Damages

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Cases

De Rossa v. Independent Newspaper[1999] IESC 63; [1999] 4 IR 432

Judgment handed down on the 30th day of July 1999 by Hamilton C.J.

1. The appeal in this case arises out of an action brought by the above named Plaintiff/Respondent, Proinsias de Rossa T.D. of 39 Pinewood Crescent, Ballymun in the City of Dublin (hereinafter referred to as the Respondent), and in which he claimed damages for libel against the above named Defendant/Appellant, Independent Newspapers Plc. (hereinafter called the Appellant).

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2. The defamatory matter complained of was alleged to have been contained in an article published by the Appellant in the issue of the Sunday Independent dated the 13th day of December, 1992, which said article was set forth in toto in the schedule annexed to the Statement of Claim delivered on behalf of the Respondent.

3. The said article was written by a well-known journalist, Eamon Dunphy and was printed in a prominent position under the title “Throwing good money at jobs is dishonest”, in the said newspaper, which enjoys a large circulation.

4. The relevant portion of the said article is:-

“Irish society is divided. As the political parties manoeuvre to try to form a Government a clear picture has emerged, revealing the nature of our differences.

On one side of the argument are those who would find the idea of Democratic Left in cabinet acceptable. These people are prepared to ignore Democratic Left leader Proinsias de Rossa’s reference to the ‘special activities’ which served to fund the Workers Party in the very recent past.

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The ‘special activities’ concerned were criminal. Among the crimes committed were armed robberies and forgery of currency.

The people engaged in this business occupied that twilight world where the line blurs between those who are common criminals and others of that ilk who would claim to be engaged in political activity.

This world is inhabited by myriad groups, some dealing in drugs, prostitution, protection rackets, crimes of which the weakest members of society are invariably the victims.

It is therefore, ironic, wickedly so, that a political party claiming to ‘care ‘for the workers should accept funding from ‘special activities’ of a particularly nasty kind.

There is no doubt that elements of Proinsias de Rossa ‘s Workers Party were involved in ‘special activities’. What remains unproven is whether de Rossa knew about the source of his party ‘s funds. There is evidence, strengthened by revelations in the Irish Times this week, that de Rossa was aware of what was going on.

If one is to allow him the benefit of the doubt, and why not, one must nevertheless, have some misgivings about those with whom he so recently associated.

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Justice demands that we welcome Democratic Left’s recent conversion to decency and indeed, acknowledge that their Dáil deputies are exemplary in the conduct of their work they engage in on behalf of their constituents.

Still, questions remain unanswered about the Workers Party’s ‘special activities’ phase, not to mention their willingness to embrace the Soviet Communist party long after the world knew about the brutal oppression that this and other Communist regimes visited on workers, intellectuals and others who would think and speak freely.

Proinsias de Rossa’s political friends in the Soviet Union were no better than gangsters. The Communists ran labour camps. They were anti-Semitic.

Men like Andre Sakharov and Vaclav Havel were persecuted. Citizens who attempted to flee this terror were murdered In Berlin, the bodies left to rot in no man’s land between tyranny and liberty. Is it really necessary to remind ourselves of those ‘special activities’?”

5. In the Statement of Claim delivered on behalf of the Respondent on the 10th day of September 1993 it was alleged at paragraph 4 that:-

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“The said words, in their ordinary and natural meaning, further or in the alternative by innuendo, meant and were understood to mean:

(a) That the Plaintiff had confessed to special activities on the part of a political party of which he was the leader;

(b) That the Plaintiff was aware of the said special activities;

(c) That the Plaint if tolerated the said special activities;

(d) That the said special activities were criminal in nature;

(e) That the said criminal activities consisted of or included:

(i) armed robbery

(ii) forgery of currency

(iii) drug dealing

(iv) prostitution or the management of prostitutes for reward

(v) protection rackets.

(f) That the Plaintiff had knowingly accepted funding, or allowed his party to accept funding, derived from the aforementioned activities;

(g) That the Plaintiff was knowingly party to such special activities;

(h) That the Plaint if knowingly benefited from such activities;

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(i) That the Plaint if supported the running of labour camps, anti-Semitism, the persecution of intellectuals and politicians and the murder of citizens attempting to leave Communist dictatorships.”

6. In the said Statement of Claim, it was alleged that as a result of the said publication, the Respondent had been injured in his character and reputation and had been exposed to odium, ridicule and contempt.

7. The Defence delivered on behalf of the Defendant on the 12th day of May, 1994 pleaded as follows:

“1. The defendant admits that it published of and concerning the plaintiff the words set out in the Schedule to the Statement of Claim, but denies that they were published falsely or maliciously as alleged or at all.

2. The defendant admits that the words complained of mean that the plaint if was now leader of a party which had previously received funds raised as a result of criminal activities, and that there had been public comment on a letter purportedly signed by him which appeared to refer to

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such activities. In that sense, the words complained of were true and accurate.

3. Save as herein before expressly admitted, the defendant denies that the words complained of in their natural and ordinary meaning or by way of innuendo bear or were understood to bear or were capable of bearing the meanings set out in paragraph 4 of the Statement of Claim or any other meaning defamatory of the plaintiff as alleged or at all.

4. Further or in the alternative, the words complained of are fair comment on a matter of public interest.

5. The defendant denies that the plaint if has suffered the alleged or any injury to his character or reputation as alleged or at all, or that he has been exposed to the alleged or any odium, ridicule or contempt as alleged or at all.

6. The plaint if is not entitled to the relief claimed or to any relief”

8. Notice of Trial was served on behalf of the Respondent on the 21st day of July 1994.

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9. In view of the history of the proceedings herein subsequent to the service of the said Notice of Trial, it is necessary to set forth in some detail that history.

10. By letter dated the 26th day of October, 1994 the Respondent’s solicitors sought the following particulars of the Appellant’s aforesaid Defence:-

“1. In relation to the words which the Defendant admits publishing in Paragraph 1 of the said Defence, state which of the said words are alleged to constitute statements of fact and which are alleged to constitute comment.

2. Give full and detailed particulars of each and every fact which it is intended to prove in order to establish that the facts stated in the words complained of are true and accurate.

3. State specifically whether it is intended to allege at the Trial that each and every statement of fact in the words complained of is true and accurate, if it is not please identify the statements of fact not alleged to be true and accurate.

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The said particulars were not given by the Appellant’s solicitors until a motion was issued by the Respondent’s solicitors on the 25th day of April 1995 seeking an order compelling deliverythereof.

By letter dated the 7th day of June, 1995 the Appellants solicitors replied in the following terms:

“1. Annexed hereto is a copy of the article complained of and marked in the margin thereto, as appropriate, (opposite the quoted parts of the article complained of) are the words fact’ or ‘comment’ or fact and comment’.

11. It should be noted that some of the extracts marked as consisting of fact might be construed as consisting partly of comment and also some of the extracts marked as consisting of comment might be construed as consisting partly of fact.

2. The facts on which the defendant relies as supporting the factual statements made in the quoted part of the article complained of are as follows:

(a) The existence of a letter dated 15 September 1986 to the Central Committee of the Communist Party of the Soviet Union, allegedly signed by the Plaintiff and by Sean Garland;

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(b) The references in the letter of 15 September 1986 to the necessity for ‘special activities’ to meet a financial shortfall in Workers’ Party funding;

(c) The belief of Mr. James Nash, FSS Dip, that, on the balance of probabilities, the signatures on the letter of 15 September 1986 of Sean Garland and the plaint if are genuine;

(d) The links between the Workers ‘Party and the Communist Party of the Soviet Union;

(e) Payments by the Communist party of the Soviet Union to the Workers ‘Party;

(f) Claims made in the print and electronic media of links between the Workers ‘ Party and the Official IRA;

(g) Public concern about links between the Workers’ Party and the Official IRA;

(h) The involvement of members of the Workers’ Party and of persons closely associated with the Workers’ Party in criminal activities and in the Official IRA;

(i) The statement by former Workers’ Party TD, Pat McCartan, that senior officials of the Workers ‘Party had in 1991 sought to recruit colleagues to the Official IRA, despite claims by senior members of the Workers ‘Party that the Official IRA had disbanded.

3. It is submitted that this is not an appropriate particular to require. It is the intention of the defendants to prove that all

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of the factual matters contained in the article are true in substance and in fact.”

12. By notice dated the 29th day of October 1996, the Appellants’ solicitors required the Respondent to admit the following facts:-

1. That the attached Irish Times report of October 26/27 1992, setting out the terms of a letter dated 15 September 1986 to the Central Committee of the Communist Party of the Soviet Union accurately sets out the terms of an original letter, allegedly signed by the plaintiff and Sean Garland held in the contemporary archives of the Russian Federation;

2. That the attached Irish Times newspaper article of December 7 1992 setting out a report by James Nash, FSS Dip, dated 6 December 1992 on the signatures on the letter of 15 September 1986 accurately sets out the terms of the said report of 6 December 1992; and

3. The attached interview between the plaintiff and the fish Times published in the Irish Times of 7 December 1992 represents the plaintiffs publicly stated position on the contents of the said letter of 15 September 1986 and his alleged involvement in that letter.

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13. The Respondents action began before a Judge of the High Court and a jury on the 5th day of November 1996 and continued at hearing on the 6th, 7th, 12th 13th, 14th 15th and 19th days of November 1996.

14. On the 5th day of November 1996 the Appellant was given liberty to amend the second line of paragraph 2 of its Defence by substituting the words “had been” for the words “was now” and on the 12th day of November 1996 was given liberty to amend its particulars by including the following additional particular

“(j) The existence and contents of a letter dated the 15th September 1986 to the Central Committee of the Communist Party of the Soviet Union from a Senior Official of the Workers ‘Party provided that the Defendant [Appellant] shall furnish to the Plaintiff[Respondent] all documents relating to the matter raised by the amendment of the Defendant’s /Appellants] particulars.

On the 19th day of November, 1996 on the application of Counsel for the Respondent the jury was discharged by the learned trial judge because of the publication of an article in the Sunday Independent on the 17th day of November 1996 which might mislead or confuse the jury.

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By order made on the 7th day of February 1997 the Appellant was given liberty to amend its Defence by the inclusion therein of the following paragraph:-

“2. The Defendant admits that the words complained of means [sic.] that the Plaintiff was leader of a party which had previously received funds as a result of criminal activities and that there had been public comment on a letter signed but not knowingly signed by him which appeared to refer to such activities. In that sense, the words complained of were true and accurate.”

15. By the said order the Appellant was given leave to amend its replies to Notice for Particulars and did so by letter dated the 12th day of February 1997.

16. In his reply to the amended Defence, the Respondent joined issue with the Appellant and in particular repeated his plea that the words complained of were published maliciously by the Appellant. This led to an exchange of letters dated respectively the 7th day of March 1997 and the 10th day of March 1997.

17. The Respondents action against the Appellant began again before a Judge of the High Court (Moriarty J.) and a jury on the 25th day of February

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1997 and continued on the 26th, 27th, 28th days of February and on the 4th, 5th, 6th, 7th, 11th, 12th, 13th, 14th, 18th, l9th, 20th days of March 1997.

18. At the conclusion of the evidence, speeches and charge, the learned trial judge fixed the following questions for determination by the jury:-

1. Do the words complained of mean

(a) that the Plaintiff was involved in or tolerated serious crime?

(b) that the Plaintiff personally supported anti-Semitism and violent communist oppression?

2. If the answer to (1) or either part of it is ‘Yes’ were the words complained of published by Independent Newspapers Plc. without genuine belief in the truth?

3. If the answer to (1) or either part thereof is “Yes” and whether the answer to (2) is “Yes” or “No” assess damages.

19. The jury gave no answer to Question 1(a) and answered 1(b) No.

20. Answers to Questions (2) and (3) did not therefore arise.

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21. The trial was begun again before a Judge of the High Court (Carney J.) and a Jury on the 15th day of July 1997 and continued on the 16th, 17th, 18th, 22nd, 23rd, 24th, 25th, 29th, 30th and 31st days of July 1997.

22. On this occasion the jury reached a verdict.

23. The following questions having been submitted to the jury were answered by them as follows:-

“1. Do the words complained of mean –

(a) that the Plaintiff was involved in or tolerated serious crime?

Answer: Yes

(b) that the Plaintiff personally supported anti-Semitism and violent Communist oppression

Answer: Yes

2. If the answer to 1 or any part thereof is “Yes” assess damages

Answer: £300,000.00”.

24. Having regard to such findings, the Court ordered that the Plaintiff/Respondent do recover against the Defendant/Appellant the sum of £300,000 and costs.

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25. From these findings and order the Appellants have appealed to this Court.

26. The grounds of appeal relied on by the Appellant at the hearing of the Appeal were:

(k) That the damages were excessive.

(l) That the size of the award was wholly disproportionate to any damage done to the reputation of the Plaintiff/Respondent.

(m) That the size of the award was so high as to amount to a restriction or penalty on the freedom of expression of the defendant/appellant, and was therefore contrary to Article 10 of the European Convention on Human Rights.

(n) That the size of the award was a violation of the legal rights of the defendant/appellant.

(s) That the size of the award was a violation of the rights of the defendant/appellant pursuant to Article 40.3 and/or Article 40.6.1 .i of the Constitution.

(t) That the supposed rule of law or practice restraining counsel and the judge in defamation trials from offering specific guidance as to the appropriate level of general damages is inconsistent with the

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provisions of the Constitution, and in particular Article 40.3 and/or Article 40.6.1 .i thereof, and that accordingly it had not been continued in force, as part of the law, by the provisions of Article 50 of the Constitution.

(o) That the learned High Court Judge misdirected the jury on the issue of damages.

27. With regard to this latter ground viz, that the learned trial judge misdirected the jury on the issue of damages, it is conceded on behalf of the Appellant that he directed the jury in accordance with generally accepted practice but it is submitted –

1. that this generally accepted practice is inconsistent with the provisions of the Constitution and cannot be allowed to continue;

2. a direction to the jury which would conform to the provisions of the Constitution would have required the judge to

(a) refer to the purchasing power of the award,

(b) the income which such award would produce,

(c) make a comparison with previous libel awards, and

(d) make a comparison with personal injury awards, and

(e) indicate the level of award which he would consider appropriate.

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28. As there was no objection to the learned trial judge’s charge in respect the role of the jury in assessing damages or no requisition in regard thereto it is desirable at this stage to set forth that portion of his charge which dealt with the issue of damages.

29. The learned trial judge stated:-

“Now damages are meant to compensate a person for a wrong. It was pointed out to you by Counsel that damages are the only remedy available under the law as it stands. It has no power to compel a newspaper publish an apology or do anything of that kind. The only remedy available to a person who says he has been wronged in a newspaper article is damages. Damages are meant to put a person, in so far as money can do it, in the position that he or she would have been if the wrong had not taken place. That is the enterprise you are engaged in, in relation to damages.

Now I always think it is safest, the safest course for me in dealing with an issue to deal with it through words which emanate directly from the Supreme Court. as that might give me a certain protection in relation to criticism later on, but in a recent case, Mr. Justice O’Flaherty of the Supreme Court said, that the

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approach in cases of this kind should be no different from any other type of proceedings. The jury should be told that their first duty is to try to do essential justice between the parties. They are entitled to award damages for loss of reputation as well as for the hurt, anxiety, trouble and bother to which the Plaint if has been put.

Now in another case Mr. Justice Henchy of the Supreme Court said:-

‘It is the duty of the Judge to direct the Jury that the damages must be confined to such sum of money as would fairly and reasonably compensate the Plaintiff for his injured feelings, and for any diminution in his standing among right thinking people as a result of the words complained of The Jury have to be told they must make their assessment entirely on the facts found by them, and among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the Plaint if the extent of the publication, the conduct of the Defendant at all stages of the case, and any other matter which bears on the extent of the damages’.

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30. Now Mr. Justice Henchy in the case he was dealing with, said that the jury in that particular case wasn’t given any real help as to how to assess compensatory damages, and he laid down a guide which could assist the Jury. He considered that in the case in question the jury could be asked to reduce the allegation complained of to actuality, and then to fit the allegation into its appropriate place in the scale of defamatory remarks to which the Plaintiff could be subjected.

31. Now that particular case affords you great assistance in placing the nature of the defamation in a scale, because that case Mr. Justice Henchy was referring to, revolved around an allegation by a politician that a journalist [sic.] tweaked his beard. Now it related to the time of one of the pushes against Mr. Haughey, and after an abortive push against him, everybody was coming out to a crowded area of Leinster House, bustling out, and something was written in the Evening Herald which involved an allegation a politician tweaked the Evening Herald journalist’s beard. Now the Learned Trial Judge found that to be defamatory and directed there be an assessment of damages.

32. Going back to Mr. Justice Henchy’s observation, if you examine the words and put them in a scale of things, compare the

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allegation with tweaking a journalist’s beard, with an allegation that Mr. de Rossa was involved in or tolerated serious crime, and that he personally supported anti-Semitism and violent Communist oppression. It would not surprise me, Members of the Jury, if you went to the opposite end of the scale and even, apart from Mr. Justice Henchy’s helpful observations, I think there can be no question in this case but that if you are awarding damages you are talking about substantial damages.

33. Now as Counsel told you, I am not allowed to suggest to you figures. and Counsel are not allowed suggest to you figures either. I have gone as far as I can to help in relation to that question. I don ‘t think anybody takes issue with the proposition if you are awarding damages they are going to be substantial. Mr. de Rossa at the time was leader of a political party. The political party was seeking to go into government. Damages will be substantial. It is all I can say to you. It is a matter for you to assess what they ought to be, if you are assessing damages.”

34. There was, during the course of the trial no criticism of the judge’s charge in this respect and no requisitions were made by counsel for the Appellant in regard thereto. In their submissions in this Court the Appellant

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acknowledges that the learned trial judge charged the jury in accordance with the practice as it had applied to date.

35. Two issues arise on this appeal viz:-

(1) whether the damages awarded to the Respondent were excessive, and

(2) whether the directions given to the jury by the trial judge on the manner in which they should approach the assessment of damages in cases of this nature were adequate and, if not, what directions should be given to the jury as to the manner in which they should approach the assessment of damages in cases of defamation.

36. It is conceded on behalf of the Appellant that the learned trial judge in the course of his charge to the jury followed the general practice in cases of this nature which was that of confining his directions to a statement of general principles, eschewing any specific guidance on the appropriate level of general damages.

37. As stated by the then Master of the Rolls, Sir Thomas Bingham, in the course of his judgment in John .v. M.G.N. Ltd. [1996] 2 A.E.R. 35 at pp. 48-49:-

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“Judges, as they were bound to do, confined themselves to broad directions of general principle, coupled with injunctions to the jury to be reasonable. But they gave no guidance on what might be thought reasonable or unreasonable, and it is not altogether surprising that juries lacked an instinctive sense of where to pitch their awards. They were in the position of sheep loosed on an unfenced common, with no shepherd.”

38. This approach was adopted by judges because the assessment of damages was peculiarly the province of the jury in an action for libel.

39. As stated by Finlay C.J. in the course of his judgment in Barrett .v. Independent Newspapers Ltd. [1986] IR 13 at p. 19 of the report the assessment by a jury of damages for defamation “has a very unusual and emphatic sanctity” and appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy.

40. As stated by Cockburn C.J. in Phillips .v. The South Western Railway Company [1879] 4 QBD 406 at 408:-

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“If a jury have taken all the proper elements of damage into consideration, and have awarded what they deemed to be fair and reasonable compensation under all the circumstances of the case, a Court ought not, unless under very exceptional circumstances, to disturb their verdict.”

41. The importance of the role of the jury in the assessment of damages in defamation actions was further emphasised by the Court of Appeal in the John case.

42. Though in this case the Court of Appeal was recommending certain changes of practice, it emphasised that the ultimate decision, subject to appeal, was that of the jury who were not bound by the submissions made to them.

43. Before proceeding to deal with the Appellant’s grounds of appeal I have sought to illustrate the role or province of a jury in actions for defamation.

44. It appears from the judge’s charge to the jury in this case that counsel for both parties acknowledged that neither they nor the judge were allowed to suggest figures to the jury.

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45. Counsel for the Appellant have adopted a different stance in the course of this appeal.

46. It is submitted on behalf of the Appellant that:-

1. The present practice of allowing the jury in a libel action unguided discretion in its assessment of damages leads to excessive and disproportionate awards and is contrary to the provision of the Constitution.

2. More specific guidelines from the judge or counsel would facilitate the jury’s assessment of a reasonable and fair award without jeopardising its unique role in libel actions.

3. The guidelines to be given to a jury in such case should include:

(a) a reference to the purchasing power of any award which the jury might be minded to make and to the income which the award would produce,

(b) reference to what the trial judge and counsel considered to be the appropriate level of damages,

(c) reference by way of comparison by counsel and the trial judge to awards made in respect of personal injuries and to awards made in previous libel cases.

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47. The effect of the Appellant’s submissions is that in an action for damages for defamation counsel and the trial judge should be permitted, in the course of their submissions and/or charge to the jury on the issue of damages, to give to the jury the benefit of their views as to the appropriate level of damages, to inform the jury of awards made in other libel cases and in personal injuries cases for the purpose of comparison and to make reference to the purchasing power of any award which the jury contemplated making.

48. In addition it is submitted on behalf of the Appellant that the common law and the Constitution require an appellate court, viz, the Supreme Court, to subject large awards of damages to a more searching scrutiny than has hitherto been customary.

49. Under the principles presently applied, a court of appeal could not set aside a jury award in a libel case simply on the ground that it was excessive, but only if the award was so unreasonable that it could not have been made and must have been arrived at capriciously, unconscionably or irrationally.

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50. As stated by Mr. Justice Henchy in Barrett’s ([1986] IR 13, at 24) case:-

“In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.”

51. It is submitted on behalf of the Appellant that this is not the proper test to be applied by an appellate court and that the proper test is that set forth by Neill L.J. in delivering the judgment of the Court of Appeal in Rantzen .v. Mirror Group Newspapers Ltd. [1993] 4 All ER 975, where he stated at p. 994 of the report that:-

“We consider therefor that the common law if properly understood requires the courts to subject large awards of damages to a more searching scrutiny than has been customary in the past. It follows that what has been regarded as the barrier against intervention should be lowered. The question becomes: could a reasonable jury have thought that this award was necessary to compensate the plaint if and to re-establish his reputation?”

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52. This question or test differs substantially from the question or test which has hitherto applied, viz, was the award made by the jury so disproportionately high having regard to the injury suffered, that no jury acting reasonably and applying the law to all the relevant circumstances, could reasonably have awarded?

53. In support of his submissions, counsel on behalf of the Appellants has relied on the provisions of Article 40.6.1 of the Constitution, the provisions of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the decision of the European Court of Human Rights in Tolstoy Miloslavsky .v. United Kingdom [1995] 20 EHRR 442 and a number of cases including in particular:-

Barrett .v. Independent Newspapers Ltd [1986] IR 13;

McDonagh .v. News Group Newspapers Ltd. (unreported, Supreme Court, 23rd November 1993);

John .v. MG.N. Ltd. [1996] 2 All ER 35; and

Hill .v. Church of Scientology of Toronto (1995) 126 D.L.R. (4th) 129.

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Relevant Constitutional Provisions

Article 40.3.1 of the Constitution

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

Article 40.3.2 of the Constitution

“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

Article 40.6.1 of the Constitution

“The State guarantees liberty for the exercise of the following rights, subject to public order and morality .-

The right of citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving

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their liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.”

54. While the Appellant relies on the provisions of Article 40.6.1 of the Constitution in support of its submissions, it is accepted that the right of freedom of expression enjoyed by the press is not absolute and is subject not only to the restrictions contained in the said article but must also be considered in the light of the provisions of Article 40.3.1.

55. As stated by Henchy J. in the course of his judgment in Hynes-O’Sullivan .v. O’Driscoll [1988] IR 436 at p. 450, [1989] ILRM 349 at 361:-

the law … must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name.”

Provisions of Article 10 of the European Convention on Human Rights

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart

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information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

This Article of the said Convention recognises that the exercise of these freedoms may be subject to such restrictions or penalties as are prescribed by law and are necessary in a democraticsociety for the protection of the reputation or rights of others.

Although the European Convention on Human Rights is not part of Irish municipal law regard can be had to its provisions.

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Geoghegan J., in the course of his judgment in Murphy .v. IR. T. C. [1997] 2 ILRM 467 stated at page 476 of the Report that:-

“Although the European Convention on Human Rights is not part of Irish municipal law, regard can be had to its provisions when considering the nature of a fundamental right and perhaps more particularly the reasonable limitations which can be placed on the exercise of that right.”

56. There does not appear to be any conflict between Article 10 and the common law or the Constitution.

57. The effect of the provisions of Article 10 of the Convention was considered by the European Court of Human Rights in Tolstoy Miloslavsky .v. United Kingdom (1995)20 EHRR 442.

58. This was a case where the jury in a libel case in England had awarded £1.5 million, by way of damages against the applicant, Count Nikolai Miloslavsky, to one Lord Aldington. The applicant, Count Miloslavsky appealed to the Court of Appeal against the findings and award of the jury. The said appeal was dismissed by the Court of Appeal because of the applicant’s

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failure to provide the security for costs of the appeal, which he had been directed by the Court to provide. The applicant then applied to the European Court of Human Rights alleging violations of Article 6(1), with which we are not concerned, and Article 10 of the Convention.

59. The applicant claimed that the award of £1,500,000 and the injunction granted by the High Court violated his right to freedom of expression as guaranteed by Article 10 of the Convention.

60. The Applicant’s claim under Article 10 was held to be admissible by the Commission.

61. In the course of its opinion the Commission stated at Paragraphs 52 and 53:-

“It is apparent to the commission that injury cases in the United Kingdom at the relevant time, the judge could give only general guidance as to the criteria to be used (for example, relating damages to the cost of a house) in assessing damages, but could not make any reference to other cases or specific sums of money. Moreover, the findings of the jury give no indication of the reasons

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for assessing damages at one level rather than at another. It appears from the statements of law in the courts in the present case and from the subsequent development outlined above, that the Court of Appeal was unable in any real way to review or to control the size of the jury awards in the present case.

The Commission notes that in the present case the award of £1,500,000 was three times the size of the next largest award ever made. The Commission accepts that the allegations made against Lord Aldington (and found by the domestic courts to be unjustified) were very serious. However, the Commission cannot accept that an award of £1,500,000 to vindicate pure damage to reputation as distinct from compensating actual financial loss, can be proportionate to the legitimate aim pursued.”

62. As appears from the judgment of the Court, it had to consider two issues, viz.

1. whether the quantum of damages awarded by the jury was “prescribed bylaw”, and

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2. whether the size of the award had been disproportionate to the aim of protecting Lord Aldington’s “reputation or rights” and thus had not been “necessary in a democratic society” .

63. The findings of the Court on the first issue are set forth in paragraphs 36-44 of its judgment which are set forth at pp. 467 to 470 of the report.

64. This issue was considered by the Court having regard to the common law prevailing at the time of the making of the award as set out in the judgment of the court.

65. The Court stated:-

“At English common law there was no upper or lower limit on the amount of damages. The extent to which a judge could give guidance was strictly circumscribed. No specific figures could be suggested and awards of damages in other libel cases or even in personal injury cases had to be disregarded for the purposes of comparison. Guidance could only be given to help the jury to appreciate the real value of large sums of money, for instance by inviting them to reflect on the value of a house. At the material

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time, there had been no principle recognised in English law that required the award to be proportionate to the aim of repairing the damage to the plaintiff’s reputation. The jury gave no reasons for its decision and the award could be overturned by the Court of Appeal only if it was so unreasonable that it could not have been made by sensible people but must have been arrived at capriciously, unconscionably or irrationally.”

and

“The Court accepts that national laws concerning the calculation of damages for injury to reputation must make allowance for an open-ended variety of factual situations. A considerable degree of flexibility may be called for to enable juries to assess damages tailored to the facts of the particular case. Indeed, this is reflected in the trial judge ‘s summing-up to the jury in the present case. It follows that the absence of specific guidelines in the legal rules governing the assessment of damages must be seen as an inherent feature of the law of damages in this area.

Accordingly, it cannot be a requirement of the notion of ‘prescribed by law’ in Article 10 of the Convention that the applicant, even with appropriate legal advice, could anticipate

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with any degree of certainty the quantum of damages that could be awarded in his particular case.”

and

“Having regard to the fact that a high degree of flexibility may be justified in this area, the various criteria to be taken into account by juries in the assessment of damages as well as the review exercised by the Court of Appeal, the Court reaches the conclusion that the relevant legal rules concerning damages for libel were formulated with sufficient precision. In short, the award was prescribed by law’.”

66. It is clear from the foregoing that the European Court would not consider that the award made in the instant case was not “prescribed by law” .

67. The Court then proceeded to deal with the second issue viz, whether the size of the award had been disproportionate to the aim of protecting Lord Aldington’s “reputation or rights” and thus had not been “necessary in a democratic society” , as required by the Convention.

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68. In the course of considering this issue the Court stated (paragraphs 49-51 at pp. 472-473):-

“However, the Court takes note of the fact that the applicant himself and his counsel accepted that if the jury were to find libel, it would have to make a very substantial award of damages. While this is an important element to be borne in mind it does not mean that the jury was free to make any award it saw fit since, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.

The jury had been directed not to punish the applicant but only to award an amount that would compensate the non-pecuniary damage to Lord Aldington. The sum awarded was three times the size of the highest libel award previously made in England and no comparable award has been made since. An award of the present size must be particularly open to question where the substantive national law applicable at the time fails itself to provide a requirement of proportionality.

In this regard it should be noted that, at the material time, the national law allowed a great latitude to the jury. The Court of

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Appeal could not set aside an award simply on the grounds that it was excessive but only if the award was so unreasonable that it could not have been made by sensible people and must have been arrived at capriciously, unconscionably or irrationally. In a more recent case, Rantzen .v. Mirror Group Newspapers Ltd., the Court of Appeal itself observed that to grant an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was ‘necessary in a democratic society ‘for the purposes of Article 10 of the Convention. It noted that the common law – if properly understood – required the courts to subject large awards of damages to a more searching scrutiny than had been customary. As to what guidance the judge could give to the jury, the Court of Appeal stated that it was to be hoped that in the course of time a series of decisions of the Court of Appeal, taken under section 8 of the Courts and Legal Services Act 1990, would establish some standards as to what would be proper’ awards. In the meantime the jury should be invited to consider the purchasing power of any award which they might make and to ensure that any award they made was proportionate to the damage which the plaint if had suffered and was a sum

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which it was necessary to award him to provide adequate compensation and to re-establish his reputation.

The Court cannot but endorse the above observations by the Court of Appeal to the effect that the scope of judicial control, at the trial and on appeal, at the time of the applicant’s case did not offer adequate and effective safeguards against a disproportionately large award.

Accordingly, having regard to the size of the award in the applicant’s case in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award, the Court finds that there has been a violation of the applicant’s rights under Article 10 of the Convention.”

69. It is clear from the foregoing that the primary reason for the Court’s decision was the size of the award and the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. It recognised, however, that an award of damages must bear a reasonable relationship of proportionality to the injury to reputation suffered.

70. The Court gave approval to the guidance to be given to a jury as laid down by the Court of Appeal in Rantzen ‘s case.

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In Rantzen’s case, the Court of Appeal had stated ([1993] 4 A.E.R 975 at p. 997) that:-

“We have come to the conclusion, however, that there is no satisfactory way in which the conventional awards in actions for damages for personal injuries can be used to provide guidance for an award in an action for defamation … it seems to us that damages for defamation are intended at least in part as a vindication of the plaint if to the public. … We therefore feel bound to reject the proposal that the jury should be referred to awards made in actions involving serious personal injuries.”

71. The Court went on to state (at p. 997) that:-

“It is to be hoped that in the course of time a series of decisions of the Court of Appeal will establish some standards as to what are in the terms of section 8 of the 1990 Act, ‘proper’ awards.

In the meantime the jury should be invited to consider the purchasing power of any award which they may make. In addition they should be asked to ensure that any award they make is proportionate to the damage which the plaint if has suffered and is

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a sum which it is necessary to award him to provide adequate compensation and to re-establish his reputation.

The judgment of the Court of Appeal in John .v. M.G.N Ltd. [1996] 2 A.E.R. 35 extended further the guidelines to be given to juries in defamation actions.

In the first instance, the Court stated that it agreed with the ruling in Rantzen that reference may be made to awards approved or made by the Court of Appeal.

The Court rejected the statement made by the Court of Appeal in Rantzen’s case that “[w]e have come to the conclusion, however, that there is no satisfactory way in which the conventional awards in actions for damages for personal injuries can be used to provide guidance for an award in an action for defamation” and stated (at p. 54) that “[t]he time has in our view come when judges, and counsel, should be free to draw the attention of juries to these comparisons.

The Court then went further and stated that it could see no reason why the parties’ respective counsel in a libel action should not indicate to the jury

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the level of award which they respectively contended to be appropriate, nor why the judge directing the jury should not give a similar indication. The Court stated at p. 55 of the report:-

“The plaint if will not wish the jury to think that his main object is to make money rather than clear his name. The defendant will not wish to add insult to injury by underrating the seriousness of the libel. So we think the figures suggested by responsible counsel are likely to reflect the upper and lower bounds of a realistic bracket. The jury must, of course, make up their own mind and must be directed to do so. They will not be bound by the submission of counsel or the indication of the judge. If the jury make an award outside the upper or lower bounds of any bracket indicated and such award is the subject of appeal, real weight must be given to the possibility that their judgment is to be preferred to that of the judge.

The modest but important changes of practice described above would not in our view undermine the enduring constitutional position of the libel jury. Historically, the significance of the libel jury has lain not in their role of assessing damages, but in their role of deciding whether the publication

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complained of is a libel or no. The changes which we favour will, in our opinion, buttress the constitutional role of the libel jury by rendering their proceedings more rational and so more acceptable to public opinion.

At page 58 of the report, the Court stated:-

“The European Convention on Human Rights is not a free standing source of law in the United Kingdom. But there is, as already pointed out, no conflict or discrepancy between Art. 10 and the common law. We regard Art. 10 as reinforcing and buttressing the conclusions we have reached and set out above. We reach those conclusions independently of the convention, however, and would reach them even if the convention did not exist.”

72. While the aforesaid changes of practice were therein described as “modest”, they are not only important but fundamental and radically altered the general practice with regard to the instructions or guidance to be given to a jury as to the manner in which they should approach the assessment of damages in a defamation action.

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73. It had been the invariable practice in the past that neither counsel nor the judge could make any suggestion to the jury as what would be an appropriate award.

In Ward .v James [1965] 1 A.E.R. 563 at 574 the Court of Appeal had given reasons why no figures should be mentioned. It stated:-

‘If the judge can mention figures to the jury, then counsel must be able to mention figures to them. Once that happened, we get into the same trouble again. Each counsel would, in duty bound, pitch the figures as high or as low as he dared. Then the judge would give his views on the rival figures. The proceedings would be in danger of developing into an auction.

It is submitted on behalf of the Appellant that the aforesaid guidelines as outlined in Rantzen’s case and John’s case should be incorporated into the guidelines to be given to a jury in the course of a judge’s charge on the issue of damages in this jurisdiction.

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It is further submitted that a jury’s award in a defamation case should in an appeal court, be subject to a more stringent examination than heretofore and that the test to be applied should be

“could a reasonable jury have thought that that this award was necessary to compensate the Plaint if and to re-establish his reputation?”

