The Court of Appeal (CoA) recently ruled on the issue of when a claim will be struck out for abuse of process in the related appeals of Gilchrist / Rogers v Sunday Newspapers Limited, Colm McGinty and Nicola Tallant [2017] IECA 190. The CoA rejected the approach adopted in England, essentially a ‘cost v. benefit’ analysis, and confirmed a more restrictive ‘no benefit’ test which must be met by defendants in Ireland to have a claim struck out for abuse of process.

BACKGROUND

Patrick Gilchrist, a former member of the Gardaí, and Isabel Rogers, a psychotherapist who provided services to the Gardaí, brought defamation actions relating to statements made concerning separate litigation relating to the State’s witness security scheme and their roles in the scheme. Specifically, the statements in issue were:

(a) Statements contained in a newspaper article published in the Sunday World in March 2014 and online; and 

(b) Statements published by Nicola Tallant (a journalist with the Sunday World) to a former member of the Gardaí, John O’Brien.

ENGLISH APPROACH – COST V. BENEFIT

The newspaper sought to have the latter claims (relating to the statements made to Mr. O’Brien) struck out as an abuse of process based on their similarity to the claims relating to the newspaper articles. The High Court refused and this was appealed to the CoA.

The newspaper relied on the approach adopted in England to abuse of process and, in particular, a 2005 judgment of the English Court of Appeal in Jameel (Yousef) v Dow Jones & Co. Inc [2005] Q.B. 946 in support of its application. Jameel related to an article posted by Dow Jones on web servers in New Jersey which was later accessed by 5 people in England. In considering whether to strike out the claim as an abuse of process, the approach adopted by the English Court in Jameel was, in essence, to weigh the probable costs of the litigation and the use of judicial and court resources against the damages and vindication which might have been achieved if the plaintiff was successful. 

If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.” (emphasis added)

In forming this view, the English Court relied on two recent developments in England: the introduction of new procedural rules which required the English Courts “to deal with cases justly and at proportionate cost”; and the English Human Rights Act 1998, which required the Court as a public authority to administer the law in a manner compatible with the European Convention on Human Rights.

IRISH APPROACH – NO BENEFIT

By judgment of 21 June 2017, the CoA rejected the ‘cost v. benefit’ approach adopted by the English courts in favour of a more restrictive test. Finlay Geoghegan J. held that the test or threshold in Ireland to have a claim struck out for abuse of process (other than on grounds that it is frivolous or vexatious or repeat litigation or bound to fail) is to establish that there is no benefit to the plaintiff in successfully pursuing the claim. This was based on a decision of the High Court in McSorley v O'Mahony (High Court, unreported, 6th November, 1996) and a decision of the Supreme Court in Grant v Roche Products (Ireland) [2008] 4 I.R. 679. In McSorley, the High Court held:

It is an abuse of the process of the courts to permit the court's time to be taken up with litigation which can confer no benefit on a plaintiff. It is also an abuse to permit litigation to proceed which will undoubtedly cause detriment to a defendant and which can confer no gain on a plaintiff.” (emphasis added)

Finlay Geoghegan J. found that the same test was adopted by the Supreme Court in Grant albeit the term used here was “no tangible benefit”. She described the test in the following terms:

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”.

In following the Irish authorities, Finlay Geoghegan J. pointed out that the developments that had influenced the English Court’s approach in Jameel (outlined above) do not apply in this jurisdiction. She also emphasised that the inherent jurisdiction of the Irish Courts to restrict the constitutional right of access to the Court must be exercised sparingly and only in clear cases. Finally, she held that the similarities between the various statements impugned did not mean that the plaintiffs were not entitled to pursue each of those statements and agreed with the trial judge (MacEochaidh J.) who concluded:

“… if a person has been defamed twice they’re entitled to litigate both occasions of defamation and even if they are very, very similar, and even if one of the occasions was to one person only …”.

KEY TAKE-AWAYS

  • To have a claim struck out for abuse of process (other than on grounds that it is frivolous or vexatious, repeat litigation or bound to fail), a defendant must prove that the claim can yield no benefit for the plaintiff.
  • A plaintiff is entitled to pursue numerous claims for defamation even where the underlying allegedly defamatory statements are very similar.