High Court of Ireland Decisions

THE HIGH COURT

[2025] IEHC 221

[Record No. 2008/11101P]

BETWEEN

KEVIN TRACEY

PLAINTIFF

AND

 

IRISH TIMES LIMITED, GERALDINE KENNEDY AND EOIN MCVEY

DEFENDANTS 

 

[Record No. 2008/11102P]

 

KEVIN TRACEY

PLAINTIFF

AND 

 

INDEPENDENT STAR LIMITED AND GERARD COLLERAN

DEFENDANTS

 

[Record No. 2008/11103P]

 

KEVIN TRACEY

PLAINTIFF

AND

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED AND GERRY O'REGAN AND STEPHEN RAE AND TIM HEALY

DEFENDANTS

 

[Record No. 2008/11104P]

 

KEVIN TRACEY

PLAINTIFF

AND

 

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED AND PHILIP MOLLOY AND PAUL DUNNE AND GERRY O'REGAN AND MICHAEL DENIEFFE

DEFENDANTS

 

JUDGMENT of Ms. Justice Bolger delivered on 1^st day of April 2025

1.            The plaintiff issued four sets of proceedings against four different sets of defendants by way of four plenary summons in December 2008, arising from the contents of four articles published in the defendants' four newspapers relating to what took place in the District Court on 16 September 2004.  Four statements of claim were issued in March 2010.  Since then, various applications have been made resulting in orders by this Court, some of which were successfully appealed both to the Supreme Court and the Court of Appeal.  The cases are now ready to be listed for hearing before a jury. 

The motion

2.            The defendants seek to have all four cases heard simultaneously before the same judge and jury as they assert there is a substantial overlap of evidence, witnesses, issues of law and alleged loss and damages claimed by the plaintiff.  The plaintiff contends that there should be four different trials with a different judge and jury for each case and a break in time between each trial. 

3.            When this motion was brought by the defendants, they also sought an order that the proceedings be heard before a judge without a jury having regard to s. 1(1) of the Courts Act 1998, as the plaintiff had sought damages for personal injuries as well as defamation.  The plaintiff submitted in his replying affidavit that he wanted his defamation proceedings heard before a jury in accordance with his right to a jury trial.  The plaintiff's right to a trial by jury for a defamation claim alone was not questioned by the defendants but where the proceedings also include a claim for damages for personal injuries, the right to a jury trial may be affected in accordance with s. 1(1) of the Courts Act 1998.  In the course of the hearing of the motion before this Court, the plaintiff confirmed that he was withdrawing any claim for personal injuries from each of statements of claim and was not running any claim for personal injuries in any of his proceedings.  The plaintiff availed of the time offered by the court to discuss the issue with persons present with him in court before confirming his position.  The plaintiff sough liberty to file a new Personal Injuries Summons which I refused as any such claim would clearly be out of time.  There is, therefore, no longer any claim for damages for personal injuries in any of these proceedings and the cases can proceed before a jury, albeit this court must determine if that is to be one jury or four.

Submissions of the parties

4.            The defendants say having four trials heard simultaneously will save court time and avoid needlessly incurred costs, as well as avoid the likelihood of confusion, the risk of irreconcilable decisions of different judges and juries and duplication of damages.  They say that a single judge and jury can allocate whatever damages may be awarded against each relevant defendant in a proportionate manner.  The plaintiff asserts that each of his cases are different and that a separate judge and jury should hear each trial, each one of which should make a separate award of damages.  Whilst the content of each of the articles that he alleges defamed him is similar, he emphasises the different wording and headlines in each.  He placed heavy emphasis on what he says is the different readership of each of the four newspapers and claims that the different profile of readers of each will result in different levels of damages for each of his four claims.

The law

5.            The court was referred to decisions in which trials were directed to be heard simultaneously.  In Bradley v Independent Star Newspapers Limited [2011] 3 IR 96 Fennelly J. in the Supreme Court definitively stated at para. 181:-

"[I]t seems obvious that the actions arising from the two articles should be heard together or consolidated.  It would be quite wrong to permit the plaintiffs to continue with two separate actions arising from substantially the same libel."

