John Reynolds (plaintiff) v Elio Malocco trading as ["] Patrick["], Declan Murray, Frank White and Peter Laur and, by order, Fanville Limited (defendants).

Interlocutory Injunction - Defamation - Libel - Legal principles applicable when granting injunctive relief - Whether the words complained of were defamatory - Whether there was sufficient evidence to support a plea of justification - Whether when an activity is no longer prohibited by the criminal law an allegation of engaging in such activity could be defamatory - Exercise of discretion when granting injunctive relief - Damages - The Judicature (Ireland) Act 1877 - Rules of the Superior Courts, Order 50 rule 6 and Order 40 rule 12 - European Convention for the Protection of Human Rights and Fundamental Freedoms, article 10.

The High Court (before Mr Justice Kelly); judgment delivered 11 December 1998.

In order to obtain an interlocutory injunction in defamation proceedings a plaintiff must show not merely that he has raised a serious issue concerned the words complained of but that there is no doubt that they are defamatory. If the defendant intends to plead justification normally an injunction of this type will be refused, but there must be evidence before the court which supports the plea of justification.

An allegation of engaging in an activity which is no longer prohibited by the criminal law can be defamatory.

The High Court so held in holding that an article in the defendants' magazine was defamatory of the plaintiff and the plaintiff was entitled to the interlocutory relief sought.

Garrett Cooney SC and Martin Hayden BL for the plaintiff; the first defendant appeared in person.

Mr Justice Kelly said the plaintiff sought an interlocutory injunction restraining the defendants from publishing, disseminating or circulating an article in the first issue of a new magazine called "Patrick". The plaintiff is a company director who is involved in the running of two Dublin nightclubs one called the "Pod" and the other called "Redbox". The first defendant was described in his affidavit as a journalist and is described in the body of the magazine as its editor. It emerged at the hearing that the second defendant, who is the first of two purported authors of the article in question, is a pseudonym for the first defendant. The third defendant, Frank White, who purports to be the second author of the article in question, has no existence and is a pseudonym for a gentleman called Luciano Magliocco who is a relation of Elio Malocco. Mr Justice Kelly said that little information was available as to the fourth defendant, who was described in the magazine as the publisher with an address simply given as "London". Mr Laur was also described in the body of the magazine as "the boss". His address in the plenary summons was given as Foxrock Post Office, Dublin. It emerged in the course of the hearing that a company called Fanville Limited claims to be the publisher and owner of the magazine. Fanville Limited is a limited liability company which was formed on the 20 January 1998. Its two directors are Margaret Magliocco and Colette Kerr and it has a paid up capital of £2. Both issued shares are owned by a limited company. Miss Kerr appeared before the court and indicated that she was the secretary of Fanville Limited. Mr Justice Kelly ruled that she could not appear on behalf of a limited company in light of the decision in Battle v Irish Art Promotion Centre Limited [1968] IR 252, and Miss Kerr therefore took no further part in the proceedings. Mr Justice Kelly said the article to which the plaintiff took exception commenced at page 31 of the magazine and concluded at page 33. On the first page of the article there was a photograph of the plaintiff in the company of a woman whose face had been excised from the picture. On the third page of the article there was a photograph of the plaintiff's Porsche motor car. The plaintiff complained that certain extracts from the article defamed him in two respects, in that, the words in their natural and ordinary meaning or by innuendo allege: (a) that the plaintiff had been charged with permitting the sale of drugs in his nightclubs and/or that he permits the sale of drugs on the premises and is benefiting therefrom or alternatively he is turning a blind eye to the sale of drugs on his premises; and (b) that he is a homosexual.

