William McClean v. Sunday Newspapers Limited
This High Court decision delivered on 30 May, 2014 serves as an important reminder of the potentially fatal nature of a delay on the part of a plaintiff in the prosecution of any proceedings, but in particular in a defamation claim.
The proceedings involved a newspaper article, published in April 2000 in the Sunday World, which alleged, amongst other things, that the plaintiff had sought to sell compromising photos of a woman whom, at the time, had gained some media notoriety.
Following the initiation of the proceedings within 3 months of the publication, pleadings were delivered over a 2 year period. However, that was followed by a 7 year hiatus where Mr. McClean did nothing,before deciding to advance matters and issued a notice of intention to proceed. After that notice issued there was a further 3 year delay when Mr. McClean again did nothing. The defendant, Sunday Newspapers Ltd, decided to bring an application seeking an order to dismiss the plaintiff's claim on grounds of inordinate and inexcusable delay in the prosecution of his action.
Mr. McClean offered the following by way of explanation for the delay:
- Following the commencement of the proceedings, Sunday Newspapers Ltd desisted from publishing articles concerning Mr. McClean, so he decided to "let sleeping dogs lie", in respect of which the Judge observed it was “the longest of sleeps”. However, when the newspaper later published another article allegedly defaming him, he chose to further pursue his claim.
- Mr. McClean suffered from ill health which he contended interfered with his ability to prosecute these proceedings.
The court considered the three issues central to applications to dismiss claims for delay, being: (1) was the delay inordinate; (2) was the delay excusable and (3) even if the delay was inordinate and inexcusable, was the balance of justice in favour of or against the case proceeding?
The court had no difficulty in finding that the delay was inordinate and inexcusable, particularly in the context of defamation proceedings, noting the comment in the earlier case of Ewins v. Independent Newspapers (Ireland) Ltd.  that:
“A plaintiff in defamation proceedings, as opposed to many other forms of proceedings, is under a particular onus to institute his proceedings instantly and without delay and, of course, not simply because he will be otherwise met with the response that it cannot have been of such significance to his reputation if he delayed so long to bring the proceedings but also in his own interests in order, at once, to restore the damage that he sees to have been done to his reputation by the offending publication.”
The court was also satisfied that the balance of justice did not favour the case proceeding and on this point the Judge chose to paraphrase Wilde, stating that;
“This is because in this case, the plaintiff in effect had two bites at the cherry of litigation. He pursued his defamation proceedings with relative despatch until 2002 and then allowed them to subside. He issued a notice of intention to proceed in 2010 and again allowed matters to subside. To paraphrase Wilde, for the plaintiff not to continue with his proceedings once was perhaps misfortunate; not to do so twice seems little short of carelessness.”
A further compounding factor was that, in the intervening time period, and despite being ill, Mr. McClean had apparently commenced and settled substantial litigation against another newspaper publishing group during the same time period.
The Judge also reiterated the constitutional imperative that the courts dismiss stale claims, taking into account Sunday Newspapers Ltd's own right not to be subjected to the continuance of the proceedings and the fact that:
“The court is also conscious in this regard of the special importance of the media in our open society. A free press is hardly free if trammelled by litigation that, once commenced, neither proceeds nor ends.”
A party who delays initiating or advancing defamation proceedings by any period of time is clearly open to an argument that they cannot view the alleged defamation as being of any great significance. This focus on avoidance of delay is also reflected in the current applicable limitation period of one year, extendable at the court’s discretion to a maximum of 2 years, from the date of an alleged defamation within which a plaintiff must initiate a claim. It is therefore clear that an aggrieved party must be fully aware that, once they initiate defamation proceedings, they will need to move quickly and always avoid the impression of “letting sleeping dogs lie”. If they decide to delay for any specific reason, clearly explaining the reasons for delay at the time of the delay to the other side should be considered, as they may at least be able to rely on an argument that the delay was either agreed or the other side acquiesced.
This judgment is also welcome for media organisations as it gives them an advantage when bringing strike out applications in defamation cases which does not apply with such force to other types of claims.