Dana wins appeal over costs security in defamation action

DANA Rosemary Scallon has won an appeal over an application requiring her sister and niece to put up security for legal costs should they lose a defamation they are taking against the singer and former Presidential candidate.

The defamation action arises out of a 2011 TV interview, during the Presidential election campaign, when she was asked about allegations of sexual abuse made against Dana’s brother John Brown.

Susan Stein and her daughter Susan Gorrell, both living in Iowa, US, have taken separate High Court actions alleging Dana defamed them during the interview broadcast on TV3 in October 2011.

Dana, they say, made statements which meant both women maliciously made up claims Ms Gorrell was sexually abused between 1971-81 by her uncle, John Brown, who lived in England. They claim the allegations of abuse are true.

Subsequently, Ms Gorrell made a complaint to English police and  Mr Brown (62), of Bracknell, Berkshire, was cleared in July 2014 of charges of indecent assault of two girls aged under 13 and 16 at several locations in Northern Ireland and England in the 1970s and 80s.

He denied all the claims against him.

In the meantime, Ms Stein and Ms Gorrell brought defamation proceedings against Dana, who denied their claims.  It was also against TV3 which apologised and paid a sum of compensation to them.

Dana then sought a security of costs order in advance of the trial. She claimed legal costs would amount to some €450,000 while the other side estimated them at €189,000.

A year ago, the High Court refused to make a security for costs order and Dana appealed.

On Friday, a three-judge Court of Appeal overturned that decision and ordered the Ms Stein and Ms Gorrell to put up €150,000 in security.

Ms Justice Maire Whelan, on behalf of the court, said Dana had a bona fide defence upon the merits to the claims of her sister and niece.

This case was over statements about a “private dispute” between Dana and her sister and it got media coverage at the time because Dana was a presidential candidate at the time, she said.

It concerns a claim for defamation and cannot be reasonably characterised, as was done by the High Court, as being litigation involving “allegations of sexual abuse in a civil context”, she said.

She also found Ms Stein and Ms Gorrell failed to discharge the burden of proof in relation to the issue of their impecuniosity.

The High Court had erred in placing reliance on reported excerpts from an affidavit which was apparently alluded to in a non-relevant Supreme Court decision of years before, she said.

The High Court also erred in entering in an assessment of the merits of Dana’s defence of truth.

In relation to the amount of security for costs, Ms Justice Whelan concluded the amount suggested by the Stein/Gorrell side was an under-statement of the likely exposure there will be.

It was customary to require security to be about one-third of the costs which a defendant would incur and she set the figure at €150,000.

She also noted that an insurance policy Ms Stein and Ms Gorrell had  obtained an insurance  in England, indemnifying them for costs, was no longer in place.

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