Is The Game Worth The Candle? – Court Of Appeal Clarifies The Test For Abuse Of Process

The Court of Appeal (CoA) recently ruled on the issue of when a claim will be struck out for abuse of process in the related appeals of Gilchrist / Rogers v Sunday Newspapers Limited, Colm McGinty and Nicola Tallant [2017] IECA 190. The CoA rejected the approach adopted in England, essentially a 'cost v. benefit' analysis, and confirmed a more restrictive 'no benefit' test which must be met by defendants in Ireland to have a claim struck out for abuse of process.

BACKGROUND

Patrick Gilchrist, a former member of the Gardaí, and Isabel Rogers, a psychotherapist who provided services to the Gardaí, brought defamation actions relating to statements made concerning separate litigation relating to the State's witness security scheme and their roles in the scheme. Specifically, the statements in issue were:

(a) Statements contained in a newspaper article published in the Sunday World in March 2014 and online; and

(b) Statements published by Nicola Tallant (a journalist with the Sunday World) to a former member of the Gardaí, John O'Brien.

ENGLISH APPROACH - COST V. BENEFIT

The newspaper sought to have the latter claims (relating to the statements made to Mr. O'Brien) struck out as an abuse of process based on their similarity to the claims relating to the newspaper articles. The High Court refused and this was appealed to the CoA.

The newspaper relied on the approach adopted in England to abuse of process and, in particular, a 2005 judgment of the English Court of Appeal in Jameel (Yousef) v Dow Jones & Co. Inc [2005] Q.B. 946 in support of its application. Jameel related to an article posted by Dow Jones on web servers in New Jersey which was later accessed by 5 people in England. In considering whether to strike out the claim as an abuse of process, the approach adopted by the English Court in Jameel was, in essence, to weigh the probable costs of the litigation and the use of judicial and court resources against the damages and vindication which might have been achieved if the plaintiff was successful.

"If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick."...