# Defamation in planning appeal



## seawinds (28 Jun 2006)

Can anyone advise if it is possible to be defamed in a particularly agressive letter of appeal to An Bord Planeala? 

In particular,the letter refers to criminal behavour and consolidating ill gotten gains. It is also relevant to note that a copy of this letter can be freely downloaded as part of the information relating to the planning application on a local authority website. 

Any reccommendations in relation to legal advisors who may handle this issue would be helpful


----------



## Superman (28 Jun 2006)

Yes it can be defamatory:

Defamation is the wrongful publication of a false statement about a person, which tends to lower that person in the eyes of right-thinking members of society.

Any "broadcasting" to a third party will do.


----------



## dats_right (28 Jun 2006)

While it is of course possible to be defamed in such circumstances. I would like to sound two notes of caution.

Firstly, justification is an absolute defence to an action for defamation. So if the allegations are true or substantially true there is no cause of action.

Secondly, there exists a defence called qualified privilege. Qualified privilege attaches to communications where the informant has a legal, moral or social duty to communicate the information and the recipient has a similar duty to receive it. For example, a person may write to an employer making allegations of dishonesty or incompetence against an employee. If the allegations are made in good faith, even if they are factually wrong, the communication is not actionable. This privilege is defeated by proof of malice.


----------



## Brendan Burgess (28 Jun 2006)

dats_right

An excellent summary of qualified privilege which I had not really understood before.

Brendan


----------



## Superman (28 Jun 2006)

I wonder if qualified privilege attaches to communications to ABP - they are concerned with Planning issues, not really with the motives behind such issues.


----------



## vladamir (28 Jun 2006)

probably of no use to you,

but i remember an old college lecturer (a senior counsel lecturing evenings in tort) who told us that if you ever see someone relying on justification as a defence to an action for defamation, they are in serious trouble. apparently it is the weakest defence there is. i'm sure others more familiar with this area can correct me though.


----------



## Superman (29 Jun 2006)

Presumably because the burden of proof is reversed - you have to prove that what you said was correct.  Pretty difficult if you use words like "criminal".


----------



## dats_right (29 Jun 2006)

You are correct, there is a presumption of falsity and it is up to the defendant to prove the truthfulness of his statement. Also, if justification is unsuccesfully pleaded by a defendant, that defendant may leave himself open to an award of aggravated damages being awarded against himself(i.e. far more significant than usual). The rationale for this, is to punish a defendant who has persisted in a lie and thereby further injuring the plaintiff's good name.

As regards the issue of qualified privilege, there is no reason that I am aware why in principal a defence of qualified privilege cannot be pleaded in respect of statements made to An Bord Pleanala. Indeed, if we break down the individual elements of the qualified privilege defence it will be evident that the defence is made for situations like the one above. Firstly, there is the duty/interest test, that is whether the publisher of the statement had a duty communicate and whether the recipient had a corresponding duty to receive the information. This is not an overly burdensome standard or test to satisfy and in the above case, I doubt whether there can be any significant arguments regarding the duty/interest test. The real issue (in my opinion) would be whether the publisher of the statements acted maliciously, that is with an improper purpose. Furthermore, and somewhat significantly the onus is on the plaintiff to establish malice. This could potentially be difficult to show.

Anyway, that is all fairly academic. I would urge you to consider long and hard before pursuing any defamation action. Talk to a solicitor, if he/she is any good they will probably tell you to forget bringing an action, as they are expensive and notorioulsy difficult. Although, maybe a sternly worded solicitor's letter demanding an apology might be in order.


----------



## seawinds (11 Jul 2006)

Thanks to all who contributed. Some excellent, insightful advice and plenty of food for thought


----------