74. It is further submitted that the award made by the jury in this case was so high as to amount to a restriction or penalty on the freedom of expression of the Appellant contrary to Article 10 of the Convention and that there was a lack of proportionality between the award and the damage it sought to compensate for.

75. It is submitted on behalf of the Appellant that the aforesaid guidelines should be given to the jury in a defamation action and that the giving of such guidelines are mandated by the Constitution and Article 10 of the Convention as being necessary to vindicate the Appellant’s rights under the Constitution and the Convention.

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76. By virtue of the provisions of Article 40.6.1 of the Constitution, the Appellants are entitled, subject o the restrictions therein contained, to exercise the right to express freely their convictions and opinions.

77. The exercise of such right is subject however to the provisions of the Constitution as a whole and in particular the provisions of Article 40.3.1 and 40.3.2 which require the State by its laws to protect as best it may from unjust attack, and in the case of injustice done to vindicate the good name of every citizen.

78. Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.

79. The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name (Hynes-O’Sullivan .v.O’Driscoll [1988] IR 436, [1989] ILRM 349). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.

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80. The right to freedom of expression is guaranteed by Article 10.1 of the Convention but the exercise of such a right is subject to the restrictions contained in Article 10.2, the relevant provision of which reads as follows:-

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others…”

81. As appears from the passage of the judgment of the European Court of Human Rights already quoted herein and which states ((1995)20 EHRR 442 at p. 472):-

“… under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.”

82. Both the Constitution and the Convention guarantee the right to freedom of expression but also recognise the right of the citizen to his “good name” and “reputation “.

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83. The only remedy open to a person whose right to his good name or reputation has been damaged or wrongfully interfered with is by way of an action for damages.

84. The obligation placed on the State is to ensure that the substantive law applicable in the State is designed to ensure a requirement of proportionality and that any award of damages made was proportionate to the damage which the Plaintiff had suffered and was a sum which was necessary to provide adequate compensation and to re-establish his reputation.

85. The present law applicable in this State is as stated by Mr. Justice Henchy in the course of his judgment in Barrett .v. Independent Newspapers Ltd. [1986] IR 13, pp. 23 and 24 of the report where he said:-

“The second ground of appeal is that the award of £65, 000 is so excessive as to be unsustainable. In a case such as this in which there is no question of punitive, exemplary or aggravated damages, it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right-thinking people as a

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result of the words complained of The jury have to be told that they must make their assessment entirely on the facts as found by them, and they must be given such directions on the law as will enable them to reach a proper assessment on the basis of those facts. Among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the plaint if the extent of the publication, the conduct of the defendant at all stages of the case, and any other matter which bears on the extent of the damages. The judge, quite properly, in this case told the jury to ignore all matters in the article save the allegation of an assault. Also, quite properly, he told the jury that they should not allow their assessment of damages to be affected by the fact that the plaintiff had agreed to donate the damages to charity. Indeed it is right to point out that no criticism was made at the trial by either side of any part of the judge ‘s address to the jury.

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journalist. The jury might then have been asked to fit that allegation into its appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected. Had they approached the matter in this way, I venture to think that having regard to the various kinds of allegations of criminal, immoral and otherwise contemptible conduct that might have been made against a politician, the allegation actually complained of would have come fairly low in the scale of damaging accusations. The sum awarded, however, is so high as to convince me that the jury erred in their approach. To put it in another way, if £65, 000 were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exaltation, the damages proper for an accusation of some heinous and premeditated criminal conduct would be astronomically high. Yet, a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.”

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86. This passage emphasises:

(a) that it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution of his standing among right-thinking people as a result of the words complained of;

(b) that it is a fundamental principle of the law of compensatory damages that the award must always be reasonable and fair and bear a due correspondence with the injury suffered; and

(c) that if the award is disproportionately high, it will be set aside and not allowed stand.

87. The obligations arising from the provisions of the Constitution and the Conventions are met by the law of this State, which provides that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and by the requirement that if the award is disproportionately high, it will be set aside.

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88. Neither the Constitution nor the Convention requires that the guidelines to be given to juries should be changed in the manner argued for by the Appellant.

89. The guidelines recommended by the Court of Appeal in John’s case were based not on the Convention nor, obviously, on the Irish Constitution but were in the view of the Court of Appeal a development of the Common Law.

90. The judgment of the Court of the Appeal is not binding on this Court but is deserving of consideration by it.

91. If the practice as outlined in Rantzen’s case and extended as outlined in John’s case were to be followed, the jury would be buried in figures, figures suggested by counsel for both parties as to the appropriate level of damages, a figure from the judge representing his opinion as to the appropriate level of damages, figures with regard to damages made or approved by the Court of Appeal in previous libel actions and figures with regard to damages in personal injuries actions and at the same time be subject to the direction of the trial judge that it is not bound by such figures and must make up its own mind as to the appropriate level of damages.

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92. It is accepted by all that, even if the giving of such guidelines and figures were permissible, the jury would not be bound by such figures and was under an obligation to make up its own mind as to the appropriate level of damages.

93. I am satisfied that the giving of such figures, even though only by way of guideline, would constitute an unjustifiable invasion of the province or domain of the jury.

94. The assessment of damages in a defamation action instituted in the High Court was always a matter for the jury and that was not in any way altered by the provisions of the Courts Act 1988, which provided that certain actions, including claims for damages for personal injuries, should not be tried by a jury.

95. On the issue as to whether or not references to awards in personal injuries actions should be permitted, I prefer the conclusion reached by the Court of Appeal in Rantzen’s case to that reached in John’s case and accept the reasoning contained in the following passage from the judgment of Lord Hailsham L.C. in Cassell & Co. Ltd. .v. Broome [1972] 1 A.E.R. 801 where he stated at page 824 of the Report:-

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“In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaint if in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. As Windeyer J well said in Uren .v. John Fairfax & Sons Pty Ltd . (1967) 117 CLR 118 at 150: ‘It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways -as a vindication of the plaintiff to the public, and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite

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obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of or the malice of the defendant. The bad conduct of the plaint if himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamationare described as being ‘at large’. In a sense, too, these damages are of their nature punitive or exemplary in the loose sense in which the terms were used before 1964, because they inflict an added burden on the defendant proportionate to his conduct, just as they can be reduced if the defendant has behaved well – as for instance by a handsome apology – or the plaint if badly, as for instance by provoking the defendant, or defaming him in return. In all such cases it must be appropriate to say with Lord Esher MR in Praed .v. Graham (1889) 24 QBD 53 at 55. ‘… in actions of libel … the jury in assessing damages are entitled to look at the whole conduct of the defendant [I would personally add “and of the plaintiff from the time the libel was published down to the time

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they give their verdict. They may consider what his conduct has been before action, after action, and in court during the trial’.”

96. I do not accept that the invariable practice that neither counsel nor the judge could make any suggestion to the jury as to what would be an appropriate award should be altered and accept the statement contained at p. 574 in the judgment of the Court of Appeal in Ward .v. James [1965] 1 A.E.R. 563 already cited herein.

97. As already emphasised herein and stated by Henchy J. in Barrett’s case, the jury must base their assessment entirely on the facts as found by them. Departure from this principle would lead to utter confusion.

98. With regard to the recommendation that reference may be made to awards made or approved of by the Court of Appeal it is clear from the judgment of the Court of Appeal in John’s case [1996] 2 A.E.R. 35 that the change brought about by the provisions of the British Courts and Legal Services Act of 1990 in the powers of the Court of Appeal was fundamental to the recommendation therein contained that it would be open to the trial judge to refer to awards which had been made or approved by the Court of Appeal in previous awards in defamationcases and that in the absence of such change no such recommendation would have been made.

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99. In the course of its judgment, the Court stated at page 51 of the report that:-

“We wholly agree with the ruling in Rantzen that juries should not at present be reminded of previous libel awards by juries. These awards will have been made in the absence of specific guidance by the judge and may themselves be very unreliable markers. The position may change in the future if the additional guidance which we propose later in this judgment is given and proves to be successful. As was pointed out in the course of argument, however, comparison with other awards is very difficult because the circumstances of each libel are almost bound to be unique. Furthermore, the corpus of such awards will be likely to become unwieldy and time would be expended on the respective parties pointing to features which were either similar or dissimilar in the other cases.

At page 52 of the report the Court stated:-

“We agree with the ruling in Rantzen that reference may be made to awards approved or made by the Court of Appeal. As and when a framework of awards is established this will provide a valuable

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pointer to the appropriate level of award in the particular case. But it is plain that such a framework will not be established quickly: it is now five years since section 8(2) of the 1990 Act and Order 59, rule 11(4) [of the Rules of the Superior Courts] came into force, and there is no case other than [ Gorman .v. Mudd [1992] CA Transcript 1076], Rantzen and Houston .v. Smith [1993] CA Transcript 1544] in which the court has itself fixed the appropriate level of award.

It is true that awards in this category are subject to the same objection that time may be spent by the parties on pointing to similarities and differences. But, if used with discretion, awards which have been subjected to scrutiny in the Court of Appeal should be able to provide some guidance to a jury called upon to fix an award in a later case.

The matters to be taken into account by the jury in its assessment of the proper award to be made to a plaintiff in a defamation action are as set out in the passage from the judgment of Henchy J. in Barrett’s case as hereinbefore set forth and the jury has to be told they must make their assessment entirely on the facts as found by them.

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Each defamation action has its own unique features and a jury in assessing damages must have regard to same: these include the nature of the libel, the standing of the plaintiff, the extent of the publication, the conduct of the defendant at all stages and many other matters. These will vary from case to case.

Figures awarded in other cases based on different facts are not matters which the jury is or should be entitled to take into account.

For these reasons, I am not prepared to alter the traditional guidelines to be given to the jury with regard to the assessment of damages in cases of this nature.

That does not mean that the discretion of the jury is limitless: the damages awarded by a jury must be fair and reasonable having regard to all the relevant circumstances and must not be disproportionate to the injury suffered by the injured party and the necessity to vindicate such party in the eyes of the public. Awards made by a jury are subject to a right of appeal and on the hearing of such appeal, the award made by a jury is scrutinised to ensure that the award complies with these principles.

It was stated by Finlay C.J. in the course of his judgment in Barrett .v. Independent Newspapers [1986] IR 13 at p. 19 of the report that:-

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“With regard to the appeal against the amount of the damages certain principles of law are applicable. Firstly, while the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed on appeal, it has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy.

The “sanctity” of such awards is recognised in the passage from the judgment of the Court of Appeal in John’s case where it is stated at page 55 of the report as follows:-

“The jury must, of course, make up their own mind and must be directed to do so. They will not be bound by the submission of counsel or the indication of the judge. If the jury make an award outside the upper or lower bounds of any bracket indicated and such award is the subject of appeal, real weight must be given to the possibility that their judgment is to be preferred to that of the judge.” (emphasis added)

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100. Both judgments recognise that the assessment of damages is a matter for the jury and that an appellate court must recognise and give real weight to the possibility that their judgment is to be preferred to that of the judge.

101. Consequently, an appellate court should only set aside an award made by a jury in a defamation action if the award made is one which no reasonable jury would have made in the circumstances of the case and is so unreasonable as to be disproportionate to the injury sustained.

102. It has been submitted on behalf of the Appellant that larger awards should be subjected to a more searching scrutiny than has been customary in the past and that the test to be applied is:

“Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?”

103. If such were the test to be applied, it would remove from the jury award the “very unusual and emphatic sanctity” referred to by Finlay C.J. and the giving of “real weight” to the possibility that their judgment is to be preferred to that of the judge as stated by Sir Thomas Bingham M.R.

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104. Consequently, while awards made by jury must, on appeal be subject to scrutiny by the appellate court, that Court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.

Damages

105. It is submitted on behalf of the Appellant that the damages awarded by the jury were excessive and wholly disproportionate to any damage done to the Respondent.

106. The factors to be taken into account in determining the damages to be awarded are clearly set out in many cases and in particular in the judgment of the Court of Appeal in John ‘s case at pp. 47 and 48 of the report where it is stated as follows:-

“The successful plaint if in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation

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which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation, the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaint if may properly look to an award of damages to vindicate his reputation; but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaint if in a wounding or insulting way.”

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Gravity of Libel

107. The jury found that the words complained of by the Respondent meant that the Respondent

(i) was involved in or tolerated serious crime, and

(ii) personally supported anti-Semitism and violent communist oppression.

108. The Appellant has not appealed against such findings, is bound by them and must abide by the consequences thereof.

109. To publish of any person words meaning that he or she was involved in or tolerated serious crime and personally supported anti-Semitism and violent Communist oppression would, if untrue, constitute the gravest and most serious libel: it is hard to imagine a more serious one.

110. To publish such words in relation to the Respondent, a politician dependent on the support of his constituents and his colleagues and at a time when he was engaged in negotiations, as was well known to the Appellant at the time of publication, which might lead to his participation in Government, renders such publication more serious and grave, particularly when they might

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have interfered with his chances of participation in such Government. The words published clearly affected the Respondent’s personal integrity and professional reputation.

Effect on Plaintiff/Respondent

111. One of the most important factors in the assessment of damages is the effect of the libel on the plaintiffs feelings.

112. The Respondent has given evidence, during the course of three trials, of the distress, hurt and humiliation caused to him by the said publication and of his determination to vindicatehis personal and political reputation. It is not necessary to set forth such evidence in the course of this judgment as his evidence in this regard was obviously accepted by the jury and it is easy to imagine the hurt and distress which allegations of this nature would cause.

113. A clear indication of such hurt is to be found in his answer to Question 26 on p. 13 of the transcript for the 16th day of July, 1997 where he stated:-

“What brought me to Court is the failure over the years since December, 1992 of the Sunday Independent to simply print a

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retraction of the allegations they made about me and an apology in their paper and a donation to charity. They have refused right along the line to do that. I have been in Court now three times. I do not want to necessarily go into why this is the third case but the fact is that I have, I am determined that my name be cleared. That is why I am here for the third time. It is not easy I have to tell you. It is not easy to sit here and be stripped personally layer by layer going back to my childhood and my family and to have all of this gone over, and the newspapers printing it day after day and being tormented by it and my family having to read it and to read it time after time after time. It is not easy but I am determined to see it through to the end. I am absolutely determined to see it through to the end. I am not a criminal. I am not an indecent person and I will not allow the Sunday Independent or anybody else to say that I am. I will not simply allow it.”

114. The desire to vindicate his reputation is patently obvious from such passage.

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Extent of Publication

115. The article complained of was published by the Appellant in the issue of the Sunday Independent dated the 13th day of December 1992.

116. It is conceded by both parties that the Sunday Independent has a wide circulation throughout the State and is read each Sunday by over a million people.

117. Consequently, the publication of the defamatory matter was widespread and extensive and this is a factor which the jury was entitled to take into account in their assessment of the damages to which the Respondent was entitled.

Conduct of Appellant

118. A jury is also entitled to take into account the whole conduct of the Appellant from the time when the libel was published down to the very moment of their verdict.

119. They may take account of the conduct of the Appellant before action, after action and in Court at the trial of the Action and the fact that no apology, retraction or withdrawal was made in this case.

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120. The fact that no apology, retraction or withdrawal of the allegation made in this case at any stage of the proceedings is of considerable importance.

121. Its importance is highlighted by the following extracts from the proceedings in the second trial and the third trial.

122. In the transcript of the proceedings held on the 28th February 1997 the following exchanges between the Respondent and counsel for the appellant appear on Page 33 thereof and the following pages:-

261. Q. Well is it your case that the Workers Party had no involvement that you knew about whatsoever with illegal activities?

123. A. It is my case in the first place Mr. MacEntee that I am here in this Court suing the Sunday Independent for a gross libel against me, that I am criminal, that I am a drug pusher, that I am a pimp, a forger, and a bank robber. That is my case, that I have been libelled by the Sunday Independent. You clearly have no way of proving that otherwise you would not be putting me thorough this kind of nonsensical cross examination about history. I want the Sunday Independent to withdraw these serious allegations about me. I am not a criminal, I have never been a criminal, I have never been accused of being a criminal in any court. I have never been convicted of being a criminal in any court. That is all I want you to do, is to simply withdraw those gross allegations against me.

262. Q. I have no hesitation Mr. De Rossa in saying that my clients do not contend that you are a criminal?

124. A. Well what is this [INDICATING] what is this, what is this?

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263. Q. It is our case Mr. De Rossa, it is our case Mr. De Rossa that the article does not say that.

125. A. The article says Mr. MacEntee, the article says –

264. Q. We are contending it does say –

126. A. The article says –

“On one side of the argument are those who would find the idea of Democratic Left in Cabinet acceptable. These people are prepared to ignore the Democratic Left Leader, Proinsias De Rossa’s reference to the ‘special activities’ which served to fund the Workers Party in the very recent past.

The ‘special activities’ concerned were criminal Among the crimes committed were armed robberies and forgery of currency.

This world is inhabited by myriad groups, some deal in drugs, prostitution, protection rackets, crimes of which the weakest members of society are invariably the victims.

It is therefore ironic, wickedly so, that a political party claiming to care for the workers should accept funding from ‘special activities’ of a particularly nasty kind There is no doubt that elements of Proinsias De Rossa’s party were involved in ‘special activities’. What remains unproven is whether De Rossa knew about the source of his party’s funds. There is evidence, strengthened by revelations in the Irish Times this week, that De Rossa was aware of what was going on. “[READ]

265. Q. Mr. MacEntee: Read on.

127. A. That is a direct accusation of me being a criminal.

266. Q. Read on the next paragraph?

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A. I will read on –

“If one is to allow him the benefit of the doubt, and why not” –

If one is to allow him the benefit of the doubt, the benefit of the doubt is something you allow to a criminal. It is something you allow to somebody who is in court accused of a serious crime, not a criminal. I am not accused of a serious crime by anybody except by the Sunday Independent. I am asking you to withdraw those allegations. If you are not saying that I am not a criminal then fine, withdraw it and apologise, and get the Sunday Independent to withdraw it and apologise.

267. Q. I am not saying-

A. That is why I am here to establish my character. That is why I am here Mr. Keely.

268. Q. I am not saying, nor is it any part of the case that my clients are making that you are a criminal in any of those senses.

A. In what sense am I a criminal?

269. Q. In no sense.

A. In so sense am I a criminal, so why is the Independent putting me through this cross examination. Why did they put me through four or five weeks of cross examination. Why couldn’t they have said that four years ago when asked for a retraction and a withdrawal.

JUDGE: Well Mr. De Rossa, the strength of your feelings are perfectly clear and the jury will bear them in its minds in due course.

A. Sorry Your Lordship.

JUDGE: But the last question that Mr. MacEntee came around to is one that I think is relevant, and you will probably have no concern about answering. The last specific question he asked you was is it the case that the Workers Party had no contact or concern with unlawful activities or illegal activities.

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A. Yes, exactly, that is the answer, they did not have any such association with criminal activities. I repeat again, that I shouldn’t, if the Independent are not accusing me of being a criminal why have they not withdrawn it and apologised, why?

270. Q. MR. MacENTEE: Because they have not, they have never said that.

A. They said it here in black and white.

In the course of the third trial the transcript of the proceedings held on the 18th day of July 1997 disclose at page 102 thereof that the following exchanges occurred between Counsel for the Appellant and the Respondent:-

“400. Q. We have heard that speech before?

A. I am entitled to continue, you are entitled to ask your questions half a dozen times in a row. I am entitled to restate why I am here. I am not a criminal. I am not in this box because I am a criminal. I am in this box because the Sunday Independent said I was a criminal and I refuse to accept that and I refuse to go away until they withdraw that.

401. Q. Mr. De Rossa, I am saying to you the Sunday Independent does not assert you are a criminal?

A. They do. It is in black and white.

402. Q. They never asserted you were a criminal?

A. In the newspaper.

403. Q. And does not?

A. They have never retracted. It is in black and white.

(73)

404. Q. We will deal with the rest of the article later?

A. It is in black and white. It has never been retracted.

405. Q. We will deal with the rest (INTERJECTION)

A. They have never apologised, never once. If they had done that I would not be here. I would not have been here on the last case, I would not have been here on the previous case. They have persisted, because they have hundreds of millions of pounds to try and destroy me. They have insisted on doing that, they set out to do it in the first place to ensure I didn’t get into Government and now they are so arrogant because of their power and their money they persist in doing it here time and time again and paying you to do it for them.”

128. These passages clearly disclose that what the Respondent required was a withdrawal of the allegations contained in the article and the continued refusal of the Appellant to withdraw such allegations and apologise therefor on the grounds that the article did not allege or mean that the Respondent was a criminal.

129. This was the attitude adopted by the Appellant from the beginning and which obliged the Respondent to institute proceedings for the purpose of vindicating his good name and reputation which he did by the issue of the plenary summons on the 19th day of August 1993.

(74)

130. I have in the earlier portion of this judgment set forth the history of the proceedings. It is not necessary for me to repeat this history other than to repeat that the Respondent was forced to undergo three trials in order to secure vindication of his reputation.

131. The first trial began on the 5th November 1996, lasted 8 days and was aborted by the trial judge because of the actions of the Respondent.

132. The second trial, began on the 25th February 1997, lasted 15 days and proved inconclusive.

133. The third trial, began on the 15th July 1997 and lasted 11 days.

134. During the course of each of those trials the Respondent was subjected to immensely prolonged and hostile cross-examination by counsel for the Appellant.

135. While denying that the words complained of were capable of the meaning alleged by the Respondent that he was a criminal, the Appellant still sought to damage the Respondent by association and made no effort to withdraw the allegation.

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136. Right to the very end of the trial the Appellant contested the right of the Respondent to damages and vindication of his right to his reputation and challenged his motives in bringing the action and his honesty and credibility.

137. In the course of his closing address to the jury, counsel for the Appellant stated, inter alia:-

“(a) On behalf of the Defence, Independent Newspapers, we say that the case which has been brought by the Plaintiff is misconceived and that the picture that the Plaintiff Proinsias de Rossa was trying to print is misleading and false. We say that advisedly in all seriousness.

(b) We say that the case is misconceived as to its motive and its purpose.

(c) We say that this case has been brought by Proinsias de Rossa in an attempt to escape his past.

(d) We say that to present facts and to present the case selectively is an attempt to pull wool over your eyes.

(e) We are asking you to ask yourselves did Proinsias de Rossa tell the whole truth, did he tell you as much about the events which are so relevant in this case as you need to know or did he treat you as

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apiece of material, apiece of cloth where the truth was. I don’t know if you are familiar with the phrase C.M.T., cut make and trim, you make a trim where the material was cut and made and trimmed it in order to suit whatever eventuality arise. What assessment do you make about Proinsias de Rossa’s credibility. Did he give direct answers to direct questions. Do you remember those long answers, did he use Eamonn Dunphy’s words to obscure the meaning. Did he use the mantra, the mantra we all know about as a bolt hole when he was under pressure as a method of avoiding awkward questions. If he did I am asking you to ask yourselves was he really trying to cod you, was he treating you in such a way as to make insult of your intelligence, to give you some of the truth but not the whole truth. He didn’t tell you the whole truth.”

138. These selected extracts from counsel’s closing speech clearly illustrate that throughout the trial the Appellant attacked the bona fides of the Respondent’s claim and his credibility.

139. The Respondent is entitled to recover, as general compensatory damages such sum as will compensate him for the wrong which he has suffered and that

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sum must compensate him for the damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. Such sum should, however, be fair and reasonable and not disproportionate to the wrong suffered by the Respondent.

140. The jury found that the words complained of by the Respondent meant that the Respondent was involved in or tolerated serious crime and personally supported anti-Semitism and violent Communist oppression.

141. If these allegations were true, the Respondent was guilty of conduct, which was not only likely to bring him into disrepute with right-minded people but was such as to render him unsuitable for public office.

142. No more serious allegations could be made against a politician such as the Respondent herein.

143. Having regard to the serious nature of the said libel, its potential effect on the career of the Respondent, and the other considerations as outlined herein, it would appear to me that the jury would have been justified in going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.

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144. The jury assessed damages in the sum of £300,000. This is a substantial sum but the libel was serious and grave involving an imputation that the Respondent was involved in or tolerated serious crime and that he personally supported anti-Semitism and violent Communist oppression.

145. Bearing in mind that a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and not be disproportionate thereto, I am not satisfied that the award made by the jury in this case went beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded and is not disproportionate to the injury suffered by the Respondent.

146. I would dismiss the appeal.

THE SUPREME COURT

No. 282/97

Hamilton, C.J.

Denham, J.

Barrington, J.

Murphy, J.

Lynch, J.

Judgment delivered the 30th day of July, 1999 by The Hon. Mrs. Justice Denham.

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147. The issues on this appeal relate to the level of damages. The facts have been fully stated by the Chief Justice. The Appellant raises three issues for determination: (a) whether the charge to the jury by the judge should contain further guidance on the level of damages; (b) whether the appellate court should subject large awards of damages to a more searching scrutiny than has hitherto been customary; and (c) whether the award of £300,000 was excessive.

148. The Appellant submits that further guidelines on the level of damages should be given to the jury by the judge and by counsel in libel cases. The Appellant proposes a more active role for the judge. Under common law the judge’s role on the issue of the level of damages is minimalist. Historically, the role of the jury in libel actions has been that they are the decision-makers of fact – including the level of damages. It has long been considered that the issue of damages in a libel case is quintessentially a jury function and that its discretion should be unfettered. However, in other jurisdictions in recent times judges have determined on a more active approach. In general, this changed approach has arisen to aid consistency in the administration of justice. In particular, the role of the judge in libel cases has been reconsidered in light of high jury awards in certain jurisdictions.

149. The Respondent submits that the only real issue on this appeal is whether a reasonable jury could have awarded the sum of £300,000 to the Respondent in the circumstances of the case. Counsel submitted that no decision of the European Court of Human Rights suggests that the amount awarded in this case was excessive. Further, it was submitted on behalf of the Respondent that, to the knowledge of the jury, in this case there was a failure by the Appellant to apologise, an attempt at justification, a plea of fair comment was used to introduce evidence damaging by association to the Respondent, there was prolonged and hostile cross-examination over various trials, there were suggestions that the

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150. Respondent was dishonest in the presentation of his case and there were three lengthy trials together with a commission in Moscow at the behest of the Appellant which delayed the start of the third trial following the swearing of the jury and which involved a major escalation of the cost of the proceedings.

Charge to the Jury

151. The learned trial judge gave a charge to the jury in accordance with the current law. No specific guidelines were given in relation to the level of damages;

the charge was general. The learned trial judge referred to and quoted from Barrett v. Independent Newspapers Ltd. [1986] IR 13, which is a classic example of the current law. The learned trial judge spoke to the jury of the type of case Henchy J. was dealing with in Barrett v. Independent Newspapers Ltd . – a statement by a journalist that a politician pulled at his (the journalist’s) beard – which had been held to be defamatory. The learned trial judge asked the jury to compare that allegation with the allegations against Mr. de Rossa, including that he was involved in or tolerated serious crime, supported anti-Semitism and violent communist oppression. In relation to damages, the learned trial judge used the word substantial” repeatedly and said he was not allowed to suggest figures. His precise words were:

“It would not surprise me, Members of the Jury, if you went to the opposite end of the scale and even, apart from Mr. Justice Henchy’s helpful observations, I think that there can be no question in this case but that if your are awarding damages you are talking about substantial damages.

Now as Counsel told you, I am not allowed to suggest to you figures, and Counsel are not allowed suggest to you figures either. I have gone

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as far as I can to help in relation to that question. I don’t think anybody takes issue with the proposition if you are awarding damages they are going to be substantial. Mr. de Rossa at the time was leader of a political party. The political party was seeking to go into government. Damages will be substantial. It is all I can say to you. It is a matter for you to assess what they ought to be, if you are assessing damages.”

[emphasis added]

152. The Appellant submitted that the absence of specific guidelines from the judge on the level of damages, the absence of figures, leads to excessive and/or unpredictable jury awards. It was submitted that the practice of not giving guidelines, inter alia , violates the protection of the freedom of expression guaranteed in the Constitution. On the appropriate level of damages, it was submitted that counsel and the judge ought to be permitted to refer to (a) the purchasing power of any award which the jury might make and the income it would produce, (b) a comparison with the level of awards in personal injury cases, (c) previous libel awards made or approved by the Supreme Court, and (d) the level of award deemed appropriate.

153. The law and practice of the court must enable a due balancing of the constitutional right of freedom of expression and the constitutional right to protection of a person’s good name. The right of freedom of expression is expressly stated in Article 40.6.1 0i of the Constitution of Ireland. There are also relevant unspecified rights protected by Article 40.3.1 0 of the Constitution, such as the right to information. On the other hand, there is the State’s obligation to vindicate the good name of every citizen in the case of injustice. The law of defamation has a key part to play in the protection of the constitutional right to the vindication of the good name of a citizen. In a defamation case the judge should act to achieve a balancing of these constitutional rights.

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154. While the European Convention on Human Rights is not part of the domestic law of the State it is appropriate to consider the Convention when analysing fundamental rights. The rights protected by Article 10 are similar to the rights of freedom of expression and freedom to be informed under the Constitution. In Tolstoy Miloslavsky v. United Kingdom (1995)20 EHRR 442 the European Court of Human Rights held that the Applicant’s rights under Article 10 of the Convention had been violated having regard to the size of the award (which was £ 1,500,000) in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. The Court held (at p.472):

“In this regard it should be noted that, at the material time, the national law allowed a great latitude to the jury. The Court of Appeal could not set aside an award simply on the grounds that it was excessive but only if the award was so unreasonable that it could not have been made by sensible people and must have been arrived at capriciously, unconscionably or irrationally. In a more recent case, Rantzen v. Mirror Group Newspapers Limited , the Court of Appeal itself observed that to grant an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was ‘necessary in a democratic society’ for the purposes of Article 10 of the Convention. It noted that the common law – if properly understood – required the courts to subject large awards of damages to a more searching scrutiny than had been customary.

155. Other common law jurisdictions (other than Ireland and the United Kingdom) are not subject to the European Convention on Human Rights. However, in those

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jurisdictions too the issue of more specific guidelines on the level of damages to the jury has been considered. These cases are noted to illustrate the fact that it is appropriate to reconsider the old common law approach to the charge given by a judge to a jury in libel cases.

156. After some varying approaches the courts in England and Wales have introduced a new guide for the trial judge. In John v. MGN Ltd. [1996] 2 All ER 35 the Court of Appeal held that in assessing compensatory damages in a defamation case a jury could in future properly be referred (a) by way of comparison to the conventional compensation scales in personal injury cases, (b) to previous libel awards made or approved by the Court of Appeal, and (c) there was no reason why the judge, in his charge to the jury, or counsel in their submissions, should not indicate to the jury the level of award which they considered appropriate. It was considered that these changes would buttress the constitutional role of the libel jury by rendering the proceedings more rational and so more acceptable to public opinion.

In Scotland in Girvan v. Inverness Farmers Dairy and Anor. [1996] S.C.L.R. 294 in obiter dicta Lord Abernethy requested a reconsideration in relation to jury decisions on damages in personal injury cases stating:

“In England juries to all intents and purposes no longer sit in cases of personal injuries. But a not dissimilar problem has arisen there in defamation cases, which are still tried by juries and in which it has also been the practice not to suggest any figure which might appropriately be awarded. In recent years some awards in such cases have been so high that they have been seen as quite out of proportion to any damage conceivably suffered and also to the general pattern of awards for pain, suffering and loss of amenities in personal injury cases. The matter was considered very recently by the Court of Appeal in the case of John v. MGN Ltd . the Court decided that the reasons which had previously been given for the practice of not suggesting any figures to the jury were unconvincing and could see no reason why the parties’ counsel, and the judge, should not indicate to the jury what they considered to be an appropriate level of award, the former by way of submission, the latter

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by way of direction. In my opinion the Court of Appeal’s decision and the reasons given for it are compelling. They are also in line with the provisional view expressed by the Law Commission in a recent Consultation Paper (No 140) on non-pecuniary loss in damages for personal injury. In my opinion, urgent consideration should be given to a similar move in civil jury trials in Scotland. In saying this, I am aware that the Rules Council considered the matter fairly recently and apparently decided against any change. I say ‘apparently’ because, so far as I am aware, no decision has ever been publicly announced nor any indication given of the council’s reasoning. But no change has yet taken place. In any event, for the reasons I have given, I would urge that the matter be reconsidered.”

157. In Australia the New South Wales Law Reform Commission (Report 75, September, 1995) recommended that defamation damages should always be assessed by a Judge and not a jury. In Carson v. John Fairfax & Sons Ltd. [1993] 178 C.L.R. 44 Brennan J. held that an attempt to compare awards made in respect of disparate heads of damage is more likely to confuse than to correct. However, the majority of the High Court of Australia said at pp.59-60:

“Although there is authority in this Court to the effect that the quantum of damages is not to be resolved by reference to a norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases, there is much to be said for trial judges offering some guidance on damages – such as inviting the jury to consider the investment or buying power of the amount it might award or perhaps even indicating a range of damages which might be considered appropriate – while ensuring that the jury knows that they are to reach their own decision.”

158. In New Zealand, of the statement cited above Lord Cooke said in Television New Zealand Ltd. v. Quinn [1996] 3 N.Z.L.R. 24 at p.35:

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“There has been no law or practice in New Zealand precluding the Judge from providing guidance to the jury in either of those ways. A reference to investment or buying power, with a practical comparison such as the cost of a house or car, will often be helpful; but is is undesirable to add to the specific duties falling on a Judge in summing up, and in New Zealand I would not go to the length of laying down any requirement to that effect. If the Judge elects not to give that degree of guidance, the quantum of the jury award may be more readily reviewed.

Counsel are certainly entitled in New Zealand to put to the jury the figures or range of figures which they contend to be appropriate.

Suggesting a range of figures is also open to the Judge in New Zealand, provided that he or she makes it clear that his range is not binding on the jury; but it is a course on which in many cases Judges will justifiably refrain from embarking, for selecting the range would be a delicate exercise inviting challenge on appeal. Suggestions of usurpation of the jury’s function could also have added colour. It is significant that, notwithstanding English and Australian legislation giving Judges or appellate Courts a larger role, in New Zealand the Defamation Act, 1992, s.33, provides that, where a verdict is set aside on the ground that the damages awarded are excessive or inadequate, the Court by which the verdict is set aside may, with the consent of the plaintiff and of every defendant against whom the award was made, substitute its own award of damages. Our legislation has thus demonstrated a continuing faith in juries, bearing in mind that by the Judicature Act, 1908, s.19A, any party to civil proceedings in the High Court in which only pecuniary damages are claimed has a prima facie right to trial before a jury.

In so far as the English and Australian authorities now favour comparisons in summings up with personal injuries awards, they of course can have no application in New Zealand, damages for personal injury by accident being substantially excluded by the accident compensation legislation.”

