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Extension of time to issue defamation proceedings is refused

By: James Cross BL

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High Court, on appeal from the Circuit Court, finds that although the court can grant a retrospective application for an extension of time to issue defamation proceedings not issued within a year as required, on the facts of this case the court declines to exercise its discretion in favour of allowing an extension, on the grounds that: the plaintiff cannot rely on an allegation of negligence as against his own solicitor as the reason for his failure to institute proceedings in time; the plaintiff failed to make out a sufficiently clear and cogent case of solicitor’s negligence to justify imposing on the defendant the obligation to defend the proceedings; and the plaintiff has not suffered prejudice because they can bring separate professional negligence proceedings.

Defamation – practice and procedure – appeal from the Circuit Court – Circuit Court granted the plaintiff an extension of time to bring defamation proceedings - limitation period of one year for the bringing of defamation proceedings but permits a court to extend that period for a further year if certain statutory criteria are satisfied - whether an application for an extension of time under that section can be made retrospectively outside the permitted extension period in respect of proceedings which have already been issued within the period – factual background – inharmonious employment relationship – purchase of office equipment - comments made suggest that he was dishonestly involved in this transaction and had acted in breach of the financial controls and procedures in place within the Council and in breach of his duty to his employer – delay in issuing the proceedings – issued outside the one year period – preliminary objection - statutory provisions – arguments – sequencing of issues - jurisdiction to entertain an application for an extension made by the plaintiff after the expiration of the period for which an extension might be permitted – jurisdiction to be determined first - incumbent on the court to determine whether it has the discretionary jurisdiction which the plaintiff seeks to invoke before deciding on the facts how that discretion should be exercised - retrospective application for an extension of time - entitled to issue these proceedings - Statute of Limitations operates so as to create a defence, and in certain circumstances an absolute defence, to the plaintiff’s claim where it was not brought within the relevant limitation period - as this statutory formulation is unique to defamation actions no guidance can be obtained by looking at the operation of other provisions of the Statute of Limitations - if a plaintiff is seeking to avail of the extended limitation period, proceedings must be issued within that period but the plaintiff is neither required to, nor precluded from seeking a direction extending the time for bringing the proceedings either prior to or simultaneously with the issuing of proceedings or, as here, retrospectively, provided the proceedings themselves are issued within the relevant period - s. 11(2)(c) is unique in affording the court a statutory discretion to extend a limitation period - allowing an application for a direction to be made retrospectively in respect of proceedings which have already been issued within that two- year period is not inconsistent with the legislative policy underlying such a short limitation period – interests of justice - how the court’s discretion under s. 11(2)(c) should be exercised – delay – reasons for the delay – solicitor’s negligence - in principle a client could not rely on the negligence of his own solicitor who was in law the client’s agent – judicial comity – prejudice - not satisfied on the evidence that the plaintiff has made out a sufficiently clear and cogent case or has provided the court with all relevant information, including information as regards his own actions during the relevant period, for the court to be satisfied that the allegation of solicitor’s negligence has been made out to a degree which would justify imposing on the defendant the obligation to defend the proceedings – separate proceedings – no prejudice – appeal allowed – plaintiff refused extension to bring defamation proceedings.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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