High Court: Public attacks on legal team justified continuation of interlocutory reliefs in defamation case

About this case:

• Citation:
  [2024] IEHC 110
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Tony O'Connor

Delivering judgment for the High Court, Mr Justice Tony O’Connor stated: “A self-representing litigant does not have the same obligations to the court. This explains why the court will support and protect the independence and fearlessness of solicitors and barristers when they are attacked during the course of proceedings.”

Background

In February 2021, the plaintiff, a brother of the late Veronica Guerin, issued proceedings claiming damages for defamation arising from an alleged “campaign of defamation” by the defendant on social media, which claimed inter alia that he was a paedophile. The defence made reference inter alia to deceitful statements made to the High Court by the legal representatives of the plaintiff, and named those representatives.

The matter came on for hearing before Mr Justice O’Connor in November 2023, with the jury being unable to reach a majority verdict. On 14 December 2023, the court was informed by the parties that it was agreed to postpone the retrial to the April 2024 jury sessions. Counsel for the plaintiff highlighted to the court that the defendant had posted on social media about the plaintiff and his advisors, and so the court granted liberty to the plaintiff to issue a motion returnable to 20 December 2023 to seek interlocutory reliefs.

On the next occasion, the plaintiff sought interlocutory reliefs pursuant to the inherent jurisdiction of the court directing the defendant to remove the publications complained of by the plaintiff, or in the alternative, orders directing the hosts of the publications to remove them.

The defendant’s solicitor stating that he was unable to secure instructions, the court adjourned to 23 January 2024.

The High Court

The matter came back before Mr Justice O’Connor on 23 January 2024. The plaintiff’s counsel highlighted the defendant’s increasing public commentary about the case and about the plaintiff’s legal representatives. The court proposed to adjourn the matter for the purpose of allowing a further affidavit to be filed concerning threats experienced by the plaintiff, in response to which the plaintiff’s counsel sought an interim order relating to the defendant’s posting online about the plaintiff’s legal representatives.

The court proceeded to deliver an ex tempore ruling “to maintain and control the exercise of the rights of the parties to litigate under the Constitution and pursuant to the laws of the State” inter alia restraining the defendant from posting statements asserting or implying that the plaintiff’s legal team told any lies or committed crimes in relation to the proceedings and from posting photos or images of the plaintiff’s legal team until the determination of further interlocutory applications by the parties.

When the matter returned on 29 January 2024, an affidavit was opened to the court asserting that the plaintiff, his family and legal team were being stalked, harassed and threatened by four individuals. Counsel for the plaintiff confirmed that the plaintiff did not propose to institute proceedings against those individuals, and so the court declined to take account of the alleged harassment, noting that it would intervene if satisfied that either party directly or indirectly organised threats as against the other.

Addressing the plaintiff’s application for injunctive reliefs, the court noted s.33 of the Defamation Act 2009 as providing criteria for the making of orders prohibiting publication or further publications of statements, recognising the significant policy concerns in protecting freedom of expression as outlined by Mr Justice Senan Allen in Beaumont Hospital v. O’Doherty [2021] IEHC 469.

Counsel for the plaintiff clarified that it was instead relying on the inherent jurisdiction of the court to regulate its own procedures.

As to the court’s concern about exercising its inherent jurisdiction to grant an injunction where the legislature has granted power to do so under the 2009 Act, counsel for the plaintiff relied upon Order 50, Rule 12 of the Rules of the Superior Courts and asserted that the court could rely upon In the matter of MM (a person alleged to be of unsound mind) [1933] IR 299, where an obstruction or attempted obstruction of the course of justice has been made. Mr Justice O’Connor was unconvinced that the defendant had contaminated the future pool of jurors, or that she was seeking to do so.

As to whether damages would be an adequate remedy if an injunction were to be refused, the plaintiff relied upon his right to a fair trial and submitted that the court of public opinion would otherwise be influenced in such a manner as to affect a retrial, and so damages would not be adequate. The court disagreed, finding that the defendant had not influenced public opinion in the manner contended for by the plaintiff.

The court noted that the “personal attacks on the legal team for the plaintiff constitutes an unorthodox approach by a litigant to dissuade further prosecution of the proceedings… Lampooning members of the plaintiff’s legal team and questioning the support of a spouse for a lawyer on that team is a novel tactic indeed in the conduct of litigation in this State. This approach by the defendant is uncivilised and inappropriate.”

The court continued: “The defendant has made no effort to explain why it is necessary for her to revile named lawyers when she has other means of resolving any legitimate grievance about those professionals. The court can only conclude that she wants to interfere with the right of the plaintiff to engage and rely on his chosen advisors and advocates.”

Mr Justice O’Connor considered the provisions of the codes of conduct applicable to barristers and solicitors, noting: “A self-representing litigant does not have the same obligations to the court. This explains why the court will support and protect the independence and fearlessness of solicitors and barristers when they are attacked during the course of proceedings.”

Relying on O’Brien v Personal Injuries Assessment Board [2009] 3 IR 243, the judge concluded: “The defendant does not deny the right of the plaintiff to retain legal representation but she has evinced an intention to interfere with his choice… It is readily apparent that the defendant wishes to dissuade the plaintiff’s legal team from continuing to act for the plaintiff at the retrial. The defendant’s allegation of unlawful activity on the part of the plaintiff’s legal team may be pursued in a lawful and civil manner if she intends to persist in expressing those views.”

The court considered that if the plaintiff’s legal team were to institute their own proceedings, their independence at the plaintiff’s retrial would be compromised having regard to their codes of conduct, and as such, the court could distinguish its reliance on its inherent power to regulate the defendant’s conduct in this context.

Conclusion

Refusing the interlocutory reliefs sought on behalf of the plaintiff, the court decided inter alia that his order of 23 January 2024 would remain in place, noting that same was proportionate to the right of the defendant to express her views.

The court remarked that if she had any serious allegations to make about the plaintiff’s legal team or the judiciary, the defendant could pursue same in a lawful and regulated manner, warning: “Neither party is entitled to interfere with the conduct or determination of these proceedings by seeking to court public opinion about the lawyers retained.”

Guerin v. O’Doherty [2024] IEHC 110