Comment on the situation at Anglo Irish Bank is, if it is fair, privileged. The matter is one of public interest.

This means it is open to people to speak about the situation freely without worrying that they might be the subject of legal proceedings for defamation.

See an early post HERE dealing with, inter alia, FAIR COMMENT.

1. The Irish Bar is pear shaped. More business is needed and should be spread better. In Ireland, Defamation law is fairly stable and favours the Plaintiff.

2. This blog has previously (obliquely) adverted HERE to the possibility of “litigation tourism” (that’s the latest derogatory term for “international arbitration”.

3. Captain James T. Kirk has publicly claimed Mr. Sulu is psychotic (See it on Utube HERE)

These circumstances are at once a spur to action and a propitious occasion to use the Bar Council’s “arbitration” facilities for an interesting piece of business.

After all, both Captain Kirk and Mr. Sulu are known and have a reputation of sorts in this jurisdiction.

Should the Chairman of the Bar Council not propose the Bar Council’s premises for a trial of the issue as to whether Captain Kirk has defamed Mr. Sulu and/or whether Mr. Sulu defamed Captain Kirk?

In Ireland, speaking generally, legal proceedings take the form of a contest. The contest is conducted according to rules, but a contest it is.

Contests do not guarantee proper, fair outcomes but they are superior to the alternative, no hearing to one (or more) party.

The phrase to describe such hearings without a party on notice is “ex parte”.

It refers to a court application brought by one person in the absence of and without representation by, or notification to, other parties.

In principle, such an application is a breach of fair procedures (as secured by the Irish Constitution) (and the European Convention on Human Rights).

Article 6.1 of the Convention reads:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Nevertheless, such applications take place and courts make orders pursuant to them. The saving feature is that they are, to be proper, of a strictly temporary nature. The order will (or aught to) be limited in its effect to a time for the hearing of an application (“interlocutory”) (the other party having been notified of the intended application) to continue or renew the order made ex parte.

The applicant party will have notified the respondent party of the making of the order ex parte (and the order will bind the respondent forthwith) as well as giving notification of the date and time for the making of the “interlocutory” application.

Ex parte applications will, generally, be based on evidence presented in, say, affidavit form. It can happen that, subsequently, the evidence so presented is shown to be false or mistaken or generally unreliable.

For this reason a court has to be very careful in making orders ex parte. The absolute necessity for the making of the order without notification to the respondent must be shown. Considerable damage may be inflicted on the respondent, unfairly, by an order restraining the respondent from acting in some matter or fashion.

In addition, the publication of a record of the ex parte proceedings in court may libel the respondent. Under Section 18 (1) of the Defamation Act 1961, newspaper (and radio) publication of transactions in court are privileged, subject to the report being fair and accurate.

Arguably, to report the contents of the grounding affidavit or other allegation and/or the terms of the order, and to fail to report that an application was made ex parte (with an explanation of the meaning of that phrase) is not fair.

If that argument is accepted the report will lose its privilege and the publisher will be liable for the libel.

The sole member of the Morris Tribunal has criticized Mr. Jim Higgins MEP and Mr. Brendan Howlin TD for contacting the Minister for Justice with information relating to, inter alia, wrongdoing by members of the Garda Siochana in Donegal.

As part of their reply, in rejecting the criticism, they refer to the absolute privilege they were entitled to if they had chosen to make their disclosures in the Dail. They make the point they did not avail of this (on the basis that it might have been an abuse of the privilege).

What they do not say is that in communicating with the Minister for Justice their communication was also privileged. The privilege would not have been absolute; it would have been and was, a communication attracting qualified privilege.

Only malice could have deprived them of the benefit of the privilege. No malice has been alleged against them.

Communications on occasions of qualified privilege have been protected in law for a very long time.

The sole member of the Morris Tribunal cannot have meant to disparage that privilege and if so, it is difficult to understand his criticism of the two politicians.

The existence of absolute privilege (in the Oireachtas and the courts) is generally known. The existence of qualified privilege is less well known. There is a qualified privilege for words spoken, without malice, to protect property or detect crime. The leading UK textbook on Defamation, “Gatley on Libel and Slander� states:

Though there is no common interest involved, the Courts have long held that statements are privileged if made bona fide for the purpose of detecting and bringing to punishment a suspected criminal, or of recovering stolen goods. Thus, a person who suspects another of a particular theft may, with a view to inquiry, tax that individual with the theft, and although the suspicion turns out to be erroneous, the law gives no redress to the party accused.”

Consequentially, in the High Court case of McCormack v Olsthoorn [2004] IEHC the Defendant, wrongly believing the Plaintiff had stolen a plant from him, publicly challenged him to that effect. The court ruled that the statement was made on an occasion of qualified privilege and found for the Defendant on that issue. (The Defendant lost on the issues of assault and false imprisonment).

[McCormack v Olsthoorn MAY REST ON ITS PARTICULAR FACTS. ARGUABLY, THE DEFENDANT COULD HAVE DEALT WITH THE MATTER A LITTLE DIFFERENTLY. WAS IT UNAVOIDABLE OF HIM TO SAY WHAT HE SAID, IN PUBLIC?]