159. The principle of maintaining an appropriate relationship between damages awarded for personal injuries and those awarded for defamation was referred to in Crampton v.Nugawela, (1996)41 N.S.W.L.R.176 (a decision of the Supreme Court of New South Wales, Court of Appeal) by Giles AJA who stated:

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“Mahoney ACJ has discussed the principle elements of loss for which general damages are awarded, namely personal distress, damage to character and reputation, and vindication. His Honour has adverted to the similarity between damages in cases of defamation and damages in cases of personal injury in that both are essentially normative (neither a damaged reputation nor a lost limb has an objective value, and the value is that which is placed upon them by the judge or jury called upon to assess general damages), and to the difference between damages in those two cases in that, while both are said to be compensatory, there are differences in that for which each compensates. Maintaining an appropriate relationship between the scale of values in the two classes of case, as is required by Carson v. John Fairfax and Sons Ltd . (see also in England John v. MGN Ltd. [1996] 2 All ER 35) is itself a normative exercise. Maintaining an appropriate relationship does not impose a straitjacket, but permits recognition of the importance, where necessary, of vindication of a seriously damaged reputation.”

Decision

160. The place of the jury in our legal system as the decision-maker on the issue as to whether there has been a defamation or not has been keenly guarded by the common law. That is not in issue in this case.

161. This appeal raises issues as to the level of damages. The three issues raised by the Appellant relate to the quantum of the damages and the information which may be given to the jury.

162. In principle it is open to the court to provide guidelines on the charge to be given by a judge to a jury in libel cases. No law precludes the giving of guidelines. Whereas this issue was raised in the High Court it was not pursued for reasons explained by counsel. However, it has been argued on appeal and, in the special circumstances of the case, is a matter for decision.

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Further guidelines on levels of damages.

163. In general, I favour the giving of guidelines to a jury on the level of damages. Information does not fetter discretion. If this is perceived as a more active approach by the judge I believe it is in the interest of justice. The legislature could legislate but in its absence more guidelines would, I believe, help juries and the administration of justice. Guidelines would assist in achieving consistent and comparable decisions, which would enhance public confidence in the administration of justice.

164. There is a benefit to the administration of justice in such an approach. Whilst maintaining at all times the paramount position of the jury in determining the damages, specific information would aid decision-making and the maintaining of an appropriate relationship with the awards of damages in other areas. Such information as is deemed appropriate could be given in more specific guidelines.

165. Information should be given to the jury of previous awards in libel cases made or affirmed by the Supreme Court. Already a court may refer to the type of libel in another case. Thus, the learned High Court judge referred to a case ( Barrett v. Independent Newspapers Ltd. ) and said it afforded the jury great assistance in placing the nature of the defamation in a scale, because that revolved around a statement by a journalist that a politician pulled at his beard. It is a short, but useful, extra step to refer to the award. In view of the fact that this is a small jurisdiction and because of the lack of technology to date to keep full and comparative statistics, there would not be very many cases, but I believe they would assist a jury. For example, in this case the words of Finlay C.J. in McDonagh v. News Group Newspapers Limited Unreported, Supreme Court, 23 November, 1993 are relevant and are referred to later in this judgment.

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166. The jury should be able to compare the value of what courts usually award to people in personal injury actions. Compensation is a notional remedy in both instances. The lame do not walk after an award of compensation. The defamed do not cease to have been defamed after an award of damages. An order of damages is an artificial form by which a court gives a remedy to an injured person.

167. It is quite reasonable to have proportionality in the wider scheme of damages. Thus, a reference to a case which imposes a cap on general damages, might be useful. However, rather than reference to general damages in catastrophic injury cases, where there may be issues of consciousness etc., the tariff for injuries such as an eye, a leg or an arm may be helpful. It is entirely reasonable that there be a degree of uniformity, consistency, a sense of comparability, of rationality, in the wider scheme of damages.

168. The place of the jury, which is at the core of a trial on libel, is not diminished by informing it of issues relevant to the proportionality of damages. It does not detract from its function but rather enhances it. In John v MGN Ltd . [1996] 2 All ER 35 Sir Thomas Bingham M.R. stated at pp. 48-49:

“A series of jury awards in sums wildly disproportionate to any damage conceivably suffered by the plaintiff has given rise to serious and justified criticism of the procedures leading to such awards. This has not been the fault of the juries. Judges, as they were bound to do, confined themselves to broad directions of general principle, coupled with injunctions to the jury to be reasonable. But they gave no guidance on what might be thought reasonable or unreasonable, and it is not altogether surprising that juries lacked an instinctive sense of where to pitch their awards. They were in the position of sheep loosed on an unfenced common, with no shepherd.”

169. In Ireland a jury is a well-educated and a conscientious body. It is the decision-making body. However, every person in arriving at a decision is aided by

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comparative, relevant information. It is that type of information which I believe should be given to the jury.

170. There are difficulties in obtaining adequate and correct information on court cases pending modern information technology and modern management of cases and their awards in the Irish court system. There are difficulties arising because of the small nature of the jurisdiction and the consequent lack of volume of cases, in comparison to the volume of cases which arise in a jurisdiction such as England and Wales. There is the variability of the cost of living and related prices. However, the principle that juries be given information, on previous libel awards confirmed or determined by the Supreme Court, on damages in personal injury cases, on the purchasing power of an award and the income it might produce and on the level of award deemed appropriate, may be valuable tools for a jury arriving at a reasonable and proportionate decision. There is nothing in principle which precludes figures being given by counsel or a judge. A comparative study of figures, where appropriate, may be very useful. Consequently, on the first issue – whether the charge to a jury should contain further guidance on the level of damages – I would uphold the Appellants’ submission.

More searching scrutiny

171. The second issue raised by the Appellant, as to whether the appellate court should subject large awards of damages to a more searching scrutiny than hitherto has been the custom, follows logically from the first issue. The Appellant submitted that the correct approach under the common law and the Constitution was that set out by Neill L.J. in Rantzen v. Mirror Group Newspapers (1986) Ltd. [1993] 4 All ER 975 at p.994:

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“… it seems to us that the grant of almost limitless discretion to a jury fails to provide a satisfactory measurement for deciding what is ‘necessary in a democratic society’ or ‘justified by a pressing social need’. We consider therefore that the common law if properly understood requires the courts to subject large awards of damages to a more searching scrutiny than has been customary in the past. It follows that what has been regarded as the barrier against intervention should be lowered. The question becomes: could a reasonable jury have thought that this award was necessary to compensate the Plaintiff and to re-establish his reputation?”

172. The necessity to be more specific on the concepts of a reasonable decision and proportionality was referred to by Carswell LCJ in McCarton Turkington and Breen v. Times Newspapers Ltd. [1998] N.I. 358 , 381 , after reviewing the changes in the law of the United Kingdom:

“What the jury should in my view receive from the judge is guidance of a more concrete nature pointing their minds towards a level of damages which represents a proper and proportionate solatium. It is of limited assistance to jurors to tell them that the level of damages must be proportionate, for it gives them no more practical guide then telling them to be reasonable. It is of much more practical assistance to give them comparisons with accepted levels of damages for personal injuries, with a suitable caveat, or details of previous awards made by the Court of Appeal in this jurisdiction or in England.”

173. The Court of Appeal in Northern Ireland compared the publication in question with others published and considered carefully the award in each. The Court analysed other decisions of the Court of Appeal in England on excessive damages and compared and contrasted the amounts therein, before determining that the amount was excessive in that case.

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174. The principle of Irish law regarding an appeal against the amount of damages was described in Barrett v. Independent Newspapers Ltd . [1986] IR 13 by Finlay C.J. at p.19 as follows:

“Firstly, whilst the assessment by a jury of damages for defamation is not sacrosanct in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy. Secondly, it is clear that whilst the damages in this case at least, where no question of punitive or exemplary damages arises, are fundamentally compensatory in form, that the plaintiff is entitled not only to be compensated for the damage to his reputation arising from the publication of the defamation, but also for the hurt, anxiety and distress to him arising by its publication and by the subsequent conduct of the defendant right up to the time of the assessment of the damages.”

175. However, in spite of the special sanctity referred to of the jury assessments Irish law requires that the decision of the jury be reasonable and proportionate. In Barrett v. Independent Newspapers Ltd . Finlay C.J. determined at p.20:

“… notwithstanding the fact that this is clearly a case in which a jury would be entitled to award really substantial damages … the sum of £65,000 awarded by the jury is so far in excess of any reasonable compensation for the allegation which was made, that it should be set aside.”

176. In the same case Henchy J. stated at p.23:

– 15 –

177. Henchy J. referred to the lack of help given to the jury in assessing damages. He stated at pp. 23-24:

“The fact remains, however, that the jury were not given any real help as to how to assess compensatory damages in this case. A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of, namely, that in an excess of triumphalism at his leader’s success the plaintiff attempted to tweak the beard of an unfriendly journalist. The jury might have been asked to fit that allegation into its appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected. Had they approached the matter in this way, I venture to think that having regard to the various kinds of allegations of criminal, immoral and otherwise contemptible conduct that might have been made against a politician, the allegation actually complained of would have come fairly low in the scale of damaging accusations.”

178. He then referred to the sum awarded and held at p.24:

“The sum awarded, however, is so high as to convince me that the jury erred in their approach. To put it another way, if £65,000 were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exaltation, the damages proper for an accusation of some heinous and premeditated criminal conduct would be astronomically high.”

179. The necessity of reasonableness and fairness was noted by Henchy J. He stated at p.24 that:

“ … a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view,the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand. I would allow the appeal …”

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180. In these statements Henchy J. is making a comparative analysis of awards in jury cases. I can see no reason in principle why this should not be available to a jury. I agree with the approach of Henchy J. and adopt it. Whilst there is a special sanctity in respect of jury assessments in libel trials the decision must be reasonable and proportionate. It may be reviewed on appeal on such criteria.

181. The quest to determine in the appellate court whether the decision is reasonable and proportionate could be supported by guidelines on damage levels to the jury in the High Court, which could be replicated in the appellate court. This approach enables the system to be more consistent and comparative and to be seen to be more rational.

Was the award excessive?

182. On the third issue – whether the award of £300,000 was excessive – a recent decision of the Supreme Court is most helpful. In McDonagh v. News Group Newspapers Limited (Unreported, Supreme Court, 23rd November, 1993) which was a case where, inter alia, the words were determined to mean and be understood to mean that the Plaintiff was a sympathiser with terrorist causes, Finlay C.J. pointed out at p.15 of his judgment:

“… I am satisfied that there are not very many general classifications of defamatory accusation which at present in Ireland, in the minds of right-minded people, would be considered significantly more serious.”

183. He also pointed out that by reason of the person involved the seriousness may be somewhat aggravated, saying, again at p.15:

“To an extent the seriousness may be somewhat aggravated by the fact that it is an accusation which has been made against a person who has a

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role, by reason of his profession and by reason of his standing as a member of the Bar, in the administration of justice.”

184. Having described the function of a lawyer in the situation he continued at p. 1 6:

“The combined accusations made against the Plaintiff are that he failed or was likely to fail completely to do that, and that instead as a piece of major professional misconduct he abused the function which had been entrusted to him by his client.”

185. Of the amount of damages awarded by the jury, £90,000 for libel, he concluded at p.17:

“A statement which makes that accusation and in addition makes the accusation of sympathy with terrorist causes would be extraordinarily damaging to any person, irrespective of their calling or profession. I, as I have indicated, take the view that the assessment of damages made by this jury, though undoubtedly high and at the top end of the permissible range, is not beyond that range in the sense that it is so incorrect in principle that having regard to the general approach of an appellate court to damages assessed by a jury for defamation it should be set aside. I would, therefore, dismiss the appeal.”

186. There are strong similarities between the facts of that case and this case. Both plaintiffs have a standing of importance in the community. Both sets of words related to very serious defamatory matters. However, the award in the McDonagh case was considered to be at the top of the permissible range. There were additional aggravating matters in this case, as set out previously. But even allowing for the aggravating factors in this case it is clear that the award is “beyond that range in the sense that it is so incorrect in principle” that it should be set aside.

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187. In light of the principles as previously set out I am satisfied that the amount was excessive and should be reduced to £150,000.

Conclusion

188. In principle it is open to the Court to provide guidelines on the charge to be given by a judge to a jury in libel cases. Guidelines on levels of damages given by a judge would aid the administration of justice. Guidelines would give relevant information and aid comparability and consistency in decision-making. Such guidelines would relate only to the level of damages – not the kernel issue as to whether or not there had been defamation. Thus, such guidelines would not impinge of the area traditionally viewed in common law jurisdictions as a matter quintessentially for the jury. More specific guidelines on the level of damages would help juries and the administration of justice by bringing about more consistent and comparable awards of damages and awards which would be seen as such. Specific guidelines would also inform an appellate court in its determination as to whether an award is reasonable and proportionate. The award in this case was excessive and on the principles of reasonableness and proportionality I would reduce it to £150,000.

O’Brien v. Mirror Group Newspapers Ltd.

[2000] IESC 70

Judgments by Keane C.J., Denham J. and Geoghegan J.; Murphy J. and O’Higgins J. agreed with Keane C.J.

JUDGMENT delivered the 25th day of October 2000 by Keane C.J.

INTRODUCTION

1. This is an action for libel. The plaintiff is a well known and successful businessman: he holds, among others, the positions of Chairman of Esat Digifone, Esat Telecom and 98 FM. The first named defendant is the publisher of a newspaper called the Irish Mirror, of which the second named defendant is the Editor in Chief. The third and fourth named defendants are respectively the editor of the Irish edition and a journalist employed by the newspaper who wrote the article which gave rise to the action.

(2)

2. The article in question appeared in the issue of the newspaper of the 10th June 1998 under the heading

“BURKE IN NEW £30,000 PROBE EXCLUSIVE BY KARL BROPHY.”

3. It was on the front page and began as follows:

“Former Minister Ray Burke is to be investigated for a THIRD alleged payment of £30,000, the Mirror revealed today.”

“The Flood Tribunal is to probe an anonymous claim that Mr. Burke received the donation from top radio boss, Denis O’Brien in 1989. According to the confidential letter – seen by the Irish Mirror – the former Dublin North TD allegedly received a donation of £30,000 when he was Minister for Communications responsible for the allocation of radio licences in Ireland.”

“Mr. O’Brien’s application for a licence for a station, 98 FM, was one of the two successful tenders for the lucrative Dublin area at that time.”

“Mr. Burke performed the new station’s official opening in November 1989. No evidence has yet been uncovered to support the allegations made in the note.”

“This may be a totally malicious effort to smear either Mr. Burke or Mr. O’Brien but the letter contains detailed allegations, said a top political source last night.”

(3)

4. The article went on to refer to a total of eleven questions which had been sent to the plaintiff’s office concerning the allegations. The plaintiff was not prepared to answer four of the questions. Of the remaining questions, four were of particular relevance to these proceedings: the questions and answers were as follows:-

“Have you, or a company in which you are involved, ever made a single donation of, or in excess of, £3,000 to Mr. Raphael Burke?

ANSWER: No.

7. Did Mr. Raphael Burke, or agents on behalf of him or his political party, ever request a donation from you or a company in which you are, or were, involved? If so, how much was requested and was this request made before or after the awarding of the local radio licence to 98 FM?

ANSWER: No.

8. Did you ever feel that Mr. Raphael Burke, or agents on behalf of him or his political party, ever insinuated that if he made a donation to either him or his political party, the application for a radio licence for 98 FM would be favourably considered?

ANSWER: No.”

5. The article went on to refer to the possible political implications of the allegation being made against the plaintiff and concluded:-

“Denis O’Brien, the man who is alleged to have made the latest £30,000 donation, is no stranger to political controversy. His hugely successful mobile phone company, Esat Digifone, beat off heavy international

(4)

competition to win Ireland’s second mobile telephone operating licence which was awarded by disgraced former Minister Michael Lowry in 1996. “The decision on the granting of licences was taken despite the fact that no official memorandum was ever taken to the Cabinet Meeting that was chaired by then Taoiseach John Bruton.

“However, a number of investigations carried into the awarding of the licence uncovered no impropriety.”

6. The article also gave details of Mr. O’Brien’s career and stated that the awarding of the licence to Esat Digifone would be examined by the Tribunal of which the sole member is Moriarty J. and which is at present investigating certain payments to politicians. It concluded, however, that

“Mr. O’Brien is confident the decision will stand after four previous investigations failed to turn up wrong doing.”

7. The plaintiff thereupon instituted these proceedings claiming damages for libel and pleading that the words meant, and were understood to mean, that

“(a) the plaintiff had paid a sum of money, described as £30,000, to Mr. Raphael Burke when he, Mr. Burke was a member of the government,

(b) the plaintiff paid the said money by way of a bribe to the said Mr. Burke,

(c) the plaintiff paid the said money for the purpose of securing benefits for himself and his business enterprises,

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(5)

(d) the plaintiff paid the said money for the purpose of securing a licence to broadcast for a radio station known as 98 FM,

(e) the plaintiff obtained benefits, including the said licence to broadcast, by corrupt means,

(f) the said radio licence was awarded to the plaintiff and his company on foot of the said alleged payment to Mr. Burke,

(g) the plaintiff had engaged in corrupt behaviour which warranted investigation by the tribunal established by resolution of the Houses of the Oireachtas and of which the sole member is the Honorable Mr. Justice Fergus Flood of the High Court,

(h) the investigation referred to in the next preceding paragraph would result in the uncovering of corrupt practices by the plaintiff on his own behalf and on behalf of his commercial companies,

(i) the plaintiff secured, or was instrumental in securing, a licence for the company, Esat Digifone, in circumstances which gave rise to suspicion of corrupt practices,

(j) the plaintiff was and is guilty of criminal conduct,

(k) the plaintiff’s conduct and behaviour warrants investigation by the appropriate legal authorities,

(l) the plaintiff should be prosecuted, tried and convicted of corruption and should suffer the full penalty of the law,

(m) the plaintiff is not fit or worthy to hold his position in the business community or the companies of which he is chairman.”

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(6)

8. In their defence, the defendants denied that the words complained of bore or were understood to bear or capable of bearing these meanings. They pleaded that the words complained of meant or were understood to mean that an anonymous letter had been sent to the Flood Tribunal making the allegation in question, that the Flood Tribunal would investigate the allegation and that the award of a mobile telephone licence to Esat Digifone had previously been investigated without any impropriety being found. To that extent, they pleaded that the words complained of were true in substance and in fact.

9. The action came on for hearing before McGuinness J. and a jury in the High Court. The following questions were left to the jury:

“In its natural and ordinary meaning or by way of innuendo does the article mean

(1) that the plaintiff had paid £30,000 to Mr. Raphael Burke then a member of the Government by way of a bribe?

(2) that the plaintiff paid the said money for the purpose of securing a licence for the radio station 98 FM?

(3) that the licence for the radio station 98 FM was awarded to the plaintiff and its company on foot of the said alleged payment to Mr. Burke?

(4) that the plaintiff secured a licence for the company Esat Digifone in circumstances which give rise to a suspicion of bribery or corrupt practices?

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(5) that the plaintiff had engaged in corrupt practices which warranted investigation by the Flood Tribunal?

If the answer to any of the questions 1 -5 is yes, assess damages.”

10. The jury answered each of the questions 1 – 5 in the affirmative and assessed damages at £250,000. Judgment was accordingly entered for that sum and costs. The defendants have now applied to this court, by way of appeal, for an order setting aside so much of the verdict as assessed the damages at £250,000 and ordering a new trial of the action on this issue or, in the alternative, substituting a lower amount for the amount of £250,000.

11. The plaintiff has cross appealed against the refusal of the learned trial judge to leave the issues of aggravated, punitive and/or exemplary damages to the jury and has sought the assessment by this court of such damages or, in the alternative, in the event of an order directing a retrial, an order that these issues be also tried by the jury. He has also appealed against an order of the learned trial judge making no order as to the costs of a previous trial and seeks an order awarding him the costs of that trial.

12. The grounds set out in the defendant’s notice of appeal can be summarised as follows:-

(1) that the damages awarded were excessive;

(2) that the appropriate test for determining whether the assessment of damages by a jury should be set aside is whether the assessment was one

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(8)

which a reasonable jury would have thought necessary to compensate the plaintiff and re-establish his reputation;

(3) alternatively, that the size of the award was one which no reasonable jury could have made in the circumstances of the case and was so unreasonable as to be disproportionate to the injury done to the reputation of the plaintiff;

(4) that the learned trial judge misdirected the jury on the issue of damages in that counsel ought to have been permitted to refer and the judge ought to have referred

(a) to the purchasing power of any award which the jury might be minded to make and the income that it would produce;

(b) by way of comparison, to compensation scales in personal injury cases and previous libel awards made or approved by the Supreme Court;

(c) to the level of awards which counsel and the trial judge respectively considered to be appropriate;

(5) that the rules of law or practice restraining counsel and the trial judge in defamation trials from offering guidance of this nature are inconsistent with the provisions of the Constitution;

(6) that the size of the award was a violation of the legal and constitutional rights of the defendant and was an interference with the right of the defendant to freedom of expression in breach of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 40 of the Constitution.

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(9)

13. As was made clear in the written and oral submissions on behalf of the defendants, in relying on grounds (4) to (6) above the defendants were inviting this court to depart from its recent decision in De Rossa .v. Independent Newspapers Plc. Supreme Court, 30 July, 1999, unreported. In that case, to which it will be necessary to refer in considerably more detail at a later stage, a majority of the court (Hamilton C.J., Barrington J., Murphy J. and Lynch J.) declined to apply in this jurisdiction the decision of the English Court of Appeal in John .v. MGN Limited [1996] 2 All ER 35 in which it was held that guidance of this nature on the assessment of damages should be given by trial judges to juries. In a dissenting judgment, Denham J. concluded that guidance of this nature should be provided.

14. As to ground (4), it was conceded on behalf of the defendants that the learned trial judge had properly charged the jury in this case in accordance with the law as stated by this court and that no criticism could be made of the directions on law which she gave to the jury.

15. There are, accordingly, five possible issues which arise for consideration:

(1) Having regard to the jurisprudence of this court as to the extent to which it is free to depart from its previous decisions, it should reconsider its decision in De Rossa

(2) If the court does consider itself free to reconsider that decision, whether it should now treat it as wrong in law;

(3) whether, in any event, applying the principles stated in De Rossa and earlier decisions of this court, the jury’s assessment of damages should be set aside;

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(10)

(4) whether the trial judge was wrong in law in refusing to leave the issue of aggravated and for exemplary or punitive damages to the jury; and

(5) whether the plaintiff shall have been awarded the costs of the earlier trial.

16. Clearly, if the defendants’ appeal is successful in relation to both (1) and (2) above, that, of itself, will require the setting aside of the jury’s verdict.

Stare decisis in the Supreme Court

In Attorney General and Another .v. Ryan’s Car Hire Limited [1965] IR 642 at p. 654, Kingsmill Moore J. explained the new approach being adopted by the court to the rule of stare decisis as follows:-

“However desirable certainty, stability and predictability of law may be, they cannot in my view justify a court of ultimate resort in giving a judgment which they are convinced, for compelling reasons, is erroneous. Lord Halsbury himself [in London Street Tramways Company .v. London County Council [1898] AC 375] was forced to make some modification. Faced with the hypothesis that a case might have been decided in ignorance of the existence of some relevant statutory provision or in reliance on some statutory provision which was subsequently discovered to have been repealed, he suggested that it would not be a binding authority because it was founded on a mistake of fact. The same reasoning would be applicable if the decision were given in ignorance of an earlier authority of compelling validity. Where a point has been entirely overlooked or conceded without argument, the authority of a decision may be weakened to vanishing point.

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(11)

In my opinion, the rigid rule of stare decisis must in a court of ultimate resort give place to a more elastic formula. Where such a court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases. What are exceptional cases? I have already given some examples of cases which I would consider exceptional, but I do not suggest that these closed the category and I do not propose to attempt to make a complete enumeration.”

17. Further guidance on the topic is to be found in the judgment of Henchy J. in Mogul of Ireland .v. Tipperary (NR) County Council [1976] IR 260 at p. 272:-

“A decision of the full Supreme Court (be it the pre-1961 or the post-1961 (Court,), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice. However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least, be clearly of opinion that the earlier decision was erroneous. In Attorney General .v. Ryan’s Car Hire Ltd ., the judgment of the Court gave examples of what it called exceptional cases, the decision in which might be overruled if a later court thought them to be clearly wrong. While it was made clear that the examples given were not intended to close the category of exceptional cases, it is implicit from the use in that judgment of expressions

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(12)

such as ‘convinced’ and for compelling reasons’ and ‘clearly of opinion that the earlier decision was erroneous’ that the mere fact that a later Court, particularly a majority of the members of a later Court, might prefer a different conclusion is not in itself sufficient to justify overruling the earlier decision. Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies….

“We are concerned here with a pure question of statutory interpretation which was fully argued and answered in [ Smith .v. Cavan and Monaghan County Councils [1949] IR 322] after mature consideration. There are no new factors, no shift in the underlying considerations, no suggestion that the decision has produced untoward results not within the range of that court’s foresight. In short, all that has been suggested to justify a rejection of that decision is that it was wrong. Before such a volte-face could be justified it would first have to be shown that it was clearly wrong. Otherwise the decision to overrule it might itself become liable to be overruled. In my opinion, counsel for the applicants have, at most, established no more than that the interpretation for which they contend might possibly be preferred to that which commended itself to the court in Smith’s case. That is not enough. They should show that the decision in Smith’s case was clearly wrong and that justice requires that it should be overruled. They have not

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(13)

done so. I would therefore decline the invitation to overrule the decision in Smith’s case.”

18. The court is not in this case concerned with a pure question of statutory interpretation. However, I am satisfied that the observations of Henchy J. in that case should not be confined to cases in which the courts are concerned with the interpretation of a statute. It is, accordingly, necessary to consider the application of those principles, and the statement of the law by Kingsmill Moore J. in the earlier decision, to De Rossa .

Rossa .v. Independent Newspapers Plc.

19. The plaintiff in that case brought proceedings for libel arising out of an article published in the Sunday Independent which he said meant, and was understood to mean, that he was aware of criminal activities of a serious nature on the part of a political party of which he was the leader and had tolerated those activities. At the time the article was published, the plaintiff was engaged in negotiations with leaders of other political parties with a view to participating in a proposed coalition government, a fact which was referred to in the article itself. In their defence, the defendants admitted that the words complained of meant that the plaintiff was now the leader of a party which had previously received funds raised as a result of criminal activities, but, save to that extent, denied that words complained of bore, or were capable of bearing, the meanings assigned to them by the plaintiff.

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(14)

20. There were three trials of the action. The first lasted eight days, at which stage the jury were discharged because of the actions of the defendants. The second trial lasted fifteen days and resulted in a disagreement by the jury. The third trial lasted eleven days. During the course of each of the trials, the plaintiff was subjected to what were described in the judgment of Hamilton C.J. as

“immensely prolonged and hostile cross examinations”

by counsel for the defendants.

21. The following questions were submitted to the jury and answered by them as follows:-

“1. Do the words complained of mean –

(a) that the plaintiff was involved in or tolerated serious crime?

ANSWER: Yes

(b) that the plaintiff personally supported anti-semitism and violent communist oppression

ANSWER: Yes

2. If the answer to 1. or any part thereof is ‘yes’ assess damages

ANSWER: £300,000.”

22. The defendants appealed against the assessment of damages by the jury. On the hearing of the appeal, it was conceded on their behalf that the trial judge had directed the jury in accordance with the generally accepted practice, but it was submitted that this was a practice which was inconsistent with the provisions of the Constitution and of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was submitted that, in order to bring the law into conformity with the

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(15)

23. Constitution and the Convention, specific guidelines should be given by the trial judge and counsel to the jury in defamation actions and that they should include

(a) a reference to the purchasing power of any award which the jury might be minded to make and the income which the award would produce;

(b) a reference to what the trial judge and counsel considered to be the appropriate level of damages;

(c) a reference by way of comparison by counsel and the trial judge to awards made in respect of personal injuries and to awards made in previous libel cases.

24. The defendants relied in support of those submissions on the decision of the English Court of Appeal in John .v. MGN Ltd . and of the Court of Human Rights in Tolstoy Miloslavsky .v. The United Kingdom, [1995] 20 EHRR 442.

25. The arguments advanced in that case, on behalf of the defendants, were, accordingly, virtually identical with those advanced on behalf of the appellants in the present case. In a lengthy written judgment with which Barrington J., Murphy J. and Lynch J. agreed, Hamilton C.J., having cited in full the relevant provisions of the Constitution and the Convention and cited extensively passages from earlier judgments of this court, of the Court of Appeal and House of Lords in England and of the Court of Human Rights in Tolstoy, concluded that the existing practice was not inconsistent with the Constitution or the Convention and that the guidelines proposed by the English Court of Appeal should not be adopted in this jurisdiction. He went on to deal with the alternative argument on behalf of the appellants – that the award of damages was in any

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(16)

event excessive – and concluded that the damages, although substantial, were not disproportionate to the injury suffered by the plaintiff and that the award should not be set aside.

26. In a dissenting judgment, Denham J., who also reviewed at some length the relevant authorities in this and other jurisdictions, concluded that the guidelines recommended by the Court of Appeal in John should be adopted in this jurisdiction. She was also satisfied that, in any event, the award of damages in that case was excessive and, on principles of reasonableness and proportionality, would have reduced it to £150,000.

27. It was not suggested by counsel for the appellants in the present case that the majority decision in De Rossa was given in ignorance of an earlier authority of compelling validity or that a relevant point had been entirely overlooked or conceded without argument. The decision was, however, criticised on two grounds.

28. First, it was submitted that, although the decision of the European Court of Human Rights in Tolstoy Miloslavsky .v. United Kingdom , which had been strongly relied on on behalf of the defendants in that case, was discussed in the judgment of Hamilton C.J., the judgment had insufficient regard to some important features of the decision and in particular to paragraphs 46 to 51 inclusive of the judgment.

29. Secondly, it was submitted that, while the judgment also considered the decision of the Court of Appeal in John, it proceeded on what was said to be the erroneous basis

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(17)

that the criteria laid down by this court in Barrett .v. Independent Newspapers Limited [1986] IR 13, for determining whether an award of damages in a defamation action by a jury should be set aside on appeal were consistent with the requirements of Article 10 of the Convention and Article 40.6.1 of the Constitution.

30. In considering these criticisms, it is necessary to refer at the outset to Tolstoy. The plaintiff in the proceedings which gave rise to the case in the European Court, Lord Aldington, had been awarded damages for libel of £1,500,000 by a High Court jury. The defamatory statements appeared in a pamphlet written by the applicant and it was not in issue in that court that the defamation was of so serious a nature as to justify a very substantial award of damages.

31. The first ground of challenge to the award in the European Court was that the law in England as to the respective roles of the judge and jury in libel actions was such that it would have been impossible for his legal advisers to predict that an award of these dimensions would have been made and that, accordingly, the interference with the applicant’s right to freedom of expression which the award constituted was not “prescribed by law” within the meaning of Article 10(2) of the Convention. This argument was rejected by the court.

32. The second ground of challenge was that the interference with the plaintiff’s right to freedom of expression constituted by the award was not “necessary in a democratic society” within the meaning of Article 10.2, since the amount of the damages awarded was disproportionate to the legitimate aim of protecting Lord Aldington’s

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(18)

reputation or rights. The applicant relied on the fact that, since the award in the instant case had been made, the Court of Appeal itself had decided in Rantzen .v. Mirror Group Newspapers (1986) Ltd. [1993] 4 All ER 975, that the existing law allowed too great a latitude to the jury. The European Court upheld the applicant’s challenge on this ground.

33. In the course of the judgment, the court, having observed that the approach adopted in the different Contracting States in this area may differ greatly from one state to another and that the competent national authorities, being better placed than the European Court to assess the matter, should enjoy a wide margin of appreciation, summed up their conclusions as follows:-

“49. On the other hand, the fact that the applicant declined to accept Lord Aldington’s offer to settle for a lesser sum does not diminish the United Kingdom’s responsibility under the Convention in respect of the contested damages award.

“However, the Court takes note of the fact that the applicant himself and his counsel accept that if the jury were to find libel, it would have to make a very substantial award of damages. While this is an important element to be borne in mind it does not mean that the jury was free to make any award it sought if it since, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.

“The jury had been directed not to punish the applicant but only to award an amount that would compensate the non-pecuniary damage to Lord

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(19)

Aldington. The sum awarded was three times the size of the highest libel award previously made in England and no comparable award has been made since. An award of the present size must be particularly open to question where the substantive national law applicable at the time fails itself to provide a requirement of proportionality.

“50. In this regard it should be noted that, at the material time, the national law allowed a great latitude to the jury. The Court of Appeal could not set aside an award simply on the grounds that it was excessive but only if the award was so unreasonable that it could not have been made by sensible people and must have been arrived at capriciously, unconscionably or irrationally. In a more recent case, Rantzen . v. Mirror Group Newspapers Limited the Court of Appeal itself observed that to grant an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was ‘necessary in a democratic society’ for the purposes of Article 10 of the Convention. It noted that the common law – if properly understood -required the courts to subject large awards of damages to a more searching scrutiny than had been customary. As to what guidance the judge should give to the jury, the Court of Appeal stated that it was to be hoped that in the course of time a series of decisions of the Court of Appeal taken under s. 8 of the Courts and Legal Services Act, 1990 would establish some standards as to what would be ‘proper’ awards. In the meantime the jury should be invited to consider the purchasing power of any award which they might make and to ensure that any award they made was proportionate to the damage which the plaintiff had suffered and was a sum which was

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necessary to award him to provide adequate compensation and to re-establish his reputation.”

“The court cannot but endorse the above observations by the Court of Appeal to the effect that the scope of judicial control, and on appeal, at the time of the applicant’s case did not offer adequate and effective safeguards against a disproportionately large award.

“51. Accordingly, having regard to the size of the award in the applicant’s case and in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award, the Court finds that there has been a violation of the applicant’s rights under Article 10 of the Convention.”

34. In his judgment in De Rossa Hamilton C.J., having cited in full the passage I have just quoted from the judgment of the court in Tolstoy, summarises the effect of the passage as follows:

“It is clear from the foregoing that the primary reason for the court’s decision was the size of the award and the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. It recognised, however, that an award of damages must bear a reasonable relationship of proportionality to the injury to reputation suffered.”

“The court gave approval to the guidance to be given to a jury as laid down by the Court of Appeal in Rantzen’s case.”

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35. I find it difficult to understand, in the light of that passage, how it can seriously be suggested that the judgment of the learned Chief Justice in De Rossa rested on any misunderstanding whatever as to the nature of the decision in Tolstoy.

36. As to the second ground of criticism, it is certainly the case that, having set out in full the observations of Henchy J. in Barrett .v. Independent Newspapers Ltd. in which he made it clear that the test for determining whether an award should be set aside as being excessive was whether it was so disproportionately high that it should not be allowed to stand, Hamilton C.J. went on to say:

“The obligations arising from the provisions of the Constitution and the Conventions are met by the law of this State which provides that the award must always be reasonable and fair and bear a due correspondence with the injuries suffered and by the requirement that, if the award is disproportionately high, it would be set aside.”

37. It is clear that, in arriving at that view, the learned Chief Justice was influenced by the fact that, as is beyond argument, two factors determined the outcome of the decision in Tolstoy, i.e. the size of the award and the state of the law before Rantzen. If the award had been significantly lower and could be regarded as being proportionate to what was admitted to be a very serious libel indeed, the result might have been different.

38. That is a view of the decision in Tolstoy, with which, of course, issue can legitimately be taken. But that is not what is urged upon us in this case. We are being

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asked to hold that not merely is the carefully considered and reasoned view of Hamilton C.J. wrong: we are being asked to hold that it is so “clearly wrong” that there are now “compelling reasons” why it should be overruled and that, indeed, justice requires that it be overruled.

