The possibility of a plea based on section 35(1)(i) is likely to have a significant impact on the way plaintiffs approach defamation proceedings.
Moreover, observations made by O’Donnell J in Hickey v McGowan (a case involving sexual abuse), concerning the potential for the provision to operate harshly from the point of view of a plaintiff, are particularly apposite in the context of defamation cases.
Section 35(1)(i) states: “Where the plaintiff’s damage was caused by concurrent wrongdoers and the plaintiff’s claim against one wrongdoer has become barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer.”
Section 11(5) of the act defines who may be considered a concurrent wrongdoer where defamation has occurred.
It states: “Where the same or substantially the same [defamation] is published by different persons, the court shall take into consideration the extent to which it is probable that the statement in question was published directly or indirectly to the same persons, and to that extent may find the wrongdoers to be concurrent wrongdoers.”
As a result of this, where two persons are found liable to a plaintiff to some degree, but only one of them is sued, the sued defendant is entitled to hold the plaintiff responsible for the wrongdoing attributable to the non-party.
The degree of responsibility so ascribed to the plaintiff will be reflected in the amount of damages recoverable from the defendant.
The overall purpose of section 35 is to ensure fair treatment between plaintiff and defendants and between defendants themselves.
In the specific context of section 35(1)(i), O’Donnell J remarked in Hickey that: “One of the main provisions of the 1961 act was to allow the allocation of liability (and consequently damages) between defendants and indeed other concurrent wrongdoers responsible for the damage suffered by the plaintiff.
"If a plaintiff did not sue one such wrongdoer (with the consequence then that such wrongdoer may not be available for a claim of contribution by other concurrent wrongdoers who have been sued), then the act, through section 35, requires that the plaintiff must bear that loss.”
O’Donnell J also commented that, arguably, the provision “operates too harshly”. At paragraph 67, he outlined that unfairness might arise, for example, where a plaintiff finds it difficult or impossible to identify a concurrent wrongdoer.
Another possible shortcoming that he recognised was the failure of the provision to take account of a concurrent wrongdoer’s ability to meet an award of damages. This, and other factors set out in this part of the judgment, suggested to him that the provision might benefit from further legislative scrutiny.
Kehoe v RTÉ
Kehoe is the first known judgment concerning the application of section 35(1)(i) in the context of defamation under the 2009 Defamation Act or the old torts of libel and slander.
The case was brought as a result of seriously defamatory comments made by Joe Costello TD on the Claire Byrne radio show. The plaintiff – a senior member of Sinn Féin – opted to sue the broadcaster of the publication, but not its author.
RTÉ made the case that section35(1)(i) applies to defamation in precisely the same way as it would to any other tort.
In choosing not to sue Mr Costello and permitting the statute to expire, the plaintiff had to be held accountable for Mr Costello’s proportion of the wrongdoing arising from the publication.
In response, the plaintiff argued that the provision should not apply, on the grounds that defamation is a tort of strict liability. This, they submitted, was the reason why no judgments could be found applying it in this context.
Barton J disagreed, finding that section 35(1)(i) applies to defamation. In so doing, he noted, among other things, that section 2 of the 1961 act defines a ‘wrong’ as a “tort, breach of contract or a breach of trust” and expressly includes wrongs, whether or not they are intentional.
He emphasised also the significance of section 11(5) of the 1961 act, which (as outlined above) states that damage from defamation may be caused concurrently.
Kehoe underlines that, when bringing a claim for defamation, the plaintiff must consider very carefully who to sue. The failure to join Mr Costello was, on the plaintiff’s own evidence, attributable to his view that RTÉ was the morally culpable party that had “let the statement out”.
Whatever the reason, it proved – by virtue of the jury’s verdict that Mr Costello was 65% liable – to be a decision that deprived the plaintiff of the opportunity to recover damages for the majority of the injury caused to him. It is worth pointing out that it could also have had severe adverse costs implications.
Coffey v Iconic Newspapers is an even more recent example of the effective use of the provision by a defendant.
In this case, the publisher of the Kilkenny People was sued by the former Minister of State for the Environment over an article that was critical of him. The article was, to a large degree, a reproduction of a press release that had been sent to the paper by another TD.
Barton J’s ruling that the author of the press release was potentially a concurrent wrongdoer with whom the plaintiff should be identified ultimately did not have any effect, as the jury failed to reach a verdict.
