Tracey t/a Engineering Design & Management v Burton & others

Factual and Procedural Background

The Plaintiff, a chartered engineer trading as an engineering consultancy, entered into a written contract for services with the Defendants, a firm of consulting engineers, on 24 February 2004. The Defendants terminated that contract on 4 October 2004. Claiming wrongful termination, loss of earnings and other heads of damage, the Plaintiff issued plenary proceedings on 9 May 2006 and later delivered a detailed Statement of Claim (20 April 2009) pleading twelve causes of action, none of which expressly alleged defamation.

In October 2008 the Plaintiff set the action down for trial before a judge and jury. On the Defendants’ application, Judge Kearns (President of the High Court) vacated that notice of trial, transferred the case to the non-jury list and awarded the Defendants their costs (6 December 2010). The order was made in the Plaintiff’s absence after repeated failures to supply an adequate medical certificate explaining his non-attendance.

The Plaintiff, acting in person, appealed to the Supreme Court. Owing to procedural delays the appeal lay dormant until 2015, when the Supreme Court listed uncertified appeals for review. The matter was ultimately heard by Judge MacMenamin, with Judge Denham and Judge Charleton concurring, and judgment was delivered on 25 April 2016.

Legal Issues Presented

1. Whether the High Court erred in proceeding with the motion and making orders in the Plaintiff’s absence.
2. Whether the proceedings were properly characterised as “defamation proceedings” so as to confer a statutory right to trial by jury.
3. Whether the High Court’s order on costs should stand in the circumstances.

Arguments of the Parties

Plaintiff's Arguments

• The High Court was biased and breached the audi alteram partem rule by determining the motion without the Plaintiff or an adequate opportunity to be heard.
• The action involved defamation and therefore attracted a statutory right to a jury trial; the transfer to the non-jury list was beyond jurisdiction.
• Medical evidence explaining his illness had been supplied or was forthcoming, and the President should have accepted it.

Defendants' Arguments

• The pleadings disclosed no defamation claim, only a contractual dispute, so no right to a jury trial arose.
• The Plaintiff had repeatedly failed to comply with court directions, and the President acted within discretion in managing the proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge MacMenamin first rejected any allegation of bias against Judge Kearns, noting that clear directions had been given for a comprehensive medical report and warning of possible dismissal. When no adequate report or representative appeared, the President acted within case-management discretion to vacate the jury notice, transfer the case and award costs.

The Supreme Court then analysed whether the action was, in substance, a defamation suit. Applying the definition in section 6(2) of the Defamation Act 2009 and referencing standard texts, the Court found:

• No defamatory words or conduct were pleaded.
• The twelve causes of action centred on contract and economic loss; humiliation alleged in the pleadings was incidental.
• Neither the original nor amended Defence engaged with any defamation claim, underscoring its absence.

Because defamation had not been pleaded, the statutory right to a jury trial did not arise, and decisions such as Lennon were inapplicable. Furthermore, after years of delay, any attempt to transform the action into defamation at Supreme Court level would prejudice the Defendants and raise limitation issues.

On procedural fairness, the Court acknowledged the Plaintiff’s illness but held that he failed to use established mechanisms (e.g., a prompt application to set aside the High Court order) and instead pursued an appeal that caused further delay.

However, to ensure justice was seen to be done, the Supreme Court set aside the High Court’s costs order made in the Plaintiff’s absence. All other aspects of the High Court order were affirmed.

Holding and Implications

APPEAL DISMISSED save that the costs order of 6 December 2010 is set aside.

The proceedings are remitted to the High Court, to be tried by a judge sitting alone. The High Court may address preliminary issues such as the necessity of all named parties, any accord and satisfaction, and proper quantification of loss. No new precedent is established; the decision reiterates that a statutory right to jury trial arises only where defamation is expressly pleaded.