Page
Kirwan, Injunctions: Law and Practice, 2nd edn, 2015
Chapter 10 - General Application
Section Q. - Publication
Defamation 955
10-556
The Defamation Act 2009 provides for injunctions in the context of an assertion of
defamation. However, and as will be seen, 956 the jurisprudence of the courts prior to the
enactment of the 2009 Act continues to inform how the courts approach such
injunctions. As such, it is necessary to consider the key principles which have always
underpinned defamation.
Emphasis on Freedom of Expression
10-557
As noted by Gee, 957 before the Judicature Acts 958 the Court of Chancery would not
restrain a libel. 959 This was because the court granted injunctions to protect property
rights. Libel did not come within these rights; the court could not know what would be
regarded as libellous before there had been a verdict of a jury. 960 However, as has been
seen, the Judicature Act (Ireland) 1877 confers jurisdiction on the High Court to grant
injunctions in all cases where it appears just and convenient to do so. 961 Nonetheless,
the courts are still very reluctant to grant interlocutory injunctions in cases of
defamation. This is due to the importance attached to the unspecified right to freedom of
communication guaranteed by Art.40.3 of the Constitution and the right of free speech,
guaranteed by Art.40.6.1 of the Constitution. 962 As explained by Keane J. in Oblique
Financial Services Ltd v The Promise Production Co Ltd963:
“Article 40.6.1 is concerned not with the dissemination of factual information, but
the rights of the citizen, in formulating or publishing convictions or opinions, or
conveying an opinion; and the rights of all citizens, including conveying
information, arises in our law, not under Article 40.6.1 but under Article 40.3.1.”
964
10-558
The emphasis which the courts place on freedom of expression is also evident from the
case of Cullen v Toibin. 965 In that case the plaintiff sought an injunction to prevent
, Page
publication of material on the grounds that it was likely to interfere with a criminal trial.
Barrington J. took the view that the court was entitled to grant such an injunction. 966
However, the Supreme Court allowed the appeal. It held that the courts should only
interfere with the freedom of the press and of communication guaranteed in Art.40.6 of
the Constitution where this was necessary for the administration of justice. The Supreme
Court further held that since publication of the article could not possibly prejudice the
objective determination by the Court of Criminal Appeal of pure issues of law, there was
no basis for the granting of the injunction in the case. 967
10-559
A passage from Clarke J.’s judgment in Cogley v RTÉ, 968 (as already noted, one of two
linked privacy and defamation case) 969 captures the rationale of the reluctance of the
courts to grant interlocutory injunctions in relation to defamation actions. Clarke J. noted
that this reluctance stemmed:
“… from the fact that if the traditional basis for the grant of an interlocutory
injunction (i.e. that the plaintiff had established a fair issue to be tried) was
sufficient for the grant of an injunction in defamation proceedings public debate
on very many issues would be largely stifled. In a great number of publications or
broadcasts which deal with important public issues persons or bodies will
necessarily be criticised. There will frequently be some basis for some such
persons or bodies to at least suggest that what is said of them is unfair to the
point of being defamatory. If it were necessary only to establish the possibility of
such an outcome in order that the publication or broadcast would be restrained
then a disproportionate effect on the conduct of public debate on issues of
importance would occur.” 970
10-560
Noting the absolute privilege conferred on Oireachtas debates, Clarke J. pointed to the
need for vigorous and informed public debate of matters of importance, as recognised by
both the Constitution and law generally. For such debate to be interfered with would
require, in Clarke J.’s words, “very substantial justification.” He concluded by referencing
the “reluctance of the courts in this jurisdiction (and also the European Court of Human
Rights) to justify prior restraint save in unusual circumstances and after careful
scrutiny.” 971
Interlocutory Considerations
10-561
, Page
The rule in Bonnard v Perryman972 is key to understanding the courts’ approach to
interlocutory injunctions when defamation is pleaded. The rule was summarised by Kelly
J. in Foley v Sunday Newspapers Ltd973 in the following terms:
“In that case Lord Coleridge C.J., sitting with four other judges, including the
Master of the Rolls, said that, although the courts undoubtedly possessed the
requisite jurisdiction to grant interlocutory injunctive relief, in all but exceptional
cases they should not issue an interlocutory injunction to restrain the publication
of a libel which the defence sought to justify, except where it was clear that the
defence would fail. He based this on the need not to restrict the right of free
speech by interfering before the final determination of the matter by a jury, save
in a clear case of an untrue libel.” 974
10-562
Underpinning this approach is the explanation provided by Lord Coleridge C.J. in
Bonnard v Perryman itself:
“The importance of leaving free speech unfettered is a strong reason in cases of
libel for dealing most cautiously and warily with the granting of interim
injunctions… The right of free speech is one which it is for the public interest that
individuals should possess, and, indeed, that they should exercise without
impediment, so long as no wrongful act is done; and, unless an alleged libel is
untrue, there is no wrong committed; but, on the contrary, often a very
wholesome act is performed in the publication and repetition of an alleged libel.
Until it is clear that an alleged libel is untrue, it is not clear that any right at all
has been infringed …”. 975
Plea of Justification/Truth
10-563
In Reynolds v Malocco t/a “Patrick”976 Kelly J., following the approach in the case of
Cullen v Stanley, 977 confirmed that where a defendant intends to plead justification
(since the enactment of the Defamation Act 2009, truth), the court will generally not
grant an interlocutory injunction to restrain publication. However, this is subject to the
caveat introduced by Kelly J. that the plea must have some substance or prospect of
success on the evidence adduced by the defendant. This avoids the situation which could
arise whereby a defendant could effectively oust the ability of a court to intervene by
way of injunction in an appropriate case “by the simple expedient of expressing an
Kirwan, Injunctions: Law and Practice, 2nd edn, 2015
Chapter 10 - General Application
Section Q. - Publication
Defamation 955
10-556
The Defamation Act 2009 provides for injunctions in the context of an assertion of
defamation. However, and as will be seen, 956 the jurisprudence of the courts prior to the
enactment of the 2009 Act continues to inform how the courts approach such
injunctions. As such, it is necessary to consider the key principles which have always
underpinned defamation.
