Court of Appeal refuses to extend one-year limitation period in defamation action

In Morris v. Ryan [2019] IECA 86 (Court of Appeal, Whelan J, 22 March 2019) the Court of Appeal affirmed the order of the High Court dismissing the Plaintiff's defamation claim on the basis that it was statute barred, and also affirmed the Isaac Wunder Order imposed, restraining the Plaintiff from instituting any further proceedings against the Defendant, or any parties or companies associated with him without leave of the President of the High Court.

Background

The Plaintiff claimed that the Defendant had defamed him on 22 February 2010, by claiming that he had a criminal record. He failed to issue proceedings until 25 January 2012, some 23 months after the cause of action had arisen. Section 11(2)(c) of the Statute of Limitations Act 1957 (as amended) provides for a one-year limitation period in respect of defamation actions, with an option for an extension of that period to a maximum of two years by court direction.

Section 11(3A) of the 1957 Act provides that the court should only make such a direction if it is required in the interests of justice, and if the prejudice suffered by the Plaintiff by the strict limitation period would outweigh the prejudice that would be suffered by the Defendant in allowing the matter to proceed.

The Plaintiff claimed to be entitled to a direction extending the limitation period to the discretionary statutory maximum of two years, under s.11(2)(c)(ii).

Court of Appeal

The Court of Appeal found that the onus of proof for satisfying the requirements of s.11(3A) falls on the Plaintiff. It found that in determining whether an extension is 'in the interests of justice', it should consider whether there was a satisfactory explanation which excuses the delay in instituting proceedings. The court determined that the Plaintiff had not advanced full or adequate reasons for the delay.

The Court of Appeal also found that, notwithstanding the possibility that the Plaintiff might have captured part of the alleged defamatory incident on video, the prejudice that would accrue to the Defendant was greater, given that both witnesses to the incident were no longer contactable by him.

The court also found that the plaintiff had 'habitually and persistently instituted proceedings of a frivolous or vexatious nature' against the defendant and his associates. It found that the plaintiff had no funds, and as such, costs orders against him had no deterrent effect, so it upheld the Isaac Wunder order as a necessary and proportionate restriction on the plaintiff's right of access to the courts.

Comment

It is unfortunate that the Court of Appeal declined to comment on the technical questions that arose in this case; whether a direction for an extension of the limitation period in defamation claims must be sought before the issue of proceedings, or can retrospectively 'cure' a delay.

The decision does, however, add some guidance to the meaning of the vague statutory concept of 'the interests of justice', and give some limited indications on how the courts will view the prejudicial effect of absent witnesses, when video footage of an incident is available.

For more information on this topic please contact Ciaran Joyce, Knowledge Lawyer, or any member of A&L Goodbody's Litigation and Dispute Resolution team.

Date published: 25 April 2019