In McCarey v Associated Newspaper Limited [1964] 1 W.L.R. 855 four separate libel claims against four different defendants in respect of contemporaneous reports in the defendants' four newspapers were consolidated.  The legal issue was whether the reports were fair and accurate and therefore privileged.  A similar legal issue arises in the plaintiff's case.  O'Neill v Ryanair (No. 2) [1992] 1 I.R. 160 was not a defamation claim.  The defendants had applied to consolidate company law proceedings with the plaintiff's plenary action which was refused by Blayney J. who directed that the trials be heard simultaneously because of the substantial saving of expenses or inconvenience and no likelihood of confusion or miscarriage.  He also had regard to the fact that the plaintiff sought damages in both claims which, he said, made the cases "interdependent" and that "a judge would be in a better position to determine what is the correct order to be made in each case when he has heard both".

Discussion

6.            Each of the four articles that the plaintiff claims defamed him were based on a report of District Court proceedings that was preprepared by the same court reporter.  Each set of proceedings arises from what transpired in the District Court on the 16 September 2004 and are all very similar in terms of the facts, the legal issues, the witnesses who will be required and the basis for the plaintiff's claims for damages.  Each of the defendants have pleaded the same legal defence of privilege in similar, albeit slightly differently worded, defences.  Damages, if awarded, will take account of any damages against any of the other defendants.

7.            This Court has jurisdiction to direct that the proceedings should be heard simultaneously.  That jurisdiction ought to be exercised where to do so would result in a clear saving of court time and costs, reduce the risk of irreconcilable decisions of different judges and juries and avoid overlap of damages - unless simultaneous trials would cause an injustice to any one of the parties.  It is obvious on the facts before this court that simultaneous trials will save time, cost and reduce relevant risk.  The prospect of injustice to the plaintiff is far less obvious.  The plaintiff highlighted the different readership of each newspaper.  That is an issue well within the competence of a judge and jury to address and I see no irremediable risk of injustice to the plaintiff arising therefrom.  The plaintiff contends that each article is different.  Any differences are insufficiently significant to merit different treatment.  My view in this regard is strengthened by the approaches already adopted by the Supreme Court and the Court of Appeal based on the significant level of similarity between the four cases.  When the plaintiff's appeal against the decision of the High Court to dismiss the proceedings as bound to fail came before the Supreme Court, MacMenamin J. observed that the High Court orders were all similar.  The court dealt with one set of proceedings in substantial form in a sixteen-page judgment (Tracey v Irish Times Limited and Others [2019] IESC 62), and the remaining three claims were dealt with in three short form three page judgments which MacMenamin J. said should be read in conjunction with the Irish Times decision that was handed down by the court on the same day.  He observed that, whilst there were some differences between each of the proceedings, "in its essentials, the considerations and circumstances remain the same" (at para. 4 Tracey v Independent Newspapers (Ireland) Limited and Others [2019] IESC 68).  He made a similar observation at para. 4 of Tracey v Independent Newspapers (Ireland) Limited and Others [2019] IESC 69.  In the Court of Appeal decision overturning a separate decision of the High Court on the defendants' attempt to secure the trial of a preliminary issue, Donnelly J. gave a single judgment covering the appeals brought in all four proceedings in which she observed that the articles were all similar, though each had a different headline.  Separate, but almost identical, orders were made in each appeal (Tracey v Independent Newspapers (Ireland) Limited [2023] IECA 1).

8.            During the hearing of the within motion, the plaintiff confirmed that none of his four cases, which have always travelled together, have ever been treated differently by the courts over the seventeen years during which this litigation has been ongoing.

Conclusion

9.            The overlap in the facts, legal principles, witnesses, and claims for damages in each of the plaintiff's four proceedings favours all four being heard simultaneously, which will lead to a saving of court time and costs and reduce the risk of confusion or overlap in damages.  I have not been satisfied of any irremediable risk of injustice to the plaintiff arising from these cases being listed in this manner, but insofar as any such risk exits, it is outweighed by the factors favouring a simultaneous hearing.  

10.         I therefore direct that the four cases be heard simultaneously by the same judge and jury.   For the avoidance of doubt, I note the plaintiff's withdrawal of his claims for damages for personal injury in each of his four sets of proceedings.

11.         I will hear the parties further in relation to final orders including costs when the matter is listed before me at the call-over on the 3 of April next.