McEniff defamation case may re-define law

A defamation case taken by a Donegal County Councillor against a Bundoran woman may lead to the law in Ireland being changed.

A defamation case taken by a Donegal County Councillor against a Bundoran woman may lead to the law in Ireland being changed.

Cllr. Sean McEniff of Church Road, Bundoran alleges that, in a letter to Donegal County Council, dated January 5, 2009, Patricia McCafferty of Main Street, Bundoran, defamed him by accusing him of being corrupt.

At Donegal Circuit Court today, Judge Keenan Johnson heard that, under current Irish law, free legal aid cannot be provided to defend defamation cases.

Judge Johnson had previously instructed Miss McCafferty, who was representing herself in the action, to apply for free legal aid. When the case resumed today, she said that her application had been rejected for the third time.

Peter Nolan, counsel for Cllr. McEniff, explained that she had not been denied free legal aid because of her means but because, under Irish law, free legal aid is not availble for the defence of defamation.

Judge Johnson said, “that seems unfair to me” and questioned whether that law was “in violation of the European Court of Human Rights”.

Miss McCafferty referred to a precedent case where the European Court ruled that a person “didn’t get a fair trial and that the government were in breach,” in similar circumstances.

Mr Nolan said that, in his client’s view, it was a very simple case, and argued that the case be allowed to proceed.

Judge Johnson disagreed. “It’s not a simple case, it’s far from a simple case. In fairness to the defendant, I don’t see how she can take this case without legal aid. She’d be entering the court with one hand tied behind her back. “It’s my duty to see that justice is done and seen to be done and that parties come into the court on a level playing field. I have serious concerns.”

Mr Nolan acknowledged: “Your predecessors had similar concerns” and noted that the case had come before the court on five occasions without being resolved.

Judge Johnson said he would adjourn the case so that Miss McCafferty could explore all her options. “You could go to a Free Legal Aid Centre or to Citizen’s Advice.

“Or you could approach a solicitor to do pro bono work and take on your case in the interest of justice. I always say that the practice of law is not a career, it is a vocation and I am quite certain that there are solicitors in Donegal that would be prepared to give you the benefit of their expertise free of charge. They may feel that this is an appropriate case to have some ruling made with regard to the lack of free legal aid on your behalf.

“I suggest you go to the President of Donegal Bar Association and advise them of the comments of the court.”

He also asked the solicitors present to convey his comments to the President of the Bar Association as well.

The case was adjourned to next term’s sitting of Donegal Circuit Court.