We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
26 June 2007
In a recent decision(1) the Irish High Court has reiterated the common law rule that legal proceedings for defamation cannot be taken on behalf of the deceased. However, this is in the context of proposals both in this jurisdiction and in the United Kingdom that the law be changed. The judgment raises a number of interesting issues.
The plaintiff, Hazel Lawlor, is the widow of the deceased former member of Parliament Liam Lawlor, against whom allegations of impropriety in relation to planning decisions had been made. Mr Lawlor was the first member of Parliament in Irish history to be imprisoned for failing to cooperate with a judicial tribunal investigating whether public figures received bribes to influence their decisions. Mr Lawlor had denied the allegations made against him.
In 2005, after Mr Lawlor's death, his widow made an application to the tribunal seeking limited representation (essentially allowing lawyers on behalf of her late husband to attend hearings and conduct cross-examinations) to defend Mr Lawlor's name notwithstanding his death. The tribunal granted this application, citing an obligation to observe fair procedures. In the course of the hearing this year, counsel on behalf of the tribunal described this decision as a "humanitarian concession". The tribunal then elected to withdraw that concession, and it fell to the High Court to determine whether it could do so.
The court noted that there are only two reported decisions of significance in relation to the issue of the dead being defamed: a case decided in 1990 and one in 2004. In the 2004 decision the High Court had no reservation in noting that "because the deceased are neither alive nor citizens, they have no personal rights". In that case the court held that this was "justified by reference to good policy reasons, presumably relating to the difficulties which will be caused to the writing and recording of a recent history".
This has always been the position, although in the 1990 decision the High Court was prepared to concede a scintilla of ground by holding that:
"In order for a publication which defamed a dead person to amount to a criminal libel, it must be proven to have been published with the malevolent purpose of vilifying his memory with the intention of injuring surviving members of his family."
In the present case the court had no difficulty in distinguishing the humanitarian concession granted to the late man's widow and noted that the law quite clearly prohibited the taking of actions by or on behalf of the deceased, save in the extremely limited circumstances set out in the 1990 decision.
In these circumstances it is perhaps surprising to note that the Irish legislature has put forward proposals to create a cause of action (albeit a relatively limited one) allowing libel actions to be taken on behalf of the dead. The Defamation Bill, published in July 2006, allows a libel action to be taken on behalf of a deceased where "a cause of action for defamation vested in him immediately before his death".
Were this initiative to become law, Ireland would be unique in common law globally in permitting such actions to be taken. Very few countries, regardless of their legal system, allow the dead to have their names vindicated. As the defamation laws are already regarded as slanted towards plaintiffs, the media - not to mention historians - would view any moves in this direction with trepidation.
For further information on this topic please contact Michael Tyrrell or Patrick Walshe at Matheson Ormsby Prentice by telephone (+353 1 232 2000) or by fax (+353 1 232 3333) or by email (firstname.lastname@example.org or email@example.com).
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.