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Tracey v. Irish Times Ltd & Ors
Smart Summary
Factual and Procedural Background
The Appellant issued defamation proceedings against Company A and two individual Defendants after an article published on 17 September 2004 reported on District Court proceedings in which the Appellant had received the benefit of the Probation of Offenders Act 1907. The Appellant alleged that the article damaged his reputation and was actuated by malice. Company A pleaded statutory and common-law privilege and, in June 2010, applied to have the claim dismissed under Order 19 rule 28 of the Rules of the Superior Courts or under the court’s inherent jurisdiction.
When the motion was first listed in May 2011 the High Court (Judge Kearns) adjourned the matter peremptorily, directing that any further adjournment application would require compelling medical evidence. On 27 October 2011 the Appellant was still absent through illness; a lay representative sought another adjournment relying on two medical reports and an affidavit from the Appellant’s spouse. The High Court refused the adjournment and dismissed the proceedings, holding that the statutory defence under section 18 of the Defamation Act 1961 rendered the claim “bound to fail.”
The Appellant filed a notice of appeal on 29 November 2011. Following constitutional amendments the appeal travelled between appellate courts before returning to the Supreme Court, which heard argument in June 2019 together with five related appeals. The present judgment concerns only the claim against Company A.
Legal Issues Presented
- Whether the High Court erred in refusing a further adjournment in the Appellant’s absence.
- Whether the High Court was correct to dismiss the action on the grounds that it was “bound to fail” because of statutory or common-law privilege protecting contemporaneous court reports.
- Whether privilege under section 18 of the Defamation Act 1961 is absolute or qualified and, if qualified, whether parts of the impugned article fell outside that protection.
Arguments of the Parties
Appellant’s Arguments
- The District Court prosecution was dismissed under the Probation of Offenders Act 1907; the article’s references to a “conviction” were therefore inaccurate and defamatory.
- The High Court should have granted an adjournment in light of medical evidence and should not have proceeded in the Appellant’s absence.
- Because the article was not wholly “fair and accurate,” the statutory defence in section 18 did not apply, or applied only in part.
Respondents’ Arguments
- The article was a contemporaneous, fair and accurate report of court proceedings and therefore enjoyed privilege under section 18 of the 1961 Act and/or at common law.
- Privilege under section 18 is absolute; alternatively, even if qualified, the article met the statutory criteria.
- The Appellant had failed to engage with the strike-out motion and provided inadequate medical evidence; the High Court was entitled to dismiss the claim to prevent prejudice to the Respondents.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Plaintiff A v. Defendant B [2016] IESC 44 |
Court’s duty to balance timely litigation with parties’ rights; need for detailed medical evidence before granting adjournments |
Used as primary guidance on how judges should assess adjournment requests grounded on illness |
| Plaintiff A v. Defendant B [2018] IESC 45 |
Proportionality when striking out proceedings; possibility of nuanced orders |
Cited to show an appellate court may remit or partially reinstate claims where dismissal is disproportionate |
| Plaintiff C v. Defendant D [2018] IECA 403 |
Requirement for clear and cogent medical evidence in adjournment applications |
Reinforced expectation that “bare” medical certificates are insufficient |
| County Council v. Defendant E [2018] IECA 370 |
Similar emphasis on adequate medical detail and the court’s duty to all parties |
Supports strict scrutiny of repeated adjournment requests |
| Plaintiff F v. Company C [2016] IEHC 62 |
Discussion of qualified privilege in defamation actions |
Referenced as background authority on privilege but not determinative |
| Company D v. Company E (1993) |
Strike-out test: claim must inevitably fail before dismissal is justified |
Set the high threshold the High Court was required to meet |
| Company F v. Company G [2000] IESC 17; [2004] IR 273 |
Approval and application of the Lac Minerals principle |
Reinforced the need for certainty before striking out a claim |
| Plaintiff H v. Defendant F [2001] IESC 110 |
Strike-out jurisdiction under Order 19 rule 28 |
Cited among cases illustrating the court’s power |
| Company H v. State [2005] IEHC 232; [2005] 3 IR 398 |
Inherent jurisdiction to dismiss unsustainable claims |
Part of the authority chain on dismissal powers |
| Plaintiff I v. Defendant G [2007] 4 IR 326 |
Further example of circumstances justifying strike-out |
Included in survey of strike-out jurisprudence |
| Company I v. Bank A [2009] IEHC 207 |
Application of Lac Minerals criteria |
Cited to illustrate consistent judicial approach |
| Plaintiff J v. Company J [1992] 1 IR 425 |
Possibility of amendments “saving” a defective claim |
Highlighted caution required before dismissal |
| Plaintiff K v. Defendant H [1994] 1 IR 166 |
Strike-out on admitted or indisputable facts |
One of several precedents on the high bar for dismissal |
| Plaintiff L v. Defendant I [1993] ILRM 557 |
Unsustainable pleadings justify dismissal |
Part of general body of authority |
| Plaintiff M v. Defendant J [1996] 1 IR 426 |
Same principle as above |
Referred to in survey of strike-out cases |
| Plaintiff N v. Defendant K [1886] 34 Ch D 198 |
Early authority on common-law reportage privilege |
Supports discussion of privilege surrounding court reports |
| Plaintiff O v. State [2001] 4 IR 463 |
Abuse of process and vexatious litigation |
Cited in general observations on repeated or oppressive claims |
Court's Reasoning and Analysis
The Supreme Court applied a two-stage analysis, consistent with its own earlier authority:
- Procedural fairness and proportionality. Drawing heavily on Plaintiff A v. Defendant B [2016] IESC 44, the Court stressed that dismissal for non-attendance must be proportionate. Although the Appellant’s medical evidence was “insufficient,” it was not non-existent and pre-dated the stricter approach later articulated in 2016–2018 appellate jurisprudence. The High Court therefore erred in opting for the most drastic remedy without first considering lesser measures (e.g. conditional orders or a stay).
- Merits of the underlying claim. The Court reviewed section 18 of the 1961 Act and accepted that important legal questions remain open: (a) whether privilege is absolute or qualified, and (b) whether the specific passages referring to a “conviction” enjoyed protection if the District Court had, in fact, avoided recording a conviction. Because these questions are arguable, the action cannot be characterised as hopeless.
In light of both strands of analysis, the Court concluded that the High Court’s dismissal was erroneous. It declined to substitute its own strike-out order, emphasising that the parties are entitled to a full first-instance hearing on the substantive privilege issues.
Holding and Implications
Appeal Allowed. The Supreme Court set aside the High Court order dismissing the proceedings and remitted the action to the High Court for determination in accordance with law.
Implications: the decision re-affirms the high threshold for striking out actions in the absence of a party, underscores the need for detailed medical evidence when adjournments are sought, and leaves open important questions about the scope of statutory and common-law privilege for contemporaneous court reporting. No new binding precedent on privilege was set; rather, the matter was returned for full examination at trial.
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