39. The court, moreover, was invited to overrule the decision less than a year after it was pronounced. There is, of course, no guarantee whatever that, were it to be so overruled, within a relatively short period of time the court might not be persuaded that this decision in turn was “clearly wrong” and must itself be overruled. The stage would have been reached at which the doctrine of stare decisis in this court would have been seriously weakened and the certainty, stability and predictability of law on which it is grounded significantly eroded.

40. In addition, the court is urged to overrule the decision on the ground that, apart altogether from the two criticisms advanced of the reasoning in the majority judgment, the court should in any event have followed the decision of the Court of Appeal in John as to do otherwise would be to fail to give effect to the guarantees of freedom of expression contained in the Constitution and the Convention. The observations I have already made as to the two grounds of criticism apply with equal force to that submission. Having cited extensively from the judgments of the Court of Appeal in Rantzen and John, Hamilton C.J. said:-

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a figure from the judge representing his opinion as to the appropriate level of damages, figures with regard to damages made or approved by the Court of Appeal in previous libel actions and figures with regard to damages in personal injuries actions and at the same time be subject to the direction of the trial judge that it is not bound by such figures and must make up its own mind as to the appropriate level of damages.”

“It is accepted by all that, even if the giving of such guidelines and figures were permissible, the jury would not be bound by such figures and was under an obligation to make up its own mind as to the appropriate level of damages.”

“I am satisfied that the giving of such figures, even though only by way of guideline, would constitute an unjustifiable invasion of the province or domain of the jury.”

“The assessment of damages in a defamation action instituted in the High Court was always a matter for the jury and that was not in any way altered by the provisions of the Courts Act, 1988, which provided that certain actions, including claims for damages for personal injuries, should not be tried by a jury.”

41. The learned Chief Justice went on to express his preference for the conclusion reached in Rantzen’s case to that reached in John’s case on the question as to whether or not references to awards in personal injuries actions should be permitted. The view in the former case had been that they should not be referred to and the learned Chief Justice pointed out that in Cassell and Co. Limited .v.Broome [1972] 1 All ER 801 at

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824, Lord Hailsham L.C. had made it clear that there were serious difficulties in comparing awards of damages for libel with damages for personal injuries.

42. Finally, the learned Chief Justice drew attention to what he considered an important feature of the decisions in Rantzen and John, i.e. that they followed the enactment in England and Wales of s. 8(2) of the Courts and Legal Services Act, 1990 and the introduction of RSC Order 59, r. 11(4) empowering the Court of Appeal for the first time to substitute for the sum awarded by the jury such sum as appeared to the court to be proper. In this jurisdiction, of course, the court has for some time now been prepared in actions for damages for personal injuries to substitute for the sum awarded by the High Court such sum as the court thinks appropriate. That power, however, has never been exercised by the court in cases of defamation.

43. Again, a different view could legitimately be taken from that expressed by Hamilton C.J. and assented to by the majority. However, for the reasons I have already given when considering the first ground of criticism, I have no doubt that that fact of itself could not justify this court in overruling the decision.

44. In my view, accordingly, the appeal in the present case should be dealt with on the basis that the law is as stated in the judgment of Hamilton C.J. in De Rossa . It follows, as was conceded on behalf of the defendants, that the award in this case cannot be set aside on the ground that the learned trial judge did not follow the guidelines laid down by the Court of Appeal in John and directed the jury as to the law in accordance

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with De Rossa . I am satisfied, accordingly, that the appellants cannot succeed in this appeal on the first two issues which I have identified.

Whether the award should be set aside as disproportionately high

45. The second issue is as to whether the award should in any event be set aside, applying the law as laid down in Barrett and De Rossa . In considering that issue, I think it is important to bear in mind that there is nothing in the judgments of Henchy J. in Barrett or Hamilton C.J. in De Rossa to indicate that this court is precluded, on the hearing of an appeal, from determining the appeal in the light of awards in other defamation cases which have been the subject of appeals to this court. No doubt a degree of caution is called for in making such comparisons, since in cases of defamation, more perhaps than in almost any other action in tort, the facts which have to be considered by the jury vary widely from case to case. Moreover, as Lord Hailsham pointed out in Cassell and Co. Limited .v.Broome , when drawing the distinction between damages in defamation cases and damages for personal injuries

“What is awarded is …a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.”

46. Provided those qualifications are borne in mind, some assistance may be obtained from the views expressed by this court as to the damages awarded in particular cases when those awards were either upheld or set aside.

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47. The general principle which must be applied is as stated by Henchy J. in Barrett in the following passage:-

“a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It was so disproportionately high that in my view it should not be allowed to stand.”

48. It is accepted that the award of damages in this case, if it is not set aside by this court, will be the second highest award of damages so upheld, the highest being the award in De Rossa . In my view,subject again to the qualifications, I have emphasised, it is legitimate to compare the award in this case with De Rossa for the purpose of determining whether it is so disproportionately high that it should not be allowed to stand.

49. The award can also, in my view, be legitimately compared with the award in McDonagh .v. Newsgroup Newspapers Limited Supreme Court, 23rd November, 1993, unreported, where the article complained of was found by the jury to mean inter alia that the plaintiff, who is a member of the Bar and who had attended an inquest (as an observer on behalf of the Irish government) into the deaths of three members of the Provisional IRA who had been shot by the British Army in Gibraltar, was a sympathiser with terrorist causes. They assessed damages at £90,000. An appeal having been brought to this court on the ground inter alia that the damages were so

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excessive as to require intervention, the court declined to set the award aside. Speaking for the court, Finlay C.J. said:-

“A statement [that the plaintiff was abusing the professional function entrusted to him by his client] and in addition makes the accusation of sympathy with terrorist causes would be extraordinarily damaging to any person, irrespective of their calling or profession. I, as I have indicated, take the view that the assessment of damages made by this jury, though undoubtedly high and at the top of the permissible range is not beyond that range in the sense that it is so incorrect in principle that having regard to the general approach of an appellate court to damages assessed by a jury for defamation it should be set aside.”

50. It should also be noted that, in declining to set aside the award in De Rossa Hamilton C.J. said that:

“The jury found that the words complained of by the Respondent meant that the Respondent was involved in or tolerated serious crime and personally supported anti-semitism and violent Communist oppression.”

“If these allegations were true, the Respondent was guilty of conduct, which was not only likely to bring him into disrepute with right-minded people but was such as to render him unsuitable for public office.”

“No more serious allegations could be made against a politician such as the Respondent herein.”

“Having regard to the serious nature of the said libel, its potential effect on the career of the Respondent, and the other considerations as outlined

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herein, it would appear to me that the jury would have been justified in going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.”

51. In the present case, the article complained of stated that the plaintiff had paid £30,000 to a Government Minister by way of a bribe for the purpose of securing a licence for a radio station and obtained the licence as a result of the bribe, that he had also secured a licence for ESAT Digifone in circumstances giving rise to a suspicion of bribery or corrupt practices and that the activities warranted investigation by the Flood Tribunal. These were undoubtedly seriously defamatory statements which justified the award of substantial damages. However, the case must be approached, in my view, on the basis that the damages awarded are in the highest bracket of damages appropriate in any libel case. They are comparable to the general damages awarded in the most serious cases of paraplegic or quadriplegic injuries and, relatively speaking, are in the same bracket as the damages awarded in De Rossa . The libel, however, although undoubtedly serious and justifying the award of substantial damages, cannot be regarded as coming within the category of the grossest and the most serious libels which have come before the courts.

52. In this context, a comparison with De Rossa is to some extent at least illuminating. In the latter case, the libel complained of could not have been of a more serious character, alleging, as it did, that the plaintiff supported some of the vilest activities of totalitarian regimes in the twentieth century and was personally involved in or condoned serious crime. On any view, that is a significantly more damaging and

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serious libel than the admittedly serious statements made concerning the plaintiff in the present case. It was moreover made in a newspaper with an estimated readership of over a million people: the Irish Mirror is read by approximately 130,000 people. The plaintiff in De Rossa was a prominent politician who was the subject of particular media attention at the time the libel was published, since the party he led was engaged in negotiations which they hoped would result in their participation in a coalition government. It is acknowledged that the plaintiff in these proceedings enjoys a considerable reputation as a businessman but he would not be as well known to the general public as the plaintiff in De Rossa who, in common with other leading politicians, was the subject of constant media attention. Finally, the plaintiff in De Rossa had to go through three protracted High Court actions in front of a jury before his reputation was finally vindicated by the jury and was subjected to prolonged and hostile cross-examination. In the present case, as in De Rossa a somewhat qualified plea of justification was advanced, but does not appear to have been seriously pursued: indeed, the cross-examination by counsel on behalf of the defendants as recorded in the transcript could hardly be regarded as being particularly prolonged or hostile.

53. A comparison with McDonagh – where, as already noted, the damages were described by Finlay C.J. as being “at the top of the permissible range” – is also of some assistance. The plaintiff in that case, although a member of the Bar in good standing, would, like many other barristers in a similar category, be almost wholly unknown outside the legal profession. In terms of his public reputation, the plaintiff in the present case would undoubtedly enjoy a more extensive reputation with the general public than the plaintiff in McDonagh, but, as I have already indicated, a significantly

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more confined reputation than the plaintiff in De Rossa . As against that, the allegation concerning the plaintiff in that case was at least as serious as, if not more serious than, the allegation concerning the plaintiff in the present case. It must also be borne in mind, of course, that the case was decided seven years ago and that one would have to take into account the effects of inflation since then.

54. Ultimately, however, this case has to be decided having regard to its own particular facts and circumstances. I am conscious of the care which must be exercised by an appellate court before it interferes with the assessment of damages by a jury in a case of defamation, but, having weighed up all the factors to which I have referred, I am satisfied that the award in this case was disproportionately high and should be set aside.

The cross appeal

55. It was submitted on behalf of the plaintiff that the learned trial judge was wrong in not leaving the issue of punitive or exemplary damages to the jury.

56. It is undoubtedly the case that exemplary damages, to use the description now generally in use, may be awarded by a court in an action for defamation. Lord Devlin in his celebrated and much criticised speech in Rookes .v. Barnard [1964] AC 1129, had said that exemplary damages could only be awarded in three limited categories, a view of the law assented to by the other law lords, but not followed in other common law jurisdictions, including Ireland. (See Conway .v. Irish National Teachers Organisation and Others, [1991] ILRM 497.) It has been held in those jurisdictions that the courts are not confined to those three categories.

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57. One of the categories referred to in Lord Devlin’s speech was:-

“Those in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff”.

58. As was made clear by the House of Lords subsequently in Cassell and Co. .v. Broome , a plaintiff in an action for defamation who established that the defendant had published the words complained of because of a calculation that the profits resulting from the publication would exceed any damages he might have to pay would be entitled to exemplary damages since the case would come within this category. Since, as held by this court in Conway .v. Irish National Teachers Organisation , the jurisdiction of the court to award exemplary damages is not confined to the three categories referred to by Lord Devlin, it would follow that there may be other cases in which such damages could be awarded, e.g. where there was an intention to publish defamatory matter which was intended to refer to the plaintiff and which was known to be false. In the case of such a calculated breach of the constitutional right of the plaintiff to his good name, it might well be that, in the light of Conway .v.Irish National Teachers Organisation , a plaintiff would be entitled to exemplary damages. In the present case, there is nothing to indicate that the defendants published the offending article intending to defame the plaintiff and in the knowledge that it was untrue. I am satisfied that the trial judge was, accordingly, correct in her decision not to leave the issue of exemplary damages to the jury.

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Costs of earlier trial

59. The plaintiff also cross appealed against the refusal of the learned trial judge to award him the costs of an earlier abortive trial before O’Sullivan J. and a jury. On the second day of the trial, the trial judge recalled that he had advised one of the companies with which the plaintiff was associated some years before when he was at the Bar. He so informed the parties and counsel for the plaintiff indicated that they had no objection to the trial proceeding. However, the defendants indicated that they were not happy with the trial proceeding before O’Sullivan J. and he discharged the jury. At the conclusion of the trial before McGuinness J. and a jury, counsel for the plaintiff applied for the costs of the abortive trial. The learned trial judge declined to award the plaintiff those costs. I am satisfied that she was in error in so doing. The collapse of the first trial was not in any way the responsibility of the plaintiff and he was in no different position than if the jury had disagreed in that trial. I am, accordingly, satisfied that the defendants must pay the costs of the first abortive trial.

Conclusion

60. I would allow the appeal and order a new trial on the issue of damages only. I would dismiss the cross appeal, save in relation to the costs of the trial before O’Sullivan J. and a jury. I would vary the order of the High Court and order that the defendants pay the costs of the trial before O’Sullivan J. and a jury.

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THE SUPREME COURT

KEANE C.J.

DENHAM J.

MURPHY J.

GEOGHEGAN J.

O’HIGGINS J.

289/99

BETWEEN:

DENIS O’BRIEN

Plaintiff/Respondent

AND

MIRROR GROUP NEWSPAPERS LIMITED, PIERS MORGAN, NEIL LESLIE AND KARL BROPHY

Defendants/Appellants

Judgment of The Hon. Mrs. Justice Denham delivered the 25th day of October, 2000.

1. Appeal

61. This is an appeal by Mirror Group Newspapers Limited, Piers Morgan, Neil Leslie and Karl Brophy, the defendants/appellants, hereinafter referred to as the defendants, from the order of the High Court made on 11th November, 1999 which assessed and awarded damages for libel payable to the plaintiff/respondent, hereinafter referred to as the plaintiff, at £250,000. Thus it is an appeal on quantum only.

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2. Jury determination on newspaper article

62. This case arose out of an article which appeared in the Irish Mirror on 10th June, 1998. The action was heard before a judge and jury. The jury determined that the article meant:

(a) That the plaintiff had paid £30,000 to Mr. Raphael Burke, then a member of the government, by way of a bribe;

(b) That the plaintiff paid the said money for the purpose of securing a licence for the radio station 98 FM;

(c) That the licence for the radio station 98 FM was awarded to the plaintiff and his company on foot of the said alleged payment to Mr. Burke;

(d) That the plaintiff secured a licence for the company ESAT Digifone in circumstances which give rise to a suspicion of bribery or corrupt practices;

(e) That the plaintiff had engaged in corrupt practices which warranted investigation by the Flood Tribunal.

63. The jury assessed damages for the plaintiff at £250,000 and judgment was entered for that amount and costs. From that assessment the defendants appealed.

3. Grounds of Appeal

64. The grounds of appeal of the defendants were:

(a) That the damages were excessive;

(b) That the correct test by which the Supreme Court should determine whether to interfere with the award of a jury in a defamation action is to assess whether the award was one which a reasonable jury could have thought necessary to compensate the respondent and to re-establish his reputation, and that by this test the damages were excessive;

(c) In the alternative, that the size of the award was one which no reasonable jury could have made in the circumstances of the case and was so unreasonable as to be disproportionate to the injury done to the reputation of the respondent and that the damages were excessive;

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(d) That the learned High Court Judge misdirected the jury on the issue of damages;

(e) That counsel ought to have been permitted to refer and that the judge ought to have referred, to the purchasing power of any award which the jury might be minded to make, and of the income that it would produce;

(f) That counsel ought to have been permitted to refer, and that the judge ought to have referred, by way of compensation to the conventional compensation scales and personal injury cases and to previous libel awards made or approved by the Supreme Court;

(g) That counsel ought to have been permitted to refer, and that the judge ought to have referred, to the level of award which they might respectively consider to be appropriate;

(h) That the supposed rule of law or practice restraining counsel and the judge in defamation trials from offering specific guidance as to the appropriate level of general damages is inconsistent with the provisions of the Constitution, and in particular Article 40.3 and/or Article 40.6.1(i) thereof and that accordingly it had not continued in force, as part of the law, by the provisions of Article 50 of the Constitution;

(i) That the limited scope of judicial control at the trial on the issue of damages was a violation of the legal and constitutional rights of the appellants;

(j) That the size of the award was a violation of the legal and constitutional rights of the appellants;

(k) That the verdict of the court constituted an interference with the right of the appellants to freedom of expression, to an extent greater than was necessary in a democratic society for the protection of the reputation of the respondent and was accordingly contrary to Article 10 of the European Convention of Human Rights and the law of Ireland.

4. Cross-Appeal

65. The plaintiff has cross-appealed seeking orders that the learned trial judge erred in refusing to allow the jury decide on the issues of aggravated or punitive or exemplary damages. Further, he has cross-appealed seeking an order for the costs of the previous trial.

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5. Defendants’ Submissions

66. The defendants acknowledged that many of the grounds raised in the Notice of Appeal were considered and rejected in a majority decision of the Supreme Court in De Rossa v. Independent Newspapers Plc. Supreme Court, 30th July 1999, unreported, hereinafter referred to as De Rossa . The defendants submitted that that decision was in part incorrect and ought to be revisited; that the award of £250,000 was made without adequate safeguards and that it constituted a breach of the defendants’ rights under Article 40.6.1 .i of the Constitution. Further, it was submitted that, while the European Convention on Human Rights is not part of domestic law, the rights protected by Article 10 of the European Convention are, for the most part, rights protected by Article 40.3.1 and 40.6.l.i of the Constitution. Also, that the limitations on exercise of those rights, the interest of the common good, correspond largely to the limitations expressly permitted by Article 10 of the Convention. Consequently, it was submitted, the starting point for a consideration of the appropriate balance between the quantum of damages for defamation and the right to freedom of expression is Tolstoy Miloslavsky v. U.K. [1995] 20 EHRR 442, hereinafter referred to as Tolstoy. The defendants submitted that the Supreme Court should reconsider its decision in De Rossa and they argued for a different conclusion in law. In the alternative or in addition, it was submitted that the award made by the jury was excessive. It was argued that the awards in De Rossa and this case are simply incompatible, unreconcilable and could not form part of any rational system of compensation as envisaged under the Constitution. To seek to reconcile such awards is to clothe the body of a series of random and arbitrary jury awards with the raiment of a rational scheme of compensation for libel.

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6. Plaintiff’s Submissions

67. The plaintiff submitted that the only real issue on the appeal is whether a reasonable jury could have awarded the sum of £250,000 to the plaintiff in the circumstances of the case. It was submitted that the size of the award in damages was in every way commensurate with the extreme seriousness of the particular libel and the major coverage which it was given. The libel went to the very essence of the plaintiffs worth both as an individual and as a businessman. It was submitted that the Irish law of libel represents a fair, logical and constitutional approach to the balancing of competing objectives, of the right of freedom of expression and of that of the individual citizen to his good name. In every respect the law is in accordance with Article 10 of the Convention of Human Rights and has not ever resulted in an award of damages of the size which has been suggested by the Court of Human Rights to represent an impermissible restriction on the right of freedom of expression. It was submitted that the libel in this case was of the highest category of prominence, seriousness and reckless irresponsibility having been published on no greater information that that contained in an anonymous letter and in face of unqualified denial by the plaintiff. It was submitted that whilst it is not in general a useful exercise to compare one libel with another this was one which had the capacity to create enormous damage on the plaintiff who was compensated no more than reasonably by the award of damages by the jury.

7. Following Precedent

68. Decisions of the Supreme Court are final: Article 34.4.6 of the Constitution of Ireland, 1937. The Supreme Court follows previous decisions of its court. This is a policy for the purpose of maintaining continuity and certainty in the law. However, there are exceptions to the rule. These were described in State (Quinn) v. Ryan [1965] IR 70 by

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Walsh J. at p. 127:

“That is not to say … that the court would depart from an earlier decision for any but the most compelling reasons. The advantages of stare decisis are many and obvious so long as it is remembered that it is a policy and not a binding, unalterable rule.”

69. The matter was further analysed in Attorney General v. Ryan’s Car Hire Ltd. [1965] IR 642. Kingsmill Moore J. stated at pp. 653-4:

“The law which we have taken over is based on the following of precedents and there can be no question of abandoning the principle of following precedent as the normal, indeed almost universal, procedure. To do so would be to introduce into our law an intolerable uncertainty. But where the Supreme Court is of the opinion that there is a compelling reason why it should not follow an earlier decision of its own, or of the courts of ultimate jurisdiction which preceded it, where it appears to be clearly wrong, is it to be bound to perpetuate the error?

In my opinion the rigid rule of stare decisis must in a Court of ultimate resort give place to a more elastic formula. Where such a Court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases.”

70. Thus, a previous decision of the Supreme Court may not be followed by the Supreme Court if it is determined that it was erroneous, if there is a compelling reason, or there are compelling reasons, not to follow the earlier decision. Precedent is followed save for exceptional cases. Thus, it is necessary to apply this test to the De Rossa case. It is necessary to determine if De Rossa should be followed or if exceptional circumstances exist so that the case should not be followed.

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8. Tolstoy

71. A fundamental plank of the De Rossa decision of the Supreme Court was the Tolstoy decision of the European Court of Human Rights. In the De Rossa judgment emphasis is laid on the Tolstoy judgment. The applicant in Tolstoy succeeded in his claim that the award of damages was contrary to Article 10. The Court held at paragraphs 46-51:

“C. Were the award and the injunction ‘necessary in a democratic society’?

1. The award.

46. The applicant and the Commission were of the view that the amount of damages awarded –1.5 million — was disproportionate to the legitimate aim of protecting Lord Aldington’s reputation or rights. The applicant pointed out that, at the relevant time, judicial control over the award of damages in defamation cases had been insufficient to ensure that such awards were proportionate.

47. The Government maintained that there was a reasonable relationship of proportionality between the amount of the award and the aim of compensating the damage done to Lord Aldington and restoring his reputation. They pointed out that Article 10 imposed ‘duties and responsibilities’. The applicant’s pamphlet had been false and unfair and had been expressly designed to provoke a libel action. Although no reasons had been given by the jury, it was, as noted by the Court of Appeal, obvious that the jury awarded so large a sum by way of damages because of the enormity of the libel. The Court of Appeal had been satisfied that the award of £1.5 million had been a rational response by the jury to the exceptional circumstances of the libel which they were considering. Otherwise, as amply demonstrated by its ruling in Sutcliffe v. Pressdram Ltd. the Court of Appeal would have been able to set the award aside and order a new trial.

The Government further submitted that in the Court of Appeal’s opinion the jury had received a very full direction from the trial judge. Moreover, as explained by the judge to the jury, it would have been inappropriate and unhelpful to the jury for him to refer to other cases, because the facts and circumstances were so different, or refer to specific sums of money, since the quantum of damages was exclusively a matter for the jury.

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In addition, before the High Court both counsel for the applicant and the applicant himself had acknowledged that if Lord Aldington won his appeal action, he must receive a very substantial sum. In the Court of Appeal the applicant had been unconcerned about the size of the damages award and he had earlier declined Lord Aldington’s offer to accept £300,000. The offer remained open and the applicant could at any time reduce his liability by £1.2 million if he really wished to do so.

48. The Court recalls at the outset that its review is confined to the award as it was assessed by the jury, in the circumstances of judicial control existing at the time, and does not extend to the jury’s finding of libel. It follows that its assessment of the facts is even more circumscribed than would have been the case had the complaint also concerned the latter.

In this connection, it should also be observed that perceptions as to what would be an appropriate response by society to speech which does not or is not claimed to enjoy the protection of Article 10 of the Convention may differ greatly from one Contracting State to another. The competent national authorities are better placed than the European Court to assess the matter and should therefore enjoy a wide margin of appreciation in this respect.

49. On the other hand, the fact that the applicant declined to accept Lord Aldington’s offer to settle for a lesser sum does not diminish the United Kingdom’s responsibility under the Convention in respect of the contested damages award.

However, the Court takes note of the fact that the applicant himself and his counsel accepted that if the jury were to find libel, it would have to made a very substantial award of damages. While this is an important element to be borne in mind it does not mean that the jury was free to make any award it saw fit since, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.

The jury had been directed not to punish the applicant but only to award an amount that would compensate the non-pecuniary damage to Lord Aldington. The sum awarded was three times the size of the highest level award previously made in England and no comparable award has been made since. An award of the present size must be particularly open to question where the substantial national law applicable at the time fails itself to provide a requirement of proportionality.

50. In this regard it should be noted that, at the material time, the national law allowed a great latitude to the jury. The Court of Appeal could not set aside an award simply on the grounds that it was excessive but only if the award was so unreasonable that it could not have been

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made by sensible people and must have been arrived at capriciously, unconscionably or irrationally. In a more recent case Rantzen v, Mirror Group Newspapers Ltd . the Court of Appeal itself observed that to grant an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was ‘necessary in a democratic society’ for the purposes of Article 10 of the Convention. It noted that the common law – if properly understood – required the courts to subject large awards of damages to a more searching scrutiny than had been customary. As to what guidance the judge could give to the jury, the Court of Appeal stated that it was to be hoped that in the course of time a series of decisions of the Court of Appeal, taken under section 8 of the Courts and Legal Services Act, 1990, would establish some standards as to what would be ‘proper’ awards. In the meantime the jury should be invited to consider the purchasing power of any award which they might make and to ensure that any award they made was proportionate to the damage which the plaintiff had suffered and was a sum which it was necessary to award him to provide adequate compensation and to re-establish his reputation.

51. Accordingly, having regard to the size of the award in the applicant’s case in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. the Court finds that there has been a violation of the applicant’s rights under Article 10 of the Convention.

For these reasons THE COURT

1. Holds unanimously that the award was ‘prescribed by law’ within the meaning of Article 10 of the Convention.

2.. Holds unanimously that the award, having regard to its size taken in conjunction with the state of national law at the relevant time was not ‘necessary in a democratic society’ and thus constituted a violation of the applicant’s rights under Article 10.”

[emphasis added]

72. Thus, the court held that the award of damages was a breach of Article 10 of the European Convention on Human Rights. This decision was based on the size of the

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award and the lack of adequate and effective safeguards against disproportionality in the national law, that is the law of England and Wales, at the time.

9. Rantzen and John

73. At the relevant time in England and Wales the decision of Rantzen v. Mirror Group Newspapers (1986) Limited and Ors. [1993] 4 All ER 975 , hereinafter referred to as Rantzen had not been handed down. Nor had that of John v. M.G.N. Ltd. [1996] 2 All ER 35 , hereinafter referred to as John.

10. De Rossa

An issue in De Rossa was whether the court should give further guidelines to the jury as to the assessment of damages. This was decided in the negative. Hamilton C.J., referring to the Tolstoy decision, held:

“It is clear from the foregoing that the primary reason for the Court’s decision was the size of the award and the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. It recognised, however, that an award of damages must bear a reasonable relationship of proportionality to the injury to reputation suffered.”

74. He referred to the fact that the European Court had given approval to the guidance to be given to a jury as laid down by the Court of Appeal in Rantzen v. Mirror Group Newspapers (1986) Limited and Ors. [1993] 4 All ER 975 and as extended in John v. M.G.N. Ltd. [1996] 2 All ER 35. Of the changes introduced by these cases, he held at p.44:

“While the aforesaid changes of practice were therein described as ‘modest’ they are not only important but fundamental and radically altered the general practice with regard to the instructions or guidance to be given to a jury as to the manner in which they should approach the assessment of damages in a defamation action.”

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75. On the issue of guidelines on the award of damages to the jury he referred at p.47 to the concepts of balancing and proportionality required:

“The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name ( Hynes – O’Sullivan v. O’Driscoll [1988] IR 436 [1989] ILRM 349). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.”

76. Hamilton C.J. pointed out that the only remedy to a person whose good name had been damaged was an action for damages, reference was made to Barrett v. Independent Newspapers Ltd. [1986] IR 13, pp. 23 and 24. It was held that neither the Constitution nor the European Convention requires that guidelines be introduced, that the guidelines introduced in England and Wales were a development of common law. Hamilton C.J. held:

“If the practice as outlined in Rantzen’s case and extended as outlined in John’s case were to be followed, the jury would be buried in figures, figures suggested by counsel for both parties as to the appropriate level of damages, a figure from the judge representing his opinion as to the appropriate level of damages, figures with regard to damages made or approved by the Court of Appeal in previous libel actions and figures with regard to damages in personal injuries actions and at the same time be subject to the direction of the trial judge that it is not bound by such figures and must make up its own mind as to the appropriate level of damages….

It is accepted by all that, even if the giving of such guidelines and figures were permissible, the jury would not be bound by such figures and was under an obligation to make up its own mind as to the appropriate level of damages.

I am satisfied that the giving of such figures, even though only by way of guideline, would constitute an unjustifiable invasion of the province or domain of the jury.”

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77. In a dissenting judgment I expressed the view that juries should be given further guidelines, including information, for example, on previous libel awards confirmed or determined by the Supreme Court, on the level of damages in personal injury cases and on the level of award deemed appropriate by parties. This would aid a jury in arriving at a reasonable and proportionate decision on the assessment of damages. Guidelines would inform the jury. Further, guidelines would be a protection against disproportionate awards.

11. Compelling Reasons

78. The decision of the majority in De Rossa sets out the law. The defendants have asked the court not to follow the De Rossa decision. The first query is as to whether the decision was erroneous. As is clear from my dissenting judgment in De Rossa I held a view contrary to the majority of the court. However, that of itself is not sufficient to determine that De Rossa should not be followed. To disagree with a decision is not sufficient to invoke the exception to the policy of the court to follow precedent. It is necessary also to determine if there exists a compelling reason not to follow De Rossa .

79. The matters at issue are important in a democracy. The right to communicate, the right to information and the right to freedom of expression, guaranteed by Article 40.3.1 and 40.6.1(i) of the Constitution of Ireland, are similar to the right of freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. The rights guaranteed in the Irish Constitution are not absolute, neither are the rights of the European Convention. Both documents require that a balance be achieved and that balance going to matters of reputation, information, communication and the freedom of expression is a matter of importance in a democracy and is of public interest.

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80. The facts of this case raise different circumstances. While once again in this case a balance is sought to be achieved between the plaintiffs right to his good name, as protected in the law of defamation, and the right of freedom of expression, the circumstances are not the same. The issue is quantum. However, quantum can not be considered in a vacuum. The facts of the case are relevant. The facts of this case raise a different scenario.

81. There should be a rational relationship between schemes of awarding damages. To have payments for damage to reputation grossly in excess of payments for serious personal injury raises for consideration the rationale of both schemes for awarding damages. Indeed, if the amount awarded in damages in defamation cases exceeds greatly the amounts awarded in general damages for severe personal injuries it has the appearance of punitive damages. This fundamental issue – the rationale for the level of awards of damages – is important.

82. In the kernel of the De Rossa decision is an analysis of the European Convention and decisions referred thereto. The European Convention for the Protection of Human Rights and Fundamental Freedoms is not part of the domestic law of Ireland: In Re O’Laighléis [1960] IR 93. However, decisions of the European Court of Human Rights on the said European Convention may be persuasive authority in the analysis of similar constitutional rights, in the same way as decisions of other constitutional courts: Norris v. Attorney General [1984] IR 36, Henchy J. at p.69. It was determined in De Rossa that the existing practice in Ireland were not contrary to the Convention. The defendants submit that the decision was partially in error. The nub of the defendants’ submission is that the Irish practice rule violates Article 10 of the Convention. In light of the current practice whereby decisions of the European Court of Human Rights may have persuasive authority on issues where the Convention and Constitution are similar, in light of the fact that Ireland was one of

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the original states which ratified the Convention (with consequent effect on policy), and in light of the declared intention of the Irish Government to incorporate the Convention into the domestic law of Ireland, the law of the Convention has a persuasive relevance. Consequently, a cogent argument that there was error in part in its interpretation is significant and a compelling reason to reconsider the issue.

83. The defendants submitted that there should be a departure from the previous decision of the Supreme Court in De Rossa . It was argued that while in the De Rossa case there was reference to Rantzen that the court had not directed its mind to the relevant and necessary portion of Tolstoy especially the above quoted paragraphs 46-51. It was submitted that the court, while it adverted to Tolstoy, did not direct its mind to the essential elements of Tolstoy. In analysing Tolstoy it appears that the earlier common law of England and Wales was considered to be contrary to the European Convention. It appears to me that there is considerable similarity to Irish law now and the law of England and Wales prior to the decisions in Rantzen and John. Consequently there is a real issue as to whether the scope of judicial control at the trial and on appeal offers adequate and effective safeguards against disproportionately large awards of damages. It thus raises the issue as to whether there is a breach of the Convention. In all the circumstances it is appropriate that the matter be reopened, reanalysed and reassessed.

84. At the core of the issues in this case is a decision of a jury. A modern jury brings its own common knowledge to the decisions. It decides whether the statement is a libel. That is not in contest on this appeal. That is the most important decision of the jury -as to whether it is a libel or not – and that decision is solely for the jury. The jury decided also on the amount of damages. At issue is whether on this latter decision further information and guidance should be given to the jury. As with other aspects of juries, their decisions

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should be reviewed in a modern context. I am satisfied that it is wholly appropriate that the issue of information and guidelines to juries be reconsidered. This has implications more far reaching than trials on defamation. I am satisfied that this too is a compelling reason to reconsider the De Rossa decision.

85. The discretion of the jury is not limitless. There is the requirement of proportionality in this jurisdiction but it is not assisted by specific guidelines on the assessment of damages. The issue of damages, and rules related thereto, is a matter which may be addressed by the Oireachtas. In the absence of such legislation the court may use its common law jurisprudence to assist the jury and the trial.

86. In conclusion, I am satisfied that there are compelling reasons to reconsider the De Rossa decision. These reasons include: (a) the cogent arguments made by the defendants as to the interpretation and effect of the Tolstoy decision, the analysis in De Rossa the fact that the issue is one of importance in a democracy and is of public interest; (b) the issue of quantum cannot be considered in a vacuumand the facts of this case inform the analysis; (c) there should be a rational relationship between schemes of awarding damages which should be analysed in the context of the award; (d) the issue of principles and guidelines to juries, in the context of complex modern litigation; are all compelling reasons which taken together are sufficient to raise the exception to the precedent rule. For all these reasons I am satisfied that there are compelling reasons to reconsider De Rossa . Such a review after a relatively short time is not barred in the presence of compelling reasons to review the decision.

12. Persuasive Authority

87. There is no necessity to tie analysis to decisions of the Court of Appeal of England and Wales. Persuasive authority may be considered from our constitutional

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viewpoint and from other common law constitutional courts, some of which I referred to in De Rossa as well as decisions of the European Court of Human Rights on the European Convention of Human Rights. Thus, quite apart from Rantzen and John consideration may be given to cases from other common law jurisdictions. For example, in Carson v. John Fairfax (1992-93) 178 C.L.R. 44 Kirby P.’s ruling in the Court of Appeal that on comparison with serious personal injury cases the amount of damages given was excessive and smacked of the punitive was upheld by the High Court. In other words levels of awards in personal injury cases were held to be relevant.

13. Decision on Guidelines

88. As to the substantive issue, 1 remain of the view I expressed in De Rossa . I am satisfied that guidelines to a jury on the assessment of damages are appropriate. At the least, reference could be made to the level of damages in previous libel cases decided by the Supreme Court and to the level of awards in serious personal injury cases, as has been introduced in other common law countries. Such judicial guidelines may be a safeguard against a disproportionate award. In the absence of such guidelines, merely to require the award to be proportionate is an inadequate protection against a disproportionate award.

