Claim of absolute privilege insufficient to justify strike out of defamation claim

In Malone v Fenlon & Ors [2019] IEHC 934, the High Court found that a plea of absolute privilege as a defence to a claim in defamation was insufficiently clearly made out to justify striking out the claim.

Background

The Plaintiff, having been dismissed from her job in the defendant's organisation, made a complaint to the Data Protection Commissioner in respect of the organisation's refusal to return to her certain personal data stored on a laptop that had been taken from her possession on termination.

In the course of its investigation, the DPC ordered the organisation to write to the plaintiff, copying the DPC, responding to the substance of her access request. The organisation, in its response letter, made statements alleged to be defamatory by the plaintiff.

The defendant brought an application to have the plaintiff's defamation proceedings struck out on the basis that they disclosed no reasonable cause of action and were frivolous and vexatious. He claimed that a defence of absolute privilege applied, as the impugned statements were made in the course of an investigation by the DPC, and in a letter expressly requested by the DPC.

Decision

The court concluded that the defence of absolute privilege is '…an extraordinary defence based upon considerations of pressing public policy…' and that its applicability would have to be assessed 'in the shadow of Article 6 of the European Convention on Human Rights'.

It determined that the strength of the defence as put forward by the defendant was not so self-evident as to justify the draconian remedy of striking out a claim – but that it was perhaps an appropriate matter to be heard as a preliminary issue. ​

For more information please contact Helen O'Connor, Knowledge Lawyer or a member of the Litigation & Dispute Resolution team at A&L Goodbody.

Date published: 26 February 2020