Friday 20 October 2017

Court of Appeal throws out Leech libel case

'Sunday Independent' wins case over coverage of robbery at consultant's home

Ms Justice Mary Irvine Picture: Collins
Ms Justice Mary Irvine Picture: Collins

Aodhain O Faolain

The Court of Appeal, with Ms Justice Mary Irvine presiding, has dismissed libel proceedings by communications consultant Monica Leech over an article published in the Sunday Independent 12 years ago.

The case related to a front page article of January 30, 2005 concerning a burglary at Ms Leech's home some months earlier.

Ms Leech's proceedings were taken against Independent Newspapers Ltd, publisher of the Sunday Independent. The newspaper denied libel and its defence included pleading qualified privilege.

The case was initiated in April 2005 but, after notices to proceed were served in 2008, little more happened until 2014 when Independent Newspapers applied to have the case dismissed and Ms Leech served a further notice of intention to proceed.

In November 2015, the High Court found "inordinate and inexcusable delay" by Ms Leech in advancing her action but also ruled the balance of justice favoured letting it proceed.

But the three judge Court of Appeal unanimously granted the appeal by Independent Newspapers against permitting the case to proceed. Cian Ferriter SC represented Independent Newspapers.

Ms Leech had not disputed the High Court finding of inordinate and inexcusable delay on her part but she argued the newspaper acquiesced in that delay while she pursued two other libel cases. She also alleged it was not prejudiced by the delay.

The issue for the appeal court to decide was whether the balance of justice favoured dismissing the case or allowing it go ahead.

Giving the appeal court's unanimous judgment, Ms Justice Mary Irvine held the High Court made legal errors in its assessment of where the balance of justice lay.

Ms Leech, the judge said, made a tactical decision to "park" this libel case, initiated in April 2005, while she pursued two other libel actions.

One of those cases, initiated in 2004 over articles in the Evening Herald published by Independent Newspapers, led to a €1.87m damages award in 2009, later reduced to €1.25m by the Supreme Court in 2014 on appeal. The second case, over a 2004 article in the Irish Independent, is subject to a retrial.

Ms Leech parked the third action [which was subject to Friday's ruling] and it was not disputed she did not communicate her decision to do so to the newspaper, the judge said.

A person who did that bears the risk of being penalised for her delay and the High Court had erred in finding Independent Newspapers acquiesced in the delay.

The High Court also erred in not giving appropriate consideration to the specific and general prejudice relied on by the defendant as a result of the delay, the judge held.

That prejudice included the death in January 2012 of Sunday Independent editor Aengus Fanning, with the effect he was not available to give evidence to support the newspaper's plea the article underwent proper editorial consideration and adversely impacted on the memory of the two journalists who wrote the article.

The High Court should also have considered the difficulties facing a jury seeking to fairly assess a public interest defence concerning an article published in 2004, the judge said.

A jury being asked to make decisions not just on the credibility of witnesses, but also what was or was not a matter of public interest 10 years on "is likely to lead to a precarious result", she said.

Sunday Independent

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