Tuesday 6 December 2016

Dana loses application requiring family members taking defamation case against her to provide legal security

Tim Healy

Published 30/11/2016 | 15:52

Dana Rosemary Scallon. Pic: Courts Collins
Dana Rosemary Scallon. Pic: Courts Collins

Dana Rosemary Scallon has lost a High Court application requiring her sister and niece to put up security for legal costs should they lose a defamation they are taking against the singer and former Presidential candidate.

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The defamation action arises out of a 2011 TV interview, during the Presidential election campaign, when she was asked about allegations of sexual abuse made against Dana's brother John Brown.

Susan Stein and her daughter Susan Gorrell, both living in Iowa, US, have taken separate High Court actions alleging Dana defamed them during the interview broadcast on TV3 in October 2011.

Dana, they say, made statements which meant both women maliciously made up claims Ms Gorrell was sexually abused between 1971-81 by her uncle, John Brown, who lived in England. They claim the allegations of abuse are true.

Subsequently, Ms Gorrell made a complaint to English police and Mr Brown (62), of Bracknell, Berkshire, was cleared in July 2014 of charges of indecent assault of two girls aged under 13 and 16 at several locations in Northern Ireland and England in the 1970s and 80s.

He denied all the claims against him.

In the meantime, Ms Stein and Ms Gorrell brought defamation proceedings against Dana, who denied their claims.

Dana then sought a security of costs order in advance of the trial.  She claimed legal costs would amount to some €450,000 while the other side estimated them at €189,000.

The plaintiffs opposed the application saying it would bring their case to an end if they had to put up that sort of money.

Ms Stein and Ms Gorrell had also obtained an insurance policy in England under which they were indemnified for legal costs, if their case was not successful, up to a limit of €150,000 each, the court heard.  They have to pay the insurer if they win.

Dana's lawyers argued the policy was so conditional it could not provide sufficient security for costs.

Mr Justice Robert Eagar rejected Dana's claim they should provide security.

While the court was not going into the merits of whether Dana's claims were defamatory, he found there was a public value in litigating in a civil context claims involving sexual abuse allegations where proof beyond a reasonable doubt had not been established in a criminal trial.

He found Dana had established a reasonable defence to defamation and there had been no delay by her in issuing her security for costs application.

The court was undecided as to the impecuniosity of Ms Stein and Ms Gorrell.  However, they had identified special circumstances which justify a refusal to grant such security.

The failure of Ms Gorrell to make a complaint (to the police) before 2011 can be understood in the context of comments made, in another case, by an expert on the social history of child welfare, he said.

That expert, Prof Harry Ferguson, stated it cannot be said child sex abuse in the late 1960s had a sufficient official reality at that time such to have made it possible for a victim to successfully initiate a complaint, the judge noted.

Earlier, the judge said did not accept the insurance policy provided any security for the defendant.  He said the policy was designed for the jurisdiction of England and Wales and had not been amended to reflect the circumstances of this litigation.

However, the court was exercising its discretion in finding the plaintiffs' disputed impecuniosity was not a reason for granting Dana's application.

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