THE SUPREME COURT
Barrington J., 
Lynch J. 
Barron J.
319/98 /320/98
GLENNON

V.

McMORROW C.

and

McMORROW S.

JUDGMENT (ex-tempore) delivered on 14th December, 1998 by Barrington, J.

While these two cases, they are both appeals against Orders made by the learned President of the High Court refusing to allow the Defendants leave to amend their defence in a defamation case by making a plea of qualified privilege.
The two cases arise out of the same alleged set of circumstances. They reflect a family dispute and very serious allegations were made against the Plaintiff and in one of the cases, that of the Defendant Seán, the plea of

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justification was entered with the Defence in October, 1997. In the other case, that of Cyril, Defendant, the plea was a traverse. But in neither case was qualified privilege pleaded.  The Court is satisfied that that was due to an error made at that particular time and that the error was not discovered until the time came for Counsel to advise proofs when Miss Maureen Clarke SC picked up the fact that an important omission had been made in both defences in that qualified privilege had not been pleaded.

The background to the case is a family dispute and of course in the case of a family dispute, particularly if there are allegations of sexual abuse, it is of the utmost importance that the members of the family should be allowed to discuss their suspicions bona fide together and therefore in this kind of situation it is clearly proper that a claim of qualified privilege should be pleaded and unfortunately that was not done in the present case.

The Court has been referred to a number of cases where Defendants have attempted at the last moment to raise technical defences such as the Statute of Limitations or the fact that the Plaintiff was a member of a Club, defences which had no particular merits in the circumstances of those particular cases having regard to the lateness at which the application was made or having

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regard to some other circumstances that there was no proper explanation as to why those defences were not pleaded earlier.

The Court is quite satisfied in the present case that what happened happened as a result of an unfortunate mistake and that it is proper that that mistake should be put right. The fundamental rule of pleading is that set out in Order 28 Rule 1 which says:- 

“The Court may at any stage of the proceedings allow either party to alter or amend his endorsement or pleadings in such manner and in such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties”.

It appears to the Court that on that basic principle that the defendants should in the present case be allowed to make the amendment of qualified privilege provided no injustice is caused thereby to the Plaintiff.  Of course the Plaintiff will be entitled to have any consequential costs incurred by him by reason of the amendment being allowed but it is hard to see that the Plaintiff suffers any injustice if the Court takes care to ensure that he does not suffer on the costs issue.

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It is well within the bounds of possibility that had qualified privilege been pleaded when the original defence was filed in June, 1997, that the Plaintiff would have been advised to abandon his claim and might have accepted that advice. On the other hand it is quite possible that he might have preferred to go ahead with his case and to plead specific malice in answer to the claim of qualified privilege.  Under these circumstances it appears to us that we should allow the amendment requested.

The Court points out that the case is in a somewhat different position now to what was the position before the learned President of the High Court.  At that stage the case was set down for hearing in two weeks time.  As a result of the appeal the case has slipped back and is now in the next list to fix dates so that the same urgency does not exist now as existed when the learned President refused to allow the amendment to the Defence.  We accordingly will make an Order providing that the Defendant is to be entitled to make the amendment pleaded in each case but that the Plaintiff is to have the costs of the Motion in the High Court.  We will make no Order as to the cost of this appeal having regard to the fact that the circumstances have changed since the case was heard by the trial Judge and of course the Plaintiff is to have any costs of any consequential amendments necessitated by the Defendants being allowed to amend their pleadings.

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The Court thinks it proper in the circumstances of the case to make provision for the contingency that the Plaintiff may on advice decide at this stage to abandon both cases. In that event the Court will make a special Order as to costs and the Order will operate in the following way.  The Court will allow four weeks from the date of the filing of the amended defence for the Plaintiff to file his reply or to serve Notice of Discontinuance.  And if he serves Notice of Discontinuance in each case the Plaintiff will have to pay the costs of the cases up until the date the original defence was filed in June, 1997, the date on which the first defence was filed. He will be entitled to his costs of each action from that date up to the date of Notice of Discontinuance and in case there is any problem, the Court will allow liberty to apply. Otherwise the case will go on in the normal course.