Supporting Documents:
122-17 AFL.pdf122-17 Rspndt Notce.pdf

THE SUPREME COURT

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to appeal.

REASONS GIVEN:

Jurisdiction

1. This is an application for leave to appeal against a decision of the Court of Appeal (the President, Irvine J., Barr J.), dismissing an appeal against a judgment delivered by Costello J. in the High Court, refusing a declaration and interlocutory injunction against the applicant’s former employers, Coolmore Stud (“Coolmore”).

2. As is clear from the terms of the Constitution, and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there should be an appeal to this Court.

3. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

Background

4. The notices filed by the applicant and the respondent are available on the Courts website, and are summarised here in more detail than is customary. The applicant is a litigant in person.

5. Mr. Jones worked at Coolmore over a period of 9 years, until late 2014. Differences arose between himself and his employers. He brought a claim in the Labour Relations Commission. That matter was compromised, and the parties reached agreement with the assistance of a rights commissioner. The settlement was reduced to writing. Among the terms was an agreement that the applicant would receive the sum of €30,000 net as a gesture of appreciation (the said sum to be inclusive of redundancy). The applicant also accepted he had no further claim against Coolmore under any other employment legislation. The agreement was to be strictly private and confidential to the parties. It was a term of the agreement that no records relating to animals or clients would be disclosed by the claimant. Additionally, both parties agreed that they would not make any derogatory comments about each other at any time in the future.

6. After Mr. Jones resigned, he wrote a book, which he privately published in November, 2015. Coolmore’s solicitors engaged in correspondence with the distributors and potential book sellers. The intent behind these letters was to place both distributors and sellers on notice that the book might contain defamatory material, and that Coolmore reserved the right to sue distributors or sellers. Having read the book, the Coolmore solicitors sent further letters to the effect that the work infringed upon the good name and interests of Coolmore itself, the rights of its employees, clients, and others. Coolmore did not, however, sue Mr. Jones for defamation. For his part, Mr. Jones maintained in correspondence that, if Coolmore did sue him, he would defend his book in total.

7. In High Court proceedings the applicant sought four injunctions against Coolmore:

(i) Preventing the defendant or its representatives from threatening any bookshop or website with legal action for defamation relating to the book;

(ii) Compelling the defendant and its representatives to immediately withdraw in writing all threats of legal action previously made to bookshops, and Amazon, in relation to the book;

(iii) Declaring that the book was non-defamatory, on the face of it, and that it might be sold in outlets where books are sold;

(iv) Instructing the defendant to provide the plaintiff (i.e. the applicant), with all evidence relating to their claim that the book was defamatory, and seeking costs unless refusal was reasonable.

1. Bias on the part of the trial judge.

2. Breach of his rights to freedom of speech and expression.

3. Promoting censorship.

4. Various errors of law.

9. The Court of Appeal judgment upheld the High Court decision. It rejected the suggestion that the High Court judge had been biased. The Appeal Court held that the applicant misconceived the law on bias and, in particular, had conflated the tests for subjective and objective bias. It held that a court was entitled to allocate time to parties within which they might present their case. It held that Coolmore’s solicitors had done no more than to inform the distributors and sellers of the fact that Coolmore reserved its rights to sue, and, after publication, later that the book infringed on the good name of parties identified. The Court of Appeal held there was not a breach of the applicant’s rights of free speech under the Constitution or the Convention.

10. Mr. Jones contends:

1. That the Court of Appeal judgment is contrary to Article 40 of the Constitution of Ireland. He says that his case before the Court of Appeal concerned objective bias, but that the defendant had submitted it must also be proved that the judge was biased even before the hearing commenced, so called extraneous bias. He complains that this, effectively, made all bias subjective in nature, and contends that this was manifestly unjust, and against the spirit and letter of the Constitution, which guarantees equality.