14. Was it an Excessive Award ?

89. In light of the decision of the majority of this court that it will not depart from the decision in De Rossa and consequently that De Rossa states the law, the next issue is whether the jury’s assessment of damages should be set aside as being excessive. In McDonagh v. News Group Newspapers Limited Supreme Court, 23rd November, 1993, unreported, Finlay C.J. said of an award of £90,000:

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“… it seems to me that though the figure is probably at the top of the appropriate range it is not so great that this court should interfere with it on appeal.”

90. This was a most serious libel, of a barrister, as stated by Finlay C.J.:

“Having come to the conclusion that I must reject the Defendant’s appeal against the answer by the jury to Question 2(d), namely the question as to whether the words were meant and were understood to mean that the Plaintiff was a sympathiser with terrorist causes, I am satisfied that there are not very many general classifications of defamatory accusation which at present in Ireland, in the minds of right-minded people, would be considered significantly more serious. To an extent the seriousness may be somewhat aggravated by the fact that it is an accusation which has been made against a person who has a role, by reason of his profession and by reason of his standing as a member of the Bar, in the administration of justice. With regard to the other meanings which have been accepted by the jury as flowing from the accusations made, they basically constitute in their combined effect an extremely grave accusation of professional misconduct by the Plaintiff. The essence of the function of a lawyer and a member of the Bar is carrying out a task such as that which was assigned by the State to the Plaintiff on this occasion of the inquest, was that he would be rigidly and uncompromisingly honest and independent in his assessment of the proceedings of which he was an observer and that the State could rely completely, as his client, upon what a lawyer must in his ethical code deliver, namely, an honest appraisal of the situation before him, both as a matter of law and as a matter of fact.

The combined accusations made against the Plaintiff are that he failed or was likely to fail completely to do that, and that instead as a piece of major professional misconduct he abused the function which had been entrusted to him by his client.

A statement which makes that accusation and in addition makes the accusation of sympathy with terrorist causes would be extraordinarily damaging to any person, irrespective of their calling or profession. I, as I have indicated, take the view that the assessment of damages made by this jury, though undoubtedly high and at the top of the permissible range, is not beyond that range in the sense that it is so incorrect in principle that having regard to the general approach of an appellate court to damages assessed by a jury for defamation it should be set aside.”

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In the De Rossa case I was of the view that £300,000 was excessive. McDonagh, de Rossa and this case have a similar factor – the applicant has a standing in the community as, respectively, a barrister, a politician and a businessman. All three cases involved very serious defamations.

The McDonagh award was held to be at the top of the permissible range. In De Rossa there were aggravating factors to be considered. Even allowing for the circumstances of this case, it is an award which in my view is beyond the range in that it is so incorrect in principle, it is so disproportionate, that it should be set aside. I leave for another case the matter as to whether it would be open to this court to substitute an award of damages. This is an important issue, especially when awards are held to be excessive and yet no guidelines, as submitted for, are given to the jury.

15. Aggravated, Exemplary and Punitive Damages

91. On the issues of aggravated, exemplary or punitive damages I agree with the Chief Justice. I would not allow the cross-appeal. The trial judge did not err in refusing to leave these matters to the jury.

16. Costs of Previous Trial

92. Costs follow the event. Consequently, if the respondent succeeds he is entitled to costs, including the costs of the first trial.

17. Conclusion

93. I am satisfied that the instructions to the jury on quantum should be altered so as to give a greater degree of guidance and assistance to the jury. Also, that there should be a

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more searching scrutiny, which would include consideration of such guidelines, on appeal to the Supreme Court to ensure that there is maintained the appropriate balance between the rights of the individual and of freedom of expression in a democratic society.

18. Orders

94. I would allow the appeal, determine that there are compelling reasons to reconsider the De Rossa decision, consider guidelines for the jury as to the assessment of damages, determine that the award was disproportionate and excessive and should be set aside, and reserve for another occasion the issue as to whether the Supreme Court could substitute an award of damages on appeal. On the matters raised in the cross-appeal I would dismiss the cross-appeal, except in relation to the costs of the first trial.

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THE SUPREME COURT

KEANE C.J.

DENHAM J.

MURPHY J.

GEOGHEGAN J.

O’HIGGINS J.

289/99

BETWEEN:

DENIS O’BRIEN

Plaintiff/Respondent

AND

MIRROR GROUP NEWSPAPERS LIMITED, PIERS MORGAN, NEIL LESLIE AND KARL BROPHY

Defendants/Appellants

JUDGMENT delivered the 25th day of October 2000 by Mr Justice Geoghegan

95. The Chief Justice in his judgment has set out in considerable detail both the background facts relating to this case and its procedural history. I adopt his account of these matters and therefore any repetition would be superfluous.

96. In a recent decision of this Court in De Rossa v Independent Newspapers Plc Supreme Court 30th July 1999, unreported, the Court in the form of a judgment per Hamilton C.J. with whom three other members of the Court agreed restated the traditional principles long followed by trial judges in libel actions as to how such a judge should address the jury in relation to the assessment of damages. Specifically the Court disapproved of the decision of the English Court of Appeal in John v MGN Limited [1996] 2 All E.R. 365 that thenceforth guidance should be given by the trial judge to the jury on the assessment of damages in the form of comparison with precedent awards in both personal injury and libel cases and to the purchasing power of a particular award and to the level of awards suggested

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by counsel and the judge himself or herself. In a minority judgment in De Rossa Denham J. expressed the view that such guidance should be given.

97. It has been argued in this appeal on behalf of the Appellant that De Rossa should be reconsidered and that on various grounds as set out in the Chief Justice’s judgment this Court should now depart from it. The Chief Justice has dealt with the submission at some length in his judgment and has formed the view that this Court should not now entertain arguments to the effect that De Rossa was wrongly decided. I am in complete agreement both with the conclusion of the Chief Justice in this regard and his reasons for arriving at such conclusion. There is nothing more which I can usefully add.

98. I therefore now turn to the question of whether the award should be set aside as being disproportionately high. I will start by making a simple comment. In my view this was an extremely serious libel. It is important to consider the context in which the offending article came to be written. First of all the Moriarty and Flood Tribunals were hitting the headlines. Payments to politicians were being investigated. It would be a gross understatement to say that in the mind of the public there was a sniff of corruption in the air. Indeed as McGuinness J. pointed out when conducting the trial and in reference to some discussion about a particular question that was being asked, even payments by companies to political parties were at that stage becoming tainted with corruption in the minds of the public. But the public for the most part would have no knowledge as to the character of Mr Denis O’Brien the Plaintiff/Respondent in this case. Yet at the same time he was well known as a new emerging and major figure in the business world having regard in particular to the considerable controversy surrounding the granting to companies promoted by the Plaintiff of relevant land line and mobile telephone licences placing him through his companies as effectively the only competition to the then Telecom Eireann. These licences were granted by the then Minister

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99. Mr Lowry although there were much larger international companies which had applied for the licences. No matter how many enquiries or investigations there may have been into the granting of these licences and upholding their propriety the Plaintiff who was a relatively “unknown quantity” in the eyes of the public was clearly vulnerable to attacks on his character.

100. Secondly the offending article was published at a stage when the Plaintiff was in the United States of America making exhaustive efforts with different financial institutions to raise the funds necessary for the appropriate investment in the telephonic enterprise. The Plaintiff explained in evidence (which I must assume was accepted by the jury) that he was extremely upset at hearing from Dublin about the questions he was being asked and the obvious intention to write an article and that this upset particularly related to the business sensitivity involved at that time when he was trying to raise money. It is true of course that the evidence established that his business was progressing successfully. But at Question 233 counsel for the Defendants/Appellants suggested to the Plaintiff “quite specifically” that the article had had no effect whatsoever on the growth of his projects and the expansion of his business. The Plaintiffs answer was as follows:

“You are incorrect in that assumption. I would never have had to go to the length of coming to the High Court in Dublin unless I felt that this was absolutely wrong.”

101. It was suggested to the Plaintiff that the Irish Mirror did not have a large circulation and that at any rate the type of person that he would be dealing with in business etc. would not be a reader of that paper. I do not find this argument very convincing though I do accept of course that circulation is a factor which may be relevant in the assessment of damages in a libel action. But as Mr Cooney pointed out in cross-examination and with which I agree the

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contents of a newspaper article may become known to large numbers of people beyond the actual buyers and readers of that paper. In modern times it is common practice for all the different newspapers to be on display usually on a low shelf in a shop. A person who has no intention whatsoever of buying the Irish Mirror may nevertheless look at the main front page headlines. Given the widespread public interest in the Tribunals and the allegations against Mr Ray Burke etc. a front page column that is headed by a photograph of Mr Burke with the words “donation: Ray Burke” written underneath and then a headline in bold type “Burke in new £30, 000 probe” was bound to attract the eye of many customers in shops buying newspapers but who had no intention of buying the Irish Mirror.Furthermore underneath the headline was the word “exclusive” picked out in red.

102. It is true that only part of the article is contained in that front page but if the natural temptation of the browser to say nothing of the buyer of the paper to turn to page 3 was succumbed to it is clear that there were references not merely to the radio licence but to what to my mind was a much more serious matter, the Esat Digifone competition. One of the questions which had been put to the jury by the trial judge was the following:

“In its natural and ordinary meaning or by way of innuendo does the article mean that the Plaintiff secured a licence for the company Esat Digifone in circumstances which gave rise to a suspicion of bribery or corrupt practices?”

103. The jury answered that question as it did to the other four in the affirmative. It is important at this stage again to recall that at the time the article was published the Plaintiff was engaged in the difficult round of negotiations with financial institutions with the crucial aim of raising the necessary investment. I suspect the jury took the view that such an allegation coming at

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such a time and in such sensitive circumstances was of the utmost seriousness and should attract high damages.

104. I have already referred in part to the wider circulation that such an article would have than merely the sales or readership figures of the Irish Mirror might suggest. The Plaintiff himself laid emphasis on the damage to his reputation among his workforce. But there is a still more important factor to which quite clearly from the transcript the Plaintiff attached very considerable significance. As he explained, if you are a “player” in the business or financial world and are trying to attract international investment what is said about you or your companies on the Internet obviously assumes considerable importance. He gave evidence to the effect that there were agencies which gathered newspaper clippings about business enterprises all round the world and that these can very easily find their way into the Internet so that they are read by any person looking into or investigating the enterprise concerned. Counsel for the Defendant/Appellant Mr MacMenamin put it to the Plaintiff that the article was “not even on the Internet” . The Plaintiff was unable specifically to answer the question but he pointed out that there are different data bases for different articles. The trial judge McGuinness J. intervened to ask Mr MacMenamin whether when Mr MacMenamin was suggesting that it was not on the Internet did he simply mean that it was not on the Mirror website. Mr MacMenamin confirmed that that was what he was suggesting namely that it was not on the Mirror website. The Plaintiff when he heard that went on to explain that he did not think the business community looked at the Daily Mirror but that there were newspaper clipping services that go through every newspaper and every article produced all over the world so that when a potential investor goes and looks up the word “Esat” as he put it “the Daily Mirror, the Guardian, the Irish Times, the New York Times all come together.”

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105. Finally towards the end of the cross-examination of the Plaintiff Mr MacMenamin put to him that so far as the level of investment and borrowings are concerned in his various enterprises, that continues unimpeded. The Plaintiff agreed with that. He was then asked whether he had no abnormal anxieties on that score. He answered that he had many anxieties but he was again asked whether he had any abnormal anxieties and his answer to that was as follows:-

“Well, I have an abnormal anxiety as to what people think of an article like this, because it is still an unanswered question.”

106. Given the context in which the libels were published and the contents of the libels the question arises is the award so high that it ought to be set aside? Various formulations of words have been used by appellate Courts in Ireland and England as to when an appellate Court in a libel action can interfere with a jury award. Although the language is sharper and stronger in some cases than in others I am not sure that there was ever any intended difference and I am inclined to think that the form of words adopted by Henchy J. in Barrett v Independent Newspapers Limited [1986] IR 13 is the most helpful. The learned judge stated as follows:

“Yet, a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.”

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107. One point of interest about this statement of principle is that it is not confined to damages for libel. It is intended as a principle to apply to compensatory damages in all cases. This might at first sight seem difficult to reconcile with the many judicial dicta to the effect that appellate courts will be extraordinarily reluctant to interfere with jury awards in libel actions. Indeed in the Barrett case Finlay C.J. said the following:

“With regard to the appeal against the amount of the damages, certain principles of law are applicable. Firstly, while the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, on the basis of excess or inadequacy.”

108. There is no dissent from this view in the judgment of Henchy J. and I doubt very much that the two judges were intending to say anything different. The true principle would seem to be that in all cases of compensatory damages whether in libel or in personal injuries or otherwise an appeal court will not interfere merely because its own judges thought the award too high. The court will only interfere if the award is so high that it is above any figure which a reasonable jury might have thought fit to award. But although that principle is the same in all cases of compensatory damages, the application of the principle will necessarily be different in the case of libel from the case of personal injuries. In the case of personal injuries an appeal court can determine with some confidence what would be the range of awards which a reasonable jury (or nowadays a reasonable judge) might make. This the appeal court can do because although every personal injury case is different from every other personal injury case there are also great similarities. A broken hip case relates to some

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extent at least to every other broken hip case. A loss of an eye case relates to some extent at least to every other case of loss of an eye etc. Members of the court from their experience at the Bar and experience as trial judges and indeed experience of previous similar appeals may with some confidence form a view as to what the legitimate spectrum of awards could be. In the case of a libel appeal however the appeal Court although it has to engage in the same exercise, it can only do so with diffidence rather than confidence. In this connection it is worth quoting again the passage from the speech of Lord Hailsham of St. Marylebone, L.C. in Cassell and Co Ltd v Broome [1972] AC 1027 already cited by the Chief Justice:

“What is awarded is…. a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.”

109. It is I think relevant also to cite the passage from the same speech referred to in the written submissions of Counsel for the Plaintiff and Respondent:

“It may very well be that, on the whole, judges and the legal profession in general, would be less generous than juries in the award of damages for defamation. But I know of no principle of reason which would entitle judges, whether of appeal or at first instance, to consider that their own sense of the proprieties is more reasonable than that of a jury, or which would entitle them to arrogate to themselves a constitutional status in this matter which Parliament has deliberately withheld from them, for aught we know, on the very ground that juries can be expected to be more generous on such matters than judges.”

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110. Unlike personal injury cases every libel action is completely different from every other libel action and therefore the guidelines available to an appeal court in settling the reasonable parameters of an award are much more limited.

111. As the Chief Justice has pointed out, one such guideline may well be previous awards approved of by the Supreme Court. But I think that there are problems about over reliance on that criterion. One of the arguments of Hamilton C.J. in his judgment in the De Rossa case against a practice of counsel and the trial judge analysing other comparative libel actions when comparing the awards in them was the sheer practical difficulty of comparison. Before one begins to consider De Rossa or any other comparison it is important in my view that the Supreme Court should thoroughly consider the case before it in isolation of comparisons. If for instance the De Rossa case had never occurred, the mind set of this Court might be very different in viewing the claim of the Plaintiff Mr O’Brien. I have already given reasons why in my view the libels in the offending article were extremely serious from the point of view of the Plaintiff I have little doubt that if it was not for De Rossa , I would have no hesitation about leaving the jury award stand even though it is more than I personally would have awarded. But having regard to the diffidence with which an appeal court should approach the possible setting aside of a jury award in a libel action, I could not have formed the view that the jury award was beyond reason. In addition to the points which I have already made I think it relevant also to observe that no apology was made at any stage and that the jury may well have taken the view and could legitimately have taken the view that the article was very carefully crafted both to hint at wrongdoing on the part of the Plaintiff and thereby titillate the public while at the same time engage in a damage limitation exercise with a view to avoiding libel. If the newspaper did adopt this exercise it was unsuccessful but it would have been

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open to the jury to take the view that they had done so. The award had to be of a level that the Plaintiff would feel reasonably compensated.

112. Interestingly in the course of the opening of the case by Mr Cooney Counsel for the Plaintiff, he referred to the fact that the readership of the Irish Mirror in June 1998 varied between 180,000 and 195,000 people. Exception was taken by Mr MacMenamin Counsel for the Defendants to these actual figures being given to the jury because as he put it “in my respectful submission, that is an attempt by the back door to place numbers into the minds of the jury as regards a level of damages, and I take great exception to that.” Mr Cooney in response commented as follows:

“I understand his apprehension. I think effectively what Mr MacMenamin is afraid of is that the jury would come back and award somewhere between £180,000 and £195, 000. That is a danger which may be there. It may be removed by what Mr MacMenamin would say to the jury in his closing and more particularly, what you would say was in order that is that the level of damages is a matter for the jury.”

113. It would be unfair to draw any inference from this little bit of unusual dialogue that Mr Cooney was conceding that figures in that order were excessive but even if such an inference could be drawn it would be irrelevant. For the very same reason that it is difficult for an appeal court to arrive at a correct level of damages for libel it is almost impossible for counsel for the Plaintiff to make any worthwhile prediction.

114. As I have already indicated, I have come to the conclusion that if I do not have to consider De Rossa I would not concur with this Court interfering with the award. However De Rossa undoubtedly presents problems. As the Chief Justice has pointed out, the £300,000 awarded in that case was the highest in this jurisdiction to be approved by the Supreme Court.

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115. He has also summarised in his judgment the extremely serious allegations which were made against the prominent politician Mr Proinsias De Rossa. The Chief Justice has clearly taken the viewthat the defamation in this case was much less serious and that the discrepancy is so great that if £300,000 was considered by the Supreme Court to be about the most that could have been allowed in De Rossa £250,000 cannot be allowed for Mr O’Brien.

116. I take a somewhat different view. It would seem to me that the two cases are so completely different that worthwhile comparisons are not achievable. It is impossible to know what were the aspects of each individual case to which the respective juries attached importance. I think that in comparing the two cases (if such comparison is relevant at all) one must take serious account of the fact that the allegations in the De Rossa case were essentially all past history. On the other hand the allegations in Mr O’Brien’s case related to his more or less current behaviour. Secondly Mr De Rossa was extremely well known to the public and even in the eyes of his political opponents he had a fine reputation as a parliamentarian. In one sense given his publicly established good reputation it could be argued that it was all the more serious that that should be dented by allegations relating to an alleged criminal and murky past. On the other hand it could also be argued that while the damage was serious and would have to be compensated on a serious basis there would be no substantial danger of permanent injury to his reputation it being so public and well established. Mr O’Brien by contrast was not well known to the public and yet was sufficiently well known as somebody involved in controversy. There would have been no knowledge at all virtually as to his good or bad character and he was at the time of the libels in the process of raising funds for the most important business venture that he had been engaged in. The innuendoes against his good character were liable to be published across the Internet. As a major new entrepreneur on the Irish scene his reputation in the eyes of both the business world and the public in

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general was of the utmost importance to him. I have come to the conclusion that the view I have taken independently of De Rossa ought not to be affected by De Rossa. Still less should it be affected by the award of £90,000 made to the barrister Mr Donagh McDonagh in McDonagh v Newsgroup Newspapers Limited Supreme Court 23rd November, 1993, unreported. Mr McDonagh did not have the public profile of Mr O’Brien and at any rate the award was made seven years ago. I think that when put in the context of the surrounding circumstances the libels in this case were far more serious than in the McDonagh case and I am particularly referring to the libel in relation to corrupt practices in obtaining the Esat Digifone licence. Comparisons in the area of libel are dangerous but if the De Rossa and the McDonagh case are to be referred to I agree with the view of counsel for the Plaintiff and Respondent in their written submissions that the judgment of Campbell-Sharpe v Independent Newspapers (Ireland) Supreme Court, 11th of February, 1998, unreported, should also be taken into account. As counsel points out for a libel to the effect that she had not paid a member of her staff but albeit one which the evidence indicated caused her great upset and for which there was no apology the jury awarded £70,000 and this award was upheld in a trenchant ex-tempore ruling by Hamilton C.J. with which Barrington J. and Lynch J. agreed. It is unfortunate that the transcript of the ex-tempore ruling remains unapproved and it would therefore not be appropriate to cite passages from it but it is quite clear that the three members of the Court unanimously considered that the award made by the jury was fair and reasonable having regard to the circumstances and was not excessive particularly having regard to the absence of an apology.

117. In all the circumstances therefore I would dismiss the appeal.

118. In relation to the cross-appeals I agree with the judgment of the Chief Justice that the cross-appeal in respect of the issue of punitive or exemplary damages should be dismissed for

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the reasons which he gives and I also agree that the cross-appeal relating to the refusal of the learned trial judge to award the Plaintiff the costs of an earlier abortive trial before O’Sullivan J. and a jury ought to be allowed.

Crofter Properties Limited -v- Genport Limited

[2005] IESC 20 (12 April 2005)

This is an appeal by Crofter Properties Limited, the plaintiff/appellant, hereinafter referred to as ‘the plaintiff’, from the judgment and order of the High Court made on 10th day of September, 2002 and 8th day of November, 2002, which was perfected on the 27th day of January, 2004, to set aside the following parts of the High Court order:

(a) The award of IR£50,000 for general damages to the defendant.

(b) The award of IR£250,000 punitive or exemplary damages to the defendant;

(c) That the defendant be entitled to recoup interest on the sum of IR£300,000 at 8% per annum from the 23rd day of April 1996 to the date of the said judgment and order from the plaintiff and to set off same against the sums due by the defendant to the plaintiff;

(d) The refusal of the plaintiff’s application for the costs of its claim against the defendant.

Genport Limited, the defendant/respondent, is referred to hereafter as ‘the defendant’.

2. There is a history of litigation between these parties over the last two decades. While it is not necessary to set out the previous lengthy litigation between the parties it is appropriate to refer to the history insofar as to state that by lease dated 12th May 1981 the plaintiff demised premises known as Sachs Hotel for a term of 21 years from the 1st August, 1980 to the defendant. These proceedings commenced as an application for ejectment. The defendant delivered a counterclaim with its defence claiming damages and a set off. This judgment relates solely to the four grounds raised on this appeal by the plaintiff from the previously stated High Court judgment and orders.

3. The case was remitted by the Supreme Court to the High Court to assess damages, to determine the defendant’s right to set off and its right to relief against forfeiture. On the 10th September, 2002 the High Court (McCracken J.) delivered judgment. I shall consider each of the issues raised on this appeal separately. As indicated by counsel for the plaintiff, however, the primary grounds of appeal relate to the sums awarded in damages.

False Information

4. The defendant’s claim for damages for defamation arises from a series of telephone calls. False information was received from an English Police Force who had received information from an anonymous woman on the telephone. The essence of the false information was that both Mr. Philip Smyth and his brother Chief Superintendent Paul Smyth were actively assisting the I.R.A. in laundering drug money through Sachs Hotel. Caroline Devine denied making the phone calls. However, on 23rd April, 2002 the High Court held that the telephone calls had been made by Caroline Devine, who was a secretary to, and director of, the plaintiff, and who worked with Hugh Tunney, the principle shareholder of the plaintiff. On appeal the Supreme Court held that these telephone calls had been made on behalf of and for the benefit of the plaintiff. Further, that while the defendant was not mentioned by name, the Supreme Court held that the words be deemed to refer to the defendant.

General Damages

5. The High Court held, on the issue of general damages, as follows:

“There is no express evidence of actual loss suffered by the defendant as a result of the allegations in the telephone calls made by Caroline Devine. However, there is certainly general evidence that the morale of the staff in Sachs Hotel was affected, and also general evidence that members of the Gardaí Síochána were frequent customers of the hotel and may have been affected. It must be remembered that the defendant is a company, and a company of itself is not capable of having feelings which can be injured by false allegations. However, a company does have a reputation, and that reputation can be injured, and I believe I am certainly entitled to infer in the circumstances of this case that there probably was some injury to the reputation of the company, and some loss of efficiency of its staff by reason of these allegations. However, I fully accept the arguments on behalf of the plaintiff that this is not a comparable situation to, for example De Rossa v Independent Newspapers [1999] 4 IR 432, where similar very serious allegations of criminal offences and indeed of acts against the State were made in a Sunday newspaper. The publication in this case was to members of the South Eastern Regional Crime Squad in the United Kingdom, but with the clear intention, and knowledge, that the allegations would be repeated by that authority to the Garda authorities in this country, and I think with the equally clear intention that they would be acted on by the Garda authorities.”

Having considered the judgment of the Supreme Court the learned High Court Judge held that on those findings it was the plaintiff’s intention to damage the defendant in the hotel trade. He held that the plaintiff was entitled to substantial general damages based on the likelihood of loss of various kinds, including reputation, and he assessed general damages at IR£50,000.

6. Counsel on behalf of the plaintiff, Mr. Eoin McGonigal S.C., submitted that the award of general damages was excessive. He submitted that: (i) Genport Limited was not referred to in the information; (ii) that there was no evidence at all as to any damage suffered by the plaintiff, and, (iii) that the publication was to a very limited class of person.

7. The law provides that the plaintiff is entitled to an award of general damages such as will fairly and reasonably compensate the plaintiff for the wrong suffered: De Rossa vIndependent Newspapers [1994] 4 I.R. 432 at 463; John v MGN Limited [1997] QB 586 at 607; Barrett v Independent Newspapers Limited [1986] I.R. 13 at 23. On this aspect of the appeal the plaintiff has raised three specific issues and I will consider each separately.

8. The first issue raised in this ground of appeal has been decided already by this Court: [2002] 4 I.R. 73, where at p. 91 Murray J. (as he then was) stated:

“The High Court Judge appears to have attached importance to the fact that only one express reference to the defendant by name is to be found in one allegation as recorded by the English police. It must be noted that this reference to the defendant by name is contained in a summary of what had been communicated to the English police in more than one phone call. However, I consider this to be significant evidence of an express attempt to damage the reputation of the defendant.”

I am satisfied that the plaintiff may not revisit this as a substantial issue.

In reaching this decision I bear in mind that there was specific reference to Sachs Hotel (albeit that it was misspelt.). A relevant reference was in the document, dated 26th October, 1992, to Detective Chief Superintendent from Assistant Detective Inspector Stephen Condon, which relates to confidential information. In the report it is stated, inter alia,

“[-] allegedly is part of a money laundering operation on behalf of the I.R.A. The source states that a lot of funds are ‘cleansed’ through an Irish company called PRINCETON LIMITED. This company apparently owns hotels and clubs in Dublin including Saks [sic] Hotel and the Hippodrome.

One of the directors of PRINCETON is called Philip SMITH who is allegedly known to _____________. Johnston. … His brother and co-director is Paul SMITH. Paul SMITH is allegedly a member of the GARDA and until recently the Superintendent in charge of Personnel at Phoenix Park. He has recently been promoted to Chief Superintendent and posted to Portleish [sic] …”

In reaching the decision that the plaintiff may not revisit this issue I bear in mind the facts as found by the High Court and this Court and the relevant law. The relevant test is set out in Gatley on Libel and Slander, (8th Ed., London 1998) p. 161-163, which was cited to the High Court and which I adopt as the correct approach:

“The test is whether the plaintiff may reasonably be understood to be referred to by the words. … ‘The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstance or all the relevant facts…’

As a consequence of the earlier decision of this Court, I am satisfied that the absence of specific references to the plaintiff is not a matter to nullify the award of general damages. However, I do consider this a factor in the assessment of the damages.

9. As to the lack of evidence of actual damage suffered, this is not fatal to the claim for general damages. The learned trial judge identified negative effects, as quoted above. I am satisfied that the learned trial judge was entitled to infer, for example, a negative impact on the trade of the company from the facts so found, and an injury to the reputation of the company.

10. The third issue on this ground of appeal was the submission on behalf of the plaintiff that publication was only to a very limited class of persons and that damages should be reduced accordingly. While the publication was limited, i.e. in contrast to publication by a newspaper, it was published to an important group – police officers. Further, it could be envisaged, and it did happen, that this information would then proceed to other police forces, including to members of the Garda Síochána. The consequences of publication of such false information to such a group would be serious and disproportionate to the number of people to whom it was published. Indeed, a significant part of the information given to the Garda Síochána was investigated by them and found to be without foundation. I am satisfied that the fact that the publication was to this limited number of people is not a ground to reduce the award of general damages given the influential people to whom it was published and the fact that the publication was made with a view to damaging the defendant.

11. In considering the award of IR£50,000 for general damages, the analysis must take place in the context of an appellate court. While in most cases of defamation the award is made by a jury and an appellate court would be slow to intervene, that jurisprudence remains relevant in a case, such as this, where a judge has tried extensively relevant matters between the parties, has heard the evidence, and has made the award. An appeal court should intervene only with diffidence. In all the circumstance of this case for the reasons stated I am not satisfied that the plaintiff has raised grounds upon which an appeal court should intervene in the award of general damages. Consequently, I would dismiss this ground of appeal.

Exemplary or Punitive Damages

12. The High Court

The High Court held that the telephone calls were made maliciously, and, referring to the decision of this Court, with the intention of causing damage; that the behaviour of Caroline Devine, and of the plaintiff, was quite beyond the bounds of normal civilised behaviour and far outside any accepted commercial relationships. Further, the learned trial judge held that it was calculated to damage the defendant unlawfully, and, through unlawful means, to gain a benefit for the plaintiff. The High Court inferred that the allegations were made to police authorities in the United Kingdom rather than Ireland because giving false and misleading information to a police authority is a criminal offence. The High Court had no doubt that Caroline Devine, and possibly the plaintiff, committed a criminal offence in the United Kingdom, which is not punishable in this jurisdiction. However, the High Court made it clear that it was not holding that the plaintiff or Caroline Devine committed no criminal offence in Ireland.

The High Court reviewed the legal authorities and held:

“In the present case the plaintiff did concoct or attempt to concoct a malicious prosecution against the defendant and did attempt to pervert the course of justice. Furthermore, it did so for the purpose of its own commercial advantage and in an attempt to prevent or restrict the defendants rights under the landlord and tenants legislation.”

13. The High Court held that the intention of “punitive” or “exemplary” damages is either to punish or make an example of the guilty party, and that if the conduct of the guilty party is such as requires them to be punished or made an example of, then the damages should be awarded on that basis and without regard to the possibility of a windfall for the innocent party. A further factor taken into consideration in assessing exemplary damages was that Caroline Devine, who made the telephone calls, gave false evidence on oath. The learned trial judge held also that he was entitled to have some regard to the financial position of the parties. He stated:

“I think I also must have some regard to the guidelines laid down by the Supreme Court in regard to general damages for defamation, as I think it would be wrong that the court would award a higher figure in exemplary damages than it would ever award for general damages. However, this is an extremely bad case and is one in which there must be some very substantial penalty imposed on the plaintiff. I will propose to assess exemplary damages of IR£250,000.”

Submissions

14. While counsel on behalf of the plaintiff made submissions as to the amount of the award of exemplary damage it was not argued (and correctly so in my view) that exemplary damages did not flow from the facts. Rather, counsel submitted that the sum of IR£250,000 was excessive, and, taken with the figure for general damages, when considering the totality, the figure of IR£300,000 was excessive. Counsel referred to the sums awarded in De Rossa v. Independent Newspapers [1999] 4 IR 432, McIntyre v Lewis [1991] 1 IR 121, and others. Counsel for the defendant submitted that there had been an express finding by this Court that the allegations were calculated to damage the defendant. It was submitted that it was a coldly calculated defamation, with intent to damage. It was submitted that there was blatant perjury upon which the plaintiff never responded or explained, and that the Court should not intervene in the award.

Appellate Jurisdiction

15. An appellate court is slow to intervene with an award by a jury in a defamation cases. However, having applied carefully the appropriate test, the Court has jurisdiction to review and intervene. In this case, because of the circumstances, the claim for damages for defamation came on for hearing before a judge sitting without a jury. The learned trial judge had extensive knowledge of the parties in this case, from both the litigation in this case and from previous litigation. In view of the circumstances the trial judge was in a good position to evaluate the case. Consequently, while the award of the High Court in such circumstances is subject to review, I am satisfied that an appeal court should be slow to interfere and should apply , by analogy, the jurisprudence applicable when the decision has been made by a jury.

The Law

16. The law as to the level of the award of exemplary damage was addressed by Stephenson LJ in Riches and Ors. v Newsgroup Newspapers Limited [1986] 1Q.B. 256 where at p. 269 to 270 he stated:

“… the relevant law is concisely, correctly and comprehensively stated better than I could hope to state it on one page in the current edition of Duncan and Neill on Defamation, 2nd Ed. (1983), paragraph 18.27, p.136:

“… (c) if the case is one where exemplary damage can be awarded the court or jury should consider whether the sum which it proposes to award by way of compensatory damages is sufficient not only for the purpose of compensating the plaintiff but also of the purpose of punishing the defendant. It is only if the sum proposed by way of compensatory damages (which may include an element of aggravated damages) is insufficient that the court or jury should add to it enough ‘to bring it up to a sum sufficient as punishment’ … (f) A jury should be warned for the danger of an excessive award. (g) The means of the parties, through irrelevant to the issue of compensatory damages, can be taken into account in awarding exemplary damages.”

The law in relation to exemplary damages was addressed recently in O’Brien v Mirror Group Newspapers Ltd. [2001] 1 I.R. 1 at p. 22:

“As was made clear by the House of Lords subsequently in Broome v. Cassell & Co [1972] AC 1027, a plaintiff in an action for defamation who established that the defendant has published the words complained of because of a calculation that the profits resulting from the publication would exceed any damages he might have to pay would be entitled to exemplary damages since the case would come within this category. Since, as held by this court in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305, the jurisdiction of the court to award exemplary damages is not confined to the three categories referred to by Lord Devlin, it would follow that there may be other cases in which such damages could be awarded, e.g. where there was an intention to publish defamatory matter which was intended to refer to the plaintiff and which was known to be false. In the case of such a calculated breach of the constitutional right of the plaintiff to his good name, it might well be that, in the light of Conway v. Irish National Teachers Organisation, a plaintiff would be entitled to exemplary damages. In the present case, there is nothing to indicate that the defendants published the offending article intending to defame the plaintiff and in the knowledge that it was untrue. I am satisfied that the trial judge was, accordingly, correct in her decision not to leave the issue of exemplary damages to the jury.”

17. I adopt and apply the law as stated above. It is clear that on the findings of fact of the High Court, and the Supreme Court on the previous appeal, that this is a case where exemplary damages are appropriate. The only issues, therefore, for determination are whether there should be an intervention in the decision of the High Court as to the level of the award, and, if so, what is the appropriate award.

18. As stated previously, I am satisfied that there should be no intervention in the award of IR£50,000 for general damages, and thus the issue for determination is the sum of IR£250,000 exemplary damages. This is a very serious defamation and on the facts it is appropriate that there be an award of exemplary damages. The assessment of the award of exemplary damages should be made with the award of IR£50,000 also in mind, as the totality of the award of damages should be proportionate to the circumstances. Other relevant factors include: (i) the fact that the defendant is a corporation, not a human person; (ii) the nature of the publication and the extent of the publication; (iii) the absence of express evidence of actual loss suffered by the defendant; (iv) the conduct on behalf of the plaintiff which, as the learned High Court judge held, was quite beyond the bounds of normal civilised behaviour and quite outside accepted commercial relationships to gain benefit for the plaintiff. Such an award should not be excessive but should be sufficient to punish the behaviour on behalf of the plaintiff to intentionally publish defamatory matter of the defendant. Given the jurisprudence on the level of awards by this Court I am satisfied that the sum of IR£250,000 is excessive. In arriving at this decision I have considered especially De Rossa v Independent Newspapers [1999] I.R. 432; McDonagh v News Group Newspapers Ltd (Unreported, Supreme Court, 23rd November, 1993); Barrett v Independent Newspapers [1986] I.R. 13. I am satisfied in all the circumstances, that the award is so disproportionate to the injury suffered and the wrong done that no reasonable court would have made such an award.

