FIFTH SECTION

DECISION

Application no . 69558/10 Martina COURTNEY against Ireland

The European Court of Human Rights (Fifth Section), sitting on 18 December 2012 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ann Power-Forde , Paul Lemmens , Helena Jäderblom , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 18 October 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Martina Courtney, is an Irish national who lives in Dublin . She was represented before the Court by Mr. J. MacGuill , a lawyer practising in Dundalk . The facts of the case, as submitted by the applicant, may be summarised as follows.

A. The circumstances of the case

1. Background facts

The applicant is a school traffic warden. She took part in a prison visiting project for which she provided her personal details to the prison authorities for security purposes. During the project she became acquainted with N (in prison for the murder of two persons and charged with the murder of two others) and they began a personal relationship.

At 15.30 on 13 May 2010 (Thursday) the applicant was visited at home by a journalist from the Irish Daily Star newspaper. The journalist sought information on the applicant ’ s relationship with N. Apart from confirming that she knew N, the applicant refused to comment further. Later that afternoon the journalist returned and the applicant did not make any comment. At 19.00 that day a letter from the journalist was delivered to the applicant ’ s home: the journalist was writing an article about the applicant ’ s relationship with N, she was sure of its validity based as it was on information from prison sources and she wanted to give the applicant the opportunity to tell her side of the story. The article would be published the following Sunday (16 May 2010).

On 14 May 2010 the applicant went to visit N. As she entered the prison, she was approached by the journalist and photographed. As she left, the journalist requested the applicant to tell her side of the story. The applicant made no comment and contacted her solicitor who sent a letter by facsimile to the newspaper on the same day. The letter underlined that the proposed article concerned the applicant ’ s private affairs and was devoid of any real public interest so that its publication would breach the code of practice of the Press Council of Ireland as well as the applicant ’ s constitutional and Convention rights. Since her vital personal interests would be irreparably damaged, the letter called on the newspaper not to publish the story. A response was requested by 11.00 the following day, failing which the applicant would apply to the High Court for protection. The newspaper did not respond.

On 15 May 2010 the applicant ’ s solicitors contacted the High Court duty judge (it was a Saturday). They applied to that judge, on an ex parte basis and grounded upon a draft Plenary Summons and the applicant ’ s affidavit, for an interim injunction restraining publication of any material disclosing her relationship with N; for a declaration that any such publication would infringe her right to privacy contrary to the Convention and the Constitution; and for damages for breach of her Convention and constitutional right to privacy. The applicant ’ s grounding affidavit underlined that she was a private person of modest means and pointed to the prejudicial impact of the inevitable media scrutiny on her, her two young sons and her ongoing employment. Since the story was not a matter of any real public interest, the devastating consequences for her and her family ’ s personal dignity and private life would be disproportionate.

2. Judgment of the High Court

In an ex tempore judgment dated 15 May 2010 the High Court refused to grant the injunction. She was a private citizen with a right to respect for her private life and there was no public interest in revealing that she was in a relationship with N. Journalism which invaded private life in the threatened manner was meretricious and worthless. However, in Foley v. Independent Newspapers ([2005] IEHC 14), the High Court had found that the common law rule enunciated in Bonnard v. Perryman ([1891] 2 Ch 269) had survived the Human Rights Act 1998 in the United Kingdom and applied in Ireland . The rule provides that, in all but exceptional cases, the court should refuse injunctions. It can only grant such injunctions where it is shown that there is no prospect of successfully defending the substantive action. The High Court judge considered this was a limited protection as it seemed to allow even worthless publication the same level of protection as is accorded to journalism that has redeeming characteristics. He noted the Supreme Court ’ s recent confirmation that the Convention does not have direct applicability in Irish law and only arises when that law falls to be interpreted in some fashion. He queried whether the rule in Bonnard would survive a Convention challenge but acknowledged that this was a matter for another day and another court. Applying the rule in the applicant ’ s case, the High Court judge concluded that he could not make an order restraining the publication.

3. Publication of the article

On 16 May 2010 the Irish Daily Star published on its front page a story entitled “Lady and the Killer”. It contained a series of photographs of the applicant and the associated article read, in so far as relevant, as follows:

“Meet the lollipop lady who has struck up an unlikely bond with double murderer N. Most mornings [the applicant] helps primary school kids across the road at a plush south Dublin school. But once her work is done, the mum-of-three regularly cycles into town to visit high-profile convicted double killer N. ... Prison sources have revealed the pair have been seen being openly affectionate in the visitors ’ centre at the jail. For the past few months, [the applicant], from Terenure , has been visiting psycho N. twice a week in [prison]. Jail sources have told Star Sunday that killer N. – who has admitted that he is mentally ill – is “besotted” with the attractive woman.

... “[the applicant] always sits up on the table between her and Mark in order to be closer to him,” said a source. “She often snuggles in to his chest and they embrace a lot, which can often be a bit embarrassing for the other visitors.” However, when [the applicant] was confronted by Star Sunday at her home on Thursday evening, she denied she was romantically involved with N.

... .Sources at the jail said [the applicant] visits the killer twice a week, usually every Tuesday and Friday between 10am and midday.”

On 18 May 2010 the applicant formally filed the Plenary Summons on which she had relied when she applied for the interim injunction and in which she claims damages for a breach of privacy. It would appear that this substantive action has not been pursued further.