Mr Justice Kelly said that Mr Malocco contended that insofar as the first of these complaints is concerned the words do not bear the meanings ascribed to them, and if they do, he will plead justification at the trial of the action. Insofar as the second complaint is concerned Mr Malocco says the words do not bear the meaning contended for and Mr Malocco stated in open court that the plaintiff was not a homosexual nor did he ever intend to allege such. The plaintiff said that the libel was so serious that it was a case in which the court ought to intervene by the grant of an injunction, as without such injunction the plaintiff would suffer loss which was incapable of being compensated by damages. The defendants said there should be no injunction as there was no libel and even if there was one concerning the drugs the intended plea of justification was fatal to the plaintiff's case. In outlining the principles applicable to the grant of an interlocutory injunctions, Mr Justice Kelly said that the Judicature (Ireland) Act 1877 conferred jurisdiction on the High Court to grant injunctions and Order 50 rule 6 of the Rules of the Superior Courts authorises the grant of interlocutory injunctions. In an ordinary case the court considers whether the plaintiff has raised a fair or serious issue to be determined at the trial of the action. If it considers that such a question has been raised it goes on to decide whether damages would be adequately compensate the plaintiff in respect of any loss or damage which may be suffered as a result of the activity which is sought to be enjoined. If it decides that damages would not be an adequate remedy it them proceeds to consider whether on the balance of convenience an injunction should be granted or not. These principles were outlined in Campus Oil v Minister for Industry and Commerce (No 2) [1990] IR 88 and in American Cyanamid Co v Ethicon Limited [1975] AC 396. Mr Justice Kelly said these principles have a wide but not a universal application. In a small number of cases special rules which are not encompassed by these principles apply. One such type case arises in the field of contracts of employment. Normally courts will not grant an injunction to restrain breaches of covenant in a contract of employment if that would amount to indirect specific performance of such a contract or would perpetuate a relationship based on mutual trust which no longer exists. Another exception to the general principles arises in the cases of the type in suit. Mr Justice Kelly said a plaintiff in an action such as this, in order to obtain an interlocutory injunction must show not merely that he has raised a serious issue concerning the words complained of but that there is no doubt that they are defamatory. Furthermore, if the defendant intends to plead justification or any other recognised defence, normally an injunction of this type will be refused. The jurisdiction to grant interlocutory injunctions to restrain publication of defamatory statements has been described in Coulson v Coulson [1887] 3 TLR 846 as one "of a delicate nature" which "ought only to be exercised in the clearest of cases". That approach was expressly approved by the Supreme Court in Sinclair v Gogarty [1937] IR 377, in which the Chief Justice, Mr Justice O'Sullivan, said "The principle upon which the court should act in considering such applications was stated by Lord Esher MR in Coulson v Coulson and his statement of the principle was approved of and adopted by the Court of Appeal in Bonnard v Perryman [1891] 2 Ch 269. The principle is this, that an interlocutory injunction should only be granted in the clearest cases where any jury would say that the matter complained of was libellous, and where if the jury did not so find, the court would set aside the verdict as unreasonable."

Mr Justice Kelly said the reluctance on the part of the courts to grant interlocutory injunctions in cases of this sort is grounded in the importance attached to the right of free speech. This has been the position from at least as far back as the decision in Bonnard v Perryman where Lord Coleridge said "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 sentiments expressed by Lord Coleridge are fortified by the provisions of article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Lord Coleridge went on to say "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. Unless it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed . . ."

