Qualified Privilege

Procrastastudy

Okay this is kind of a "should have studied better" but I have been good lately (maybe not) so perhaps someone might help clear up a problem I'm having between ConLaw and Tort.

Hynes - O'Sullivan v O'Driscoll [1989] ILRM 249 the SC rules that the Irish Constitution prevented it going down the same route as the US in adopting QP

Yet Section 18 of the Defamation Act 2009 specifically names it. Could someone point me in the direction of what happened between 1989 ans 2009 that changed the position. I understand* how legislation overrides common law but I don't see how we get from unconstitutional to constitutional on this one.

*Okay understand is stretching it - have a basic grasp of some of the facts in the same way some gorillas have been found to understand tools.

ResearchWill

GCDLawstudent wrote: »

Okay this is kind of a "should have studied better" but I have been good lately (maybe not) so perhaps someone might help clear up a problem I'm having between ConLaw and Tort.

Hynes - O'Sullivan v O'Driscoll [1989] ILRM 249 the SC rules that the Irish Constitution prevented it going down the same route as the US in adopting QP

Yet Section 18 of the Defamation Act 2009 specifically names it. Could someone point me in the direction of what happened between 1989 ans 2009 that changed the position. I understand* how legislation overrides common law but I don't see how we get from unconstitutional to constitutional on this one.

*Okay understand is stretching it - have a basic grasp of some of the facts in the same way some gorillas have been found to understand tools.

Just as an aside try to quote the IR if the case is in them in this case 1988 1IR 436.
To your question, the case had no problem with qualified privilage the case was would the mistaken belief that qualified privilage attach to a communication be a defense. The court says that if a person could attract a persons good name (constitutional protected) by a mistaken belief that what was being said was protected by qualified privilage then there would be really no protection for a persons good name.

Tom Young

S.18 of the 2009 Defamation Act, in Tort merely codifies the common law rule for QP laid down in Toogood v Spring (1834) 1 C.M.&R. 181.

You should have studied.

Procrastastudy

Many Thanks to the pair of you. My confusion has crept in because I'm looking at my ConLaw Notes in isolation and clearly didn't read the case properly.

As to whether I have a note on Toogood I'm not sure - I can't keep case names in my head for toffee - I remember the general facts but case names are a nightmare. I hate having to put down "That case where two merry go rounds constituted nuisance together" but sometimes I have to resort to it. Woot Mellish - I remembered one party at least.

But yes more study is definitely required - I'm grand on assignments 1 and 2.1s but exams are a bit meh to say the least. Thankfully year one doesn't go towards the final grade - going to be a bit scuppered later on with entrance exams etc. if I don't get it together though so point taken.

Anyway my normal stream of consciousness waffle aside; thanks again!

Tom Young

Tom Young wrote: »

S.18 of the 2009 Defamation Act, in Tort merely codifies the common law rule for QP laid down in Toogood v Spring (1834) 1 C.M.&R. 181.

You should have studied.

If you want an analysis of this QP point and a case worth knowing for future years in tort, trespass to the person and defamation - Have a look at Hardiman J. (Sitting as a temp on the High Court) in the case of McCormack v Olsthoorn [2004] 3 IR 632.

What is interesting is the assault and false imprisonment point and award.

Procrastastudy

ResearchWill wrote: »

Just as an aside try to quote the IR if the case is in them in this case 1988 1IR 436

Sorry I know this is very basic stuff and OT but should I use the IR or the neutral citation (if available)?

Tom Young

GCDLawstudent wrote: »

Sorry I know this is very basic stuff and OT but should I use the IR or the neutral citation (if available)?

Use whatever citation is available. Irish Reports - IR, is most useful, in the context of the headnote, that usually gives a brief outline of the findings and cases considered. Often, other journals are not freely available on platforms such as Justis.

Neutral Citations are fine when no report exists. These are often used/required when fresh cases are cited e.g., IEHC XX, etc.

ResearchWill

GCDLawstudent wrote: »

Sorry I know this is very basic stuff and OT but should I use the IR or the neutral citation (if available)?

If a case is reported in IR as a general rule it should be used in preference to any other report or the neutral citation. In court it's IR if available then other reports then finally the IEHC or IESC.

ResearchWill

Tom Young wrote: »

If you want an analysis of this QP point and a case worth knowing for future years in tort, trespass to the person and defamation - Have a look at Hardiman J. (Sitting as a temp on the High Court) in the case of McCormack v Olsthoorn [2004] 3 IR 632.

What is interesting is the assault and false imprisonment point and award.

It's a very good case, and an excellent judgement, but as a High Court appeal of a circuit court case it is often ignored. The reason Hardiman was hearing the appeal is that when the High Court goes out on Circuit hearing appeals they try to have one HC judge and one SC judge as the SC judge is an appeal judge. It lead to an interesting situation in Cork a while back when SC judge Geoghegan and his wife HC Judge Finlay Geoghegan appearing for the same appeals sessions.