In these circumstances I next determine what is a fair and reasonable sum. Considering all the facts and circumstances of the case, in the context of the jurisprudence on the awards of damages, I consider that the appropriate level of exemplary damages is IR£100,000. Viewing this sum together with the sum of IR£50,000 for general damages, I consider that the total of IR£150,000 is a just, reasonable and proportionate sum. Accordingly, I would allow the appeal of the plaintiff on this ground and substitute for an order of IR£250,000 exemplary damages an order for IR£100,000 damages. This means that the order would be for an award of IR£50,000 general damages and IR£100,000 exemplary damages.

Recoupment of Interest

19. The High Court held:

“… I have granted a stay over the years on a judgment for the agreed sum due to the plaintiff of IR£588,605.41 subject to the defendant paying interest on that sum. As I am now finding that the correct sum due is IR£288,605.41, the defendant has been paying interest on IR£300,000 from 23rd April 1996 to date. As that IR£300,000 was not due, the interest payments should only have been calculated on the balance of IR£288,605.41, and the defendant should be given credit for overpayment of interest. The amount due by the defendant to the plaintiff will, therefore, be the sum of IR£288,605.41 less the overpayment of interest.”

Counsel submitted that this decision of the learned trial judge came as a surprise to the plaintiff as the issue had not been the subject of legal argument and that the sum is significant (on the award of IR£300,000 by the High Court being IR£144,000). It was submitted that the High Court did not have jurisdiction to make such order.

This was not the most significant ground of appeal pressed by the plaintiff. It related back to monies ordered to be paid by the High Court at an interlocutory stage of the proceedings between the parties and an order on the final hearing in the High Court. I am satisfied that the High Court had jurisdiction to make such an order in light of the findings at the trial of the action. The High Court was entitled to make such an order, bearing in mind that the interlocutory order was to retain the status quo. In light of the findings at the trial, the High Court held that the monies paid on the interlocutory order were excessive in light of the final order and may be adjusted accordingly. I am satisfied that the High Court had jurisdiction to make such an order.

However, given the success of the plaintiff on this appeal in relation to the award of exemplary damages, the relevant sum will now be different. Thus, for the sum of IR£300,000 should be replaced the figure of IR£150,000. Traversing the words of the High Court, with the new figure, the finding would be:

“… I have granted a stay over the years on a judgment for the agreed sum due to the plaintiff of IR£588.605.41 subject to the defendant paying interest on that sum. As I am now finding that the correct sum due is [IR£438,605.41], the defendant has been paying interest on [IR£150,000] from 23rd April 1996 to date. As that [IR£150,000] was not due, the interest payments should only have been calculated on the balance of [IR£438,605.41] and the defendant should be given credit for overpayment of interest. The amount due by the defendant to the plaintiff will, therefore, be the sum of [IR£438,605.41] less the overpayment of interest.”

While I have determined the principle to be applied in this instance, I would hear counsel on this matter as to the actual sums involved, if they so wished.

Cost order in the High Court

20. The plaintiff has also appealed against the refusal of the High Court to award to the plaintiff the costs of its appeal against the defendant.

It is clear that when the issue of costs arose in the High Court both sides were given the opportunity to make submissions and to have their argument on the matter heard. Having heard counsel for both parties the High Court made no order for costs to the plaintiff.

It is unfortunate that no reasons were given. Such an approach is not best practice. However, I would not intervene on this ground alone.

In this case there had been a very full hearing of the case (and previous related litigation between the parties) before the trial judge. It is plain from the written reserved judgment that the trial judge had considered all aspects of the case and was fully aware of the nature of the disputes between the parties. He expressed also his clear opinion of the behaviour of the parties. Nothing which has been determined by this Court interferes with those findings.

While the usual order is that costs follow the event, the Court has a discretion. The claim of the plaintiff has to be viewed in light of all the circumstances of the case, which included the behaviour of the plaintiff and the extensive proceedings on the counterclaim.

In all the circumstances of the case I am not satisfied that an error in principle of the High Court decision on costs has been identified. Consequently, I would not intervene in this order on costs of the High Court.

Conclusion

21. In conclusion, on the appeal by the plaintiff from the judgment and order of the High Court, as to the four parts of the High Court order sought to be set aside, for the reasons stated, I would order:

(a) That the award of IR£50,000 for general damages to the defendant not be set aside;

(b) That the award of IR£250,000 exemplary damages to the defendant be set aside and in place order an award ofIR£100,000 exemplary damages;

(c) That the defendant be entitled to recoup interest on the sum of IR£150,000 at 8% per annum from the 23rd day of April, 1996, to the date of judgment and order from the plaintiff and to set off same against the sums due by the defendant to the plaintiff;

(d) That there be no intervention in the order of the High Court refusing the plaintiff’s application for the costs of its claim against the defendant.

Nolan -v- Sunday Newspapers Ltd t/a The Sunday World

[2017] IEHC 367

JUDGMENT of Mr. Justice O’Connor delivered on the 26th day of May, 2017.

Introduction

1.In these proceedings, the plaintiff claims compensatory, aggravated and exemplary damages for defamation, infringement of his right to privacy, and breach of confidence as a result of articles surrounded by photographs (some pixellated to disguise people other than the plaintiff) published on Sunday, 15th July, 2012, (“the 2012 edition”) and Sunday, 3rd March, 2013 (“the 2013 edition”).

Background

2.The plaintiff’s parents (the plaintiff’s father died over a year after publication of the 2013 edition), his two brothers, sister, extended family and members of his sports clubs and community were undoubtedly aware if not proud of the plaintiff’s skills in Gaelic football and rugby given his achievements from school until the late 1990s. The plaintiff played with the Leinster School’s rugby team and at all levels for County Kildare in Gaelic football. The plaintiff, in evidence, was realistic about his recognition among the public. It is fair to say that a small percentage of those who read the defendant’s newspaper (“the Sunday World”) in 2012, would have identified the plaintiff as an accomplished sportsman without the aggrandisement by the Sunday World of his sporting achievements in the 2012 edition and in the 2013 edition (“the editions”).

Suspended Sentence

3.On 27th November, 2002, the plaintiff having pleaded guilty to a money laundering charge was (according to a press report accepted as accurate by the plaintiff in evidence) then fined IR£20,000 (€25,395) and given a suspended sentence by the Dublin Circuit Criminal Court following evidence that the Criminal Assets Bureau’s account had been credited by the plaintiff for the proceeds. Involvement in that money laundering did not enrich the plaintiff. He discharged his debt to society for that conviction by the sentence, fine and subsequent publicity. His then business ceased.

4.The recall of those events in the editions published over a decade later meant that the plaintiff was brought back on the stage of nationally reviled convicts with serious consequences for the plaintiff as will be explained. Most reasonable people take a view that convictions given in youthful years, at a time of stupidity and naivety or a decade ago should not engender any particular interest unless those convictions are relevant to a subsequently linked crime. That attitude arises from cultural, religious, historical and societal influences, which is manifested in the recent uncontroversial commencement of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016. This is not to say that mention of the plaintiff’s conviction is defamatory but context is indeed all important.

The Articles

5.The left hand column on the front page of the 2012 edition had a box entitled “EXCLUSIVE” followed by a photograph of the plaintiff with the scantily clad upper body of a woman whose face was pixellated (“photograph 1”) before highlighting “EX-GAA STAR IS THE BIGGEST SWINGER IN TOWN”.

The 2012 Pictures

6.Page 10 of the 2012 edition then had a picture of the plaintiff (“photograph 2”) taken by the defendant’s photographer outside his then Dublin home in circumstances which I will mention later. There were two photographs alongside which had a picture of the plaintiff stretching for a football when playing for Kildare some twenty years previously (“photograph 4”) and a picture of the plaintiff leaning against the lower back of a woman who was leaning towards a fireplace with the backs and legs of two other women, below the shoulder line to knee height with fishnet tights (“photograph 3”).

7.The following page in the 2012 edition ascribed to Niall Donald (“the Journalist”) had the following photographs:-

(i)the plaintiff with a woman whose face was pixelatted in a fancy dress costume and containing the caption “SLEAZY: Nolan at party” (“photograph 5”);

(ii)the plaintiff holding a woman in lingerie whose face was also pixelatted and with a caption “CAUGHT: Nolan gets to grips with a guest” (“photograph 6”);

(iii)a person with a fancy dress wig, face and costume having a comment: “ORGIES: A source said Nolan organised parties” (“photograph 7”); and

(iv)the plaintiff in a fancy dress costume with the caption: “KINKY: Nolan dressed as a woman” (“photograph 8”).

Impression from Photographs in 2012

8.Viewing those photographs and captions inclines a reasonable viewer towards an impression that the plaintiff was a major organiser of orgies.

The 2012 Text

9.The Journalist in the columns surrounding photographs 5, 6, 7 and 8 started the much vaunted exclusive with the sentence: “MEET the convicted money launderer and former GAA star who now gets his kicks as Ireland’s unofficial King of the Swingers”.

10.The text asserted that the plaintiff “has continued to score freely by helping organise swinger parties across Ireland”. It gratuitously continued to mention a physical disability suffered by the plaintiff and an alleged encounter by the plaintiff with “a porn star” on “the day that [the porn star] was exposed” by the Sunday World. Rather disturbingly, the Journalist then lurked back ten years to the circumstances of the suspended sentence given to the plaintiff. The Journalist then took the liberty to mention on the same page, the assassination of a convicted “mobster” in 2002, responsibility for which was denied to the Sunday World by a robber sentenced to six years in 2002. These latter details were totally inconsequential and irrelevant to the “swinger” parties which were the focus of photographs and captions on that page. I shall return to this aspect later.

Overall View in 2012

11.The plaintiff was characterised by the 2012 edition as a principal organiser of orgies in the State with a lurking undertone of criminality.

The 2013 Edition

12.On Sunday, 3rd March, 2013, the defendant published what it described on the front page of the 2013 edition a “12 – page Sunday World a real Irish Sunday investigation” with a picture of a couple undressing and a woman with high heels on a stairs wearing only a bra and knickers. Below the photographs were headlines, the first three of which read: “inside the online world where vice is just a click away? the exhibitionist and the voyeurs exposed? we reveal handymen who swap services for sexual favours”.

13.The 2013 edition for Northern Ireland had the same cover page but confined itself to eight pages. This Court is concerned with the twelve page edition distributed in the State which had one part referring under the headline “KINKY ESCORT COUPLES SEEDY SEX SESSIONS” to a prostitution website and an entrapment exercise carried out by a newspaper reporter.

14.The Journalist who penned the above mentioned excerpts from the 2012 edition then contributed, or at least put his name down for, the next few pages to the 2013 edition. These pages contained a photograph of the plaintiff holding his hand over the breast of a woman in a bikini while her face was pixelatted (“photograph 9”) which had the caption: “SWINGERS: Brian ‘Spike’ Nolan”. The text immediately to the left of the plaintiff’s head stated as follows:-

“It has spawned a series of “cottage industry” sex workers – most of whom are not under the control of a pimp or criminal gang. Just like other small internet businesses, these specialised operators sell directly to the consumer – cutting out the middleman”

15.The next page had a photograph of the plaintiff similar if not identical to photograph 6 in the 2012 edition with a different heading, however, “STILL SCORING: Former GAA player Brian Nolan now organises sex parties”.

16.After referring to brothels and “legitimate massage parlours” before repeating the Journalist’s association of the plaintiff with the so-called celebrity porn star, the Journalist on p. 49 of the 2013 edition wrote:-

“Another inter-county GAA star also made the headlines for his seedy sexual antics in 2012 [i.e. by the defamatory 2012 edition]. [The plaintiff] first shot to prominence as a talented forward who played for Kildare in the 1992 Leinster final against Dublin. But [the plaintiff] proved less than Lilywhite when he was convicted of laundering money for mobster… a decade later. Despite hanging up his football boots [the plaintiff] has continued to score freely by helping organise swingers’ parties across Ireland.”

17.The Journalist relied on his own “investigation” in 2012, to implicate the plaintiff inaccurately and unfairly in what one might call an industry of providing sexual services, for the 2013 edition.

18.Page 50 of the 2013 edition that followed referred to “the sleazy men who are using the economic downturn to get an upturn in their lives – by offering swap services for sex”. Page 51 has a picture of a reporter looking on a couple engaged in sex acts who “hire themselves out for sex [which] has become increasingly popular in Ireland with more and more people turning to it to make an extra few quid and charging people big money for live sex shows”.

19.Further pages of the twelve page “investigation” identified women, places, gigolos and pimps involved in prostitution.

Impression from 2013 “Investigation”

20. A reasonable person who glanced at the 2013 edition and the twelve page investigation was likely to form the view that the characters (including the plaintiff) identified in the 2013 edition were immersed in economic activities involving the provision of sexual services or activities.

21.The context in which the plaintiff is placed in the 2013 edition is particularly awful once it is accepted, as this Court does, that there is not a shred of evidence to support a suggestion or innuendo that the plaintiff was involved in prostitution, pimping or any such type of illegal activity.

The Defendant’s Case

22.The defendant did not plead or rely upon the defence of truth in respect of the meanings pleaded by the plaintiff which were as follows:-

(i)the plaintiff is involved in the provision of sexual opportunities for financial gain;

(ii)the plaintiff helped organise swingers’ parties across Ireland;

(iii)the plaintiff has sought or permitted newspaper publicity in relation to his sex life;

(iv)the plaintiff allowed a newspaper to publish photographs of a private and intimate nature of him at private parties in intimate poses with partially clad women;

(v)the plaintiff’s occupation was organising sex parties across Ireland; and

(vi)the plaintiff was involved in the sex trade.

23.The defendant denied that the words and photographs were capable of bearing the meanings set out at subparas. (i) – (vi) above or any meaning defamatory of the plaintiff. It further denied that the publication of the articles caused distress or embarrassment to the plaintiff while denying any damage to the plaintiff’s reputation.

24.It is worth noting at this stage that the Court accepts the evidence given by the plaintiff that he attended four of the relevant parties with his then partner (“L”) over a period of some eighteen months. This fact did not hinder a vigorous cross examination of the plaintiff which sought to have accepted by the plaintiff and this Court that:-

(i)There was no distinction in perception between attending a party at which there may have been multiple sex partner participation by people other than the plaintiff and the unsubstantiated allegation made against the plaintiff that he organised some or all of the parties.

(ii)The slight on the plaintiff’s reputation arose inexorably from his voluntary attendance at the four parties rather than the full scale coverage and suggestions given in the editions as described.

(iii)The articles were of public interest which the defendant according to its formal defence was “entitled and duty bound to report” as “matters of public interest”.

The Court’s View

25.The attempt by counsel for the defendant to blur the difference between organising chess or quiz events and organising what came to be known as sex parties can be described as a debating style point. In other circumstances, it might have had traction were it not for the circumstances in which the allegations of organising sex parties were made in the editions.

26.Nothing arises from exploring general attitudes to those who have attended a party at which there was an opportunity to engage in sexual activity with others who were not partners. The plaintiff found the relevant parties distasteful and limited his attendance to four occasions before ceasing all interest in them after eighteen months. No witness was called by counsel for the defendant. Therefore, based on the impression which I formed at trial from listening to the plaintiff and his supportive friend, I do not accept the suggestion made on behalf of the defendant that the rugby club at which the plaintiff was a coach or the social group in which he mixed would have ostracized him as occurred due to his attendance at those four parties, if they had become public knowledge other than by way of the editions.

27.There was no evidence that anyone in the plaintiff’s social group learnt or was bothered to learn about the parties to which the plaintiff was brought to by L and which he attended with misgivings. Counsel for the plaintiff was right in submitting that there are occasions on which people attend parties reluctantly and appear in photographs with a smile which feign enjoyment.

28.The plaintiff’s explanation for his attendance at the parties is accepted by this Court having listened to and observed the plaintiff carefully. The plaintiff has had misfortunes but has shown that he owns up to responsibilities. The defendant did not take its opportunity to call evidence to rebut the plausible account given by the plaintiff for the reason to accompany and keep L in their relationship.

29.Most people who were correctly apprised of the plaintiff’s circumstances and those factors leading to the plaintiff’s attendance at the four parties, would not have ostracized the plaintiff as transpired.

The Defendant’s Investigation

30.The last relevant party attended by the plaintiff occurred in 2011. The plaintiff and L subsequently had blazing rows which included threats by both to distribute photographs taken at the parties in order to embarrass the other. The Journalist subsequently acquired copies of the photographs used in the editions. The Journalist and an accompanying photographer doorstepped the plaintiff in the car park adjacent to his then home in Dublin on Saturday, 7th July, 2012. He showed photographs to the plaintiff which prompted pleas from the plaintiff not to publish them. The transcript of the recording from that encounter taken by the Journalist, unknown to the plaintiff then, makes it clear that the plaintiff was very concerned about access to his then twelve year old son and six year old daughter if the Journalist published details and photographs as the Journalist implied would happen.

31.The doorstep questioning by the Journalist was beguiling and suggested that the Journalist would investigate the plaintiff’s account of events. The subsequent two conversations initiated by the Journalist revealed a lack of integrity which might be expected of a professional journalist engaged in the pursuit of accurate information. The disingenuous points made by the Journalist in the subsequent conversations about the plaintiff’s involvement with criminality ten years previously had nothing to do with the photographs. Nevertheless, the defendant had the temerity to run a story in the 2012 edition linking the photographs and the conviction to the organising of orgies as explained.

Effect of 2012 Edition

32.The 2012 edition inevitably caused conversation among the friends and acquaintances of the plaintiff. A quote from a renowned psychologist in 2004 that “Gratuitous gossip is confessional calumny, the slaughter of reputations, the death of marriages and the trauma of social exclusion” is quite apt save for the fact that the plaintiff had long separated from his wife by 2012. The gossip and talk did indeed lead to family and social exclusion of the plaintiff with continuing effects on his reputation. The plaintiff mentioned that an observer at the trial in Cork during March 2017 asked “why didn’t you invite me?” without thinking how hurtful that is to the plaintiff.

33.It is wrong for any person to think, conclude or joke as that observer suggested that the plaintiff organised or willingly attended the parties. One of the ongoing effects can thus be seen and it is important that this judgment and ultimate award marks how wrong such observations are in view of the finding of the repeated defamation of the plaintiff by the defendant through its considerable newspaper circulation.

34.It is over five years since the publication of the first edition and it is apparent that the plaintiff requires one or more of the remedies sought. The ongoing damage and hurt caused to the plaintiff should be alleviated by an award of damages. Such an award is one way of sending a message that the plaintiff should not blaggarded while compensating him for the continuing injury to his reputation.

35.Depression, clouds of darkness and suicidal ideation are terms which hardly do justice to the effect of the 2012 edition on the plaintiff. The plaintiff lost access to his children and their names were changed when they moved school following the publication in July 2012. He was shunned by extended family and ostracized within his social and sporting circles. It is difficult to think of more serious consequences for a father, team coach and member of an established family in the community than those which occurred following publication of the defamatory material which lead reasonable members of the plaintiff’s circle to conclude that he was at least one of the biggest organisers of orgies in the State.

Investigation for the 2013 Edition

36.No one on behalf of the defendant bothered to assess the risks posed to the plaintiff before or after the 2012 edition despite the plaintiff’s pleas. In fact, the defendant just reaped its advertising and circulation income from selling 152,440 copies of the 2012 edition. It then pulled out the photographs for its “12 page” investigation contained in the 2013 edition without further inquiry or notice to the plaintiff. As explained, the 2013 edition depicted the plaintiff as involved in the provision of orgies in the context of other illegal activities like prostitution. That edition sold 148,759 copies.

Public Interest Plea

37.As for the public interest argument advanced, the Court stresses its duty to vindicate the rights of citizens. It will not be thwarted by the vacuous plea that there is a public interest in publishing salacious material without regard to the truth. Little, if anything, was done by the defendant to portray an accurate context for the plaintiff’s attendance at the parties in the 2012 edition. No consideration was given to the plaintiff’s pleas in advance of publication in 2012 about the potential effect on the relationship with his estranged wife and children by the publication of information which portrayed him as having a major role in arranging orgies. Moreover, there was no suggestion that the Journalist or anyone on the part of the defendant enquired about anything and not least the welfare of the plaintiff in the year which elapsed between the 2012 edition and the 2013 edition with a heading “World of Vice Exposed”.

38.Lest there be any doubt, the intrusion into the plaintiff’s private life did not have any overriding consideration of the public interest. The defendant recklessly published prurient photographs and pieces which carried the import as described. The plaintiff had no option after the 2013 edition but to seek a commitment from the defendant to cease its apparent crusade to defame him with impunity. The defendant wrongly sought such impunity by reference to the plaintiff’s ten year old suspended sentence and fine for acknowledged money laundering.

Aggravating Circumstances

39.The failure of the defendant to exclude harmful inaccuracies, the refusal to heed the warning about the effect on the plaintiff’s relationship with his children and the gratuitous mention of the plaintiff’s public figure brother are all factors which exacerbated the defamation already identified. In addition, the questions posed during the cross examination of the plaintiff concerning the assassination in 2002 mentioned in the 2012 article which is totally irrelevant to the plaintiff and the public position of the plaintiff’s brother in the 2013 article are factors which this Court can take into account together with the unnecessary reference to the plaintiff’s alleged friendship with a former Government Minister in the 2012 article. The decision of the defendant to ignore the letter from the plaintiff’s solicitor dated 6th March, 2013, along with the refusal to make an offer of amends constitute particularly offensive conduct.

40.The plaintiff, whether due to his occasional depressed state, fear of losing further contact with his family and friends or lack of self belief did not engage a solicitor until the day after the publication of the 2013 edition. The defendant singularly maintained its stance. It has exercised its right not to offer any explanation for the serious errors of judgement and the breach of trust between journalists and readers of the Sunday World. This Court was not made aware of any internal controls, supervision or editing services operated by the defendant to ensure that the lives of citizens are not destroyed by lack of investigation and harmful inaccuracies. If the defendant did have such controls, then they failed abysmally.

41.Thankfully, the plaintiff with the support of his close friends, family, mother, doctor and legal professionals found the strength to believe in himself. He has taken the defendant to task and this judgment will hopefully help his self esteem. The determination of these proceedings nearly four years after the 2013 edition without any sign of remorse, regret or offer of amends was not helped by the protracted row over discovery and claim for privilege concerning the Journalist’s recordings. Despite the delivery of an initial letter dated 6th March, 2013, and the delivery of a Statement of Claim on 18th November, 2013, it took until 1st July, 2014, for the defendant to deliver its Defence and a further long period to resolve the issue concerning discovery.

Privacy

42.The essence of the plaintiff’s claim to privacy relies on a rather loose agreement or understanding with unidentified individuals that the photographs taken in 2010 and 2011 at the four parties would not be disclosed to anyone outside the group who attended the parties without the consent of those attending.

43.The plaintiff consented to the taking of photographs by a stranger who attended the party. It was also clear that the photographs were freely available among up to 26 people of which he might have only known four at most.

44.Therefore, I cannot find that the right to privacy has been engaged. Unlike the situation in Herrity v. Associated Newspapers (Ireland) Limited [2009] I.R. 316, no issue arises about the lawfulness of the defendant acquiring the photographs. In Herrity, Dunne J. found:-

“[…] the publication of the telephone transcripts in this case were obtained in breach of the provisions of s. 98 of the Postal and Telecommunications Services Act 1983. As previously indicated, s. 98(1) applies to a person who not only intercepts or attempts to intercept or authorise someone else to intercept telecommunication messages but also applies to those who disclose the existence, substance or purport of any such message which has been intercepted, or uses for any purpose any information obtained from any such message and such a person is also guilty of an offence. I cannot see how anyone can assert a right to freedom of expression to publish transcripts of private telephone conversations where the legislature has expressly prohibited the interception of telecommunication message.”

45.Dunne J. went on to outline:-

“[…] as a general proposition, I think that cases in which the right to privacy will prevail over the right to freedom of expression may well be far and few between.”

46.The plaintiff also cited the judgment in Mosley v. News Group Newspapers Limited [2008] EWHC 1777 (QB). The defendant in that case had bribed and threatened sources, used hidden cameras in private property in order to record material of a sexual nature and alleged that the parties which the plaintiff had attended involved “Nazi or concentration camp role-play; an allegation that the court found to be totally untrue”.

47.It is unnecessarily stretching the equitable jurisdiction of this Court to consider a claim for breach of confidence when the plaintiff will be satisfied with the award of damages for defamation.

48.In these proceedings, the defendant was contacted by a source who voluntarily provided information in relation to the parties which the plaintiff admitted attending. Although the defendant used the photographs in the editions which defamed the plaintiff, I cannot align the circumstances arising in Herrity or in Mosley to those presented on behalf of the plaintiff.

49.It may be unfortunate but it is the reality of the modern world that photographs can be taken so easily and disseminated within and outside a known group. It is the Court’s view that the right to privacy is a constitutional right to which effect is given when the existing law does not adequately protect the citizen. In this regard, I am guided by the following excerpt from the judgment of O’Donnell J. in Clarke v. O’Gorman [2014] IESC 72, [2014] 3 I.R. 340 at para. 34 page 359:-

“The intersection between claims for damages for breach of constitutional rights and claims in tort was discussed in Hanrahan v. Merck Sharp and Dohme Ireland Ltd. [1988] ILRM 629. The effect of that decision is that the existing torts and other causes of action known to common law are to be considered the method by which the State performs its obligation to vindicate the constitutional rights of the citizen. It is only therefore if it can be shown that the existing law does not adequately protect the constitutional rights of the citizen that a separate claim for breach of constitutional rights can be invoked.”

50.There was some consensus in the submissions made to the Court that any damages which may be awarded to the plaintiff for defamation may be taken into account in a claim for breach of a privacy right. I will go further and suggest that a person like the plaintiff who is satisfied by an award of damages for defamation, including aggravated and punitive damages, need not be concerned with the demands for a successful claim for damages in respect of a privacy right infringement. In other words, damages for defamation exceed those for invasion of privacy under current law according to my review.

51.Counsel for the parties engaged with the Court’s questions about the potential relevance of data legislation breaches even though there was no evidence that the photographs or information emerged from data law breaches. Suffice to say that the Court need not go there in these proceedings but the Court merely observes that it may be worth considering this area in a future claim for privacy like this if and when:-

i)Proposal 2017/0003 of 10 January 2017 for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Com(2017) 10 final) is enacted and

ii)the State implements Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC(General Data Protection Regulation) which is due by 25th May, 2018.

Assessment of Damages

52.It is now well established that the assessment of damages in defamation cases is quite distinct to that adopted for awards of damages in personal injury actions. Dunne J. in Leech v. Independent Newspapers (Ireland) Limited [2015] 2 I.R. 214 at p. 276, para. 137 stated:-

“I have come to the conclusion that the analogy of awards in personal injuries cases may be of some assistance in the area of injuries caused by reason of sexual abuse but is not so useful an analogy in the case of awards in respect of defamation actions ….”

53.Dunne J. under the heading “The gravity of the libel” at para. 139 summarised the position in that case as follows:-

“Undoubtedly the articles complained of by Ms. Leech in these proceedings amounted to a serious and sustained attack on her business and personal integrity. I think one could fairly compare the libel in this case with that in O’Brien v. Mirror Group Newspapers Ltd. [2001] 1 I.R. 1 which contained an allegation that the plaintiff had paid a £30,000 bribe to a Government Minister to procure a lucrative radio licence. In effect Ms. Leech was accused of engaging in an adulterous relationship for the sake of obtaining lucrative contracts. Such a defamation would undoubtedly have a serious effect on an individual’s business and personal reputation. I accept that the defamation in this case could not be described in the same terms as that in de Rossa v. Independent Newspapers plc. [1999] 4 IR 432 which was described as coming within the category of the gravest and most serious libels which have come before the courts but it is nonetheless a very serious libel. Given the allegations of adultery made in respect of Ms. Leech, this must have been a source of real hurt and distress to Ms. Leech.”

54.Dunne J. then went on to deal with the conduct of the defendant in that case and addressed such issues as the absence of any offer of an apology and the use of photographs of Ms. Leech with the Minister who was implicated in the defamation. The learned judge then dealt with the impact of the defamation on the individual and she considered such issues as the necessity for one of her sons to change school during his Leaving Certificate year because of the article.

Defamation Act 2009

55.Section 31 of the Defamation Act 2009 provides as follows:-

“(1) The parties in a defamation action may make submissions to the court in relation to the matter of damages.

(2) …

(3) In making an award of general damages in a defamation action, regard shall be had to all of the circumstances of the case.

(4) Without prejudice to the generality of subsection (3), the court in a defamation action shall, in making an award of general damages, have regard to—

(a) the nature and gravity of any allegation in the defamatory statement concerned,

(b) the means of publication of the defamatory statement including the enduring nature of those means,

(c) the extent to which the defamatory statement was circulated,

(d) the offering or making of any apology, correction or retraction by the defendant to the plaintiff in respect of the defamatory statement,

(e) the making of any offer to make amends under section 22 by the defendant, whether or not the making of that offer was pleaded as a defence,

(f) the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement,

(g) the extent (if at all) to which the plaintiff caused or contributed to, or acquiesced in, the publication of the defamatory statement,

(h) evidence given concerning the reputation of the plaintiff,

(i) if the defence of truth is pleaded and the defendant proves the truth of part but not the whole of the defamatory statement, the extent to which that defence is successfully pleaded in relation to the statement,

(j) if the defence of qualified privilege is pleaded, the extent to which the defendant has acceded to the request of the plaintiff to publish a reasonable statement by way of explanation or contradiction, and

(k) any order made under section 33 , or any order under that section or correction order that the court proposes to make or, where the action is tried by the High Court sitting with a jury, would propose to make in the event of there being a finding of defamation.”

56.This Court heard submissions about the level of damages which did indeed assist but I remained curious about the level of damages which ordinary members of the public sitting on a jury award to claimants like the plaintiff. Attached to this judgment are pages with summary details and references for Irish Court judgments and awards from Juries as could be ascertained from public records over the last number of years. The Irish Court judgments summarised with citations were examined by this Court for the purpose of extrapolating findings and views which bind or may influence this Court. It is indeed true that the appeal courts have applied restraint and proportionality while deferring to the undoubted right of juries to send a message by an award to compensate a defamed person. Similarly, my review of the awards and judgments in the Superior Court indicates willingness to award damages to put the plaintiff back into the position as if the defamation never occurred by vindicating the plaintiff in the eyes of the public through sending a message in the form of significant quantum to correct the wrong.

57.There is indeed some judicial doubt about the wisdom of comparing awards in previous defamation cases because each claim has its own unique facts and subsequent events to consider. All that can be achieved is an award of such a size as to compensate and to impress upon the public the nature of the defamation which has occurred.

Punitive Damages

58.Section 32(2) of the Defamation Act now provides in relation to punitive damages:-

“Where, in a defamation action, the court finds the defendant liable to pay damages to the plaintiff in respect of a defamatory statement and it is proved that the defendant—

(a) intended to publish the defamatory statement concerned to a person other than the plaintiff,

(b) knew that the defamatory statement would be understood by the said person to refer to the plaintiff, and

(c) knew that the statement was untrue or in publishing it was reckless as to whether it was true or untrue,

the court may, in addition to any general, special or aggravated damages payable by the defendant to the plaintiff, order the defendant to pay to the plaintiff damages (in this section referred to as ‘punitive damages’) of such amount as it considers appropriate.”

Exemplary Damages

59.Finlay C.J. in Conway v. Irish National Teachers Association [1991] 2 I.R. 305 at 322, gave the following description:-

“Punitive or exemplary damages arising from the nature of the wrong committed and/or the manner of its commission which are intended to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered.”

60.Finlay C.J. also stated that as a general principle, exemplary damages should not be awarded if the Court believed the total award in compensatory damages constituted a sufficient public disapproval of and punishment for the wrong committed.

Summary

61.As a result of the Defamation Act 2009, matters have been simplified for punitive and aggravated damages by relying upon s. 32(2) of the Defamation Act 2009. In this respect, I propose to consider the issue of punitive, aggravated and exemplary damages solely within that statutory framework.

Overall Purpose of Damages

62.It can be extrapolated from many decisions that the damages award must be convincing and given in such a way as to vindicate the rights of the person who has been defamed. The quantum should be sufficient to demonstrate to observers that the defamatory articles should not have been published while other elements such as special damage and loss of opportunity may be taken into account also.

Details of Awards Given

63.The annexes to this judgment summarise the level of damages awarded by juries and the appeal courts in defamation cases. I have read each of the judgments cited and examined the information currently available for those cases involving juries which are listed in the annexes. The exercise undertaken delayed the delivery of this judgment but allowed the Court to incorporate the views and judgment of the Court of Appeal in Christie v. TV3 [2017] IECA 128 delivered on 4th May, 2017, which followed the conclusion of this trial at Cork Courthouse on 24th March, 2017.

64.The majority judgment in the Supreme Court delivered by Dunne J in Leech v Independent Newspapers (Ireland) Ltd [2015] 2 IR 214 which was a review of a jury award on appeal (summary details of which may be gleaned from the annex) assists this Court in its task. The headings used by Dunne J are quite apposite for these proceedings:-

i)“The gravity of the libel”;

ii)“The extent of the publication”;

iii)“The conduct of the defendant”;

iv)“The impact of the defamation”;

v)“Freedom of expression” (as it may apply)

65.I cannot but find that the defamation of the plaintiff in the editions was very serious. It could have been worse but on a scale of 1 to 100, it reaches 75 when one takes account of all the circumstances and particularly those factors identified at S31 (4) (a), (b), (c), (f) and (h) of the 2009 Act.

66.The impact on the defendant was immense as already outlined. It is a credit to the plaintiff, his former wife, children, mother and friends to have regained some accord despite the total disrespect shown by the defendant and its employees.

67.In advance of awarding compensatory damages it may help to repeat that the research exercise undertaken by this Court since the trial was to identify if possible any common theme in the awards by juries which represent commonly held views. I am indeed conscious of the opinion of McKechnie J (dissenting in part on the preserve of the unique role for a jury) in Leech v Independent Newspapers (Ireland) Ltd where he said at para 102:-

“How can a transcript convey the depth of a person’s feelings who has been publicly humiliated; whose sense of esteem and personal worth have been undermined, even shredded in some cases; whose presence even amongst strangers may result in being shunned or rebuffed?” which resonates when reading reports or records of previous awards too.

68.In brief I discern that ordinary people sitting on juries recognize that damages for defamation send out a message of caution not only to the person who defames but also to the wider public for the benefit of the defamed. It is my view that the starting point in a defamation of the kind presented rose to €250,000 because of the elapse of time between the 2012 edition and the even more defamatory 2013 edition. In arriving at this point I take into account that I am going to award aggravated and punitive damages as well.

69.The aggravation of the damage having regard to s 32(1) of the 2009 Act is also an issue which has been engaged. The failure to respond to the initial letter of complaint, the contribution to the delay in having the plaintiff’s claim determined along with the manner of defending the claim at trial as described, meant that the plaintiff had to undergo further public scrutiny and wait years for the vindication of his rights.

