Defamation during divorce/seperation

Joshua5

Has there ever been a case taken to court that anyone is aware of for defamation.

For example, if a marriage has broken down and accusations had been made about abuse which are unfounded and eventually proven to be untrue can this be an action the injured party could take?

Especially if it had far reaching consequences within the community and affect on personal and family life.

Peregrinus

Very, very difficult. Anything said in the course of court proceedings is subject to privilege. Very hard to sue for defamation on the basis of anything contained in court pleadings, or given in evidence in court.

If things have been said in the wider context of the breakdown, but outside any court proceedings, then in theory you can sue for defamation. But this is nearly always unwise. It costs a fortune to run a defamation case, and in practical terms the usual outcome is to give ever-wider currency to the allegations that were made.

4ensic15

Malice has to be proven to start with. The other problem is as regards the mark for damages. If damages are given to one party plus costs, they must be paid by the other. However the first party may have to provide for the maintenance of the other. This is really a zero sum game unless the couple are each independently very wealthy. The better remedy is a criminal prosecution for perjury, wasting police time or the like.

Joshua5

4ensic15 wrote: »

Malice has to be proven to start with. The other problem is as regards the mark for damages. If damages are given to one party plus costs, they must be paid by the other. However the first party may have to provide for the maintenance of the other. This is really a zero sum game unless the couple are each independently very wealthy. The better remedy is a criminal prosecution for perjury, wasting police time or the like.

I've just been researching it as it looks like it's never been done. In family law court accusations can be made and they in certain circumstances do not need to be evidenced. The victim, will lose access rights and be left on a long waiting list for appeals. The culprit however goes clear and free, with no repercussions.

If the culprit is making these remarks outside of family court, in the wider community then the victim has an issue. And from what I can see the only remedy would actually be defamation because then the onus is on the culprit to actually prove the facts.

If the evidence of these remarks are also held in court affidavits surely the law on ones character can be protected. In my opinion the incamera rule for family law protects the decision rather than the identity.

johnnyskeleton

Joshua5 wrote: »

I've just been researching it as it looks like it's never been done. In family law court accusations can be made and they in certain circumstances do not need to be evidenced. The victim, will lose access rights and be left on a long waiting list for appeals. The culprit however goes clear and free, with no repercussions.

If the culprit is making these remarks outside of family court, in the wider community then the victim has an issue. And from what I can see the only remedy would actually be defamation because then the onus is on the culprit to actually prove the facts.

If the evidence of these remarks are also held in court affidavits surely the law on ones character can be protected. In my opinion the incamera rule for family law protects the decision rather than the identity.

What kind of research was this?

Joshua5

johnnyskeleton wrote: »

What kind of research was this?

http://shrink4men.com/2011/08/16/man-awarded-852000-in-civil-court-after-ex-wife-falsely-accuses-him-of-sexual-abuse/

I found two such cases but here is one. I'm wondering if not for money but if a man wanted a fair hearing to clear his name how could he do so. Mud sticks, especially in family law. So how to clear the mud if it's untrue.

NUTLEY BOY

4ensic15 wrote: »

Malice has to be proven to start with. The other problem is as regards the mark for damages. If damages are given to one party plus costs, they must be paid by the other. However the first party may have to provide for the maintenance of the other. This is really a zero sum game unless the couple are each independently very wealthy. The better remedy is a criminal prosecution for perjury, wasting police time or the like.

Is malice a necessary proof ?

Pat Mustard

NUTLEY BOY wrote: »

Is malice a necessary proof ?

Not for defamation.

Defamation is defined in s.6 of the Defamation Act 2009, as follows:

(2) The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “ defamation ” shall be construed accordingly.

A defamatory statement is defined in s.2 of the Defamation Act 2009, as follows:

defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and “defamatory” shall be construed accordingly;

So what needs to be shown is publication of a statement which tends to injure a person’s reputation in the eyes of reasonable members of society.

4ensic15

NUTLEY BOY wrote: »

Is malice a necessary proof ?

It is necessary to defeat a claim of privilege which there would be in the context of court proceedings. A witness in court must be free to say what they really believe without worrying that they will be sued for defamation. Someone might mistakenly a person as the perpetrator of a crime. Unless there was malice the alleged perpetrator would not succeed in a defamation action.

Peregrinus

4ensic15 wrote: »

It is necessary to defeat a claim of privilege which there would be in the context of court proceedings. A witness in court must be free to say what they really believe without worrying that they will be sued for defamation. Someone might mistakenly a person as the perpetrator of a crime. Unless there was malice the alleged perpetrator would not succeed in a defamation action.

A participant in court has absolute privilege. Malice is irrelevant.

Malice would be relevant to defeating a claim of qualified privilege.

4ensic15

Peregrinus wrote: »

A participant in court has absolute privilege. Malice is irrelevant.

Malice would be relevant to defeating a claim of qualified privilege.

Absolute privilege only applies in the Dail and speakers corner. A witness in court can't make up lies with impunity.

Peregrinus

4ensic15 wrote: »

Absolute privilege only applies in the Dail and speakers corner.

