Court dismisses former Garda Commissioner's application to bring defamation action against Irish Examiner

Ann O'Loughlin

An application by former Garda Commissioner Nóirín O'Sullivan for an order allowing her to bring a defamation action against the Irish Examiner has been dismissed by the High Court.

Ms O'Sullivan, who served as Commissioner between 2014 and 2017, had claimed she was defamed by the Irish Examiner in an article that appeared on the front page of the publication on October 4, 2016, entitled: "Senior Garda tried to 'destroy' source."

The Irish Examiner denied the article was defamatory.

Nóirín O'Sullivan at a previous court sitting

In September, Ms O'Sullivan applied to the High Court for an order permitting her to extend the time legally allowed to bring defamation proceedings against the Irish Examiner.

Under the 2009 Defamation Act, litigants have up to 12 months from the date of publication to bring defamation proceedings against the publisher.

However, under Section 38 of that Act, the High Court can extend the 12-month time limit to a maximum of two years.

The newspaper opposed the application for a time extension.

Ms Justice Teresa Pilkington today refused to grant Ms O'Sullivan an order allowing her to issue defamation proceedings outside the statutory limit of one year.

The Judge said Ms O'Sullivan had stated she did not bring the proceedings any earlier than she did because the former commissioner did not believe herself to be in a position to consider the matter from the date of publication until the conclusion of the Disclosures Tribunal.

The Judge said that those reasons, while sincerely and genuinely held, are "insufficient to dis-apply the one-year statutory limit".

Regard must be given to the time limit laid down by statute, the Judge said.

Ms O'Sullivan, the judge added, could have instituted proceedings within the statutory time limit.

The judge said the fact that the former commissioner did not do so "has consequences for her in now seeking to issue to intended proceedings".

"To make a decision not to deal with matters within a time limit imposed by the statue in my view is an insufficient reason to now grant an extension of it," the Judge said.

The Judge added the interest of justice required that no direction be given to dis-apply the one-year statutory time limit.

The judge said she was further satisfied that the prejudice to the plaintiff in being prevented from bringing the action against the newspaper does not significantly outweigh the prejudice to the newspaper in losing its statute of limitation defence.

After delivering her ruling the judge adjourned the matter for two weeks to allow the parties to consider her decision.

The article Ms O'Sullivan complained of reported that two senior gardai had made statements under the protected disclosure whistleblower legislation alleging that senior Garda management conducted a major campaign to destroy them in the force in what was described as "a smear campaign".

The allegations in the article were raised in the Dail by Michael Martin, and shortly afterwards an inquiry into the disclosures was ordered by the Minister for Justice.

In February 2017 the government announced that a Commission of Inquiry conducted by Mr Justice Peter Charleton would consider the claims in the disclosures made by Supt Dave Taylor and Sgt Maurice McCabe.

Ms O'Sullivan claimed she had not brought proceedings alleging defamation earlier because she was under the most intense strain from when the article was published to the conclusion of the public hearings of the Disclosures Tribunal.

The entire controversy she said had taken a considerable toll on her and her family, she said.

She said in a sworn statement that she feared the article and others will stand as a permanent record of the "horrendous and false allegations about me".

The newspaper, represented by Oisin Quinn SC, said it was only contacted by Ms O'Sullivan's lawyers in September 2018, one year and eleven months after the article she complains of was published.

No good reason had been advanced why she should be given an extension of time to bring her proceedings, it argued.

Denying it had defamed the former commissioner the newspaper said it published the contents of what two Gardai had made in protected disclosures to the Minister for Justice about an alleged campaign to damage a garda whistleblower.

The newspaper added the story was dramatic news and hugely in the public interest given the concerns it raised, and that Ms O'Sullivan was not named nor identified in the article as being one of the senior gardai against whom allegations were being made in the protected disclosures.

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