Mr Justice Kelly said the first matter which he must inquire into was whether the plaintiff's complaints were made out with the degree of clarity required so as to enable the court to conclude that the words complained of were undoubtedly defamatory. If the court so concludes in favour of the plaintiff, then Mr Justice Kelly said he would have to consider whether, in the light of the defendants stated intention to plead justification concerning the drug dealing allegation, an injunction can be granted at all. The reason why this aspect of the case has to be considered arises out of the decision of Bonnard v Perryman. The rule established by that decision is that where a defendant in a libel action intends to plead justification, a court will not grant an interlocutory injunction to restrain publication of the statement complained of. Mr Justice Kelly said the question then arises as to whether a bald statement of intent to plead justification is sufficient to debar a plaintiff who might otherwise be entitled to an injunction from such relief. If it is, then the plaintiff's application in respect to the drug dealing allegation would fail. Counsel on behalf of the plaintiff urged the court not to adopt this approach but rather to conduct an examination of the defendant's evidence so as to establish whether the plea of justification had any substance or prospect of success. Mr Justice Kelly said there was two conflicting decisions in this jurisdiction as to the approach to take on this topic. On the one hand there was the decision of Gallagher v Tuohy [1924] ILTR 134 where the matter complained of consisted of a circular containing defamatory statements concerning the plaintiff in his business capacity. Mr Justice Murnaghan stated in that case "The court should not readily restrain the publication of any matter which is not obviously libel. I would have no difficulty at all in deciding that the statement was defamatory but for the plea of justification. That plea having being raised, it seems to me that I cannot prejudge the issue and decide that the plea of justification is erroneous. That would be the effect of the injunction sought." The decision in Cullen v Stanley [1926] IR 73 demonstrates a different approach. In that case the plaintiff sought an interlocutory injunction to restrain the publication of statements by the defendants to the effect that he had acted as a "scab" on the occasion of a bakers' strike. The plaintiff deposed that the statements were absolutely false and that he believed the publication was for the purposes of prejudicing his position as a candidate in an election. One of the defendants submitted an affidavit stating that all the allegations were true and this would be proven at the trial. The Supreme Court granted an interlocutory injunction. Mr Justice O'Connor referred to the argument of the defendant to the effect that the rule in Bonnard v Perryman automatically precluded the grant of an interlocutory injunction once the defence of justification was raised. Mr Justice O'Connor said "I do not think that the Court of Appeal intended to lay down a rule which should be rigidly applied to every case, because the judgment of Coleridge CJ wound up with the observation that, on the whole, the court thought that it was wiser in that case, as it is generally and in all but exceptional cases must be, to abstain from interference until the trial of the plea of justification." Mr Justice Kelly said the judge then examined the detailed affidavit of the plaintiff, which he contrasted with the "baldest affidavit" of the defendant and he held on the evidence before the court there was nothing to support the plea of justification. Mr Justice Kelly said he preferred the latter of the two approaches as he did not think a rule which permits a defendant to oust the ability of the court to intervene by way of injunction in an appropriate case by expressing an intention to plead justification at the trial of the action is consistent with the obligations imposed on the court under the Constitution. An application of such a rigid rule without an ability on the part of the court to ascertain whether the plea of justification had any substance or not, would provide a happy hunting ground for unscrupulous defamers. It is open to the court to examine the evidence adduced by the defendant in support of the justification plea so as to ascertain whether it has any substance or prospect of success. In relation the drug dealing allegations, Mr Justice Kelly said that he noted that the plaintiff accepted that he, together with 19 other nightclub operators in the greater Dublin area had received notification from the police concerning drug activity and conduct relating to drugs on his club premises. Mr Justice Kelly said he believed Mr Malocco to be correct in his contention that the words in question in the article, in their natural and ordinary meaning did not allege any criminal activity on the part of the plaintiff, and even if the words did, in their natural and ordinary meaning, make such allegations they did not do so with the degree of clarity required to enable the court to say that the words were without doubt defamatory of and concerning the plaintiff. Mr Justice Kelly said the plaintiff's contention was that by innuendo the words complained of amount to allegations of the wrong-doing alleged. The plaintiff's counsel said that that was the clear inference which is drawn from the article, and while the article purports to deal with drugs in clubs, as is apparent from the cover of the magazine, in fact it was directed almost exclusively at the plaintiff. Mr Justice Kelly said a fair reading of the article supports this contention. The article speaks of the plaintiff being "in big trouble". It alleges that the plaintiff's premises had been visited by the police who bought drugs there on several occasions and that this was not the plaintiff's first brush with the law. The article alleges that the plaintiff was now facing difficulties which were far more serious and that the plaintiff "is seriously worried". The article speaks of the consequences for the plaintiff of a successful prosecution and it then resorts to a device frequently used by journalists of citing anonymous sources close to the plaintiff. The article indicated that the plaintiff was concerned that if convicted other business interests he has might also suffer. In the same paragraph the article points out that it would not be the first time that a nightclub owner was jailed and it deals with a Donegal owner who was imprisoned for three years for allowing drugs to be sold on his premises. Later in the article it speaks about it remaining to be seen if any premises are to be closed down or licensees jailed. In the same paragraph it mentions that cynics believe that no club owners will ever be jailed and that those club owners who are directly involved in drugs will continue for some time to make vast profits from allowing their venues to be used as drug havens. This paragraph was juxtaposed close to the photograph of the plaintiff's car where it speaks of him enjoying "the high life". The final paragraph of the article contained a statement which said it was unlikely that the owners of these clubs knew of these particular drug dealings as they have adopted additional security measures to prevent the transactions in question.