2. The applicant submits that the Court of Appeal judgment is contrary to “Article 46” of the Constitution of Ireland, in that he contends that he was unfairly censored and restricted as to what he could say in the High Court hearing, and that he was not afforded his constitutional right to an adequate opportunity to present his case in the Court of Appeal. He was told at the start of the appeal that he had one and one quarter hours to make his case, when he explained he needed longer.

3. The applicant says that the judgment is contrary to Article 10 of the European Convention on Human Rights, as it concerns freedom of speech. He contends the judgment is illogical, irrational, and perverse, and that Coolmore’s actions amounted to a serious violation of his fundamental right of free speech, and that Coolmore’s sole aim was to stop people reading his book; which conduct constituted a grave breach of freedom of expression. The applicant accepts that the book is legally available to be sold. He says that the right to freedom of expression includes freedom to seek, receive and impart ideas and information of all kinds. In effect, he says that the threats from Coolmore’s lawyers to potential disseminators or distributors impinged on his freedom of speech.

4. The applicant contends that defamation should be treated as a special case, where injunctive relief is sought. He says he addressed the Court of Appeal on relevant legal principles, whereas Coolmore brought the court’s attention to authorities which were not relevant. The applicant refers to the case of Bonnard v. Perryman [1891] 2 CH 269, wherein it was held that, although the courts possessed a jurisdiction in all but exceptional cases, they should not grant an interlocutory injunction to restrain the publication of a libel, which the defence sought to justify, except where it was clear that the defence would fail: and that, where a defendant contended that the words complained of are true, and swears that he will plead and seek to prove the defence of justification, a court should not grant an interlocutory injunction, unless exceptionally, it is satisfied the defence was one which could not succeed.

5. The applicant contends that the Court of Appeal’s determination that there was not a serious question to be tried was illogical and inconsistent. He criticises the fact that both the High Court and Court of Appeal had determined that the defendant could rely on a defence incorporated in the s.27 of the Defamation Act to justify their actions against retailers, but denied his reliance on the defence of truth. He asserts that the applicable legal principle was the same in each case, but the Court of Appeal wrongly found in favour of Coolmore against him. The applicant contends that the Court of Appeal sanctioned a de facto restraining order against himself, and that the court had granted an injunction in all but name.

6. The applicant contends that the “core issue” changed from the High Court to the Court of Appeal, again contrary to “Article 46” of the Constitution. He refers to the fact that, at first instance, the High Court judge had identified the “defendant’s primary objection” as being one of a breach of the “Rights Commissioner’s settlement agreement”. But, he says, the Court of Appeal decided the “central issue” in the case was whether or not the defendant could take pre-emptive measures in reliance on s.27 of the Defamation Act, 2009 to protect his good name. He contends that, in essence, the Court of Appeal sanctioned coercion, by permitting or condoning the issuance of this Coolmore correspondence.

7. It is said that the Court of Appeal did not fully explain why he would be disentitled to an injunction; and that Coolmore repeatedly refused to provide full details of defamation in the book, as it was afraid of the publicity it would attract. The applicant criticises the decision of the High Court judge, to the effect that no useful purpose would be served by the defendant detailing each and every one of the complaints. He contends, that he, the applicant, is entitled to know what “the defendant’s” complaints are, so that he can answer the serious charges they have levelled against him. Finally, the applicant reserves the right to refer to other matters of law, and breaches of procedures.

Discussion

12. As a matter of practice, personal litigants are extended a degree of latitude by the courts. But a person who opts to legally represent themselves is bound by the same law as all other litigants. Consequently, Mr. Jones is bound by the same law as applies to all other applicants and respondents.

13. The application for leave appears to contain a number of misapprehensions. The first relates to the role of this Court. As a consequence of the 33rd Amendment to the Constitution, and as set out above, the role of this Court is confined to consideration of either matters of general public importance, or appeals which are in the interests of justice. This Court is no longer an appeal court either from the High Court, or from the Court of Appeal, per se. This Court’s role is, rather, defined by the constitutional amendment itself. The Court is no longer a “court of error”. It addresses, rather, issues which come within the two constitutionally defined categories identified in this determination.

