intervening event.
56. Furthermore, in advancing her submission that her report in 2019 which triggered the issue of these proceedings against her is privileged, the Defendant does not address the fact that the claim now extends well beyond the incident in 2019 and embraces commentary which O'Connor J. described (at p. 13 of his judgment) "as objectively and subjectively offensive", warning explicitly that the parties were trespassing into the area of defamation in an attempt to dissuade the other from litigating further and reminding the parties that it is for a jury to determine whether a party has been defamed or not. I can but echo his views that in this case it is for a jury to determine whether a party has been defamed or not, not me.
57. The Defendant protests that these proceedings are abusive because she is a journalist and the purpose of the proceedings is to silence her. There is no evidence for this proposition beyond the Defendant's belief. The contention that the proceedings are maintained for improper and abusive purpose therefore rests on bare assertion and are not properly substantiated. Her arguments in reliance on the importance of press freedom cause me to recall the words of Allen J. in Beaumont Hospital v. O'Doherty [2021] IEHC 469. In his judgment in that case, Allen J. acknowledges the importance of free speech, freedom of expression, the role of journalism and the free press but points out that journalists, no less than citizens in general, are not entitled to wantonly or recklessly traduce reputations. The mere fact that the Defendant is a journalist who has rights to express herself does not permit the Defendant to say whatever she likes and specifically, does not permit her to defame another person in her publications.
58. In responding to the motion, it is pointed out on behalf of the Plaintiff that the Notice of Motion in this application follows a Notice of Motion issued in very similar terms on the 28th of March, 2024. That Motion sought to:
"strike out these proceedings which have been before the High Court for almost five years and are malicious vexatious an abuse of court process, contempt rules and the administration of justice and are destined to ultimately fail."
59. It is the Plaintiff's position that this application is not well founded, pointing out that if there were any real basis for the application, it would have been pursued earlier by lawyers acting on the Plaintiff's behalf at any stage prior to the first trial in these proceedings and but this did not occur. In this regard, some importance is attached by the Plaintiff to the fact that a previous application in similar terms to this application was brought by the Defendant but was not pursued and was struck out when the Defendant indicated an intention to withdraw it from the Common Law List on the 24th of June, 2024. An order for costs was granted against the Defendant in favour of the Plaintiff on that occasion. She has not disputed this on affidavit in reply.
60. Applying the criteria identified above, I am not satisfied that any ground for striking out proceedings is established on the facts of this case. The proposition that the proceedings disclose no reasonable cause of action is not one I can support. The cause of action in these proceedings is defamation — it is clearly disclosed on the pleadings. Indeed, part of the cause of action pleaded has been heard previously and is pending rehearing on an amplified claim. As a stateable claim in defamation has been pleaded and a cause of action is plainly disclosed, whether the Defendant has in fact been guilty of defamation is a matter for a jury properly charged and hearing all admissible evidence to determine.
61. Furthermore, no sufficient basis has been advanced to support a conclusion that these proceedings are bound to fail or have no reasonable prospect of success. Indeed, the fact that the first hearing ended in a hung jury, the matter having been permitted to go to the jury by the trial judge, suggests otherwise. The fact that the claim has been amplified through the amendment of the proceedings brings further publications into question with the result that the case proceeding to retrial is more expansive than the one already heard. In view of the fact that the previous jury did not dismiss the claim against the Defendant, I cannot conclude that the proceedings are bound to fail or have no reasonable prospect of success, and it is at least arguable that the case advanced on foot of an amended pleading has enhanced or provided additional buttress to the Plaintiff's claim.
62. On the authority of Gilchrist, I am satisfied that nothing in the Plaintiff's proceedings amounts to an abuse of the process of the Court. Were the Plaintiff to succeed in establishing that he has been defamed, this would constitute a tangible benefit to him even where special loss is not demonstrated and ever were it not considered by a jury that any injury to his reputation in the eyes of reasonable members of society warrants a significant award in damages.