Mr Justice Kelly said that looking at the parts of the article which are complained of as a whole, there was present innuendo to the effect contended for by the plaintiff. Such innuendo was clear and that in the absence of a successful plea of justification a jury would say that the matter complained of was libellous, and if they did so, Mr Justice Kelly said he did not believe that that the Supreme Court would set aside the verdict as unreasonable. If the jury did not do so its decision would be likely to be set aside and the inclusion of a single sentence in the final paragraph of the article would not have much prospect of neutralising the sting contained in the remainder of the article. Mr Justice Kelly said that it seemed that the article was carefully written so as to avoid making the direct allegation of criminal wrong-doing while at the same time creating in the mind if the reader a clear impression that the plaintiff had connived at the use of his premises for drug dealing with considerable gain to himself. If the defendants could satisfy the court that they have a prospect of success in their plea of justification then there could be no question of an injunction being granted in favour of the plaintiff. Apart from the stated intention to plead justification there was no admissible evidence to support the plea. Mr Justice Kelly said he referred to "admissible evidence" as earlier in the hearing portions of the defendants' principal replying affidavit was struck out, together with the affidavit of Luciano Magliocco, because of scandalous material contained in them. The only real evidence which could amount to justification was contained in paragraph 15 of the first defendant's affidavit, where the first defendant said he personally witnessed drugs being sold openly in the plaintiff's premises, staff observing the drug dealing and that he also witnessed the plaintiff moving around the club mixing with people. That averment did not demonstrate the existence of an arguable prospect of making out the defence of justification. Mr Justice Kelly said that throughout the article the plaintiff was referred to as a "gay bachelor". The plaintiff submitted that in its natural and ordinary meaning the word "gay" is nowadays taken as meaning homosexual. The plaintiff said that this was clearly defamatory of and concerning him and on this aspect of the matter the defendants disavow any intention to plead justification. On the contrary the defendants accept that the plaintiff is not homosexual but say that they never alleged that he was. In support of this contention the defendants made a number of arguments which Mr Justice Kelly dealt with in turn.