70.Therefore, I award €30,000 under this heading.

71.Punitive damages is now governed by s 32 (2) of the 2009 Act. The defendant intended to publish the defamatory editions to its considerable readership, flaunted that the statements were about the plaintiff and was reckless as to whether the details and suggestions were accurate or true. It made matters considerably worse by slovenly relying for the 2013 edition on the material available for the defamatory 2012 edition. Furthermore, it did not contact the plaintiff about the clear suggestion of very serious criminality which it made in the 2013 edition.

72.I was informed on behalf of the defendant that it sold some 148,759 copies of the 2013 edition. It proceeded to today without any offer of apology while pocketing all of the revenue for its 12 page investigation on that day which grossly defamed the plaintiff. The extent of the publication in two separate calendar years and the conduct of the defendant from March 2012 to May 2017 with impunity so far (save for the award of compensatory and aggravated damages just now) leads this Court to direct that the defendant pay a further €30,000 in punitive damages.

73.Therefore, I direct the defendant to pay a total of €310,000.00 in damages to the plaintiff.

Irish Judgments

Christie -v- TV3 Television Network Ltd

[2015] IEHC 694

JUDGMENT of Ms. Justice Iseult O’Malley delivered the 12th day of November 2015

1. In these proceedings the plaintiff has applied to the court to assess damages for defamation in circumstances where the defendant has, pursuant to the provisions of the Defamation Act, 2009, made an offer of amends and has not defended the proceedings other than by way of making submissions as to how the court should approach the question of damages.

Background facts

2. The plaintiff is a solicitor who carries on a mixed civil and criminal practice in a small firm in Dublin. In 2013, he represented a Mr. Thomas Byrne, a by then struck-off solicitor who was charged before the criminal courts with a large number of offences of theft, forgery and fraud. The details of the offences are not relevant here, save for the fact that they were for the most part connected with Mr. Byrne’s professional capacity as a solicitor. The case ran for several weeks in October and November, 2013 and attracted widespread publicity. Mr. Byrne, who was on bail throughout the trial, was eventually convicted on all charges and was sentenced to a term of imprisonment.

3. On the evening of the 11th November, 2013, in its main news bulletin, the defendant reported on the trial in the following terms:

“The jury in the trial of solicitor Thomas Byrne will resume its deliberations tomorrow morning.

It has already spent several hours considering its verdict.

The 23-day trial ended this morning with a summing-up from Judge Patrick McCartan.

Thomas Byrne has pleaded not guilty to 50 counts of theft, forgery, using forged documents and deception.

The total amount involved is almost €52m.”

4. Unfortunately, these words were accompanied solely by footage of the plaintiff making his way, on his own, into the Criminal Courts of Justice building in Parkgate Street.

5. On the 14th November, 2013, the plaintiff’s solicitor wrote to the defendant. The broadcast was described as “wholly untrue, false and malicious and grossly and seriously defamatory”. A total of 23 separate defamatory assertions were identified as having been made, beginning with an assertion that the plaintiff had been struck off and ending with the assertion that he was a convict. The letter sought an “immediate, unequivocal and suitable” retraction and apology, and the furnishing of proposals for “substantial” compensation.

6. By letter of the same date, the defendant’s solicitor responded as follows:

“TV3 accept that your client was featured on the news item dealing with the trial of Mr. Thomas Byrne. This was an innocent mistake that arose due to an editing error and for which our client offers their sincere apologies to Mr. Christie. They are prepared to broadcast a clarification and apology on their news bulletins and on tv3.ie in terms to be agreed and you might please let us have your proposed wording. TV3 have taken immediate steps to ensure that the footage cannot be rebroadcast at any time in the future and have also removed it from their online content.

In respect of your claim for substantial compensation TV3 denies that the piece was grossly and seriously defamatory of Mr. Christie or that they accused him of the matters set out in your letter. Thomas Byrne’s image has featured extensively in television and print media over the last number of weeks and is readily recognisable by the general public as a result. At no point during the piece was your client identified by name. Anybody who visually recognised him would be well aware that he was David Christie and not his/your client, Thomas Byrne.

TV3 once again accept that a mistake was made and they are more than willing to apologise for that mistake but they do not accept the allegation that the matter merits substantial compensation as demanded by you.”

7. On the morning of the following day, the 15th November, 2013, the plaintiff’s solicitor took issue with the defendant’s approach and asserted that the broadcast “most certainly” identified the plaintiff as Thomas Byrne. The letter continued:

“Furthermore, your letter entirely ignores the rebroadcast streams, where Mr. Christie’s image is shown over captions reporting:-

‘Thomas Byrne trial’

‘the jury will resume deliberations in the case of Thomas Byrne tomorrow, who is charged with multiple counts of fraud.’”

8. A draft apology was enclosed, to be broadcast on the upcoming 5.30 news bulletin and on the internet. The draft was in the following terms:

“On our 5.30 News Bulletin on Monday, 11th November, 2013 and in subsequent rebroadcasts on various platforms, we published lengthy video images and footage of Mr. David Christie with voice-over wrongly identifying him as solicitor Thomas Byrne who is on trial for fifty counts of theft, forgery and related serious offences.

TV3 acknowledges that the unintended reference to Mr. David Christie was wholly untrue, false and grossly defamatory of him.

TV3 is happy to clarify this matter and apologises to Mr. Christie and to his family for the distress and embarrassment caused.

An agreed sum in compensation has been paid to Mr. Christie, together with a contribution to his legal costs.”

9. Responding later that day, the defendant offered to broadcast the following apology:

“On our 5.30 News Bulletin on Monday, 11 November 2013 and in subsequent rebroadcasts on various platforms, we broadcast footage of Mr. David Christie with voice-over wrongly identifying him as solicitor Thomas Byrne who is on trial for fifty counts of theft, forgery and related serious offences.

TV3 acknowledges that the unintended reference to Mr. David Christie was wholly false and untrue. TV3 are happy to acknowledge that Mr. Christie is a well respected solicitor. We apologise to Mr. Christie and to his family for the distress and embarrassment caused.

TV3 has agreed to make a donation to a charity nominated by Mr. Christie.”

10. The sum proposed by way of charitable donation was €1,000, to be paid as a gesture of goodwill and without any admission of liability.

11. This proposal was rejected by the plaintiff’s solicitor as displaying

“a continuing determination to belittle our client’s concerns and to trivialise your client’s outrageous behaviour and its consequences.”

12. An apology was broadcast later on the 15th November, 2013, as follows:

“On our 5.30 News Bulletin on Monday, 11 November 2013 we broadcast footage of Mr. David Christie during a news item relating to the ongoing trial of former solicitor Thomas Byrne. Mr. Byrne is on trial for a number of serious offences.

TV3 would like to clarify that there is absolutely no suggestion that Mr. Christie has been on trial for any such offences. TV3 are happy to acknowledge that Mr. Christie is a well respected solicitor and would like to apologise to Mr. Christie and his family for any distress and embarrassment that may have been caused.”

13. On the 19th November, 2013, the plaintiff’s solicitor complained that the defendant either did not appreciate the seriousness of the defamation or was choosing to ignore it. The broadcast had been described only as a “mistake”, when the plaintiff had been identified as the “perpetrator of one of the biggest frauds in the history of the State”.

14. The correspondence between the parties continued for some time. However, no progress was made, with the defendant holding to its position that an entirely innocent mistake had been made, which had been the subject of prompt and constructive efforts on the part of the defendant and a genuine and fulsome apology. In one letter it said:

“It is worth repeating that Thomas Byrne is an almost uniquely identifiable individual owing to the extraordinary amount of coverage he has received on television and print media over the past six years. Mr. Christie was never named or identified by TV3 during the piece in question. We do not see how any ordinary person would have confused Mr. Christie with his client, Thomas Byrne. It is also quite clear that anybody who knows Mr. Christie and saw him on the 5.30 News broadcast in question would have known full well that he was not Thomas Byrne…

…unfortunately, in all of the circumstances our client does not believe that ‘substantial compensation’ is warranted.”

The proceedings

15. A plenary summons was issued on the 4th December, 2013. The defendant entered an appearance, and a statement of claim was delivered on the 21st January, 2014.

16. It is pleaded in the statement of claim that the words complained of regarding the plaintiff meant that:

a. he was a disgraced solicitor;

b. he was on trial for multiple counts of theft;

c. he was on trial for multiple counts of forgery;

d. he was on trial for multiple counts of using forged documents;

e. he was on trial for multiple counts of deception;

f. he was on trial for multiple counts of fraud;

g. he was unprincipled;

h. he was dishonest;

i. no one should do business with him;

j. he should be shunned and abhorred by all right-thinking persons;

k. he was of ignominious professional standing;

l. he was unfit to engage in his chosen profession;

m. he was engaged in an abuse of his status of solicitor; and

n. he was unprincipled.

17. It is also pleaded that the plaintiff has been greatly injured in his character, credit and reputation and that he has been disparaged in his profession.

18. On the 5th March, 2014, the defendant made a formal offer of amends pursuant to s. 22 of the Defamation Act, 2009. The offer was expressly stated to be in respect of the entire statement and broadcast published on the 5.30 programme on the 11th November, 2013.

“Our client’s offer to make amends means that it will, again, if required by your client, make a suitable correction of the statement and broadcast published and apologise to your client. As you are aware, TV3 already apologised to Mr. Christie and corrected the broadcast that is the subject matter of these proceedings on its 5.30 news programme of Friday, 15 November 2013. We believe that the correction and apology published by TV3 was reasonable and practicable in the circumstances. However, our offer now includes a proposal to re-publish this apology should your client require it to be done for a second time.

Our client’s offer to make amends also means that it is prepared to pay such damages and costs as may be agreed by our respective clients or as may be determined by the Court. If you accept our offer you are required to specify what damages and costs your client is seeking.

If you refuse to accept this offer of amends then our client shall rely upon your failure to accept the offer as a defence to these proceedings.”

19. The plaintiff’s solicitor responded on the 23rd April, 2014, when it was indicated that the offer was accepted subject to clarification as to whether it covered any rebroadcasts of the original bulletin on the internet, and subject also to detailed proposals in accordance with s.22(5) of the Act. The writer reserved the right to make such appropriate submissions on the suitability and /or adequacy of the offer as might be necessary in the course of the proceedings.

20. On the 2nd May, 2014, the defendant confirmed that the offer covered the publication of the item on TV3 Player.

“On that basis we trust that our client’s offer to make amends has been accepted by your client.”

21. The letter continued:

“In our letter of 5 March 2014 we confirmed that we would republish the original correction and apology and called on you to specify what damages and costs your client is seeking. We believe this constitutes a valid Offer to Make Amends in accordance with Section 22 of the Defamation Act 2009, but we note that your client has declined to specify his demands and instead called on our client to set out further details of their offer.”

22. The defendant’s position as to the merits of the case, set out in earlier correspondence, was repeated. In conclusion, the writer said:

“Our client now repeats their offer to re-broadcast the original correction and apology, or such other correction and apology as may reasonably be agreed between the parties, and confirms that they are prepared to make a payment of [redacted] to your client by way of compensation together with costs to be taxed in default of agreement.”

23. The letter asked for confirmation within 14 days as to whether or not the offer was accepted.

24. A response dated the 13th June, 2014, confirmed that the offer to make amends had been accepted. The view was expressed that “agreement could be reached” about the apology. It was also considered that taxation would probably resolve the costs aspect. However, the sum offered by way of compensation was rejected as being “derisory”.

25. The plaintiff issued a motion for directions on the 17th June, 2014, as to the time and mode of trial for the purpose of determining the issues between the parties pursuant to s. 23(1) of the Defamation Act, 2009. The motion was grounded upon an affidavit sworn by the plaintiff’s solicitor. He refers to the pleadings and sets out the words complained of. The letter of the 5th March, 2014, described as “a purported Offer of Amends”, is exhibited, as are the subsequent letters between the parties. The solicitor then avers as follows:

“I say that as appears from the said correspondence, it is not denied by the defendant that it wrongly published and broadcast the said defamatory material detailed above. It is clear, however, that the parties do not agree as to various compliance measures and/or damages that should be paid by the Defendant to give effect to the said offer of amends.”

26. It seems that no application was made for directions as to points of claim or defence, or further affidavits, and the matter was listed for hearing on the basis of the pleadings as lodged by the plaintiff, the correspondence, the notice of motion and the grounding affidavit. No replying affidavit was delivered on the part of the defendant.

The evidence in the hearing

27. The broadcast was played in court. It shows the newsreader at his desk, with a large screen behind him on which the plaintiff is shown in close-up for a period of nine seconds while the words set out above are spoken.

28. The only oral evidence adduced was that of the plaintiff personally.

29. The plaintiff said that he qualified as a solicitor in 1992 and had been a partner in Christie & Gargan since 1997. In late 2007 he had agreed to represent Mr. Byrne. This originally involved dealing with the Law Society on his behalf, when moves to strike Mr. Byrne off the Roll of Solicitors were in train. The plaintiff subsequently agreed to defend him in the criminal proceedings.

30. On the morning of the 13th November, 2013, the plaintiff was waiting to cross the street on his way into the Criminal Courts of Justice. He noticed two photographers and a cameraman pick up their equipment and run towards him. He said that he was “a little embarrassed” by this. He was quite certain that the cameraman knew that he was not Thomas Byrne, because he had previously objected to that particular individual’s behaviour to Mr. Byrne. The cameraman was still filming as he went in the door of the building, and the plaintiff said to him something to the effect that he was on his own, or that he did not have his client with him.

31. The plaintiff did not see the defendant’s news bulletin that evening. When he went in to the office the next morning his partner told him that he should check it out. Another member of Mr. Byrne’s legal team showed it to him online during the course of the day, and he felt shocked.

32. Later that evening he left court with Mr. Byrne. As they walked up the street together a man spat in the plaintiff’s face and called him “a fucking scumbag” and “a thief”. He was really upset by this. Mr. Byrne apologised to him.

33. The same evening the plaintiff began to receive phone calls from former clients wanting to know if he had returned their deeds to the bank and similar questions. One man asked what had happened to his wife’s settlement cheque in a personal injury claim, although the case was still with the Personal Injuries Assessment Board and no cheque had issued.

34. On an occasion when the plaintiff was socialising with some colleagues, a man approached him, grabbed him by his jacket and invited him outside for a fight, addressing him as a thief.

35. On another occasion, shortly before the hearing of this matter, the plaintiff was out with his wife. A man said to him “I thought you were locked up”. The plaintiff told him he was mistaken, whereupon the man threw his pint over the plaintiff’s coat.

36. The plaintiff said that he and his wife had stopped going out for dinner because people stare at them. He thinks that there is still an effect on his practice – he is still getting calls from clients asking what he has done with their documents.

37. The plaintiff said that he thought that the proposed apology and donation to charity was insulting. Charitable donations were a matter for himself and his wife. The proposal belittled his position as a solicitor.

38. On behalf of the defendant, Mr. O’Callaghan SC commenced his cross-examination by apologising to the plaintiff for “the mistaken footage”.

39. It was put to the plaintiff that he could not say whether the man involved in the spitting incident had seen the bulletin. It was further suggested that there is “a downside for lawyers representing unpopular clients” in that members of the public do not always distinguish between the client and the lawyer. The plaintiff accepted that that could be true, although he did not accept that it made what had happened right. It had not been an issue before the broadcast.

40. The plaintiff further did not accept that the apology was either fulsome or genuine. He asserted that the man who read the apology had been in court on a number of occasions during the trial and would have known who he was. The apology was not genuine because it did not show a picture of him, to distinguish between Mr. Byrne and himself. It also did not say that the broadcast had been untrue and defamatory.

41. Asked whether he thought that the original footage had been broadcast in this manner deliberately, the plaintiff said he did not know. TV3 had filmed him previously, he had been interviewed by its reporter and he had told the cameraman that morning that he was on his own.

42. The plaintiff accepted that he had been shown in a lot of the coverage of the trial by TV3 and by RTE, and that a lot of people knew that he was in the case. He further agreed that Mr. Byrne’s image had been widely portrayed, and that there had been comment to the effect that Mr. Byrne wore a different, distinctive coat on every day of the trial. It was suggested to him that any of his own clients knew what he looked like, and that people following the trial knew what Mr. Byrne looked like. The plaintiff responded that people did not even hear the name – they just heard the words fraud and theft.

43. Again, it was suggested that most people would have known that it was Mr. Byrne who was sentenced, and not the plaintiff. The plaintiff referred to the incident of the man who said “I thought you had been locked up”.

44. The plaintiff was asked if he thought that his practice had been affected. He replied that he had thought so for a while, but that it could just have been the economy. It was now picking up again.

The statutory context

45. Pursuant to s. 6 of the Defamation Act, 2009 (“the Act”), the torts of libel and slander have ceased to be described as such and are instead collectively described as defamation. A “defamatory statement” is defined in s.2 as a statement that tends to injure a person’s reputation in the eyes of reasonable members of society. It includes “visual images, sounds, gestures and any other method of conveying meaning”. Section 6(3) provides that a defamatory statement concerns a person if it could reasonably be understood as referring to him or her.

46. The tort of defamation is actionable without proof of special damage. A defamation action is (for the purposes of this case) defined as an action for damages for defamation.

47. Pursuant to s.3(1) the Act does not apply to causes of action that accrued before its commencement. Section 3(2) provides, further, that the Act shall not affect the operation of the general law in relation to defamation except to the extent that it provides otherwise (either expressly or by necessary implication).

48. Section 22 of the Act provides in full as follows:

“22.— (1) A person who has published a statement that is alleged to be defamatory of another person may make an offer to make amends.

(2) An offer to make amends shall—

(a) be in writing,

(b) state that it is an offer to make amends for the purposes of this section, and

(c) state whether the offer is in respect of the entire of the statement or an offer (in this Act referred to as a “ qualified offer ”) in respect of—

(i) part only of the statement, or

(ii) a particular defamatory meaning only.

(3) An offer to make amends shall not be made after the delivery of the defence in the defamation action concerned.

(4) An offer to make amends may be withdrawn before it is accepted and where such an offer is withdrawn a new offer to make amends may be made.

(5) In this section “ an offer to make amends ” means an offer—

(a) to make a suitable correction of the statement concerned and a sufficient apology to the person to whom the statement refers or is alleged to refer,

(b) to publish that correction and apology in such manner as is reasonable and practicable in the circumstances, and

(c) to pay to the person such sum in compensation or damages (if any), and such costs, as may be agreed by them or as may be determined to be payable,

whether or not it is accompanied by any other offer to perform an act other than an act referred to in paragraph (a), (b) or (c).”

49. Section 23 of the Act sets out the procedure to be adopted where there is an offer to make amends.

50. If the parties are agreed as to the measures to be taken, the court may, on the application of the person to whom the offer was made, give a direction under s.23(1)(a) that those measures be taken.

51. If the parties do not so agree, the person who made the offer can seek the leave of the court pursuant to s.23(1)(b) to make a correction and an apology by way of a statement before the court.

52. By virtue of s. 23(1)(c), where the parties do not agree as to the damages or costs payable by the person making the offer, those matters shall be determined by (in this instance) the High Court,

“…and the court shall for those purposes have all such powers as it would have if it were determining damages or costs in a defamation action, and in making a determination under this paragraph it shall take into account the adequacy of any measures already taken to ensure compliance with the terms of the offer by the person who made the offer.”

53. Under s.23(2), where a defendant makes an offer of amends that is not accepted, that fact will constitute a defence to a defamation action unless the plaintiff can prove that at the time of publication the defendant knew or ought reasonably to have known that the publication referred to the plaintiff, or was likely to be understood as referring to the plaintiff, and that it was false and defamatory of the plaintiff. In other words, the plaintiff will have to prove bad faith on the part of the defendant. It is not necessary for defendants to plead the offer as a defence, but if they do they may not plead any other defence in relation to the matter covered by the offer.

54. An application to the court for a determination of damages under s.23(1)(c) is made, under O. 1B r. 5 of the Rules of the Superior Courts, by way of originating notice of motion grounded upon an affidavit sworn by or on behalf of the person to whom the offer was made. The respondent may deliver a replying affidavit but is not obliged to. Under r.6, the matter may be determined by way of plenary hearing

“…where it appears to the Court that the subject matter of the application is likely to involve a substantial dispute of fact or it is otherwise necessary or desirable in the interests of justice (and the Court may for that purpose make orders and give directions in relation to the exchange of pleadings or points of claim or defence between the parties)”.

55. Section 24 of the Act deals with the effects of an apology. Subsection (1) provides that a defendant may give evidence in mitigation of damage of an offer of, or publication of, an apology where, inter alia, the offer or publication happened as soon as practicable after a complaint is made by the plaintiff. An apology does not constitute an express or implied admission of liability and is not relevant to the determination of liability. This section is applicable to all defamation actions, and not only those heard by a jury.

56. Section 31 of the Act deals with damages. Subsection (2) obliges a judge sitting with a jury to give directions in relation to damages. Subsection (3) provides that in making an award of general damages, “regard shall be had to all of the circumstances of the case”.

57. Subsection (4) sets out, without prejudice to the generality of subs.(3), a detailed list of matters to which “the court” shall have regard. The “court”, in this section, means the jury, if the High Court is sitting with a jury. The matters in the list potentially relevant to this case are as follows:

(a) the nature and gravity of any allegation in the defamatory statement concerned,

(b) the means of publication of the defamatory statement including the enduring nature of those means,

(c) the extent to which the defamatory statement was circulated,

(d) the offering or making of any apology, correction or retraction by the defendant to the plaintiff in respect of the defamatory statement,

(e) the making of any offer to make amends under section 22 by the defendant, whether or not the making of that offer was pleaded as a defence,

(f) the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement,

(g) the extent (if at all) to which the plaintiff caused or contributed to, or acquiesced in, the publication of the defamatory statement, and

(h) evidence given concerning the reputation of the plaintiff.

Submissions

58. On behalf of the plaintiff, Mr. Doyle S.C. submits that where there is an unqualified offer, the court should generally proceed on the basis that the defamatory statement means what the plaintiff says it means. He refers in this respect to Gatley on Libel and Slander (12th ed. 2013) and the cases referred to therein. The factors to be taken into account under Irish law, as set out by the Supreme Court in Leech v Independent Newspapers (Ireland) Limited [2014] IESC 79, are: – the gravity of the defamation, the extent of publication; the effect on the plaintiff and the conduct of the defendant.

59. In this instance, it is submitted, the gravity is at the top end of the scale. Mr. Byrne had been struck off at the time of the broadcast and was a disgraced former solicitor. The presumption of innocence notwithstanding, it is defamatory of a person to say, untruthfully, that he or she is on trial for a criminal offence, and it is the most serious thing that could be said about a solicitor. The publication was on a national medium.

60. Mr. Doyle says that there is no entitlement to any credit, or reduction in damages, for the fact that the defamatory statement was a mistake. Rather, the principle is that if it was malicious, damages would be aggravated. Motive is relevant only where the defendant raises issues such as privilege or honest opinion.

61. It is accepted that the defendant apologised promptly, and further accepted that the Act requires a discount where the defendant makes an offer under s.22. However, it is submitted that the broadcast apology was inadequate in that it did not admit defamation and the plaintiff was not identified by image. The defendant’s attitude thereafter was that there would be no offer of compensation. The reduction for the s.22 offer should therefore be modest, given that the section envisages an offer of compensation before proceedings are issued. Here, the defendant was denying defamation and it was necessary to bring the action. Mr. Doyle suggests that the reduction should be in the region of 10 to 20%.

62. Mr. Doyle says that while the United Kingdom authorities on the discount to be applied may be of some assistance to the court, they must be treated with caution since the level of damages for defamation in that jurisdiction tends to be “a fraction” of awards here. There is also a cap on awards there, which currently appears to be set at £275,000.

63. On behalf of the defendant, Mr. O’Callaghan S.C. refers to the principles set out in various United Kingdom authorities dealing with a similar procedure, citing Cleese v. Clark [2003] EWHC 137 (QB), Nail v. Jones [2004] EWCA Civ 1708; [2004] EWHC 647 (QB) and KC v. MGN Limited [2013] EWHC Civ 3; [2012] EWHC 483 (QB). He says that there should be a “healthy discount” of at least 50%, not least because of the public interest in ensuring that the procedure is seen to be of use.

64. On the facts before the court, Mr. O’Callaghan submits that it is a “mistaken identity” case. It is not comparable to Leech v. Independent Newspapers, where there was a deliberate attack on the plaintiff. There is in this case no question of malice and there had been an almost immediate apology. The unpleasant experiences described by the plaintiff could not, on the balance of probabilities, be attributed to the nine seconds long broadcast, or the presence of the material on the website for four days.

65. It is not accepted that the court should assess gravity simply by reference to what the plaintiff has pleaded. The court must consider whether there has actually been damage to the plaintiff’s reputation, in circumstances where the evidence is that he is still highly respected. He may simply have suffered for representing an unpopular client.

66. In answer to a query whether this latter argument was open to a defendant who had, literally, identified a lawyer with his client, Mr. O’Callaghan said that it was unrealistic to suppose that there was any significant number of people who did not follow the trial and thought that the plaintiff was the accused. The plaintiff’s clients knew what he looked like, and the people following the trial knew what Mr. Byrne looked like, and knew that he had gone to jail.

67. With reference to the conduct of the defendant, it is submitted that it “could not have behaved better”. The defendant was entitled to be concerned about the request for “substantial damages”. No figure had been proposed by the plaintiff. If he had requested that his image be shown during the broadcast of the apology there would have been no difficulty about it.

Damages for defamation

68. Having regard to the reference in s.23(1)(c) to the powers of a judge in assessing damages in defamation proceedings, the plaintiff relies on the decision of the Supreme Court in Leech v Independent Newspapers (Ireland) Limited [2014] IESC 79 as demonstrating the factors to be taken into account.

69. That case (which, of course, predates the Act) concerned an appeal against a jury award of €1,872,000. The jury had not been asked to consider aggravated or exemplary damages. The core argument in the appeal was that the award was so disproportionately high that it ought to be set aside.

70. Having considered the authorities establishing the reluctance of appellate courts to interfere with jury awards, the judgment of the Court (given by Dunne J.) referred to the factors to be taken into account in an examination of the proportionality of the award in question. It took as a starting point the following passage from John v MGN Ltd. [1997] QB 586, approved by the Supreme Court in de Rossa v. Independent [1999] 4 IR 432 at p. 463:

“The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation, the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation; but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way.”

71. The Court noted that a jury could, as well as looking at the nature of the defamation and the extent of the publication, take into account relevant aspects of the conduct of the defendant from the time of publication up to the conclusion of the case, including such matters as the absence of an apology or persisting in a plea of justification not supported by the evidence. These could be considered under the heading of compensatory damages or, as appropriate, aggravated damages.

72. The gravity of the libel in the case, which ascribed to the plaintiff adulterous behaviour carried out for the sake of obtaining lucrative contracts, was described as “very serious”, although not in the category of the gravest and most serious.

73. Publication of the libel involved eleven articles published over about two and half weeks in a newspaper that circulated widely within the State. The plaintiff had gone from being a person not known to the general public to one who was notorious. The publication was in these circumstances described as “particularly extensive and widespread”.

74. The defendant had run a defence of justification, although not on the meanings contended for by the plaintiff. The Court observed that this was a risky strategy. The fact that it did not succeed was a matter that could be taken into account by the jury.

75. No apology had been offered by the defence at any stage, and the jury were entitled to take account of that.

76. It was a feature of the case that photographs accompanying the articles had been cropped and manipulated so as to convey particular impressions. It was open to the jury to take this into account.

77. The impact of the defamation was far reaching in that it attacked the plaintiff in respect of both her personal and professional life, involving her moral character and her professional integrity. There had been evidence as to the destructive effect on her career and as to the stress suffered by the plaintiff and her family.

78. The Court accepted that an award of damages cannot be so disproportionate as to have the effect of not just vindicating the good name of the citizen but of restricting the freedom of expression of a newspaper. The case was at the higher end of the scale of seriousness, but was not one of the most serious to come before the courts. The appeal was allowed to the extent that the verdict was set aside and a sum in the amount of €1,250,000 was substituted.

Offer of amends – the United Kingdom authorities

79. There are as yet no Irish authorities on the operation of s.22 of the Act. However, the parties have helpfully referred the court to a number of United Kingdom decisions dealing with the very similar provisions of ss.2 and 3 of the Defamation Act, 1996 and to the commentary thereon in Gatley on Libel and Slander.

80. The first two of these are Abu v MGN Ltd [2003] 2 All ER 864 (in effect, a case management ruling) and Cleese v Clark and Associated Newspapers [2003] EWHC 137 (an assessment of compensation). In summary, and in so far as his rulings are relevant to the instant case, Eady J. in these cases determined that the evidence and submissions should be heard in the same way as in a contested trial. Since the principles to be applied in a hearing of this nature are precisely the same as those applicable to conventional libel proceedings, account must be taken of issues such as mitigation, aggravation and causation of loss. Thus, the defendant is entitled to demonstrate that some element of the damage occasioned to a plaintiff was caused by factors other than the defamation complained of. Since damages are at large, the court may take the broad circumstances into account, if they emerge from the evidence, including the conduct, position and standing of the plaintiff. (However, the defendant may not claim that any defamatory meaning is true, or justified on the basis of fair comment.)

81. Eady J. noted in Abu that the “offer of amends” procedure would by no means always lead to speedy and cheap resolution. He considered that it would sometimes be necessary to have pleadings, or at least notification of the matters intended to be relied upon by a defendant.

82. It is noteworthy that in Cleese the parties disclosed to the court at least some of the figures mentioned in the negotiations, although they had not initially intended to do so. Eady J. commented that he thought it preferable that this should not happen.

83. Having been invited in Cleese to offer guidance on the appropriate procedure to be followed, the judge observed that the whole of the “offer of amends” regime is predicated upon the parties’ willingness to negotiate meaningfully in order to achieve a reasonable compromise as quickly and inexpensively as the circumstances permit. He went on at para. 20:

“As has always been the case, the amount of financial compensation is likely to be assessed partly by reference to the timing, scope and effectiveness of any apology made, or proffered, and it clearly makes sense for the two matters to be on the agenda for discussion at the same time. The two are intimately related. Discussion about monetary compensation is likely to remain hypothetical until a defendant’s best offer for vindicating the complainant is on the table….The court is enjoined to take account of any steps carried out in fulfilment of the offer and (so far as not agreed between the parties) the suitability of any apology and the reasonableness of the manner of publication. It is obvious that where such matters cannot, for some reason, be agreed a defendant (or potential defendant) will generally be well advised to publish as prompt and generous an apology as the circumstances permit, with a view to moderating the level of compensation which the court may ultimately award.”

84. The plaintiff’s solicitor in Cleese had originally told the defendant that the case was worth £30,000 but that he was willing to give a two-thirds discount for a quick and prominent apology. The apology was not published for a further three months, contained no photograph and was not as prominent as the alleged defamation. The plaintiff refused a subsequent offer of £10,000, but apparently never said what he would accept. Eady J. described this as an “old-fashioned” approach to litigation, leaving the defendant’s solicitor to guess at a figure and not advancing the purpose of the “offer of amends” procedure.

85. In deciding on the sum to be awarded, Eady J. took into account the genuine efforts made by the defendants to retrieve the situation; the publication of the apology (albeit that he found that this had been published “without enthusiasm or generosity of spirit”); and the fact that the apology offered a degree of vindication, although little if any mitigation to the hurt to the plaintiff’s feelings. He did not specifically state his view of the value of the claim, other than to say that the plaintiff’s estimate was too high, or the extent of the discount applicable in respect of the offer to make amends.

86. Nail v. Jones and News Group Newspapers Ltd [2004] EWHC 647, was the second assessment under the relevant provisions of the UK legislation and was also dealt with by Eady J. There was an attempt by the defendants to characterise certain of the allegations made by them as not in fact defamatory. Eady J. did not accept that characterisation, and held that it could not in any event succeed in the circumstances. The matter before him was an application for assessment of damages following the acceptance of an unqualified offer of amends and the allegations must therefore be taken to be false and defamatory. The defendants had had the options of defending the libel action, or making a qualified offer, and had not done so. At para. 26 he said:

“This has the effect that the parties, the advocates and the court generally need to work on the basis that the words complained of bore the pleaded meanings. I would to some extent part company with [counsel for the defendants] when she submitted that it remains the task of the court to form its own view on the precise meanings. I agree that any exaggerated or distorted meaning should be ignored but, if such circumstances arise, one would expect a defendant to have made the challenge clear – presumably by making only a qualified offer. It would seem unfair on a claimant who accepts an unqualified offer to find that the court dismisses his meanings as untenable when it comes to assessing damages.”

87. In considering the proper approach to compensation under the procedure, Eady J. said (at paragraphs 35 and 36 of the judgment):

“The offer of amends regime provides, as it was supposed to, a process of conciliation. It is fundamentally important that when an offer has been made, and accepted, any claimant knows from that point on that he has effectively “won”. He is to receive compensation and an apology or correction. In any proceedings which have to take place to resolve outstanding issues, there is unlikely to be any attack upon his character. The very adoption of the procedure has therefore a major deflationary effect upon the appropriate level of compensation. This is for two reasons. From the defendant’s perspective he is behaving reasonably. He puts his hands up, and accepts that he has to make amends for his wrongdoing. As to the claimant, the stress of litigation has from that moment at least been significantly reduced.

Whereas juries used to compensate for the impact of the libel ‘down to the moment of the verdict’, once an offer of amends has been accepted the impact of the libel upon the claimant’s feelings will have greatly diminished and, as soon as the apology is published, it is also hoped that reputation will to a large extent be restored…”

88. The judge noted the submission made on behalf of the defendants that media defendants would be reluctant to utilise the procedure if they did not feel that they would get what was termed “a healthy discount” for so doing. He considered this to be a fair point, given the public policy objectives underlying the legislation and given his own view that defendants who promptly apologise are entitled to be rewarded.

89. In assessing awards in both Cleese and Nail, Eady J. stressed that he was not attempting to find a figure that would have been awarded by a jury, based on past awards by juries. The approach was to determine what was “appropriate, necessary and proportionate”. He considered that it was helpful to assess the case as if it was a contested action, run without a jury, in which there were no issues of aggravation (such as a failed defence of justification) or mitigation (such as an apology). Having reached a hypothetical figure, the judge should then move on to consider the discount to be given for mitigating factors.

90. He proceeded to give a reduction of 50% for the mitigating factors, which appear in that case to have been confined to the offer of amends made about three months after the claim was initiated and the apology published about six weeks later (being some 14 months after the original newspaper publication).

91. The plaintiff in Nail appealed in relation to the quantum of the award. (The judgment of the United Kingdom Court of Appeal is reported at Nail v. Jones and News Group Newspapers Ltd [2004] EWCA Civ 1708.) The core issue in the appeal was the extent to which the making of the offer of amends should go in mitigation of compensation.

92. The Court of Appeal referred firstly to the general principle applicable to damages in defamation proceedings in that jurisdiction, as set out in John v. MGN Limited (quoted above at para. 70).

93. At paragraph 37 of the judgment the Court of Appeal noted that in determining compensation under this provision, the role of a judge sitting alone was not to speculate on what a putative jury might award but to determine what he or she considers to be proper compensation. The court also accepted the proposition that compensation under the section was to be assessed on the same principles as in contested defamation proceedings.

