McAndrew-Bergson v Hennelly and Ors - Judicial Review

| | [Home ]
[Databases ]
[World Law ]
[Multidatabase Search ]
[Help ]
[Feedback ]
[DONATE ] | |
| # High Court of Ireland Decisions | | |
| You are here: BAILII >> Databases >> High Court of Ireland Decisions >>

  McAndrew-Bergson v Hennelly and Ors (Approved) [2026] IEHC 173 (20 March 2026)

URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC173.html
Cite as:
[2026] IEHC 173 | | |
[New search ]

[Printable PDF version ]

[Help ]

harp graphic.

THE HIGH COURT

JUDICIAL REVIEW

[2026] IEHC 173

Record No. 2025 332 MCA

---

BETWEEN

---

EDEL MCANDREW-BERGSON

---

APPLICANT

AND

---

DERVILA HENNELLY

---

AND

---

HEALTH SERVICE EXECUTIVE

---

AND

---

OFFICE OF THE OMBUDSMAN

---

AND

---

OFFICE OF THE INFORMATION COMMISSIONER

---

AND

---

SHEILA DOBELL

---

AND

---

MATER MISERICORDIAE UNIVERSITY HOSPITAL

---

RESPONDENTS

---

JUDGMENT of Ms. Justice Siobh?n Phelan, delivered on the 20 th day of March, 2026.

---

????? INTRODUCTION

1. On this application, the Applicant seeks an extension of time for the bringing of a defamation action against a Consultant Psychiatrist and the HSE, pursuant to s.11(2)(c) of the Statute of Limitations Act, 1957 (as amended) (hereinafter "the 1957 Act) and Order 1B of the Rules of the Superior Courts.

2. The defamation complained of is alleged to have occurred in the lead up and aftermath of the Applicant's late husband (hereinafter "the Deceased") death in the UK on the 19 th of March, 2022, seemingly having overdosed on prescribed drugs just days after he was discharged from a hospital in the State following a five-month period as a voluntary in-patient receiving psychiatric care.? The Applicant, herself a mental health professional working in the State, alleges clinical mismanagement, defamation, obstruction of justice, maladministration and breaches of statutory duty by various Irish public bodies and individuals in relation to the management of his care and discharge and the sharing of information concerning his care and discharge.?

3. Following the death of her late husband, who had been a lawyer by profession, and understandably troubled by the tragic circumstances in which his death occurred so shortly after his discharge from in-patient psychiatric care in the State, the Applicant, as his widow, sought to access the Deceased's medical records.? She encountered difficulties because it was maintained by the HSE that she was not his next of kin and her late husband had not consented to records being provided to her.? The Applicant pursued appeals to the Data Protection Commissioner (hereinafter the "DPC") and the Information Commissioner (hereinafter the "OIC") in 2022 in respect of decisions to withhold records.? Those refusals were upheld.?

4. Wrongful death proceedings were subsequently instituted (bearing Record Number 194/2024).? Discovery has been ordered in those proceedings.? The said wrongful death proceedings are not before me and while the Applicant was dissatisfied with initial discovery made, questions of compliance or otherwise with the terms of discovery ordered are not a matter for me for adjudication on this application.? In addition to wrongful death proceedings, the Applicant has also made a claim under the UK Vaccine Damage Payment Scheme consequent upon the Deceased's alleged adverse reaction to the Covid 19 vaccination.? The details of this Scheme and the basis for maintaining an application in respect of the Deceased form no part of the materials considered by me on this application.

5. The Applicant also seeks leave to bring defamation proceedings out of time arising from communications dating to 2022, released to her in March, 2025, through the discovery process in the wrongful death proceedings. ?She contends that she was **** falsely described as the Deceased's " ex‑wife " in hospital documentation claiming that they had a good relationship **** until his psychiatric deterioration. ?She points to the absence of any documentation from the Deceased confirming her removal as next of kin.? She challenges any narrative suggesting estrangement which she contends was the result of acute mental illness and coercive interference .? The Applicant also seeks leave to pursue proceedings in respect of communication between the Deceased's GP and/or the HSE and the administrators of the UK Vaccine Damage Payment Scheme to the effect that records could not be released based on the authority of the consent provided by the Applicant.

6. It was confirmed with the Applicant at the close of the hearing before me that as the hearing proceeded before me in open court without any reporting restriction being sought or obtained, my decision would be delivered in public. ?She confirmed her that she had no objection to the decision of the Court being publicly available.? I am nonetheless conscious of the very difficult personal circumstances for family members and professionals working in the mental health area when a person takes their own life.? I am mindful of this in recording in this judgment only such information as I consider necessary to explain my decision on this application.?

7. Although the Applicant has legal representation in the wrongful death proceedings, she appeared before me on this application as a litigant in person.? Each of the Respondents and several intended Defendants to proposed defamation proceedings were legally represented and have filed replying affidavits.? At the outset of the hearing, I made a consent order joining, as Respondents to the application, the intended Defendants who had been notified of the proposed proceedings and who wished to take part in the hearing.

BACKGROUND

8. The Deceased had some history of mental health issues dating back many years and a diagnosis of Recurrent Depressive Disorder is noted in his records.? It appears that in the year before his death there was a deterioration in the Deceased's mental state allegedly occurring after he received a Covid-vaccination and causing him to present with acute mental health difficulties.? He attended at the Mater Misericordiae University Hospital in April, 2021 (overnight) and again in October, 2021 (five-day admission).?

9. The referral to the Mater Misericordiae University Hospital in October, 2021, was made by his GMS GP, a named respondent on this application.? Whilst in the Mater Misericordiae University Hospital, he was noted to have identified his adult daughter (a non-Irish resident) and not the Applicant as his next of kin.? This was recorded in a letter dated the 15 th of October, 2021, from the Mater Misericordiae University Hospital to Naas Hospital where it was also noted that " he is currently going through a divorce ".? Hospital records confirm that he had " suicidal ideation with no intent " on the date of admission on the 18 th of October, 2021.