On 24 September 2010 the applicant ’ s Counsel advised that, since the application for an injunction had been refused and the article published the following day, there were no further steps open to the applicant through which she could have prevented the publication. In so concluding, Counsel noted that it had not been open to her to appeal to the Supreme Court on 15 or 16 May 2010 because that court was not sitting on either of those days.

B. Relevant domestic law and practice

1. Foley v. Sunday Newspapers Limited ([2005] IEHC 14),

In this case the High Court outlined the criteria for deciding interlocutory injunction requests. It recalled the judgment of the Supreme Court in Campus Oil v. Minister for Industry and Energy (No. 2) ([1983] I.R. 88) and noted the guidelines for the granting of an interlocutory prohibitory injunction. A plaintiff had to demonstrate:

(a) the existence of a serious question to be tried;

(b) the inadequacy of damages; and

(c) that the balance of convenience lies in favour of the grant of the injunction.

While resolving these issues in favour of an applicant would, in many cases, result in an injunction being granted, it was not always so. In addition to these three questions, there might be many other special factors to be taken into consideration in the particular circumstances of individual cases. Over the years, a number of cases had been identified where the guidelines, even if satisfied, do not result in an interlocutory injunction being granted. A good example of this was the rule in Bonnard v. Perryman ([1891] 2 Ch 269) which the High Court in Foley deemed to be of ‘ some relevance ’ to an application for an injunction restraining publication. Although the courts undoubtedly possessed the requisite jurisdiction to grant interlocutory injunctive relief, the rule in Bonnard provides that in all but exceptional circumstances they should not issue an interlocutory injunction to restrain the publication of a libel which the defence sought to justify except where it was clear that the defence would fail. The rule was based on the need not to restrict the right of free speech by interfering before the final determination of the matter save in a clear case of an untrue libel. The High Court in Foley noted that the right to freedom of expression as provided for in the Constitution and in the Convention is an important right and one which the courts must be extremely circumspect about curtailing particularly at the interlocutory stage of a proceedings. While refusing to restrict the defendant ’ s right between the making of the application for an injunction and the trial of the action, it did, however, direct an early trial and heard submissions on the delivery of accelerated pleadings.

The rule in Bonnard was approved and followed by the Supreme Court in Sinclair v. Gogarty ([1937] I.R. 377).

2. Order 58, Rule 13 of the Rules of the Superior Courts

This rule reads as follows:

“13. Where an ex parte application has been refused in whole or in part by the High Court an application for a similar purpose may be made to the Supreme Court ex parte within four days from the date of such refusal, or within such enlarged time as the Supreme Court may allow.”

COMPLAINTS

The applicant complained about a breach of her privacy and family rights and, under Article 13 of the Convention, about the unavailability of an effective remedy in Ireland .

THE LAW

The applicant complained that the refusal of an injunction breached her right to respect for her private life and, under Article 13, that she had no effective remedy in that respect.

The Court reiterates that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in the domestic system in respect of the alleged breach. The only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, D. v. Ireland , 26499/02, 27 June 2006, § 83; and McFarlane v. Ireland [GC] , no. 31333/06, § 107, 10 September 2010 ).

The Court notes that the Rules of the Superior Courts expressly provide for the lodging of an appeal to the Supreme Court from a refusal by the High Court, in whole or in part, of an ex parte application within 4 days from the date of such refusal or within such enlarged time as the Supreme Court may allow. It also notes that the applicant ’ s legal representative did not pursue this option. However, the Court does not have to decide whether this omission amounted to a failure to exhaust an effective remedy because the application is, in any event, inadmissible for the reasons set out below.

The Court considers it decisive that the applicant has not pursued the substantive civil action, in the context of which the injunction was requested and the details of which were contained in the Plenary Summons formally issued on 18 May 2012. The reliefs sought in that action included a request for a declaration that the publication amounted to a breach of Constitutional and/or Convention rights and for an award of damages by reason thereof. The applicant explained, without more, that the High Court judgment definitively decided those civil proceedings. However, it is inaccurate to suggest that a request on an ex parte basis for an injunction gives rise to the same issues as the substantive inter partes civil declaratory action for damages: the former involves the assessment of the necessity of a prior restraint according to certain criteria (see Relevant Domestic Law and Practice above) and the latter requires a detailed balancing, with the benefit of the written and oral submissions of all parties, of the competing privacy and expression rights at issue as well as, if successful, relevant declaratory and compensatory awards.

The Court notes that the applicant ’ s core complaint is that an injunction was required because post-publication damages would be inadequate to compensate the violation of her privacy rights. This argument presupposes that the balance of the above-described competing interests lay in her favour. However, the domestic courts have not been given the opportunity to balance these competing interests and to pronounce on this question. Having regard to the subsidiary character of the Court ’ s work, as expressed in, inter alia , Article 35 § 1, it is precisely on this kind of question that the Court requires the views of the domestic courts. When the Court addresses the complex and delicate balance between conflicting interests under Articles 8 and 10, the views of the domestic authorities - in principle better placed than this Court to make such an assessment - are central to this Court ’ s consideration ( MGN Limited v. the United Kingdom , no. 39401/04 , § § 140-155, 18 January 2011; Palomo Sánchez and Others v. Spain [GC], no s . 28955/06, 28957/06, 28959/06 and 28964/06 , § 57, 12 September 2011; and Axel Springer AG v. Germany [GC], no. 39954/08 , §§ 85-88, 7 February 2012 ).

For the above reasons, the Court considers that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President