14. A vast range of cases comes before the Court of Appeal, where that court is called upon to reach determinations on issues of law, sometimes very complex law. But the fact that the Court of Appeal must address such issues, does not render a decision of that court as one which, ipso facto, comes within the two constitutional criteria. Thus, one of the issues which will, generally, militate against a case being brought to this Court is whether it is “fact specific”. By this is meant that the issues which are raised in the application are so confined to that case that they are not of general public importance, and do not raise issues which are in the interests of justice to be further litigated. Thus, for very many cases the Court of Appeal is the final court of appeal, subject only to the considerations which have been set out earlier. The mere fact that a party disagrees with a decision of the Court of Appeal will not be a basis for an appeal to this Court.

15. Equally, in considering an appeal, this Court will have regard to whether an application raises what can be categorised as entirely “generic” appeals, that is, points which are so broad as to have no real meaning in the context of the case. For example, litigants are sometimes prone to contending that an adverse judgment is “biased”, simply because the judgment under consideration did not go their way, or ruled against them on some issue. Without much more, this would not be good grounds for an application to this Court.

16. The initial point made by the applicant is that the Court of Appeal judgment is contrary to Article 40 of the Constitution of Ireland. It is said, “the appellant’s case concerned objective bias, but the defendant insisted it must also be proved the judge was biased even before the hearing commenced, so called extraneous bias”.

17. There is no evidence of subjective bias in this case. The High Court judge gave rulings and found against the applicant. That is not evidence of any category of bias. The law sets out the test for objective bias. The test is an “objective” one. It is whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial judge. As it is an important test, it does not involve the simply subjective apprehension of a litigation-party. The test of objective bias involves a “reasonable apprehension of a reasonable person who is in possession of all the relevant facts.” (See judgment of this Court in Goode Concrete v. CRH & Others [2015] IESC 70). It is clear that this point is misconceived. The reason there is an objective test is simple: if a court decision could be challenged because it was adverse to one or other party, there could be no effective courts’ system and no rule of law. Subjective bias is a different matter entirely. It arises when a judge shows personalised animus or pre-judgment against a party to litigation generally arising from events antecedent to the litigation. A ruling on procedure or time allocation is not evidence of bias of any type.

18. Next, it is contended the Court of Appeal judgment is contrary to “Article 46” of the Constitution of Ireland. Article 46 of the Constitution of Ireland refers to the procedure for amendment of the Constitution. It has no relevance to the question of free speech. It may be that the applicant has in mind Article 40.6(i) of the Constitution of Ireland, but this is not clear. However, insofar as the point again relates to court procedures, it should be pointed out that courts are entitled to identify the length of time which litigants may take up in presenting their cases. A court is perfectly entitled fairly to allocate the length of time in which a litigant will be permitted to present the relevant aspects of his or her case. (See Tracey t/a Engineering Design & Management v. Burton & Others [2016] IESC 16, and in particular paragraph 45 thereof). The entitlement of courts to regulate their own procedure is universal and is not confined to courts within this jurisdiction. Precisely the same rules can be found in many courts.

19. Third, it is said the Court of Appeal judgment is contrary to Article 10 of the European Convention on Human Rights, which protects freedom of speech and expression. It is quite right to say that Article 10 guarantees a right to freedom of expression. But this is not an unqualified right. It allows for limitations which may be prescribed by law, which may be necessary and proportionate, and which pursue a legitimate aim. Among these aims are the protection of the reputation or rights of others; and the prevention of the disclosure of information received in confidence. These rights are, of course, guaranteed under the Constitution of Ireland. But, as the applicant points out in his Notice of Application, his book “The Black Horse Inside Coolmore”, is, in fact, legally available to be sold. What occurred in this case, on the applicant’s own account, is that solicitors acting on behalf of Coolmore corresponded with potential distributors of the book, indicating their views about the book’s defamatory content. Coolmore chose not to sue. But correspondingly, the applicant cannot invoke a hypothetical “right to be sued” in order to use legal proceedings brought by Coolmore as a platform for ventilating his concerns regarding how Coolmore functioned. Nor can he use declaratory proceedings for the same purpose.

