431 / 432
GAZETTE
AUGUST/SEPTEMBER
1994
on the map attached to one of the per-
missions. The applicant applied to the
respondent planning authority for an
extension of time pursuant to s. 4 of the
1982 Act. An extension was granted in
the case of two of the permissions but
refused in the case of the third on the
ground that the works did not comply
with s. 4(l)(c)(ii) which required that
'substantial works' had been carried out
pursuant to the original grant of plan-
ning permission. In the case of this third
grant of permission, it was accepted
that no substantial works had been car-
ried out within the red boundary line on
the map attached to the permission dur-
ing its currrency. The-applicant con-
tended that the respondent ought to
have taken into account works outside
this red line but nevertheless referable,
whether exclusively or otherwise, to
that particular development. The re-
spondent further argued that even if
substantial works had been carried out,
such works would have been unauthor-
ised development by reason of s. 26(10)
of the Local Government (Planning and
Development) Act 1963. The applicant
sought by way of judicial review an
order of
certiorari
quashing the decision
of the respondent to refuse an extension
of time and an order of
mandamus
di-
recting the respondent to issue a notice
to extend the operative period of the
planning permission.
Held by Geoghegan J in making an or-
der of
certiorari
and in granting liberty
to the applicant to file an amended
statement of claim, thereby enabling an
order of
mandamus
to be granted direct-
ing the respondent to reconsider the ap-
plication to extend the appropriate time
but refusing to award damages: (1) The
court would give a wide interpretation
to the provisions of s. 4(l)(c)(ii) of the
1982 Act. In deciding whether substan-
tial works had been carried out 'pursu-
ant to such permission' within the
meaning of the subsection, considera-
tion can be given to common works
which might have been, strictly speak-
ing, carried out 'under' another grant of
permission, where these are relevant to
the overall development. (2) The re-
spondent had not considered whether
any works which had been carried out
outside the boundary line could consti-
tute 'substantial works' carried out pur-
suant to the planning permission
within the meaning of s. 4(l)(c)(ii). Con-
sequently the applicant was
prima facie
entitled to an order of
certiorari.
(3) If
works which have been performed
were designed to benefit the develop-
ment under a particular planning per-
mission they can be taken into account
if they were carried out after the grant-
ing and before the expiration of that
permission, even though they may also
benefit other parts of the overall devel-
opment and even though the authorisa-
tion to carry out such works may have
been granted by a different permission.
(4) By reason of the fact that s. 26(10) of
the Local Government (Planning and
Development) Act 1963 did not render
a permission a complete nullity in the
sense that it must be assumed never to
have existed, it was not necessary to
consider whether the said works were
an 'unauthorised development'.
Reported at [1994] 1 ILRM 354
Duffy v. News Group Newspapers
Ltd, Wendy Henry and Mike
Beaumont: Supreme Court (Finlay CJ,
O'Flaherty, Egan, Blayney and Denham
JJ) 25 November 1993
Defamation - Libel - Newspaper article -
Plaintiff not named in article - Whether
article capable of referring to the plaintiff-
Whether article capable of bearing any
meaning defamatory of the plaintiff -
Whether these issues appropriate for deter-
mination as a preliminary point of law -
Rules of the Superior Courts 1986,0.25, r.
1, O. 36, r. 7
Facts O. 25, r. 1 of the Rules of the
Superior Courts 1986, provides that a
point of law raised in the pleadings,
'shall be disposed of by the judge who
tries the cause at or after the trial... [or]
same may be set down for hearing and
disposed of at any time before the trial'.
O. 37, r. 7 provides that 'the court may
... direct a trial without a jury of any
question or issue of fact or partly of fact
and partly of law, arising in any cause
or matter which, without any consent of
parties, can be tried without a jury, and
such trial may, if so ordered by the
court, take place at the same time as the
trial by a jury of any issue of fact in the
same cause or matter'. The defendants
published an article in the magazine
section of the 'News of the World' un-
der the heading, 'British marine breaks
silence to reveal full horror of Northern
Ireland'. The article recounted a surveil-
lance operation where two soldiers
were said to have spent a week hidden
in the attic of a GAA club in Cross-
maglen and 'recorded details of terror-
ist plots as they were being planned just
feet away'. The plaintiff was the chair-
man of the club and he commenced an
action for defamation. He was not men-
tioned by name in the article. The defen-
dants brought an application pursuant
to O. 25, r. 1 of the Rules of the Superior
Courts 1986, for a ruling as to (i)
whether the article was capable of refer-
ring to the plaintiff and (ii) whether the
article was capable of bearing any
meaning defamatory of the plaintiff.
Morris J directed that an issue be set
down for hearing to be disposed of as a
preliminary point of law as to whether
the words complained of were capable
of bearing any meaning defamatory of
the plaintiff.
Held by the Supreme Court (O'Flaherty
J; Finlay CJ, Egan, Blayney and Denham
JJ concurring) in reversing the order of
the High Court and remitting the action
for a full plenary hearing: (1) If it can be
decided as a matter of law that the im-
pugned words are incapable of bearing
a defamatory meaning, a defendant
may apply to court for an order pursu-
ant to O. 25, as a decision in the defen-
dants' favour would result in the action
being dismissed and a saving in costs.
Keays v. Murdoch Magazines (UK) Ltd
[1991] 1WLR1184 applied. (2) This pro-
cedure was only appropriate where the
words could be placed before a judge
without the necessity of calling evi-
dence, and his duty would be to rule
whether the words are capable or inca-
pable of bearing a defamatory meaning.
(3) If the trial judge finds that the words
are capable of defamatory meaning his
ruling should be confined to that find-
ing. It is then for the trial judge, after
perusing the pleadings and the evi-
dence and submissions, to decide
whether the words are capable of bear-
ing only one or more than one of several
defamatory meanings put forward by
the plaintiff. (4) Where the plaintiff is
not named in an article the test which
decides whether the words used refer to
him is whether the words are such as
would reasonably lead persons ac-
quainted with the plaintiff to believe he
was the person referred to.
Knupffer v.
London Express Newspaper Ltd
[1944] AC
116 discussed. (5) In the present case the
issue of whether the words used were
capable of bearing any meaning de-
famatory of the plaintiff was capable of
being supported by oral testimony and
therefore it was impossible to dispose of
it as a preliminary point of law. (6) It
was difficult to envisage situations aris-
ing in a defamation case where a pre-
liminary point might be set down pur-
suant to 0 . 3 6, r. 7 as the whole point of
establishing defamatory meaning is
based on how the words would strike
the ordinary person.
Reported at [1994] 1 ILRM 364
3