It is, however, notable – not just because it reinforces the importance of choosing who to sue, but also because it indicates that the range of people who could be considered to be concurrent wrongdoers may be wider than has been thought previously.
Does it operate fairly?
The lack of reliance on section 35(1)(i) until recently is probably less curious than it initially seems.
A brief analysis of the relatively small number of libel and slander cases dating from around the coming into force of the 1961 act reveals, firstly, that cases would almost always be definitively disposed of well within the limitation period.
By way of example, in Patrick Kavanagh’s famous case against the magazine The Leader, the Supreme Court was able to order a retrial of the jury’s original verdict with over half the time permitted by the statute still to run.
Secondly, a great many of the libel and slander cases that have come before our courts have concerned defendants that are newspapers or similar publications.
Such defendants tend to be, by their nature, vicariously liable for their journalists and columnists. For these reasons, in almost all instances, defendants could not have hoped to rely on section 35(1)(i).
There are grounds though for believing that things may be different now. As regards the first point, time limits have shortened, and cases take far longer to get on.
In relation to the second point, many defamation cases that now come before the courts do not concern the traditional type of publisher/author relationship.
One topical example is where defamation is carried out by an internet user on an online social media platform operated by an internet host – for instance, Facebook or Google.
While it is beyond the scope of this article to analyse the extent of internet host liability in this area, it is submitted that it is possible for both host and author to be concurrently liable.
In such a scenario, it would seem essential for the plaintiff to sue the author of the defamatory publication – that is, the user – alongside the host.
To do otherwise would expose the plaintiff to the grave risk that they would be identified with a portion of the wrongdoing attributable to the author.
Risk of unfairness
This brings one back to the observations of O’Donnell J concerning the risk of unfairness associated with section 35(1)(i).
Difficultly in identifying an online author within time could prove especially acute in cases of online defamation. Users of online platforms are known to adopt pseudonyms so that they are not readily identifiable.
The host might itself be capable of providing the requisite information, but it is not always willing to divulge this in the absence of a court order. Indeed, tactically speaking, it may be more advantageous for it to resist giving it in order to have the benefit of the provision.
One-year time limit
All this, of course, must be viewed against the background of the one-year time limit that now applies in respect of actions for defamation. Under such a tight time frame, it might be impossible for a plaintiff to sue the author inside the limitation period.
Moreover, O’Donnell J’s observation in respect of the relevance of the concurrent wrongdoer being a mark for damages carries particular importance in circumstances where little or nothing may be known about the author’s amenability to the law in this jurisdiction or their financial position.
It must be stressed that this article gives the example of online defamation as a means to illustrate the scope for unfairness in the operation of section 35(1)(i).
Naturally, problems of the kind mentioned above are not confined to cases involving social media. The wider question that arises is whether section 35 continues to strike a fair balance between the rights of plaintiffs and defendants, given the much stricter time limits that now apply to various torts.
This highlights the wisdom of O’Donnell J’s suggestion in Hickey that further consideration may need to be given to the effect of the provision.
There are two further issues worth mentioning briefly as regards defamation.
The first concerns the relationship between section 35(1)(i) and the right of a plaintiff to apply for a direction under section11(2)(c)(ii) of the Statute of Limitations 1957 (as amended) extending time for bringing a claim.
The recent judgment in O’Sullivan clarified that, in allowing further time not exceeding two years, a court is exercising limited discretion to ‘disapply’ the normal one-year timeframe.
Bearing this in mind, it would not appear open to a plaintiff to argue at hearing that a plea under section35(1)(i) should fail in circumstances where, although the one-year period had run, it remained theoretically possible to sue on the basis of an extension. However, this point has yet to be ruled on by the courts.
The final issue concerns how section 31(4) of the Defamation Act 2009 would apply in a case where section 35(1)(i) of the 1961 act was pleaded successfully by a defendant.
The former provision prescribes a list of matters that must be taken into account by a judge or jury when deciding on an award in damages – for instance, whether the defendant made an apology or offered to make amends under section 22 of the 2009 act.
Consequently, a question that remains to be clarified is whether such a defendant could argue successfully that a plaintiff should be identified with the lion’s share of liability in circumstances where they have taken steps in mitigation, but the un-sued defendant has not.