Dana defamation case: Judge urges sides to 'hammer something out'

Mr Justice Richard Humphreys made the comment when he adjourned applications relating to the action brought by Ms Scallon against INM plc trading as the Irish Independent, Sunday Independent, Sunday World, and the Belfast Telegraph.

It is over four articles she says appeared in print editions of the Sunday World and Belfast Telegraph, on the Irish Independent Twitter account and the Sunday World Facebook account and online edition in July 2014. She says they were defamatory because they falsely accused her of being, among other things, an "enabler" of paedophilia, a liar and a hypocrite.

The articles wrongly alleged Ms Scallon had told the trial in England of her brother John Brown - who was later cleared of indecently assaulting two girls - that she had brought her brother to a priest "to be cured."

INM denies defamation but agrees the reference to bringing her brother to a priest was an error and was never said.

What happened was a conflation between what was going to be said in a counsel's speech to the trial and what was actually said, Eoin McCullough, counsel for INM said.

Mr McCullough was asking the High Court on Friday to strike out Ms Scallon's case on grounds of unstateability because it had been brought against the wrong legal entity. INM, as the holding or parent company, was not the publisher of the articles, he said. INM cannot be responsible for the activities of the subsidiary companies Ms Scallon is suing, he said.

Despite having been told four years ago that INM was not the correct defendant, the Scallon side made no effort to change it, he said. It was now no longer legally permissible to do so because of time limits in defamation actions, he said. The case should be dismissed, he said.

Mel Christle, counsel for Ms Scallon, who lives in Claregalway, Co Galway, opposed the INM application. Ms Scallon has also asked the court to order summary judgment against INM which the defendant opposes.

Mr Christle said the holding company has control over its subsidiaries and they are an extension of the work the defendant does which in effect is involvement in publication and distribution of newspapers whether physically or through the internet.

The fact that INM was the holding company and subsidiaries were the publisher was a "distinction without a difference" as INM holds all the assets which includes the newspaper titles, he said.

The defendant was "both legally and factually" the publisher of the articles for the purposes of the Defamation Act, he said.

It was also in circumstances where the Northern Irish publishers of the Sunday World, Sunday Newspapers Ltd, had in November 2018 offered an apology for the article. There was "a bit of gamesmanship" going on here which could be cured by the court permitting Ms Scallon to add other defendants who are INM subsidiaries, he said.

Mr Justice Humphreys, who remarked the Scallon side could have "checked it out" when it was told INM was the wrong defendant, said it was not for INM to do the plaintiff's job and say "I am not liable, I am going to bring in third parties."

Before considering the matter any further however, the judge said he wanted on affidavit who were the legal entities which publish the newspapers and he adjourned the matter to next week.

He suggested, however, that given the apology in the North, that in the meantime, there might be a discussion between the side with a view to "closing off" the case. It would "certainly be more comfortable if it was possible to hammer something out," he said.