63. The suggestion that the proceedings are maintained for the improper purpose of silencing the Defendant in her journalistic endeavour or that someone else must be funding the proceedings making them champertous, are claims which are not substantiated and are no more than bare assertion on the part of the Defendant. Bare assertions of this kind could never be enough to justify the exercise of a strike out power. There is a tangible benefit to be gained for the Plaintiff by pursuing the Defendant, that benefit being vindication of the Plaintiff's constitutionally protected right to a good name, and the seeking of the appropriate remedy in damages and injunctive relief as against the Defendant.
64. The judgments of Humphreys and O'Connor J.J. referred to above also address issues which the Defendant seeks to press again before me in moving her application. It bears note, for example, that addressing a dispute in relation to service and an application for substituted service on the Defendant, Humphreys J. states (at para. 17 of his judgment):
"I want to record clearly that the defendant has failed to substantiate any of her allegations of wrongdoing made against the plaintiff's legal team."
65. Despite this, the Defendant continues in this application before me to seek to rely on some of the same matters considered by Humphreys J. in his judgment. In like fashion, some of her claims concerning contempt, fair trial, and the administration of justice were considered and dismissed by O'Connor J. Similarly, as part of this application the Defendant seeks to relitigate matters that were the subject of rulings at trial. By way of further example, in relation to point paragraph 22 (f) of her affidavit the Defendant makes complaint about the absence of a juror during her previous trial. It has been confirmed on behalf of the Plaintiff, however, that while the jury foreman was indeed absent from the trial for reasons communicated to the Court and to the parties, including to the Defendant's legal advisers at that time, no objection was made by counsel for the Defendant or indeed the Plaintiff. Both legal teams were advised of the reasons why the foreman was excused and no issue arose. Accordingly, this is not a factor which could properly ground an order striking out the Plaintiff's proceedings.
66. Earlier findings or agreed prior conduct are not considered by the Defendant to be any impediment to repeating complaints already adjudicated upon or raising matters previously acquiesced in to ground her strike out application to strike out before. For my part, I see no proper basis for revisiting those findings on this application or permitting issues to be raised in support of this application when they were not raised at the proper time and have no bearing on the proper conduct of a re-trial. It is not appropriate for the Defendant to seek to re-agitate issues which have already been the subject of rulings and/or been addressed by the trial judge during the first trial and/or are a matter for evidence and submission at a retrial before a jury on this application. I cannot go behind rulings already made nor revisit issues which are of no continuing relevance touching on the conduct of an earlier trial as a basis for exercising a strike out jurisdiction.
67. These proceedings are scheduled to be reheard by a jury having already proceeded to trial resulting in a hung jury. The Plaintiff has been permitted to extend and amplify his case based on the Defendant's publications sub judice and post the conclusion of the first trial with the result that the claim as currently constituted are more expansive than before. The Defendant has not sought to address the amplified claim at all on this application. Having delivered two Defences to the Plaintiff's claim, it seems the Defendant is poised to meet the Plaintiff's claim, even if she would prefer not to and, on this occasion, she does so without legal representation. Indeed, despite now applying to have the Plaintiff's claim as against her struck out, the Defendant wishes to maintain a counterclaim she makes in these proceedings which is a difficult proposition to reconcile with her application to strike out the proceedings given how intertwined the claim and counterclaim are.
CONCLUSION
68. To conclude, I am satisfied that the Defendant has set out no legal or factual basis upon which she is entitled to succeed on her application to strike out these proceedings. For the reasons set out above, I refuse the Defendant's application to strike out these proceedings.
69. Pursuant to the provisions of s.169 of the Legal Services Regulation Act 2015, costs should follow the event "unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings 11 by the parties". In the light of my findings, my preliminary view is that costs should follow the event with the result that the Plaintiff should be entitled to the costs of this application. It is open to the parties to contend for the making of a different form of costs order and I will hear the parties in relation to the precise form of order to be made upon application for a listing made through the Registrar within two weeks of electronic delivery of this judgment. If no application for a listing is made within the said two weeks, an order in the indicated terms here set out will be perfected.