20. The defence of innocent dissemination is set out in statutory form in s.27 of the Defamation Act, 2009. It is implicit in the defence that where a person apprehends that a publication may contain defamatory material about him, he is entitled to communicate that apprehension to the distributor or seller, or other person involved, who is not the author, editor or publisher. The publication was not prevented by court order or otherwise. Whether or not distributors choose to sell the book is a matter for themselves. An author cannot insist that a person claiming to be defamed in his work has to sue him, as well as other parties, or instead of other parties.

21. Next, it is said the Court of Appeal judgment contains errors of procedure and law. However, the legal authorities the applicant refers to do not relate to the circumstances of his case. These authorities refer to applications for injunctions to restrain the publication of defamatory material. The courts under appeal correctly held that, in defamation proceedings, truth is a defence, and not a ground for legal action. The applicant, were he sued, would be entitled to rely on the defence of truth. But he has not been sued. He is, in fact, the plaintiff to whom different principles of law apply.

22. Next it is contended that, what is described as “the core issue” changed from the High Court to the Court of Appeal, again, it is said, contrary to “Article 46” of the Constitution. Here the applicant refers to the High Court judge’s reference to Coolmore’s primary objection to the publication being a breach of the Rights Commissioner’s agreement. The Court of Appeal referred to Coolmore’s reliance on s.27 of the Defamation Act, 2009. The first reference was by the High Court to what the defendant identified as being a primary issue. The second was identification by the Court of Appeal as to what it considered to be the primary issue. It is entirely open to courts to identify issues in whichever sequence they may wish.

23. The applicant raises the question of “coercion”, a criminal offence. The defendant’s solicitors wrote a series of letters to publishers, distributors, or other entities, which might be involved in the distribution, dissemination or sale of the book. This does not constitute “coercion”. Coercion is an offence for a person to take specified actions, without lawful authority, with a view to compelling another person to abstain from doing, or to do any act which that other person has a right to do, or to abstain from doing. The specified actions include (a) using violence to or intimidating that person; (b) injuring his property; (c) persistently following him from place to place; (d) watching or besetting where he works or resides. (s.9 Non-Fatal Offences Against the Person Act, 1997). Writing a solicitor’s letter in the context of this case is not “coercion”.

24. The issue of bias is again raised under this heading. This has already been dealt with. The point does not come within the constitutional criteria.

25. Insofar as the applicant says he was entitled to a declaration that the book was not defamatory, the fact that the defendant indicated to the Court that it had no intention of suing the applicant for defamation is not a legal basis for a court concluding that the book was, in fact, non-defamatory. By the same token, the applicant was not entitled to seek “particulars” of the defamation from Coolmore, in circumstances where Coolmore were refraining from issuing any proceedings. “Particulars” are furnished within the context of legal proceedings. The Court of Appeal was entitled to hold the applicant is not entitled to “reconstitute” his proceedings into, effectively, being defamation proceedings, by seeking declarations of the type sought against Coolmore.

Decision

26. In the view of this Court, the application does not come within either of the criteria laid down under the Constitution. The applicant contends that what occurred in the Court of Appeal is a “serious miscarriage of justice”. This Court does not agree. The Court of Appeal dealt with the issues in a careful way. The applicant has now had the opportunity of a hearing before the High Court, and the Court of Appeal. As pointed out by this Court in Tracey, cited earlier, court time is a precious resource. Courts are not to be used as a platform or a vehicle for ventilating personal grievances. Subjective belief in the validity of certain concerns does not constitute a cause of action.

27. In the circumstances, the application is declined.

And it is hereby so ordered accordingly.