Emphasis on Freedom of Expression
10-557
As noted by Gee, 957 before the Judicature Acts 958 the Court of Chancery would not
restrain a libel. 959 This was because the court granted injunctions to protect property
rights. Libel did not come within these rights; the court could not know what would be
regarded as libellous before there had been a verdict of a jury. 960 However, as has been
seen, the Judicature Act (Ireland) 1877 confers jurisdiction on the High Court to grant
injunctions in all cases where it appears just and convenient to do so. 961 Nonetheless,
the courts are still very reluctant to grant interlocutory injunctions in cases of
defamation. This is due to the importance attached to the unspecified right to freedom of
communication guaranteed by Art.40.3 of the Constitution and the right of free speech,
guaranteed by Art.40.6.1 of the Constitution. 962 As explained by Keane J. in Oblique
Financial Services Ltd v The Promise Production Co Ltd963:
“Article 40.6.1 is concerned not with the dissemination of factual information, but
the rights of the citizen, in formulating or publishing convictions or opinions, or
conveying an opinion; and the rights of all citizens, including conveying
information, arises in our law, not under Article 40.6.1 but under Article 40.3.1.”
964
10-558
The emphasis which the courts place on freedom of expression is also evident from the
case of Cullen v Toibin. 965 In that case the plaintiff sought an injunction to prevent
, Page
publication of material on the grounds that it was likely to interfere with a criminal trial.
Barrington J. took the view that the court was entitled to grant such an injunction. 966
However, the Supreme Court allowed the appeal. It held that the courts should only
interfere with the freedom of the press and of communication guaranteed in Art.40.6 of
the Constitution where this was necessary for the administration of justice. The Supreme
Court further held that since publication of the article could not possibly prejudice the
objective determination by the Court of Criminal Appeal of pure issues of law, there was
no basis for the granting of the injunction in the case. 967
10-559
A passage from Clarke J.’s judgment in Cogley v RTÉ, 968 (as already noted, one of two
linked privacy and defamation case) 969 captures the rationale of the reluctance of the
courts to grant interlocutory injunctions in relation to defamation actions. Clarke J. noted
that this reluctance stemmed:
“… from the fact that if the traditional basis for the grant of an interlocutory
injunction (i.e. that the plaintiff had established a fair issue to be tried) was
sufficient for the grant of an injunction in defamation proceedings public debate
on very many issues would be largely stifled. In a great number of publications or
broadcasts which deal with important public issues persons or bodies will
necessarily be criticised. There will frequently be some basis for some such
persons or bodies to at least suggest that what is said of them is unfair to the
point of being defamatory. If it were necessary only to establish the possibility of
such an outcome in order that the publication or broadcast would be restrained
then a disproportionate effect on the conduct of public debate on issues of
importance would occur.” 970
10-560
Noting the absolute privilege conferred on Oireachtas debates, Clarke J. pointed to the
need for vigorous and informed public debate of matters of importance, as recognised by
both the Constitution and law generally. For such debate to be interfered with would
require, in Clarke J.’s words, “very substantial justification.” He concluded by referencing
the “reluctance of the courts in this jurisdiction (and also the European Court of Human
Rights) to justify prior restraint save in unusual circumstances and after careful
scrutiny.” 971
Interlocutory Considerations
10-561
, Page
The rule in Bonnard v Perryman972 is key to understanding the courts’ approach to
interlocutory injunctions when defamation is pleaded. The rule was summarised by Kelly
J. in Foley v Sunday Newspapers Ltd973 in the following terms:
“In that case Lord Coleridge C.J., sitting with four other judges, including the
Master of the Rolls, said that, although the courts undoubtedly possessed the
requisite jurisdiction to grant interlocutory injunctive relief, in all but exceptional
cases they should not issue an interlocutory injunction to restrain the publication
of a libel which the defence sought to justify, except where it was clear that the
defence would fail. He based this on the need not to restrict the right of free
speech by interfering before the final determination of the matter by a jury, save
in a clear case of an untrue libel.” 974
10-562
Underpinning this approach is the explanation provided by Lord Coleridge C.J. in
Bonnard v Perryman itself:
“The importance of leaving free speech unfettered is a strong reason in cases of
libel for dealing most cautiously and warily with the granting of interim
injunctions… The right of free speech is one which it is for the public interest that
individuals should possess, and, indeed, that they should exercise without
impediment, so long as no wrongful act is done; and, unless an alleged libel is
untrue, there is no wrong committed; but, on the contrary, often a very
wholesome act is performed in the publication and repetition of an alleged libel.
Until it is clear that an alleged libel is untrue, it is not clear that any right at all
has been infringed …”. 975
Plea of Justification/Truth
10-563
In Reynolds v Malocco t/a “Patrick”976 Kelly J., following the approach in the case of
Cullen v Stanley, 977 confirmed that where a defendant intends to plead justification
(since the enactment of the Defamation Act 2009, truth), the court will generally not
grant an interlocutory injunction to restrain publication. However, this is subject to the
caveat introduced by Kelly J. that the plea must have some substance or prospect of
success on the evidence adduced by the defendant. This avoids the situation which could
arise whereby a defendant could effectively oust the ability of a court to intervene by
way of injunction in an appropriate case “by the simple expedient of expressing an