Absolute privlege applies to participants in court proceedings (and not to "speaker's corner", which is an institution unknown to the law of Ireland).

4ensic15 wrote: »

A witness in court can't make up lies with impunity.

No, indeed. We have laws dealing with contempt, and laws dealing with perjury. However, it's a defence to any defamation action to show that the statement complained of was made in the course of judicial proceedings, because that's an occasion of absolute privilege.

4ensic15

Peregrinus wrote: »

Absolute privlege applies to participants in court proceedings (and not to "speaker's corner", which is an institution unknown to the law of Ireland).

There is a speakers corner in the Phoenix Park.

Peregrinus wrote: »

No, indeed. We have laws dealing with contempt, and laws dealing with perjury. However, it's a defence to any defamation action to show that the statement complained of was made in the course of judicial proceedings, because that's an occasion of absolute privilege.

In all likelihood such an allegation will have been made outside the court before it is made in court and as such will not be absolutely privileged.

Peregrinus

4ensic15 wrote: »

There is a speakers corner in the Phoenix Park.

I know. But it has no legal standing. Specifically, statements do not attract absolute privilege (or any kind of privilege) by virtue of having been made there.

4ensic15 wrote: »

In all likelihood such an allegation will have been made outside the court before it is made in court and as such will not be absolutely privileged.

If it's made outside of court proceedings, there's no reason to suppose that it will attract even qualified privilege so, again, malice will not be relevant.

If the plaintiff wants to sue in relation to allegations made on an occasion of qualified privilege then, yes, he'll have to show malice to have any hope of succeeding.

Joshua5

So here's my question based on all that information. If false accusations have been made, inside family court and outside in the wider community is this a route one could take?

The downside I see is that if a man is still legally married it would be like suing himself. But if this wasn't for money but rather to have a good name cleared could it be done.

For example man v woman in court after break up. Woman claims man is abusive and there is no evidence of this. In family court a safety order/protection order can be issued without proof. In fact when it's one word against the other the burden is to prove innocence. However in Civil court defamation it would be for the woman to prove her allegations are in fact true.

I'm not sure if this makes any sense. It's just I have read many articles where men (rightly or wrongly) are accused of abuse both mental and physical in family courts. The effects of this have consequences on the injured parties rights to co-parent amoungst other things. It is not based on fact.

So I'd see this as a way for someone accused of untrue accusations clear their name. The obvious fact is family law is held in camera so nobody gets to see or hear about these judgements and I feel many people suffer this faith. However defamation is not incamera so therefore if one person took this to the courts it might open the flood gates in ireland to show the extent of the false allegations and the effects it has on seperated parents and their relationships with their children.

ohnonotgmail

Going down the defamation route would most likely only draw more attention to the accusations. google "streisand effect"

Joshua5

ohnonotgmail wrote: »

Going down the defamation route would most likely only draw more attention to the accusations. google "streisand effect"

But what if a man wanted to clear his name publicly, let the accusations come into the world wide web to show that the current system is broken.

Then it could be argued that the streisand effect would in fact be a good thing.

Generally the injured party is gagged because of the incamera rule, but a civil defamation would be one way of unmasking it right?

ohnonotgmail

but as already explained if the defamation occurred in the course of court proceedings then you cant sue for defamation anyway.

Joshua5

ohnonotgmail wrote: »

but as already explained if the defamation occurred in the course of court proceedings then you cant sue for defamation anyway.

If false accusations in court are made I believe this has no baring on if a case can be tried. But in addition to this as i mentioned if those allegation where also spread to the wider community and family it would certainly be allowed.

ohnonotgmail

best of luck with whatever you decide to do but i fear it will be an expensive and fruitless exercise.

Peregrinus

Joshua5 wrote: »

But what if a man wanted to clear his name publicly, let the accusations come into the world wide web to show that the current system is broken.

Then it could be argued that the streisand effect would in fact be a good thing.

Generally the injured party is gagged because of the incamera rule, but a civil defamation would be one way of unmasking it right?

If the allegations are made in camera, very few people will hear them.

If you could and did launch a defamation action based on them, then a great many people would hear them. This would be a very, very stupid thing to do if your object is to protect your good name.

ohnonotgmail

Peregrinus wrote: »

If the allegations are made in camera, very few people will hear them.

If you could and did launch a defamation action based on them, then a great many people would hear them. This would be a very, very stupid thing to do if your object is to protect your good name.

Would i be correct in thinking that the only people who would hear it would be the two parties involved, their legal teams and the judge?

Fred Swanson

This post has been deleted.

4ensic15

ohnonotgmail wrote: »

Would i be correct in thinking that the only people who would hear it would be the two parties involved, their legal teams and the judge?

Typists in solicitors and barristers offices and staff in the court office. Ireland is a small country.

Peregrinus

4ensic15 wrote: »

Typists in solicitors and barristers offices and staff in the court office. Ireland is a small country.

If the allegation is made in oral evidence, the typists will never see it.

But, regardless, the allegation will have massively wider circulation if it's the subject of separate proceedings.

4ensic15

Peregrinus wrote: »

If the allegation is made in oral evidence, the typists will never see it.

