Burke v Mediahuis Ireland Ltd & Ors (Approved)

Factual and Procedural Background

The Plaintiff initiated a defamation claim against multiple Defendants concerning an article published in October 2022 ("the Article"). On 13 June 2024, the court dismissed the Plaintiff's claim, finding that the Defendants were entirely successful in their defence. The court provisionally indicated that the Defendants were entitled to an award of costs, subject to adjudication if the parties could not agree. The Plaintiff was given an opportunity to submit written arguments opposing this costs order.

Legal Issues Presented

1. Whether the Defendants, having been entirely successful in defending the defamation claim, are entitled to an award of costs as a matter of course under section 169(1) of the Legal Services Regulation Act 2015.
2. Whether there are sufficient reasons related to the particular nature and circumstances of the case or the conduct of the parties to justify departing from the default rule that costs follow the event.
3. Whether criticisms of the judgment or procedural conduct by the Plaintiff provide grounds to refuse a costs order in favour of the Defendants.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contended that it would be "an affront to justice" to impose a costs order against him, urging the court to make no order as to costs.
• He relied on section 169(1) of the Legal Services Regulation Act 2015, emphasizing factors such as the wide circulation of the Article, which the court found to be without foundation, and the Defendants’ failure to check the story with him or his family prior to publication.
• The Plaintiff highlighted the delay in publishing an apology and correction and argued that the Defendants financially benefited from the story.
• He criticized the Defendants' witnesses for not accepting his evidence that he had not annoyed other prisoners and argued that this prolonged the proceedings unnecessarily.
• The Plaintiff asserted that the Defendants' maintenance of the plea of qualified privilege until the last day of the hearing wasted court resources and that reliance on the defence of fair and reasonable publication was unreasonable and unsustainable, citing a recent Court of Appeal decision.
• He also pointed to a withdrawn submission by Defendants’ counsel regarding recklessness in defamation law as an "extremely serious matter," contrasting it with his own conduct aimed at efficiency and expeditiousness.
• The Plaintiff criticized the judgment itself, suggesting errors and inconsistencies in its reasoning regarding defamatory meaning and his reputation.

Defendants' Arguments

• The Defendants argued that the Plaintiff had not identified any basis to depart from the normal rule that costs follow the event.
• They acknowledged significant points of fact and law but denied that any new or novel legal issues justified a departure from the default costs rule.
• The Defendants disputed the Plaintiff's assertion that they had not "won the event" overall, citing precedent emphasizing focus on the "big picture" rather than minor details in costs assessments.
• They contended that the Plaintiff’s reliance on the particular circumstances was an attempt to re-argue the case.
• The Defendants criticized the Plaintiff’s conduct, including his challenge to the judgment and unrelated proceedings, as disentitling him from relying on their conduct to avoid a costs order.
• They noted that the apology demanded required acknowledgment of defamation, on which they were vindicated.
• The Defendants explained that they withdrew the defence of qualified privilege following a recent Court of Appeal decision and objected to the Plaintiff’s criticism of their counsel.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began its analysis by confirming that the Defendants were "entirely successful" within the meaning of section 169(1) of the Legal Services Regulation Act 2015, having had the Plaintiff's defamation claim dismissed in its entirety. This established a presumption in favour of awarding costs to the Defendants.

The court then examined whether any factors justified departing from this default rule. It found that the untruth of the Article, while unfortunate, was insufficient to alter the costs order, especially since the Defendants never pleaded truth as a defence and the claim was rejected on the basis that the statements were not defamatory.

The court rejected the Plaintiff’s arguments about the Defendants’ conduct, noting that the Defendants did not maintain the truth of the central allegation and that the witnesses’ inconsistent testimony did not justify a departure from the costs rule. The court also clarified that its observation about the Defendants’ position on the truth of the Article was not an implication of recklessness but reflected their stance that the Article was not defamatory.

Regarding the Defendants’ failure to check the story with the Plaintiff’s family and delay in issuing an apology, the court held that these factors did not warrant denying costs given the Plaintiff’s failure to obtain any remedy.

The court considered the late abandonment of the qualified privilege defence and the concurrent reliance on the defence of fair and reasonable publication. It concluded that the inclusion and late withdrawal of the qualified privilege plea did not materially increase the Plaintiff’s costs, as the issues substantially overlapped.

The court addressed the Plaintiff’s criticisms of Defendants’ counsel concerning a briefly raised legal proposition, finding the Plaintiff’s reaction disproportionate and not a basis to deny costs.

Finally, the court dismissed the Plaintiff’s criticisms of the judgment itself as irrelevant to the costs decision, citing precedent that complaints about judgments cannot justify departing from the normal costs rule.

Holding and Implications

The court ORDERED that the Plaintiff pay the Defendants’ costs, including reserved costs and costs of the written submissions on this issue, to be adjudicated in default of agreement.

The decision confirms the principle that where a party is entirely successful in civil proceedings, the default rule awarding costs in their favour applies unless exceptional circumstances justify departure. The court found no such circumstances here, and no new precedent was established. The ruling directly affects the parties by requiring the Plaintiff to bear the Defendants’ costs following the dismissal of the defamation claim.