10. Following a five-day admission in the Mater Misericordiae University Hospital, the Deceased was then transferred to the Psychiatric Unit of Naas Hospital, where he was admitted under the care of a Consultant Psychiatrist, the First Named Respondent.? During this period of in-patient care, it is alleged that he transferred significant funds to his ?daughter who resides in Israel, the circumstances in which this occurred being a matter of concern to the Applicant.?

11. It appears from hospital records that the Deceased was discharged on the 1 st of March, 2022.? The Applicant alleges that he was in possession of a large quantity of psychotropic medication at time of discharge.? The Applicant contends that he was known to be suicidal at that time.? This is not supported by the discharge note which records that he had improved during admission with the aid of medication and multidisciplinary team support and stated that there was " no identified current risk ".? It was noted that he was being discharged to the UK.?

12. The Applicant alleges that he was discharged with no care plan and no continuity-of-care to UK services.? In a report typed up posthumously dated the 22 nd?of March, 2022, however, his Consultant Psychiatrist noted that the Deceased's daughter had secured private rented accommodation for the Deceased in the UK and he " will be linked with the Jewish community for support through her also."?

13. As it transpired, the Deceased overdosed within days of his arrival in the UK and his death on the 19 th of March, 2022, in hospital, occurred following this overdose.?

14. After her husband's death, the Applicant sought medical records from the HSE, the Mater Misericordiae University Hospital and the Deceased's GP.? She followed up through the HSE FOI Unit and pursued appeals to the OIC and the DPC in respect of refusals to disclose records to her.

15. Letters of Administration issued to the Applicant in respect of the intestate administration of the Deceased's estate in England and Wales on the 1 st of July, 2022.? Following coronial inquest held on the 10 th of January, 2023, in the UK, the Deceased's cause of death was recorded as multi-organ dysfunction, aspiration pneumonitis and neuroleptic malignant syndrome (a recognised risk of Quetiapine, a medicine prescribed for severe mental illness including depression and anxiety).?

16. In terms of her engagements with regulatory bodies in the State (OIC, Ombudsman, DPC) the Applicant alleges systemic failure, complaining that the OIC relied on HSE assertions regarding her removal as next of kin without formal evidence of same and wrongly issued a decision on the 13 th?of September, 2022, in which it was concluded that it was " not apparent " the Deceased would have consented to giving Applicant his records.? The Applicant says this implies hostility between spouses and is defamatory.

17. In relation to the Ombudsman, the Applicant complains that by declining to investigate, the Ombudsman reinforced the OIC position.? Regarding the DPC, the Applicant complains that it did not investigate GDPR violations, delays, or misuse of sensitive data but deferred to OIC/Ombudsman, creating a " closed loop, " the effect of which was to cause her reputational damage.

18. In sum, the Applicant alleges that for three years psychiatric records were withheld.? She further maintains that there was a failure to comply with a High Court discovery order made on the 18 th of November, 2024, in the wrongful death proceedings by reason of a failure to make full discovery initially.? Thereafter, she alleges significant " Document‑dumping " when disclosure of records was finally made.?

19. The Applicant relies in this application on documents disclosed to her in March, 2025. She contends that these documents show that the Consultant Psychiatrist and the HSE were the original source of false and harmful information published about her insofar as they recorded that she had been removed as next of kin and imputed hostility between the Applicant and the Deceased. ?She further argues that this harmful information was later repeated by both the OIC and the DPC. ?According to the Applicant, this occurred because those bodies failed to appreciate that the decisions to withhold information, based on concerns regarding the Deceased's consent to disclosure, were mistaken.

20. The Applicant also points to more recent correspondence with the UK Vaccine Damage Payment Scheme questioning her authority to provide consent to disclosure of documents as defamatory by the imputation to her of dishonesty.

PROCEEDINGS

21. These proceedings were commenced by Originating Notice of Motion dated the 15 th of July, 2025.?

22. The Applicant has sworn three affidavits in the proceedings (27 th of June, 2025, 9 th of October, 2025 and 2 nd of December, 2025).? Although the Originating Notice of Motion named only the HSE and the Consultant Psychiatrist as Respondents, the Applicant expanded her allegations in her affidavits to include several additional parties. These include the GP who made the initial referral for psychiatric review, the Mater Misericordiae University Hospital, the OIC, the Office of the Ombudsman, and the DPC.? While those parties were not formally named as Respondents to the application as initiated, except for the DPC, they each appeared before me on the hearing of this application and, following a preliminary consent application to be joined, were heard in response to the application.? ?Affidavits in reply to the Applicant's application have also been filed, albeit an affidavit sworn on behalf of the DPC (who did not appear before me) and included in the Book of Pleadings, was never filed.

23. The application insofar as it concerns the HSE and the Deceased's treating Consultant Psychiatrist seeks to extend the time to bring defamation proceedings against them in respect of four publications which the Applicant identifies, all of which are alleged to have been authored by the Deceased's treating Consultant Psychiatrist concerning medical care provided by her and the HSE to the Deceased in which references are made to the Applicant.? The four publications in question were made on four dates between the 14 th of December, 2021 and the 22 nd of March, 2022.?

24. As against the Deceased's treating Consultant, allegations include that in a letter of the 13 th of December, 2021, prior to his discharge and addressed to a Consultant Psychiatrist in Manchester for the purpose of transferring his care to the UK where he had indicated he wished to go, she wrote that he was suffering from a depressive episode secondary to the breakup of his marriage, that there was nowhere for him to " go over here and no one to support him. "

25. In a letter dictated the 10 th of March, 2022 and addressed to a medical practice in the UK, the treating Consultant Psychiatrist further stated that the Deceased had " explicitly " told her that he wished for his daughter to be his next of kin and wished the hospital to have communication with her with respect to being a " concerned and involved relative and support."

26. In the " formal discharge summary " dictated on the 22 nd of March, 2022, it was noted that the Deceased's daughter was his next of kin.? His marital status was recorded as " married but estranged ".? It was further noted that having moved to Ireland with his wife in December, 2020, he then left his wife and moved to Leeds where he filed for divorce.? It is noted that he became mentally unwell while there and was brought back to Ireland by the Applicant in the late summer of 2021.? It was noted that he regretted his decision to leave and wanted to make amends.? It was recorded, however, that he wanted his daughter to be his next of kin and did not want the hospital to be in contact with the Applicant " whom he considered estranged at that point."? It was further noted that " he decided early on that he did not wish to reconcile with his wife and that he wanted to return to the UK, as he had no ties in Ireland. "?

27. It bears note that while the Applicant objects to references to her as the Deceased's " ex-wife " and the assertion that she was removed as next of kin at the Deceased's request, she has not taken issue with the reference to divorce proceedings being filed.

28. The application insofar as it concerns the Mater Misericordiae University Hospital relates to what is described by the Applicant as " their role in adopting and amplifying the defamatory material authored by the Defendant " and " procedural deflection " relating to the disclosure of medical records.? In a draft plenary summons exhibited in support of this application, the Applicant seeks orders directing full disclosure of all records withheld concerning the Applicant and her late husband. Particulars of defamation pleaded in a draft Statement of Claim state:

"false and damaging assertions were made and/or republished and recycled by the Defendants, including allegations originating from [Consultant Psychiatrist] and [G.P.], which were adopted or relied upon by officials of the HSE, the Mater Hospital, and State regulators. These statements falsely implied that the Plaintiff was estranged, hostile, or unfit to be involved in her late husband's care and were published to multiple third parties, causing serious harm to her reputation, mental health and professional standing with financial loss."

**

29. The Applicant refers to interactions by telephone between the Mater Misericordiae University Hospital and the Vaccine Damage Payment Scheme in August, 2025, the subject of an Subject Access Request (SAR) in the UK without setting out what it is alleged was said of a defamatory nature during this interaction.? From what I can observe ?on the papers, the communication was limited to an assertion that the Mater Misericordiae University Hospital was under no obligation to send the records requested.? It is noted, however, that any defamatory communication at that time, if any, is less than 12 months ago and is actionable without an extension of time from the Court.?

30. As against the Mater Misericordiae University Hospital, the primary thrust of the complaints elaborated upon on affidavit in grounding this application appear not to relate to any defamatory statements made but an alleged failure to disclose documents and alleged failings in the care of the Deceased in respect, inter alia, of the facilitation of her removal as next of kin while he was an in-patient in the Mater Misericordiae University Hospital in October, 2021 and his transfer to Naas Hospital notwithstanding her objections to the said transfer.

31. As against the HSE, the Applicant further refers to an email to the UK Vaccine Damage Payment Scheme on the 15 th of April, 2024, stating the Applicant lacked authority for records stating that " the person who has provided consent is not eligible to do so ".? The Applicant contends that this implied she was dishonest.? Of note, this email was written within two years of the application.? The Applicant complains that the HSE FOI officer directed the Deceased's GP not to release records and refused full disclosure even after a High Court order.? It seems, however, that the record of this communication was disclosed by the Scheme Administrators in the UK in or about August, 2025.

32. As against the Deceased's GP, it is alleged that she withheld records for years and on the 24 th of September, 2024, telephoned the Vaccine Damage Payment Scheme Administrators saying the " vaccinated person " had a " decree not to disclose records to the claimant."? The Applicant exhibits the internal file obtained from the Scheme administrators in the UK confirming this wording, although it is disputed by the GP that she said that there was a " decree ".? The full record as exhibited states:

" advised VP had a decree to no disclose MR to claimant.? Unsure legally where they stand with disclosing MR to us.? Advised its with HSE.? Advised CW call back will be arranged to discuss.? Details taken. "

33. The Applicant cites this communication as a serious, harmful falsehood occurring within two years of this application.

34. As against the OIC and the DPC, the complaint turns on decisions made in respect of complaints made by the Applicant in respect of a refusal to disclose records which complaints were not upheld.? The proposed claim in defamation against the OIC arises from the decision of a senior investigator in the OIC in September, 2022, concerning the Mater Misericordiae University Hospital's refusal to grant the Applicant access to her late husband's records.? The Decision was issued directly to the Applicant by emailed letter dated the 13 th of September, 2022, including the full text of the Decision.? It was also sent to the HSE at the same time. The Decision was then published on the official OIC website, with the Applicant's name, personal data and all details by which she could be identified duly anonymised.?

35. According to the OIC decision (13 th of September 2022), the refusal was upheld for three core reasons:

---

(i) Section 37(1) - Personal information of a deceased person.? The OIC found that the medical records were inherently private, containing personal information belonging to your late husband.? It was concluded that as releasing those records would disclose the deceased's personal medical information, section 37(1) of the FOI Act required refusal.

(ii)?Public interest test - Section 37(5)(a) not satisfied.? The OIC considered whether the public interest in release outweighed the deceased's privacy rights.? It concluded that it did not.? Reliance was placed on the fact that the privacy rights of deceased persons are still protected and release under FOI is " release to the world at large " in circumstances where the nature of the information was highly private and sensitive.

(iii)?Section 37(8) & 2016 Regulations - Spouse access test not met.? Although the Applicant was treated as " the spouse ", the OIC found that the public interest would not be better served by releasing the records under the special " access by spouse/next of kin " regulation.? The OIC relied on factors such as: whether the deceased would have consented to release, the circumstances of the relationship before death and the confidentiality of medical information.

36. In her affidavit sworn on the 8 th of October, 2025, the Applicant claims that the following statement contained within the OIC Decision is defamatory:

"it is not apparent to [the Senior Investigator] that the applicant's late husband would have consented to the release of the records at issue when living... having regard to the circumstances of their relationship before the deceased's death."

37. In the case of the DPC decision letters issued in October, 2022, in respect of complaints against the Mater Misericordiae University Hospital and the HSE.? Those decisions were not challenged by way of appeal or otherwise at that time.? The Applicant does not allege that the DPC made any original defamatory statement. ?Instead, the allegation is that the DPC adopted, relied upon, or amplified defamatory material originating from the HSE and the Consultant Psychiatrist, thereby contributing to reputational harm.? It is alleged that the DPC, along with the OIC and Ombudsman, failed to investigate, correct, or prevent the spread of these false assertions, which the applicant says caused " continuing and compounding harm."

38. Material exhibited on affidavit in respect of this application include emails between the GP, the HSE and VDPS, the HSE FOI decisions, the OIC determinations, Ombudsman correspondence, internal VDPS case notes confirming the " decree not to disclose " statement, clinical notes from Mater Misericordiae University and Naas Hospitals and bank statements showing financial transfers to the Deceased's daughter.

39. All parties have filed written legal submissions, with joint submissions presented on behalf of the OIC and the Ombudsman.

ISSUES

40. As this is an application seeking liberty to bring defamation proceedings which have not been commenced in time, my focus in this judgment is on alleged publication of defamatory material occurring more than 1 year ago (as there is no need for an extension of time in respect of publication of defamatory material within the last 12 months).?

41. Insofar as publication of allegedly defamatory material occurred more than one year prior to the making of this application in some instances and more than two years in others, the Applicant contends that there has been fraudulent concealment.? She contends that this operates to suspend or disapply the limitation period such that there is no jurisdictional impediment to the grant of an extension of time in the case of publications occurring more than two years ago and/or a good basis for extending time in respect of defamation occurring more than one year ago.?

42. The Respondents each deny defamation.? In relation to the OIC, they point to the fact that the OIC decision was anonymised online and the only parties to receive a non‑anonymised version were the Applicant and the HSE.? It is pointed out that communication of a decision to a party cannot constitute publication under s. 6(4) of the Defamation Act, 2009.? Furthermore, reliance is placed on the fact that the Applicant received the OIC decision in September, 2022, so her application is far outside 1‑year or 2‑year statutory limits prescribed under the 2009 Act.?

43. Reliance is placed by all Respondents on the fact that the applicable limitation period prescribed under the 1957 Act has expired and there is no " discoverability rule" for defamation. ?Furthermore, it is contended that even if defamatory content was published (which is denied), the communications identified by the Applicant in grounding this application would be covered by qualified privilege as decisions and communications were made in good faith in performance of statutory functions and without evidence of malice.? In terms of prejudice, it is noted that the Applicant is not precluded from maintaining other litigation such as the wrongful death proceedings which are already in being. ?It is further contended that there is no serious defamatory meaning to be ascribed to the words identified by the Applicant in grounding this application.

44. The central question for me arising on the Applicant's application is whether a defamation action should be allowed out of time given allegations of concealment and recent discovery of records referring to the removal of the Applicant as next of kin, describing her as " ex-wife " and questioning her authority to secure access to the Deceased' medical records.

LEGISLATIVE FRAMEWORK

45. The law in relation to limitation of actions in defamation is governed by s.11 of the Statute of Limitations Act, 1957, as amended by s. 38 of the Defamation Act, 2009.? Section 11(2)(c) of the 1957 Act, provides:

"(c) ** A ** defamation ** action ** within ** the ** meaning ** of ** the ** Defamation ** Act ** 2009 ** shall not be brought after the expiration of-

**

(i) one year, or

(ii) such longer period as the court may direct not exceeding 2 years, from the date on which the cause of action accrued."

**

**

46. Section 11(3A) of the 1957 Act provides:

"The court shall not give a direction under subsection (2)(c)(ii) (inserted by section 38 (1) (a) of the Defamation Act 2009) unless it is satisfied that-

**

(a) the ** interests ** of ** justice ** require ** the ** giving ** of ** the ** direction,

**

(b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given,

**

and the court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the period specified in subparagraph (i) of the said subsection (2)(c) and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced."

47. Under s. 11(3B), as amended, it is provided that for the purposes of bringing a defamation action, the date of accrual of the case of action shall be the date upon which the defamatory statement is first published.

48. Order 1B of the Rules of the Superior Courts sets out the applicable rules. Order lB, rule 3(2) provides:

"Where a defamation action has not been brought before the Court in respect of the statement in question, an application to the Court for a direction under section 11(2)(c) of the Statute of Limitations 1957 shall be brought by originating notice of motion, in which the intending plaintiff shall be named as applicant and the intended defendant as respondent. The application shall be grounded upon an affidavit sworn by or on behalf of the moving party."

**

49. The Applicant relies on s. 71 of the 1957 Act which provides:

(1) " Where, in the case of an action for which a period of limitation is fixed by this Act, either?

(a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or

(b) the right of action is concealed by the fraud of any such person,

**

the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it "

50. In cases where s. 71 is found to apply by reason of fraudulent concealment, then the limitation period runs from the date the fraud was discovered or could, with reasonable diligence, have been discovered.?

ANALYSIS AND DECISION

51. The accrual of the cause of action is defined in section 11(3B) of the 1957 Act as " the date upon which the defamatory statement is first published... " In Murray v. Sheridan & Ors [2013] IEHC 303 O'Malley J. held that the Act does not " allow for any extension of time in a case where a plaintiff was unaware of the fact of a publication of a defamatory statement, such as where it is published to a specially limited audience of which the plaintiff is not part. "

---

52. There is some conflicting caselaw as to whether a plaintiff, who is outside the one-year limitation period, can (a) issue proceedings and then obtain the extension direction retroactively, or (b) must obtain the direction prior to the issuance of proceedings. ?

53. In McKenna v. Kerry County Council [2020] IEHC 687 Butler J. considering the conflicting authorities on the operation of the extension of time jurisdiction and said as follows:

---

---

"[28]..In my view the key element of s. 11(2)(c) is that if a plaintiff is seeking to avail of the extended limitation period, proceedings must be issued within that period but the plaintiff is neither required to, nor precluded from seeking a direction extending the time for bringing the proceedings either prior to or simultaneously with the issuing of proceedings or, as here, retrospectively, provided the proceedings themselves are issued within the relevant period."

54. It seems to be reasonably clear, therefore, that the Plaintiff must ultimately issue defamation proceedings within two years of the accrual of the cause of action (i.e. the date upon which the defamatory statement is first published) and the Court has no jurisdiction to extend time in respect of any publication occurring more than two years previously (Reidy v. Pasek [2023] IECA 44).? It is now well established that there is no discoverability rule in relation to defamation claims (Murray v. Sheridan and Joyce v. Mayo Travellers Group Ltd. [2023] IEHC 84).

---

55. By operation of law an action in defamation based on any material first published more than two years prior to the date of this application is statute barred.? This would appear to out rule any jurisdiction to grant an extension of time in respect of the decisions of the OIC and DPC and the correspondence between the HSE and UK medical services dating to the period December, 2021-March, 2022.? In responding to these proceedings, the OIC have painstakingly outlined the statutory process mandated by legislation in relation to the disclosure of records.? The OIC refers to ss. 35 and 37 of the Freedom of Information Act, 2014 and the Regulations and Ministerial Guidance made under the 2014 Act to guide decision making.? Detailed guidance is provided in the Ministerial Guidelines as to the factors which must be taken into consideration in deciding whether to release records to spouses, former spouses and next of kin including consideration of whether the deceased would have consented to the release to the requester when living and the nature of their relationship prior to death.?

**

56. These were the factors informed the decisions taken by the OIC as formally communicated in writing to the Applicant and those decisions were not then challenged in accordance with law at that time.? Similarly, the decision of the DPC was not challenged in accordance with law at that time and may not be made amenable to challenge now as defamatory.? I simply have no jurisdiction to extend time in respect of the content of decisions communicated to the Applicant in 2022 (even if otherwise defamatory, which it seems to me they are not) and the application must fail in respect of any cause of action grounded on this material.?

57. Unless the Applicant can establish an entitlement to rely on s. 71 of the 1957 Act any claim based on historic material more than two years old is statute barred.? It seems to me that in circumstances covered by s. 71, the Applicant would not require leave of the Court to issue proceedings, if she does so within a year of uncovering the alleged fraud.? This is because accrual of the cause of action is postponed if s. 71 applies and time runs from the time the fraud is discovered or could with reasonable diligence have been discovered (Taheny v. Honeyman & Ors. [2015] IEHC 883). ?If met with a plea in reliance on the 1957 Act it would be open to the Applicant to file a Reply in reliance on s. 71 in such circumstances. If s. 71 is established as properly applying in respect of records discovered in March 2025 pertaining to communications in 2021-2022, then the issue of proceedings within one year would obviate the necessity for an extension of time.? Of course, any reliance on s. 71 would require that concealment be established and the onus of proving concealment would be squarely on the Plaintiff in any proceedings issued.

58. In Taheny, the Court addressed reliance on fraudulent concealment to contend for a later accrual of a case of action in defamation in the following terms (at para. 26):

"In relation to fraudulent concealment, I am not satisfied that it has any application in this case. That principle, and the provisions of section 71, must not be confused with a state of knowledge provision such as that which the Oireachtas has made provision for in relation to certain personal injuries actions, for example in the Statute of Limitations (Amendment) Act, 1991. The Defamation Act, 2009 itself makes no provision for a date of knowledge test for the accrual of a cause of action. It has made very specific provision for periods of limitation in section 11(3B) of the Act of 1957 (as inserted by section 38 of the Defamation Act, 2009). The plaintiff may of course attempt to avail of the provisions of section 71 of the Act of 1957, but on the basis of facts which he must establish if that section is to avail him. The onus is on the plaintiff to adduce some facts to bring him within the section. The plaintiff has not asserted any facts to establish that some unconscionable act on the part of any of the defendants to conceal the act from the plaintiff..... The mere fact that a defamatory statement was made to another person about the plaintiff prior to the 16th March 2012, and the person who made the statement did not tell the plaintiff that he/she had done so, does not in my view come within the sort of unconscionable behaviour that is contemplated by the concept of 'fraudulent concealment' for the purpose of section 71. ?To conclude otherwise would be to set at nought the clear long stop provision of two years provided for in the section 11 (2)(c), as inserted."

**

59. Given that the whole basis for refusing to disclose documents to the Applicant has been that she had been removed as his next of kin and there was therefore a concern that the Deceased would not consent to such disclosure, it is difficult to see how the fact that records ultimately disclosed during a discovery process contain statements along these lines could be said to constitute evidence of concealment.? The stated basis for refusing to disclose the records has been consistent and was not uncovered or revealed through discovery.? Nothing covert or underhand has been established as the basis for withholding records relied upon as evidencing actionable defamation.?

60. The difficulties attaching to a claim of concealment in circumstances where the wishes of the Deceased and family dynamics at the time of his death are relied upon as an impediment to disclosure of records are evident having regard to the type of evidence required to prove concealment ?(O'Dwyer v. Daughters of Charity of St. Vincent de Paul [2015] IECA 226; [2015] 1 IR 328 and Hynes v. Allied Irish Banks [2018] iehc 229; [2019] 2 IR 298).? While the Applicant asserts her rights as widow of the Deceased, there was never any concealment on the part of the HSE as to why records were not being released.? These reasons were clearly set out in the decisions of the OIC and the DPC on appeal from the refusal of access to records. ?To the extent that the Applicant relies on "concealment" as a basis for seeking an extension of time in respect of defamation based on discovered documents, it seems to me that she falls far short of establishing that a right of action in defamation based on the discovered material has been concealed such that her cause of action had not accrued until she received documentation in the discovery process.

61. Insofar as the OIC and DPC is concerned, it is impossible to see how any question of concealment arises in respect of the contents of reasoned decisions formally communicated in 2022.? It is noted also that insofar as any element of the OIC decision was made available publicly beyond the parties to the complaint, the decision was anonymised and contained no identifying material. ?In the circumstances, a claim in defamation does not seem in any way tenable.

62. Not all documentation identified as potentially defamatory by the Applicant was published more than two years ago.? Invocation of concealment may be relevant to an application to extend time where the material in question was discovered more than one year, but less than two years, before the issue of proceedings.? This is because, where time runs from the discovery of the fraud or concealment, or from the point at which it could, with reasonable diligence, have been uncovered, this in itself could give the Court jurisdiction to extend time up to the expiry of two years from the accrual date (such date to be determined by the Court by reference to the date of discovery or the date when it might with reasonable diligence have been discovered).?

63. In respect of matters occurring more than one year and less than two years ago, the Applicant relies in particular on a telephone communication with the Vaccine Damage Payment Scheme in the UK on the 24 th of September, 2024 (which she became aware of on the 18 th of September, 2025) involving the Deceased's GP. ?According to records disclosed, she telephoned them directly, without the Applicant's knowledge, and is recorded as stating that the Deceased had a " decree " not to disclose medical records to the claimant.? In addition, the email from the HSE to the UK Vaccine Damage Payment Scheme on the 15 th of April, 2024, is also a communication occurring more than a year ago but within two years.? In this email, the HSE contended that consent had not been obtained from a person eligible to provide it.?

64. Although she became aware of the communication of the 24 th of September, 2024, from the Deceased's GP just before the 12- month limitation period expired, no proceedings were issued by the Applicant making a claim in defamation before the expiry of 12 months.? The Applicant is now outside the one-year limitation period to bring proceedings and can only do so with the benefit of a court direction extending the time to bring proceedings prior to the 23 rd of September, 2026.? Similarly, as regards the HSE communication with the Vaccine Payment Scheme administrators, the Applicant may only pursue proceedings in defamation with the benefit of an order extending time.

65. In respect of these two communications made within the last two years but more than a year ago, I have the power to extend time to issue proceedings in defamation provided the statutory test is met.? As set out above, the test consists of two limbs: (1) consideration of the interests of justice and (2) an assessment of the balance of prejudice. ?? The legislation also identifies two specific matters to which the court must have regard: (i) the reason for the failure to bring the action within time; and (ii) the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced. ?

66. It is established that t he jurisdiction to extend time conferred by s.11(3A) is a narrow and exceptional one, designed to permit departure from the ordinary limitation period only where the statutory criteria are clearly satisfied (Morris v. Ryan [2019] IECA 86). ?The Oireachtas has deliberately imposed a cumulative two-limb test, together with mandatory considerations, to ensure that extensions of time in defamation proceedings remain the exception rather than the rule. ?The onus rests on the Applicant as proposed Plaintiff in establishing that the test is met (Taheny v. Honeyma n [2015] IEHC 883 and Hughes v. Iconic Newspapers [2023] IEHC 635).? In that context, any doubt as to whether the statutory threshold has been met must weigh against the granting of a direction.? It is well established that the Court's consideration of the " interests of justice " may include an assessment of the strength of the Applicant's claim. ?This is confirmed in authorities such as Rooney v Shell E & P Ireland Limited [2017] IEHC 63 (cited in Limitation of Actions, Canny (2nd Edition) at p. 231).?

67. The approach to be taken to the balancing of the prejudice caused to a plaintiff and defendant, respectively, has been explained as follows by the High Court (Butler J.) in McKenna v. Kerry County Council [2020] IEHC 687 (at paragraph 53):

"[...] If the section required only that the court consider the interests of justice, the court could reasonably exercise its discretion either way. However, the requirements in s.11(3A)(a) and (b) appear to be cumulative such that prejudice must be considered separately and in addition to the interests of justice and not merely as part of a global consideration of what the interests of justice require.

Significantly, the court does not simply balance the potential prejudice to the parties: it must be satisfied that the prejudice of not granting a direction to the plaintiff significantly outweighs that which might be caused to the defendants by granting it. ?In circumstances where the respective prejudice is finely balanced, it seems to follow that the direction should in principle be refused."

68. In Morris v. Ryan [2019] IECA 86 the Court of Appeal stated:

"In evaluating prejudice, it is appropriate to consider the nature of the alleged defamation in general and the circumstances surrounding the disputed event that forms the basis of the claim."

**

69. In assessing the balance of prejudice, it is relevant to have regard to whether the alleged defamation lies at the serious or grave end of the spectrum and whether the Defendant has a stateable defence (Goldsmith v. O'Hara [2022] IEHC 67 at para. 44).? Simons J. found in Goldsmith:

"This is not a case of serious defamation to which there is obviously no answer, such as to justify the grant of an extension of time notwithstanding the absence of any adequate explanation for the delay."

**

70. Had the communication with the Vaccine Damage Payment Scheme Administrators merely been to the effect that there was a lack of clarity in relation to the legal authority to disclose the records because the Deceased's wishes in this regard were uncertain, then I would have little difficulty refusing an extension of time. ?A disclosure in such terms could not be considered defamatory in circumstances where it was an honest statement regarding the factual position.? Furthermore, a communication in such terms would surely be a privileged communication reflecting an honestly held belief on the Deceased's GP's part informed by information she had received from the HSE and the fact that appeals to the OIC and the DPC had been upheld. ?There would simply be no substance whatsoever to proceedings in defamation on such a flimsy basis.

71. If the Deceased's GP stated that there was a " decree " which prevented the release of the records to the Applicant or based on her consent, it is arguable she went somewhat further than reflecting a legitimate concern as to the legal basis for disclosure.? The language recorded, if those words were used, could be understood as suggesting active steps by the Deceased to legally preclude the Applicant from accessing his records in a manner which the Applicant contends undermines a defence of qualified privilege. ?For this reason, it is necessary to approach the application of the test under s.11(3A)(a) and (b) with some care and on the basis that a claim in privilege may not be unassailable.

**

72. Factors identified on behalf of the Deceased's GP as supportive of a refusal of a direction extending time include the fact that t he alleged defamatory publication and the alleged harm to reputation, occurred solely in the UK.? Therefore, the Plaintiff is seeking an extension of time to bring proceedings in Ireland where there was no alleged defamatory publication in Ireland, and no alleged harm to reputation in Ireland.? The fact that there is a foreign law complexity to any potential claim is relied upon to contend that extending time now would result in the imposition of a disproportionate burden on the parties and on the Court.? The contention is that the Irish Court would have to hear and determine the defamation claim by applying UK defamation law, with the associated costs and expense of engaging experts on UK law to give evidence as to the applicable law at the trial of the action.?

73. Furthermore, it is contended that the Deceased's GP has a good defence on the merits to the claim in defamation in circumstances where her communication to the Vaccine Damage Payment Scheme was made in the performance of a professional duty to a body with a corresponding legitimate interest. ?It is contended that as the publication was made in a regulatory context to a public authority, it was therefore made on an occasion of qualified privilege. While the defence of qualified privilege may be lost by proof of malice, including where it is shown that there was (a) improper motive or (b) the absence of honest belief, it is contended that there is no evidence of any malice, improper motive, or recklessness on the Deceased's GP's part in this case.?Her sworn evidence is that she acted honestly on information supplied by the Freedom of Information section of the HSE that the Deceased had not consented to disclosure. ?She denies making any reference to a " decree " in her conversation.?

74. It is also submitted on behalf of the Deceased's GP that i t is very difficult to see how the communication in the UK to a public body in a confidential administrative context could have caused any reputational damage to the Applicant.? Consequently, it is contended that I should have regard to the fact that there is a good defence to the claim in deciding whether the interests of justice and a balancing of prejudice warrant the grant of an extension of time.

**

75. Whereas it is argued that the loss of a claim in defamation is not a significant loss, it is contended on the other hand that if an extension of time is granted to the Applicant that the Deceased's GP will be exposed to stress, disruption and reputational damage of defending unmeritorious defamation proceedings.? These, it is contended, are real and substantial forms of prejudice which must be weighed and cause the balance to shift against the grant of an extension of time.?

76. I am satisfied that the Applicant's interest in maintaining proceedings in defamation is not a strong one.? There are many problems inhering in the claim which mean that even without a time issue, her prospects of success are weak.? In terms of balance of prejudice, I am satisfied that the prejudice to the Applicant from refusal of an extension of time is, in truth, minimal.? The documents sought by way of discovery are now available to her and she will be entitled to continue to prosecute her wrongful death proceedings. ?

77. In considering the interests of justice, I have regard to the possibility that the GP may have been mis‑recorded as to what she actually said, or that what she said was misunderstood. ?I also have regard to the fact that she had a legitimate difficulty in releasing medical records, arising from FOI refusals that were upheld through the statutory process.? I am mindful too that even if the Deceased's GP expressed herself wrongly in referring to a decree there is no basis for supposing that she was motivated by malice or any improper purpose in a manner which might remove a defence of qualified privilege otherwise available.? She had minimal contact with the Deceased.? Her records as exhibited in these proceedings disclose that she had a telephone consultation with him on the 20 th of September, 2021, which resulted in a referral to ophthalmology and she met him in person on the 23 rd of September, 2021, at which time she referred him to a psychiatrist.? Other than issuing a medical certificate on the 27 th of September, 2021, her only other engagement with the Deceased appears to have been for a flu vaccine on the 11 th of October, 2021.?

78. Even if for some reason it could be contended that a full defence by way of qualified privilege should not avail the Deceased's GP in respect of her telephone conversation with the UK Vaccine Damages Payment Scheme, the even more fundamental question, in terms of an assessment of the strength of the intended claim, remains as to what reputational damage could flow for the Applicant from the statement imputed to her.? It is a matter readily clarified with the Scheme Administrators that the Deceased never obtained a decree precluding disclosure to the Applicant (and the Deceased's GP denies having ever so contended).? Since concerns had been raised and upheld in relation to whether the Deceased's records should be disclosed under FOI to the Applicant and it is not disputed that divorce proceedings had been filed, communicating a query in relation to the power of the Deceased to authorise disclosure of the Deceased's medical records was not without basis.? This being so, it is questionable whether there has been any damage to the Applicant's reputation at all.? It seems to me that a very strong defence is open to the Deceased's former GP and the Applicant has not demonstrated a strong case that she was defamed.? ?

79. Indeed, even if it were accepted for the sake of argument that the communication was defamatory, any damage was minimal given the very limited publication and the fact that a legitimate basis for querying legally authority to disclose records to the Applicant had been established through the FOI process culminating in a decision in 2022 which had not been challenged.? From the Deceased GP's perspective, in dealing with a request that she divulge the Deceased's medical records to a UK authority on the authority of the Applicant's consent, she was confronted with a situation where the Applicant was refused access to medical records through the FOI process due to concerns in relation to the wishes of the Deceased (whom she had only met once and therefore did not know well) and those refusals were accepted by the OIC and DPC in 2022.? These were formal decisions by regulatory authorities.? The existence of these formal decisions, while based on information from the HSE and the Deceased's Consultant Psychiatrist with which the Applicant takes issue, legitimises the Deceased's GP's concerns as to whether it was proper for her to release records or not.

