The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER

1994

permission, even though they may also benefit other parts of the overall devel- opment and even though the authorisa- tion to carry out such works may have been granted by a different permission. (4) By reason of the fact that s. 26(10) of the Local Government (Planning and Development) Act 1963 did not render a permission a complete nullity in the sense that it must be assumed never to have existed, it was not necessary to consider whether the said works were an 'unauthorised development'. Reported at [1994] 1 ILRM 354 Duffy v. News Group Newspapers Ltd, Wendy Henry and Mike Beaumont: Supreme Court (Finlay CJ, O'Flaherty, Egan, Blayney and Denham JJ) 25 November 1993 Defamation - Libel - Newspaper article - Plaintiff not named in article - Whether article capable of referring to the plaintiff- Whether article capable of bearing any meaning defamatory of the plaintiff - Whether these issues appropriate for deter- mination as a preliminary point of law - Rules of the Superior Courts 1986,0.25, r. 1, O. 36, r. 7 Facts O. 25, r. 1 of the Rules of the Superior Courts 1986, provides that a point of law raised in the pleadings, 'shall be disposed of by the judge who tries the cause at or after the trial... [or] same may be set down for hearing and disposed of at any time before the trial'. O. 37, r. 7 provides that 'the court may ... direct a trial without a jury of any question or issue of fact or partly of fact and partly of law, arising in any cause or matter which, without any consent of parties, can be tried without a jury, and such trial may, if so ordered by the court, take place at the same time as the trial by a jury of any issue of fact in the same cause or matter'. The defendants published an article in the magazine section of the 'News of the World' un- der the heading, 'British marine breaks silence to reveal full horror of Northern Ireland'. The article recounted a surveil- lance operation where two soldiers were said to have spent a week hidden in the attic of a GAA club in Cross- maglen and 'recorded details of terror- ist plots as they were being planned just feet away'. The plaintiff was the chair- man of the club and he commenced an action for defamation. He was not men- tioned by name in the article. The defen- dants brought an application pursuant to O. 25, r. 1 of the Rules of the Superior Courts 1986, for a ruling as to (i)

whether the article was capable of refer- ring to the plaintiff and (ii) whether the article was capable of bearing any meaning defamatory of the plaintiff. Morris J directed that an issue be set down for hearing to be disposed of as a preliminary point of law as to whether the words complained of were capable of bearing any meaning defamatory of the plaintiff. Held by the Supreme Court (O'Flaherty J; Finlay CJ, Egan, Blayney and Denham JJ concurring) in reversing the order of the High Court and remitting the action for a full plenary hearing: (1) If it can be decided as a matter of law that the im- pugned words are incapable of bearing a defamatory meaning, a defendant may apply to court for an order pursu- ant to O. 25, as a decision in the defen- dants' favour would result in the action being dismissed and a saving in costs. Keays v. Murdoch Magazines (UK) Ltd [1991] 1WLR1184 applied. (2) This pro- cedure was only appropriate where the words could be placed before a judge without the necessity of calling evi- dence, and his duty would be to rule whether the words are capable or inca- pable of bearing a defamatory meaning. (3) If the trial judge finds that the words are capable of defamatory meaning his ruling should be confined to that find- ing. It is then for the trial judge, after perusing the pleadings and the evi- dence and submissions, to decide whether the words are capable of bear- ing only one or more than one of several defamatory meanings put forward by the plaintiff. (4) Where the plaintiff is not named in an article the test which decides whether the words used refer to him is whether the words are such as would reasonably lead persons ac- quainted with the plaintiff to believe he was the person referred to. Knupffer v. London Express Newspaper Ltd [1944] AC 116 discussed. (5) In the present case the issue of whether the words used were capable of bearing any meaning de- famatory of the plaintiff was capable of being supported by oral testimony and therefore it was impossible to dispose of it as a preliminary point of law. (6) It was difficult to envisage situations aris- ing in a defamation case where a pre- liminary point might be set down pur- suant to 0 . 3 6, r. 7 as the whole point of establishing defamatory meaning is based on how the words would strike the ordinary person.

on the map attached to one of the per- missions. The applicant applied to the respondent planning authority for an extension of time pursuant to s. 4 of the 1982 Act. An extension was granted in the case of two of the permissions but refused in the case of the third on the ground that the works did not comply with s. 4(l)(c)(ii) which required that 'substantial works' had been carried out pursuant to the original grant of plan- ning permission. In the case of this third grant of permission, it was accepted that no substantial works had been car- ried out within the red boundary line on the map attached to the permission dur- ing its currrency. The-applicant con- tended that the respondent ought to have taken into account works outside this red line but nevertheless referable, whether exclusively or otherwise, to that particular development. The re- spondent further argued that even if substantial works had been carried out, such works would have been unauthor- ised development by reason of s. 26(10) of the Local Government (Planning and Development) Act 1963. The applicant sought by way of judicial review an order of certiorari quashing the decision of the respondent to refuse an extension of time and an order of mandamus di- recting the respondent to issue a notice to extend the operative period of the planning permission. Held by Geoghegan J in making an or- der of certiorari and in granting liberty to the applicant to file an amended statement of claim, thereby enabling an order of mandamus to be granted direct- ing the respondent to reconsider the ap- plication to extend the appropriate time but refusing to award damages: (1) The court would give a wide interpretation to the provisions of s. 4(l)(c)(ii) of the 1982 Act. In deciding whether substan- tial works had been carried out 'pursu- ant to such permission' within the meaning of the subsection, considera- tion can be given to common works which might have been, strictly speak- ing, carried out 'under' another grant of permission, where these are relevant to the overall development. (2) The re- spondent had not considered whether any works which had been carried out outside the boundary line could consti- tute 'substantial works' carried out pur- suant to the planning permission within the meaning of s. 4(l)(c)(ii). Con- sequently the applicant was prima facie entitled to an order of certiorari. (3) If works which have been performed were designed to benefit the develop- ment under a particular planning per- mission they can be taken into account if they were carried out after the grant- ing and before the expiration of that

Reported at [1994] 1 ILRM 364

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