The operators of a nursing home in Co Dublin, this evening lost a last-minute High Court bid to prevent the screening by RTE of a Primetimeprogramme on nursing homes which featured claims of "substandard" care at their premises.
In a decision delivered at 7 pm just hours before the programme is set for broadcast, Mr Justice Clarke refused an application by Mr John Aherne, Ms Georgina Aherne and Sovereign Projects Limited, for an order to prevent the airing of the programme.
The Ahernes are directors of Sovereign which operates the nursing home at Leas Cross, Swords. A separate application for a similar restraining order by Ms Denise Cogley, the director of nursing of the same nursing home, was also rejected.
The judge said he would give a full judgment on June 8th as the case raised important issues. The programme, which was viewed in private by the judge, included footage secretly filmed inside the Leas Cross home by an RTE reporter who is also a qualified care worker and who had worked for some weeks at the home as a care assistant.
The judge refused the applications on grounds that damages were an adequate remedy if either applicant is successful in any future claim. He adopted a previous court decision to the effect that damages are a normal remedy in defamation cases and that injunctions are not.
He also said, given the right to freedom of expression and that the programme raised matters of important public interest, the court should be slow to grant prior restraint orders. He said he was satisfied this was not such a clear case of defamation to justify the granting of an order restraining the programme.
He was also not saying this was not a case where the plaintiffs would not succeed in establishing defamation. The judge remarked the programme was at least open to the view that it portrayed Ms Cogley as having to cope with trying to improve a situation that started from a very bad base.
Most of the specific cases in the programme appeared to have occurred before she had any involvement at Leas Cross, he said. There were two specific occasions where she was shown as exhorting the staff to try to improve.
He said the programme suggested there might be serious questions involved for policy and implementation of policy for the Government and State bodies.
He noted the operators of the nursing home had complained that Primetimehad trespassed and obtained material by subterfuge in that it had secretly filmed inside the premises and that the reporter had obtained employment at the home for a number of weeks without disclosing that he was engaged in research for RTE.
If the plaintiffs were successful in any subsequent action for damages, the circumstances in which the material was obtained from the nursing home might be relevant to any determination of damages, the judge said.
The use of such material in circumstances in which it was subsequently not proved could leave a media organisation involved open to a claim for exemplary damages. He quoted with approval from a New Zealand court decision to the effect that the media should not presume that the end of news gathering justified the means.
If information was gathered by means which were subsequently shown to be unlawful, the courts would be very careful to ensure rights of other persons were protected and that the media could not benefit from unlawful conduct by claiming it was acting in the public interest.
Earlier, the judge was told the programme alleged patients received substandard care at the home, that bedding was not changed when wet, that force was used to try to compel a patient to take medication and there was a failure to ensure trained staff were available.
Mr Frank Callanan SC, for Ms Cogley, argued the programme contained material which was "grossly defamatory" of his client. This was not a fly-on-the-wall documentary but a product of actual deception which contained "explosive" claims and included two serious libels of his client.
Mr Mark Connaughton SC, for RTE, said Primetimereporter Cathal Gallagher was a qualified care worker with genuine concerns for patients.
Mr Aherne and others were offered an opportunity to be interviewed about matters raised in a letter from RTE of May 19th last but had not done so. He said Mr Aherne had not addressed the profound issues raised in the programme and that substandard care was offered to patients.