80. I am satisfied that the prejudice which may be caused to the Applicant by a refusal of an extension of time in preventing her maintaining an action in defamation in respect of negligible reputational damage, which damage if caused may be readily remedied through confirmation that no " decree " was ever obtained to prevent sharing medical information with the Applicant, does not outweigh the prejudice to the Deceased's GP in losing a defence under the 1957 Act in meeting a claim in defamation on foot of a telephone call made more than a year ago in which she sought to explain why she was not able to disclose the medical records requested in reliance on the Applicant's consent.?

81. In terms of balancing prejudice and weighing the interests of justice, it is also noteworthy that it is the Deceased GP's position that medical records have since been disclosed to the Applicant.? This was presumably done on foot of discovery orders made by the High Court in the ongoing wrongful death proceedings and does not mean that it is now accepted that the information ought to have been disclosed as a matter of right to the Applicant even without a court order.?

82. Even though I accept that there is a reason for the failure to bring the action within time in that the Applicant only became aware of the communication days before the expiry of the one-year limitation period and while there is no evidence relevant to the matter no longer capable of being adduced by reason of delay, the Applicant has not discharged the burden on her of persuading me that an extension of time is required in the interests of justice and having regard to resulting prejudice.? On the contrary, in all the circumstances including the fact that the Applicant is maintaining wrongful death proceedings separately to any complaint she makes in defamation and has the benefit of discovery orders made in those proceedings which may be enforced by appropriate applications to the relevant court, it seems to me that a consideration of the interests of justice and an assessment of the balance of prejudice weigh heavily against the grant of an extension of time to permit proceedings to be taken against the Deceased's GP in defamation. ****?

83. By a similar process of reasoning, I am satisfied that it would not be a proper exercise of my discretion to extend time were I to give leave for proceedings in defamation to be taken at this remove in respect of communications between the HSE and the Vaccine Drug Payment Scheme administrator in which they confirmed issues as to the legal basis for disclosing the records sought on the basis that the Applicant did not have the necessary authority.

84. Although the Applicant does not accept that there was any legitimate issue precluding disclosure of the records concerned, the fact remains that questions were raised in relation to the Deceased's expressed wishes during a very troubled period in his life which it was considered constituted an impediment to disclosure.? The concerns identified as justifying refusal to release records were upheld by the OIC and DPC as legitimate concerns and those decisions were not challenged at that time in accordance with law. ?Proceedings by way of defamation cannot be deployed by way of collateral challenge in respect of the said decisions.?

85. I am quite satisfied that communication by the HSE with the Vaccine Payments Scheme Administrators to indicate that issues arose regarding consent to disclosure of documents was communication which, while hurtful to the Applicant, was not untrue having regard to the family circumstances at the time of the Deceased's death (when divorce was in contemplation) and the findings made by the OIC on an application of relevant statutory guidance.?

86. Defamation proceedings based on the expression of a concern as to the legal basis for disclosure lack any real merit, a fact which weighs against the exercise of a power to grant an extension of time.? Even if the communication could be considered defamatory, a good defence by way of a plea of qualified privilege would be open to the HSE.? Having regard, therefore, to the legal merits of the Applicant's claim in defamation which it is proper I should weigh in considering questions of prejudice and the interests of justice, it seems to me that little force may be attached to the fact that a refusal of an extension of time means that the claim in defamation cannot be pursued.? Furthermore, while the Applicant considers herself maligned by the approach of the HSE to the disclosure of medical records to the Applicant or on her authority, objectively viewed, this refusal does not carry the reputational implications which the Applicant attributes to it and the alleged defamation cannot be considered to have serious implications for her good name. ?Publication was limited to the administrators of the UK Scheme.? On the other hand, granting an extension of time would not only require the HSE to defend these proceedings and thereby incur expense of time and money but would also deny the HSE its entitlement to rely on a defence under the1957 Act.

**

87. While it has not been contended that there is evidence unavailable by reason of delay and the explanation for failing to institute these proceedings within a year of the making of the allegedly defamatory statement is that the Applicant only discovered the terms in which the communication was made when more than a year had passed, t his is not a case in which the requirements of the test governing the grant of an order extending time for the bringing of defamation proceedings is met having regard to the interests of justice and the balance of prejudice.

CONCLUSION

88. While I simply have no jurisdiction to grant an extension of time in respect of allegedly defamatory publications occurring more than two years before the bringing of this application, I am satisfied that it would not be an appropriate exercise of discretion to extend time in respect of communications occurring within two years but more than a year prior to the making of the application for the reasons set out above.

89. It is common case that the Deceased was unwell in the period prior to his death by overdose.? It would be surprising if this did not impact on his relationship with his wife and his wider family such that ambiguity in relation to his true wishes does not necessarily reflect badly on anyone.? The difficulties that have arisen in relation to access to medical records based on what his wishes might have been are deeply regrettable from a human perspective but are readily understood from a legal perspective. It is understandable that the motivation of the HSE and medical professionals in withholding documentation would be questioned by the Applicant given the tragic circumstances of the Deceased's death.?

90. Suffice it for present purposes to say that in my view the refusal of access to records for the reasons communicated at various stages does not carry the negative reputational connotations which the Applicant perceives and feels.? Furthermore, insofar as the records which the Applicant has pursued are necessary for the purpose of prosecuting the wrongful death proceedings, the High Court in dealing with those proceedings has the necessary jurisdiction to order proportionate discovery of necessary and relevant records.? The High Court will be able to safeguard the fairness of that process within the legal parameters of that claim and has already made discovery orders in favour of the Applicant in those proceedings.? The existence of such an order provides the necessary legal basis for disclosure of records for the purpose of the wrongful death proceedings.? The order made also transparently and openly establishes the Applicant's interest in accessing records for the wrongful death proceedings, mitigating and rebutting the tarnish to the Applicant's personal reputation which she apprehends.

91. I refuse this application for an extension of time to bring the intended defamation proceedings.? I will hear the parties in relation to any consequential matters and will list this matter for mention upon the expiry of fourteen days from the date of electronic delivery of this judgment.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC173.html