But, regardless, the allegation will have massively wider circulation if it's the subject of separate proceedings.

Good solicitors have attendance notes typed after they have been in court. They would make a note of any allegation made.

Peregrinus

Welcome to the 21st century, 4ensic15. We type our own attendance notes these days. :-)

goz83

Eventually, a crazy lying woman will be seen as a crazy lying woman. A good name having been smeared is irreversible in my opinion, because there will always be thise who do not believe you, whether you have hard evidence, or not. The best way to have yourself recognised as a good character, is to be one. Let not false accusations be the focus on your life. I recall the thread where you first spoke of the accusations made and I believe it would be best to move forward, spending no more time in solicitors offices and courts than is absolutely necessary. Sometimes poking at smouldering embers reignites the flames of contempt.

I wish you luck whatever you decide.

FreudianSlippers

Joshua5 wrote: »

If false accusations in court are made I believe this has no baring on if a case can be tried. But in addition to this as i mentioned if those allegation where also spread to the wider community and family it would certainly be allowed.

Sure... you could obviously issue a writ for defamation on these grounds, just don't be surprised when you get the shortest defence back of all time which just says "The statement in respect of which the action was brought is subject to Absolute Privilege pursuant to Section 17(2)(g) of the Defamation Act 2009."

Joshua5

FreudianSlippers wrote: »

Sure... you could obviously issue a writ for defamation on these grounds, just don't be surprised when you get the shortest defence back of all time which just says "The statement in respect of which the action was brought is subject to Absolute Privilege pursuant to Section 17(2)(g) of the Defamation Act 2009."

As mentioned, the lies are also spread in the wider community. The fact is you can lie away in family court and blast one out of it. But you can't do this in the wider community. Just because it's spoken in court doesn't make it true or acceptable so defamation is defamation. Plus I believe Absolute Privilege doesn't apply to joe blogs, rather it applies to the judges and the likes. But I could be reading this wrong.

ohnonotgmail

Joshua5 wrote: »

As mentioned, the lies are also spread in the wider community. The fact is you can lie away in family court and blast one out of it. But you can't do this in the wider community. Just because it's spoken in court doesn't make it true or acceptable so defamation is defamation. Plus I believe Absolute Privilege doesn't apply to joe blogs, rather it applies to the judges and the likes. But I could be reading this wrong.

you are

(g) made by a party, witness, legal representative or juror in the course of proceedings presided over by a judge, or other person, performing a judicial function,

Joshua5

ohnonotgmail wrote: »

you are

Thanks for clearing that up but the wider community defamation still applies.

FreudianSlippers

That depends on a good few things… who the “wider community” are, how they found out, whether you’d be happy to swear an affidavit of verification on facts presented in your case (etc.)

But sure, what do we know!? If you feel you have a watertight case what’re you doing here?

Peregrinus

Joshua5 wrote: »

Thanks for clearing that up but the wider community defamation still applies.

If person X makes a defamatory statement as a witness, party, etc in the course of court proceedings, that's an occasion of absolute privilege, and you can't succeed in a defamation action against him. If the statement "leaks" to the wider community, that doesn't give you a right to sue person X. You do have a possible claim against the person who leaked the statement - let's call them person Y - but (a) as a matter of practice, you have to be able to identify person Y so you can issue proceedings against them, and (b) you have to be able lead evidence proving that person Y did indeed publish the defamatory statement on an occasion which was not absolutely privileged.

Person X won't be a party in these proceedings, so there's no way that your taking these steps will be some kind of punishment for person X.

And, as others have pointed out, once you issue proceedings about this, it's open season. The claims against you will receive far, far wider currency, and for a much longer period.

There's a recent case from Queensland in which a party in family law proceedings made defamatory comments about a lawyer on the other side. These comments were not made in court, or in the pleadings, so they were not the subject of any privilege. The offended lawyer sued. His claim was not successful because the people to whom the comments were made knew the lawyer well enough, and knew the context in which the claims were made, and did not think any less of the lawyer as a result.

But, when making submissions about the damages that would be awarded if the claim were successful, the lawyer argued that there was a "grapevine effect"; that the comments would spread through repetition and reporting, and that this would injure him. The court was not impressed, pointing out that the comments had spread largely because the lawyer had instituted defamation proceedings, and these had been widely reported. As the court put it, "it was the plaintiff who, by making the claim, called in an airstrike on his own position. Once the pleadings were filed in the court they were public documents and liable to be published through various media."

That's a real factor. If you have a solid defamation case, then the damages you will be awarded will reflect the wider circulation the defamation received as a result of the court proceedings. But if you don't have a solid case to begin with, this factor won't convert your dud case into a successful case. But it will massively increase the damage you have suffered.



defamatory statemen

FreudianSlippers

I'm not sure in the Irish context if that lawyer's claim wouldn't be successful; it'd be a quantum of damages issue.

Pat Mustard

Peregrinus wrote: »

The offended lawyer sued. His claim was not successful because the people to whom the comments were made knew the lawyer well enough, and knew the context in which the claims were made, and did not think any less of the lawyer as a result.

:pac::pac::pac: