THE SUPREME COURT
[Record No. 457/2011]
[Court of Appeal Record No. 2014/327
High Court Record No. 2008/11104P]
MacMenamin J.
Dunne J.
Peart J.
KEVIN TRACEY
PLAINTIFF/APPELLANT
V.
INDEPENDENT NEWSPAPERS (IRELAND) LIMITED, PHILIP MOLLOY, PAUL DUNNE, GERRY O'REGAN, MICHAEL DENIEFFE
DEFENDANTS/RESPONDENTS
Judgment of Mr. Justice John MacMenamin dated the 30th day of July, 2019
Background
1. The background to these proceedings again bears strong resemblances to the judgment delivered today in the case of Tracey v. Irish Times Limited & Others , High Court Record No. 2008/11101P, Supreme Court Record No. 454/2011, [2019] IESC 62 (" Irish Times "). The proceedings herein again relate to an article which was published on the 17th September, 2017, in the Irish Independent. The article was headed "Man assaulted neighbour over children's game". The text stated as follows:
"A man who last year took a noise nuisance action against his neighbour, a Circuit Court Judge, was yesterday convicted of assaulting another neighbour.
Kevin Treacey [sic], an engineer of Park Lane in Chapelizod, Dublin, was, however, given the Probation Act because the assault - a push - was of a minor nature, Judge Michael Connellan ruled. In March last year, Mr. Treacey was ordered to pay the €1,500 legal costs of an aborted noise nuisance action against his next door neighbour, Judge Michael White.
Mr. Treacey had claimed he suffered nuisance from Judge White's children playing their musical instruments. He withdrew the complaint before it went to hearing, saying the nuisance had since abated, but was ordered to pay costs as he failed to turn up in court to officially withdraw.
Yesterday's case arose out of a dispute over local children playing football outside his home in April last year.
Dublin District Court heard Mr. Treacey went out three times to ask them to move away when the ball hit the wall of his house. The children, including two whose mother was the injured party, Mrs. Gabby Skinner, had to play on the street because there were young people drinking in the only other area available, the Phoenix Park.
The ball eventually hit one of Mr. Treacey's windows, though it did not break it, and he went out and picked up the ball. Mrs. Skinner asked for the ball back, and during the confrontation she was pushed by Mr. Treacey, who denied touching her.
The judge said it was a case that arose out of "something very silly".
"I am satisfied there was an assault on Mrs. Skinner, but it was of a very technical nature", he added."
2. Again, as in the other cases, referred to in the Irish Times judgment, the statement of claim sets out much material regarding correspondence, and a proposed clarification which Mr. Tracey wished to have published. The correspondence also sets out that Mr. Tracey wished to have payment of the sum of €1,500,000 indexed linked to today's value, to himself, his wife and family, before the 23rd October, 2008.
3. The article contained the statement that Mr. Tracey had been "convicted of assault another neighbour". It is to be noted that the Irish Independent offered clarification in relation to the phrase "convicted" of assault, although asserting that the District Judge had, in fact, referred to the fact that the order under the Probation of Offenders Act, 1907 would be a conviction.
4. While certain elements of the background to this case are, of course, distinct, the essential considerations, for the purposes of this application, remain the same, viz. whether the High Court's order should stand. For the reasons set out in the Irish Times judgment, the High Court order should not stand. (See the judgment delivered in Irish Times , Record No. 454/20-11). I would, therefore, remit this motion to the High Court for re-hearing, again subject to the same observations as contained in the Irish Times judgment