First, the defendants said that the term "gay" was an adjective used to describe a person's demeanour as in "lively, cheerful, vivacious, light-hearted, fond of pleasure and gaiety". Had the argument been made 30 years ago it would probably have succeeded, but it was an absurd proposition to put to the court in 1998. Language is a living thing and words can change their meaning over the years. Sometimes the primary meaning of a word will undergo subtle or even profound changes. On other occasions the word may acquire a secondary meaning which it did not formerly have. The word "gay" falls into the second category. Over the last 30 years or so it has come to be synonymous with homosexuals and homosexual activity. Not merely had it acquired this secondary meaning but it had in fact eclipsed the primary meaning so that nowadays one rarely heard the term used other than denoting homosexuals or homosexual activity. The defendants' second contention was that the use of the word "gay" (as an adjective) qualifying the noun "bachelor" was a term in common use to refer to men who are happily unmarried. The defendants contended that when the term "gay bachelor" is used it never indicates that the person is a homosexual. Mr Justice Kelly said that this argument could be made with telling force had this case occurred in 1968 rather than 1998. It was true that the term "gay bachelor" may still be used with slightly more frequency than the word "gay" in its original meaning, but it seemed that nowadays the term had practically fallen out of use largely because of the secondary meaning of the word "gay". Mr Justice Kelly rejected the defendants contention that this term could not be defamatory. Mr Mallocco's next contention was that even if he was wrong in the foregoing contentions, to allege of a person that he or she was "gay" was not harmful to reputation, homosexuality was an accepted part of Irish life and the days were long gone when homosexuals were simply tolerated. Homosexuals were now accepted and integrated into the fabric of Irish life like other minorities and the magazine fully endorsed that reality. Counsel for the plaintiff said that the allegation of being gay was an allegation of deviant sexual practice which many people in Irish society found repellent and therefore it is clearly defamatory. No cases were cited by either side to support the conflicting positions which were argued for.

Mr Justice Kelly said his own researches discovered a decision of the Court of Appeal in England which was of assistance. In Regina v Bishop [1975] 1 QB 274 the court had to consider a case where the defendant was tried at first instance on a charge involving theft from a bedroom. In evidence the defendant explained the presence of his fingerprints in the room by saying that he had had a homosexual relationship with a prosecution witness, which that witness has denied. The prosecution sought leave to ask the defendant questions tending to show that he had been convicted of offences other than that charged because of the nature and conduct of the defence was such as to involve imputations on the character of the witness for the prosecution within section 1(f) of the Criminal Evidence Act 1898. The defendant objected on the grounds that in the view of section 1(1) of the Sexual Offences Act 1967 an allegation that a man was a homosexual or practised homosexuality was not an imputation on his character within section 1(f)(ii) of the 1898 Act, and in any event the allegations had been made for the purpose of explaining the defendant's presence in the room and not for that of discrediting the testimony of the prosecution witness. The objection was rejected , questions about the defendant's previous convictions were asked, and he was convicted. On appeal to the Court of Appeal on the grounds that his objections to the evidence of his previous convictions had been wrongly rejected the appeal was dismissed. The court held that the character of a witness was impugned by an allegation of homosexual conduct made against him and an imputation of homosexual immorality against a witness might reflect on his reliability generally or in the witness box. The court also held that that a defendant who made such an attack but disclaimed the intention to discredit the testimony of the witness nevertheless was still subject to the risk of cross-examination as to his own record. In the course of the judgment Lord Justice Stephenson said "Mr Bates submitted that in these progressive (or permissive) days it was no longer an imputation on a man's character to say of him that he was a homosexual or that he practised homosexuality. Since 1967, when section 1 of the Sexual Offence Act 1967 became law, it was no longer an offence to commit a homosexual act with another man of full age in private. No reasonable person would now think the worse of a man who committed such acts; he might not wish to associate with him but he would not condemn him. We think that this argument goes too far and that the gap between what is declared by Parliament to be illegal and punishable and what the common man or woman still regards as immoral or wrong is not wide enough to support it. We respectfully agree with the opinion of Lord Reid in Regina v Knuller (Publishing Printing and Promotions) Limited [1973] AC 435 at 457 that `there is a material difference between merely exempting certain conduct from criminal penalties and making it lawful in the full sense' and with him we read the Act of 1967 as saying that even thought homosexual acts between consenting adults in private may be corrupting, if people choose to be corrupt themselves in this way that is their affair and the law will not interfere. If Mr Price were to sue the defendant in respect of his allegation if repeated outside a court of law, we venture to think that a submission that the words were incapable of a defamatory meaning would be bound to fail and a jury would generally be likely to find them defamatory." Mr Justice Kelly said the statement was made obiter but nonetheless it did appear to represent the legal position in England and also represents the legal position in Ireland. Apart from the decision just cited, it did not appear to be sound to suggest that merely because an activity is no longer prohibited by the criminal law an allegation of engaging in such activity could not be defamatory. The commission of adultery is not a criminal offence but nobody could seriously suggest that an allegation of adultery could not be defamatory. Similarly, to lie is not a criminal offence but it could not be seriously suggested that to call a person a liar was not defamatory. Mr Justice Kelly rejected the defendants' contention in that regard. The defendant did say that the photograph of the plaintiff with a woman (albeit with her face blocked out) on his arm, and the suggestion that the plaintiff was featured regularly in the tabloid gossip columns with his latest model girlfriends makes it plain that no allegation of homosexuality was being made. Mr Justice Kelly said he did not agree with this argument and that it would be perfectly open to a jury to hold that the use of the word "gay" in relation to the plaintiff either in its natural or ordinary meaning or by innuendo was an allegation of homosexuality. A jury would be entitled to find in the plaintiff's favour in that regard and if they did it would not appear that their verdict could be regarded as perverse. Mr Justice Kelly said he did not think the sting was removed by the reference to the appearance of the plaintiff in the tabloid gossip columns or the photograph which accompanies the article. There was no plea of justification in respect of the complaint of alleged homosexuality and it follows that the plaintiff had made out a sufficiently strong case to satisfy the test required for the grant of an interlocutory injunction.

It did not automatically follow that, having so concluded, an injunction should be granted. The grant of injunctive relief is always discretionary. This is "a jurisdiction of a delicate nature" and the court must be circumspect to ensure that it does not unnecessarily interfere with the right of freedom of expression. Mr Justice Kelly said he would not wish to set out in a hard and fast manner the factors which the court should or could take into account in the exercise of this discretion. It would be sufficient to identify one item of particular importance which affects the exercise of discretion in this case. If the plaintiff is refused this injunction the article will be published and the plaintiff will be left to his remedy in damages at a trial to be held some time in the future. Damages are the normal remedy for defamation and injunctions are not. Nothing in this judgment should be take to dilute that approach. In the present case the question arises as to what damages the plaintiff would be likely to recover against the defendants at the trial. The first defendant had recently completed a lengthy prison sentence imposed for offences of dishonesty. He formerly practised as a solicitor and that option was no longer open to him. There was uncontroverted evidence that the first defendant had unsatisfied judgments against him for a sum of money in excess of £40,000 and that he has other outstanding liabilities arising from the period when he practised as a solicitor. As a matter of probability, the prospect of the plaintiff ever recovering other than a paper judgment against Mr Malocco are remote. Mr Justice Kelly said Mr Murray and Mr White did not exist. Mr Laur did not appear either personally or through counsel, and while the magazine gave his address as "London" the only address to which the proceedings could be directed was at Foxrock Post Office. He describes himself as being the magazine's publisher though the court now knows the added defendant, Fanville Limited, is the publisher. The shadowy figure of Mr Laur was unlikely to prove to be any better prospect for the recovery of damages that Mr Malocco. In relation to Fanville Limited, the two pound company, with both shares held by another limited liability company was unlikely to make any judgment which the plaintiff may obtain against it any less hollow than the judgments against the other defendants. Mr Justice Kelly said he was quite satisfied that his discretion must be exercised in favour of granting an injunction rather than refusing it. To refuse it would be to consign the plaintiff to a trial where damages would be an inadequate remedy because of the impossibility of ever recovering any sum awarded. The plaintiff was therefore entitled to interlocutory relief and an order was granted until the trial, restraining the defendants and each of them, their servants or agents or any person acting in concert with them or any person with notice of the order from in any manner or fashion howsoever publishing of or concerning the plaintiff the article which was the subject matter of the proceedings or any matter contained therein defamatory of the plaintiff's reputation.

Solicitors: John B. O'Connor and Company (Dublin) for the plaintiff: the first defendant acted on his own behalf.

Michelle O'Gorman Barrister