94. It was noted that there was a need to be careful not to drive damages down to “a level which publishers might with equanimity be tempted to risk having to pay”. The corollary was that the level should not be so high as to unduly curtail freedom of speech.

95. At paragraph 41 the court referred to the principle that damages are to be assessed as of the date of assessment, not the date of publication. The conduct of the defendant after publication can, therefore, aggravate or mitigate the damage and the award.

“That said, if an early unqualified offer to make amends is made and accepted and an agreed apology is published, as in the present cases, there is bound to be substantial mitigation. The defendant has capitulated at an early stage without pleading any defence, has offered to make and publish a suitable correction and apology (and has in fact done so in the agreed terms in the present cases) and has offered to pay proper compensation and costs…The claimant knows that his reputation has been repaired to the full extent that that is possible. He is vindicated. He is relieved from the anxiety and costs risk of contested proceedings. His feelings must of necessity be assuaged, although they may still remain bruised (and he is entitled to say so, if that is so). He can point to the agreed apology to show the world that the defamation is accepted to have been untrue and unjustified. There may be cases in which some of these features are absent, or in which their impact may be slight. An example could be if the defendant had offered and published a correction and apology, which the claimant had not agreed and which the court found to be unsuitable and insufficient…There may also be aggravating features, although the use of the procedure would generally suggest that there is unlikely to be significant aggravation after the making of the offer to make amends. “A healthy discount” may be a more colourful phrase than “substantial mitigation” but they mean the same thing.”

96. There was, according to the court, no distinction to be made between a reduction in compensation on account of the substantial mitigation resulting from use of the procedure and a “reward” for using it (provided that the same mitigating factors were not brought into play twice). Conducting a contested hearing to determine compensation under the section does not on its own amount to aggravation.

97. In concluding that there had been no error of principle in the approach taken by the trial judge, the Court of Appeal stressed that there could not be a conventional or standard percentage discount when an offer to make amends is accepted and an agreed apology published. “Each case will be different and require individual consideration”. However, most such cases will exhibit substantial mitigation.

98. In “KC” v. MGN [2012] EWHC 483 (QB), the trial judge rejected a submission by the defendant that the mitigating factors came into play at the first stage of the process. To take the admission and apology into account at that point would lead to a double discount.

Discussion and conclusions

99. In the first instance I think that it is important to say that the process required under the section would, in this case, have benefited from clarification of, in particular, the position of the defendant by way of points of defence. As matters stand, that position is set out in the correspondence, in cross-examination and in counsel’s oral submissions only.

100. It is unclear whether the defendant maintains the position taken up in correspondence that the broadcast was not defamatory, bearing in mind that a defamatory statement is one that tends to injure a person’s reputation in the eyes of reasonable members of society. The correspondence suggests that an innocent mistake had occurred, which was apologised for and which would not be repeated but was not defamatory. It was put to the plaintiff in cross-examination, and submitted to the court, that no one could have confused him with Mr. Byrne; that there was no proof that the people who insulted him had seen the broadcast; that he might simply be suffering the downside of representing an unpopular person; and that nothing that had happened to him could, on the balance of probabilities, be attributed to the broadcast. However, counsel has at the same time urged the court not simply to accept the particular plaintiff’s case as pleaded in the statement of claim but to assess for itself the damage to the plaintiff’s reputation. It seems to me that it was implicit in this submission that the court would find that damage had been done. This all raises the question – for what does the defendant believe it has offered amends?

101. In my view the best approach to this situation is that adopted by Eady J. in Nail. The defendant had the options of contesting a full action, or making a qualified offer of amends. It chose to make an unqualified one, and that means accepting that the plaintiff was defamed. I further consider that, allowing for the possibility that the court might disregard exaggerated or distorted meanings attributed by a plaintiff to a publication, adoption of this procedure must in general mean that the defendant is bound by the meanings pleaded by the plaintiff. To hold otherwise could mean that a defendant could, in effect, run a full defence without having to plead it and without having to go to the full expense and risk of a jury trial.

102. In determining the appropriate sum to award, the following are the matters to be taken into account.

The fact that an unqualified offer of amends has been made

103. For the reasons identified in the United Kingdom authorities cited above, I agree that this entitles the defendant to substantial mitigation of damages.

The measures taken in compliance with the offer (s.22(1)(c))

104. I am not aware of any measures taken since the making of the offer but I think it reasonable to include here the fact that there was a proposal to re-broadcast the apology already made.

The matters set out in s.31(4) of the Act.

105. Although it is not entirely clear, it seems to me that the effect of subs.(8) of s.31 is that, where a judge is sitting without a jury, “the court” means that judge. If I am wrong about that, I would in any event consider that all of the subs.(4) matters can be grouped within the common law headings of gravity, extent of publication, impact of the defamation and the conduct of the defendant. I will therefore consider them in the statutory sequence.

(a) The nature and gravity of the allegations. Under this heading I find that the defendant wrongly identified the plaintiff as being a solicitor who had been struck off in circumstances of disgrace and was, at the time of the broadcast, on trial for offences of serious dishonesty arising from his professional practice. This is a deeply serious allegation to make against a solicitor, whose personal, professional and social standing depends so much upon a reputation for professional integrity. The goodwill built up by a practice (especially, perhaps, in a smaller firm) is obviously put at risk in the circumstances.

(b) The publication was on television and on the defendant’s website, which means that it was capable of enduring.

(c) The broadcast was on a national television station, on its main evening news bulletin. Publication must therefore be considered to have been widespread. However, I take into account the difference between a one-off incident such as this and the prolonged and repetitive campaign of publication in the Leech case.

(d) An apology was broadcast. The defendant is entitled to some credit in this respect. However it seems to me that the apology as broadcast was less satisfactory than the draft offered by the defendant itself on the 15th November, 2013 – that had the merit of acknowledging that the broadcast had wrongly identified the plaintiff as Mr. Byrne. The broadcast apology, in effect, merely admits having caused some confusion.

During the hearing I expressed a view that the wording of the apology as broadcast was unfortunate, with the use of the phrase “no such offences” leaving open a suggestion of other discreditable possibilities. However, since the plaintiff and his representatives had not taken that interpretation it was agreed that I should disregard it and I do so.

(e) An offer to make amends was made.

(f) The reputation of the plaintiff is very important to any existing or potential clients of his firm. I accept his evidence that existing clients began to query his handling of their files in a way that had not previously occurred. I do not find that the practice in fact lost business as a result, not least because of the plaintiff’s honest (and probably realistic) view that the fall-off in the practice may have been because of economic conditions generally.

(g) The plaintiff did not cause, contribute or acquiesce in the publication.

(h) No evidence has been led concerning the plaintiff’s reputation. However the case was approached by both sides on the basis that he is well respected. The court has no reason whatsoever to consider this approach to be wrong.

106. In so far as this list does not fully deal with the impact on the plaintiff, I consider that I am entitled under the general provision in s.31 (3) (“all of the circumstances of the case”) to take into account that the plaintiff was subjected in public places to the abuse described by him, by persons who considered him to be a dishonest solicitor. The type of behaviour he experienced would be a source of distress and humiliation in any circumstances and I accept his evidence that it had not previously happened to him. I further accept that it may have changed his and his wife’s social habits to some extent.

107. In my view what happened to the plaintiff goes beyond the alleged tendency of members of the public to identify lawyers with their clients. If such identification does occur, it is to be deprecated. Every person, no matter how unpopular, is entitled to legal representation and it is the duty of the profession to provide such representation. This suggestion cannot in my view mitigate the responsibility of a broadcaster who, quite literally, made such an identification. Further, I do not accept the submission put forward on behalf of the defendant that, in effect, the viewing population of the country could be divided into those who followed the Byrne trial and were fully aware of what he looked like, and those who knew the plaintiff. This aspect has to be considered also, in my view, in the light of the fact that nine seconds is actually quite a long time when the camera is focused on one face. I accept the evidence as to the spitting incident the day after the broadcast, and note that it was the plaintiff who was accosted and not Mr. Byrne.

108. In taking all of the above matters into consideration for the purpose of determining the appropriate level of damages, I adopt the same position as the English judges. I cannot estimate what a jury might have awarded in the case. It is simply not possible for a judge to replicate the collective decision-making process of twelve members of the public.

109. In the hypothetical scenario of the case being dealt with as a fully contested defamation action heard without a jury, with no mitigating aspects, I would be inclined to award a sum in the region of €200,000. I consider it to be appropriate to allow a discount in the region of one third, to take account of the offer to make amends and the apology. It does not seem appropriate to allow further mitigation in the absence of a more comprehensive apology and a failure, in the running of the action, to take responsibility for the fact that the plaintiff was damaged in his reputation as a result of the broadcast.

110. I therefore award the sum of €140,000.

Higgins -v- The Irish Aviation Authority

[2016] IEHC 245

JUDGMENT of Mr. Justice Moriarty delivered on the l0th day of May, 2016

Introduction

1. The issue arising in this case is whether, pursuant to s. 23(1)(c) of the Defamation Act 2009 (“the 2009 Act”), the plaintiff is entitled to have damages determined by a jury.

Background

2. The plaintiff sued the defendant for defamation on account of three emails sent by a member of the Irish Aviation Authority (“the IAA”) in June and July 2013. The emails were sent to other officers within the IAA and a member of the Civil Aviation Authority in the United Kingdom. The plaintiffs claim is limited to these three publications.

3. The plaintiff issued a plenary summons on 16th April, 2614, and a statement of claim was delivered on 1st July, 2014. On 25th May, 2015, the defendant made an unqualified offer to make amends in accordance with s. 22 of the 2009 Act, which was accepted by the plaintiff by letter dated 22nd June, 2015.

4. Following the plaintiffs acceptance, the defendant specified details of its offer to make amends by letter dated 13th July, 2015. In accordance with the terms of s. 22 of the 2009 Act, the defendant’s offer to make amends comprised an offer of a sum of money to the plaintiff together with draft wording by way of apology (and a proposal for the circulation of same) and an offer to pay the plaintiffs legal costs to date, such costs to be taxed in default of agreement. However, the parties have been unable to reach an agreement in relation to the terms of the offer to make amends.

5. The plaintiff therefore issued the within motion seeking directions pursuant to s. 23 of the 2009 Act on 29th October, 2015, returnable for 10111 November, 2015. The motion was subsequently transferred to the non-jury list and was made returnable to this court for hearing on 15111 March, 2016.

6. The plaintiff’s motion seeks directions, pursuant to s. 23 of the 2009 Act, to have a judge and jury hear the plaintiffs claim with a view to assessing damages or compensation together with the adequacy of the measures already taken by the defendant to ensure compliance with its offer to make amends.

The relevant statutory provisions

7. Section 22 of the 2009 Act provides:

“22.- (1) A person who has published a statement that is alleged to be defamatory of another person may make an offer to make amends.

(2) An offer to make amends shall-

(a) be in writing,

(b) state that it is an offer to make amends for the purposes of this section, and

(c) state whether the offer is in respect of the entire of the statement or an offer (in this Act referred to as a ” qualified offer ”) in respect of-

(i) part only of the statement, or

(ii) a particular defamatory meaning only.

(3) An offer to make amends shall not be made after the delivery of the defence in the defamation action concerned.

(4) An offer to make amends may be withdrawn before it is accepted and where such an offer is withdrawn a new offer to make amends may be made.

(5) In this section “an offer to make amends “means an offer-

(a) to make a suitable correction of the statement concerned and a sufficient apology to the person to whom the statement refers or is alleged to refer,

(b) to publish that correction and apology in such manner as is reasonable and practicable in the circumstances, and

(c) to pay to the person such sum in compensation or damages (if any), and such costs, as may be agreed by them or as may be determined to be payable,

whether or not it is accompanied by any other offer to perform an act other than an act referred to in paragraph (a), (b) or (c).”

8. Section 23(1) of the Defamation Act 2009 provides:

“23.- (1) If an offer to make amends under section 22 is accepted the following provisions shall apply:

(a) if the parties agree as to the measures that should be taken by the person who made the offer to ensure compliance by him or her with the

terms of the offer, the High Court or, where a defamation action has already been brought, the court in which it was brought may, upon the application of the person to whom the offer was made, direct the party who made the offer to take those measures;

(b) if the parties do not so agree, the person who made the offer may, with the leave of the High Court or, where a defamation action has already been brought, the court in which it was brought, make a correction and apology by means of a statement before the court in such terms as may be approved by the court and give an undertaking as to the manner of their publication;

(c) if the parties do not agree as to the damages or costs that should be paid by the person who made the offer, those matters shall be determined by the High Court or, where a defamation action has already been brought, the court in which it was brought, and the court shall for those purposes have all such powers as it would have if it were determining damages or costs in a defamation action, and in making a determination under this paragraph it shall take into account the adequacy of any measures already taken to ensure compliance with the terms of the offer by the person who made the offer;

(d) no defamation action shall be brought or, if already brought, proceeded with against another person in respect of the statement to which the offer to make amends applies unless the court considers that in all the circumstances of the case it is just and proper to so do. “

9. “Court” is not defined in the 2009 Act, although its meaning is set out in the context of specific sections of the Act. Section 14, for example, provides that the court may give a ruling as to whether the statement in respect of which the action was brought was reasonably capable of bearing the imputation pleaded by the plaintiff and as to whether that imputation is reasonably capable of bearing a defamatory meaning. Section 14(3) goes on to provide that: “An application under this section shall be brought by notice of motion and shall be determined, in the case of a defamation action brought in the High Court, in the absence of the jury.”

10. In this case, the plaintiff submitted that in the context of s. 23(1)(c) the reference to “the High Court” and “the court” means the jury, if the High Court is sitting with a jury. The defendant, however, has submitted that the section refers to a judge sitting alone.

Submissions on behalf of the plaintiff

11. The plaintiff submitted that there has been no determination to date as to whether a plaintiff has a right to a jury trial in order to have damages assessed under s. 23 of the 2009 Act. In Christie v. TV3 [2015] IEHC 694, O’Malley J. sat alone in a defamation action and assessed the plaintiff’s damages in circumstances where there was no agreement as to the amount of damages payable following an offer to make amends. In that case, the plaintiff, as was his entitlement, elected to have the matter heard by a judge sitting alone.

12. The plaintiff submitted that the matters to be determined by the High Court, on foot of the directions sought from this court, are the assessment of damages and the payment of costs pursuant to s. 23(1)(c).

13. The plaintiff made reference to s. 31 of the 2009 Act, which provides:

“31.- (I) The parties in a defamation action may make submissions to the court in relation to the matter of damages.

(2) In a defamation action brought in the High Court, the judge shall give directions to the jury in relation to the matter of damages.

[…}

(8) In this section ‘court’ means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury. “

14. The plaintiff also made reference to the long-standing rule that “the assessment of damages is peculiarly the province of the jury in an action for libel”, as was stated in Davis v. Shepstone (1886) 11 App. Cas. 187. The plaintiff submitted that this rule was confirmed by Hamilton CJ in de Rossa v. Independent Newspapers plc. [1999] 4 IR 432, where the learned judge noted that the assessment of damages in a defamation action instituted in the High Court was always a matter for the jury and that was not in any way altered by the provisions of the Courts Act 1988, which provided that certain actions, including claims for damages for personal injuries, should not be tried by a jury.

15. In Hill v. Cork Examiner Publications Ltd [2001] 4 IR 219, Murphy J. held at p. 227:

“A special status attaches to an award for damages for defamation as determined by a jury. It was held in de Rossa v. Independent Newspapers plc. [1999} 4 JR. 432, when considering Barrett v. Independent Newspapers Ltd. [1986] JR. 13, that the assessment by a jwy of damages in a defamation action had an unusual and emphatic sanctity and an appellate court should be slow to interfere with such an assessment. “

16. The plaintiff submitted that the change in the law brought about by s. 31 of the 2009 Act, allowing submissions to be made to a jury in relation to the matter of damages, does not alter the fact that the assessment of damages in a defamation action in the High Court remains a matter for the jury. The plaintiff stated that it is expressed to be so.

17. The plaintiff further submitted that he is entitled to seek aggravated damages from the court as provided for by s. 32 of the 2009 Act, and s. 32(3) again provides that “court” means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury.

18. The plaintiff stated that separately, the determination of the issue of costs is and always has been entirely a matter for the judge.

19. The plaintiff submitted that s. 23 of the 2009 Act must be considered in light of his entitlement to a trial by jury. In DF (suing by his next friend K McE) v. The Commissioner of An Garda Siochana [2015] IESC 44, Charleton J. noted that under Article 38.5 of the Constitution, the only right to trial by jury is in respect of non minor criminal offences, i.e. serious crimes. There is no guarantee under the constitution of trial by jury in respect of any form of civil procedure. Any entitlement in that regard is entirely statutory. Charleton J. held as follows at para. 17 of his judgment:

“Since the Act of 1877, the entitlement to jury trial was preserved through section 94 of the Courts of Justice Act 1924. That entitlement, however, has since been severely curtailed: reduced to a very small category of actions in the High Court through the Courts Act 1988. Section 1 of the Act of 1988 abolishes trial by jury for actions “claiming damages in respect of personal injuries caused by negligence, nuisance or breach of duty”. Similarly excluded from trial by civil jury are claims under section 48 of the Civil Liability Act 1961 and actions arising from section 18 of the Air Navigation and Transport Act 1936, as amended. Included in the abolition of civil jury trial are actions in which “damages are claimed both in respect of personal injuries… and in respect of another matter” and damages claims “other than [for] personal injuries”. Death is, for these statutory purposes, a personal injury which does not carry the entitlement to a civil jury trial. Jury actions are not available, further, where the claim arises “directly or indirectly from an act or omission that also resulted in personal injuries”. An unqualified summary of the reform would be that personal injury actions, which up to 1988 were grist to the mill in legal practice before juries, were now to be tried by a judge alone. To this statutory reform, however, there is a saver. Section 1(3) provides that the removal of the entitlement to civil jury trial is not to apply to:

(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,

(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court … that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespassed the person or both … in respect of that act or omission, or

(c) a question of fact or an issue arising in the action referred to in paragraph (a) or (b) of this subsection other than an issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional trespassed to the person or both, as the case may be, in respect of the actor omission concerned.”

20. Charleton J. held that once it is decided as a matter of law that s. 1(3) of the Courts Act 1988 applies, in other words that the action is one which carried the entitlement of a jury trial, the action ceases to be one where, without the consent of the parties, a trial by a judge alone can take place.

21. The plaintiff submitted that similarly the right to a trial by jury in a defamation action cannot take place by a judge alone without the consent of the parties.

22. The plaintiff also referred to the decision of the Court of Appeal in Lennon v. Health Service Executive [2015] IECA 92, where Hogan J., having analysed the relevant legislation and case law, held that the High Court had no jurisdiction to dilute the plaintiffs right to trial by jury in respect of a defan1ation action.

23. The plaintiff submitted that the 2009 Act was enacted following an extensive consultative process over many years. The plaintiff stated that it was noteworthy that in the Legal Advisory Group’s report on the Tort of Defamation (2003), prepared on behalf of the Minister for Justice, the Legal Advisory Group considered the offer of amends for unintentional defamation contained in the Civil Liability Act 1961, and recommended that the provisions applying in the United Kingdom under the Defamation Act 1996 be used as a model for further statutory intervention in this area.

The plaintiff stated that the Group also concluded that juries should continue to have a role in assessing damages in the High Court.

24. Counsel for the plaintiff submitted that this recommendation was substantially followed, and the provisions enacted under ss. 22 and 23 of the 2009 Act are very similar to those in the UK Defamation Act 1996, save that under s. 3(10) of the UK Act, it is expressly provided that proceedings under that section shall be heard and determined without a jury. The plaintiff pointed out that there is no equivalent provision in the 2009 Act.

25. The plaintiff submitted that if the Oireachtas had intended that the assessment of damages under s. 23 of the 2009 Act should be heard without a jury, it would have created a statutory exception.

26. The plaintiff submitted that, moreover, s. 3 of the 2009 Act expressly provides that the Act shall not affect the operation of the general law in relation to defamation except to the extent that it provides otherwise (either expressly or by necessary implication).

27. The plaintiff stated that it was not surprising that the Oireachtas chose not to follow the equivalent UK provisions and exclude the dete1mination of damages following an offer to make amends from a jury. It was submitted that there is a fundamental divergence between the two jurisdictions concerning jury trials in defamation actions. The sanctity of the role of juries in defamation actions in this jurisdiction remains (see Barrett v. Independent Newspapers [1986] LR. 13), whereas under s. 11 of the UK Defamation Act 2013, defamation cases are now heard by a judge sitting alone, unless the court otherwise requires.

28. For these reasons, the plaintiff submitted that s. 23 of the 2009 Act must be interpreted as entitling the plaintiff to have his damages assessed by a jury.

Submissions on behalf of the defendant

29. The defendant submitted that the right of a trial by jury is not an absolute right, as was emphasised by Clark J. in Bradley and ors. v. Maher [2009] IEHC 389. The defendant submitted that the plaintiff is not entitled to a jury, and nor is one required for the assessment of damages. The defendant submitted that for the court to give a direction that there was such an entitlement would be contrary to the offer to make amends process under s. 22 of the 2009 Act. The defendant further submitted that such a direction is unnecessary, would have enormous costs implications for the parties, and would be an improper use of court time.

30. The defendant submitted that the adequacy of any measures taken by the defendant to ensure compliance with its offer to make amends is a matter that the court may take into consideration in any award of damages made at the determination stage of the offer to make amends process, and is therefore not a separate and distinct matter for directions.

31. The defendant submitted that if an offer to make amends is accepted, s. 23 of the 2009 Act takes effect, and states that if accepted, the provisions as set out in the section shall apply.

32. The defendant referred to the work of Cox and McCullough, Defamation Law and Practice (Clarus Press, 2014), where it is noted that if the parties agree on the precise measures to be taken in the fulfilment of an offer, then the party to whom the offer was made can apply to the court for an order directing the person who made the offer to take such measures, as provided by s. 23(1)(a) above. The defendant stated that, on the other hand, where the offer is accepted, but there is no agreement as to what must be done in the fulfilment thereof, the focus turns to the person making the offer, who may, with the leave of the court in which the action is being heard, make a correction and apology by means of a statement to the court, in such terms as may be approved by the court, and may give an undertaking as to the manner of their publication, as per s. 23(1 )(b).

33. The defendant referred to the further statement of Cox and McCullough that while the court may, perhaps, have jurisdiction to reject a proposed correction and apology, it seems clear that there is no question of either a plaintiff or the court imposing a particular correction and apology, or manner of publication, on a defendant. The defendant submitted that the adequacy of any apology or correction made or published is a matter which the court can take into consideration in any award of damages: s. 23(1)(c), and Cox and McCullough at pp. 356-7.

34. The defendant submitted that following the acceptance of an offer to make amends, s. 23(l)(c) provides that where agreement cannot be reached as to damages or costs between the parties, those matters shall be determined by the “High Court or, where a defamation action has already been brought, the court in which it was brought. ” The defendant submitted that the only logical interpretation of the “High Court” and “court”, means a judge alone and does not include a jury.

35. It was submitted that the legislative intent can only lead to the conclusion that a decision on damages following acceptance of an offer to make amends, in the absence of agreement between the parties, is to be made by a judge alone and not a jury. Cox and McCullough state that the “defence” of an offer to make amends in the 2009 Act, is about “facilitating the expeditious resolution of actions, hopefully without involving the courts at all. ” The defendant stated that to read into s. 23(1)(c) the involvement of a jury, would do damage to the intention of the provision. It was submitted that in Law of Torts (Bloomsbury Professional, 2013) McMahon and Binchy appear to operate on the presumption that s. 23(1)(c) operates in the absence of a jury.

36. The defendant submitted that there are other references in s. 23 itself to the “High Court”, where the phrase cannot be taken to refer to a jury. For example, subs. 1(a) provides that “the High Court”, on application to it, may direct the party who made the offer to take those measures. It was submitted that such an application could not possibly be made to a jury. Similarly, ins. 23(1)(b) the leave of the “High Court” may be sought to make an apology by way of statement in court, such tem1s of apology being approved by the court; it was submitted that this could not possibly be undertaken by a jury. The defendant stated that Cox and McCullough suggest that to interpret s. 23(1)(c) as anything other than a judge sitting alone would “do violence to the construction of the section. “

37. The defendant submitted that it is of particular relevance that the three provisions above are subsections of the one section and, as such, it was submitted that they should be read in light of each other.

38. Counsel for the defendant stated that there are a number of instances in the 2009 Act generally where the term “the High Court”, used in isolation, cannot reasonably be construed as involving a jury and thus there is no reason why the use of the term ins. 23(1)(c) must necessarily be taken to refer to a judge and jury.

39. The defendant submitted that the general scheme of the 2009 Act is to expressly state that a reference to “the court” is to be taken to refer to a jury, where that is the intention. There was no reasonable conclusion as to why the legislature would not have expressly included the jury in s. 23(1)(c) if that was in fact the intention. It is of particular significance that ss. 31 and 32, which concern quantum of damages, expressly specify that reference to the court is deemed to refer to the jury, whereas s. 23(l)(c), which also deals with quantum of damages, is silent on the issue of jury involvement.

40. It was submitted that the reference in s. 23(1)(c) to the following: “the court shall for those purposes have all such powers as it would have if it were determining damages or costs in a defamation action”, relates to the power of the court to order discovery and hear submissions in order to consider the aggravating and mitigating factors. It does not in any way relate to the involvement of a jury.

41. In reliance on the reasons set out above, given that there is no role for a jury in the consideration of damages or costs, the defendant submitted that there is no role for a jury under s. 23(1)(c) in the consideration of the adequacy of measures taken to ensure compliance with the terms of the offer made.

Decision of the court

42. The issue arising for the determination of the court in this case is whether in circumstances where an offer of amends had been made and accepted pursuant to s. 22 of the 2009 Act, but the parties are unable to reach agreement as to the issue of quantum of damages or costs, is there an entitlement under s. 23(l)(c) to a jury trial? The plaintiff has contended that the references to “the High Court” and “the court” in s. 23(1)(c) mean a judge sitting with a jury, while the defendant has submitted that the section contemplates a judge sitting alone. As such, this case comes down to a net point of statutory interpretation.

43. Various authorities and academic commentaries, as set out above, were opened to the court in both written and oral submissions. However, it seems to me that the judgment of the Court of Appeal (Hogan J.) in Lennon v. Health Service Executive [2015] IECA 92 is of central importance to the determination of the issue arising m this case. The question before the court in that case was whether in circumstances where a plaintiff has simultaneously commenced both judicial review proceedings and an action for defan1ation pursuant to the 2009 Act, can that plaintiff be deprived of the right to jury trial in respect of the defamation action by reason of a case management decision made, for sound and practical reasons, in respect of the hearing of the two cases?

44. In determining this issue, Hogan J. traced the history of the right to a jury trial, citing, inter alia, the 11 Amendment of the US Constitution (1791) which provides that “in suits at common law … the right of trial by jury shall be preserved.” The learned judge noted, however, that the right to jury trial in respect of common law actions had been eroded by statute during the 19th and 20th centuries. He concluded, at paras. 21-24 of his judgment:

“21. The net effect of these various statutory changes is that over 150 years the right to jury trial in civil matters has been gradually whittled away. Yet it is equally plain that the right to jury trial in respect of defamation actions in the High Court which existed immediately prior to the [Supreme Court of Judicature Act (Ireland) 1877] has not been altered by subsequent statutory changes. That right was preserved by s. 48 of the 1877 Act and, save for the abolition of the right to jury trial in the Circuit Court by s. 6 of the [Courts Act 1971], that right has never otherwise been altered or diluted by the Oireachtas.

22. Indeed, it is clear, moreover, from the terms of the 2009 Act that the Oireachtas assumed that all defamation actions would be tried in the High Court with a jury. Thus, for example, s. 14(1) of 2009 Act empowers the court in a defamation action to give a direction as to whether the statement in question is ‘reasonably capable’ of bearing the imputation asserted by the plaintiff Assuming the answer to that question is in the affirmative, then the court is required to determine whether ‘that imputation is reasonably capable of bearing a defamatory meaning’. What is significant for present purposes is that s. 14(3) of the 2009 Act provides:-

‘An application under this section shall be brought by notice of motion and shall be determined, in the case of a defamation action brought in the High Court, in the absence of the jury. ‘

23. It is plain, therefore, that the Oireachtas assumed that all defamation actions heard in the High Court would be tried by a jury.

24. Against that background, therefore, the question is whether a right to jury trial in defamation proceedings which was preserved by s. 48 of the 1877 Act and a series of other enactments can be compromised or set aside by a case management direction. It is true that there are two High Court decisions, Bradley v. Maher [2009} JE.H C. 389 and Kerwick v. Sunday Newspapers Ltd., High Court, 10th July 2009 which suggest that this question should be answered in the affirmative. “

45. Hogan J. then turned to consider those authorities. In Kerwick v. Sunday Newpapers Ltd. (High Court, 1oth July, 2009) the plaintiff had brought proceedings for defamation, a breach of her constitutional right to privacy and negligent infliction of emotional distress. Dunne J. held that notwithstanding the fact that, in the ordinary way, the defamation claim brought by the plaintiff would have been tried by a jury, in the circumstances of the case before the court, the interests of justice required that there be a single trial of all the issues, and that such trial could not be before a jury.

46. In Bradley v. Maher [2009] IEHC 389, Clarke J. took a similar view. He ruled that it was in the interests of justice that the entire action, which involved unlawful picketing and defamation, be tried by a judge sitting alone. The learned judge held that in the ordinary way, a plaintiff was entitled to a jury trial in defamation proceedings; however, that entitlement was not absolute. Where a single set of proceedings involved more than one cause of action, the court had to exercise a discretion as to the appropriate way in which all issues in the case could be disposed of.

47. Hogan J. observed that the court in those cases proceeded from the premise that the right to jury trial in defamation proceedings was not something to which the party was entitled to as of right, and that any such pre-existing right should yield to the demands of case management and the efficient administration of justice. However, Hogan J. did not accept that the High Court enjoyed any such jurisdiction. He held as follows at para. 30 of his judgment:

“30. As we have seen, any party to defamation proceedings had the unquestioned right at common law to opt for jury trial. That right pre-existed the enactment of the 1877 Act and, as we have seen, was expressly preserved by s. 48 of that Act. Section 48 of the 1877 Act further provided that such right could be enforced by the High Court by motion. That statutory right has never been diluted in any way by any subsequent legislation (save for the abolition of the right to jury trial in the Circuit Court by s. 6 of the I 971 Act) and nor has the Oireachtas created any discretionary exceptions to that right. Indeed, as we have seen, s. 14 of the 2009 Act provided that in defamation proceedings certain preliminary matters (such as whether the publication was capable of having a defamatory meaning) should be determined by a judge alone. The Oireachtas has not elected to set out any further circumstances in which a defamation action in the High Court (or any feature thereof) could be tried otherwise than by a jury. “

48. Hogan J. thus held that Kerwick and Bradley were wrongly decided, and stated, at para. 41 of his judgment, that the High Court had no jurisdiction to dilute the plaintiffs right to trial by jury in respect of the defamation action. The learned judge held that the plaintiff was entitled, by virtue of these statutory provisions, to jury trial as of right and that that entitlement, where applicable, could not be abrogated by a judicial order under any circumstances, even if the step was taken for the most understandable reasons of efficiency and case management. It is scarcely necessary to state that Dunne J. and Clarke J. were members of the High Court at the time of the decisions aforesaid.

49. The defendant submitted that the decision of the Court of Appeal in Lennon does not address the offer of amends procedure under s. 23 of the 2009 Act which, it was submitted, is a totally separate regime. The defendant reiterated the views of academic commentators, including Cox and McCullough, and McMahon and Binchy, that there is no right to jury trial under s. 23.

50. While it is true that the academic works opened to the court favour the view that there is no right to a jury trial under s. 23, it is important to note that those commentaries predate the decision of the Court of Appeal in Lennon, a decision binding upon me.

51. As Hogan J. pointed out, it is clear in light of s. 14(3) that the Oireachtas assumed that all defamation actions heard in the High Court would be tried by a jury. That is the starting point for any consideration of this issue. It seems to me therefore that if the Oireachtas had intended to remove or dilute the right to jury trial ins. 23, it would have done so expressly. Instead, while the 2009 Act is closely modelled on the United Kingdom Defamation Act 1996, which expressly provides in s. 3(10) that the offer to make amends procedure is to be operated in the absence of a jury, no equivalent provision was included in the 2009 Act; it simply states that matters such as damages “shall be determined by the High Court. ” This, it seems to me, confirms that the legislature did not intend to remove the right to jury trial in the context of s. 23. The court must assume that the framing of the sub-section as enacted was purposeful. Further, the rarely invoked but still operative rule of construction “inclusio unius est exclusio alterius” appears in point.

52. Accordingly, in light of the judgment of the Court of Appeal in Lennon, and in the absence of an express intention on the part of the legislature to abrogate the right to jury trial in s. 23(1)(c), I am satisfied that the plaintiff is entitled pursuant to that section to have his damages assessed by a jury, rather than by a judge sitting alone, should he wish to do so.

Lennon -v- HSE

[2015] IECA 92

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 30th of April 2015

1. Where a plaintiff has simultaneously commenced both judicial review proceedings and an action for defamation pursuant to the Defamation Act 2009 (“the 2009 Act”), may that plaintiff be deprived of his right to jury trial in respect of the defamation action by reason of a case management direction made, admittedly for sound and practical reasons, in respect of the hearing of the two cases? This is essentially the issue which we are required to determine in the present appeal and it arises in the following way.

2. The plaintiff is a national school teacher. In 2004 he was placed on administrative leave following the making of a complaint by the parents of a pupil to the effect that their son had been sexually abused. Other serious complaints of a similar nature followed. The plaintiff then commenced judicial review proceedings (2004 No. 1160JR) (“the 2004 proceedings”) seek to quash a decision of the HSE (or, more accurately, its statutory predecessor, the Midwestern Health Board) made on 20th July 2004 which had apparently validated on a prima facie basis the complaints and which decision had been made in circumstances where he had not been heard.

3. An order was made by consent on 16th June 2005 quashing this decision which had been taken at a child protection conference. The HSE then indicated that it would commence a fresh investigation. The plaintiff then brought a second set of judicial review proceedings (2006 No. 593 JR) (“the 2006 proceedings”). The 2006 proceedings were compromised and by consent the proceedings were struck out by the High Court on 11th December 2006. The effect of this consent order was that the HSE assured the plaintiff that all relevant documentation bearing on the investigation had been furnished to him.

4. Three separate criminal prosecutions followed arising out of these complaints. The plaintiff was, however, acquitted of all charges following three separate criminal trials on 13th May 2009, 7th July 2009 and 15th October 2010. Following these acquittals, the plaintiff then sought to be reinstated to his teaching post. The HSE made clear, however, that it intended to continue its investigation.

5. That investigation concluded with a letter sent by the senior social worker in charge of the investigation, Mr. Bill Hamill, on 14th December 2012 to the Board of Management of the school in question. In that letter Mr. Hamill briefly outlined the history of the matter, including the fact that the HSE had previously deemed the complaints to be credible. Mr. Hamill then referred to the fact that the plaintiff had been acquitted following criminal prosecutions. He then stated:

“In conclusion, taking into account the social work assessment [of 2004] but having regard to the rejection of all of the allegations made against him, it is still the considered view of the HSE that on balance the outcome of the allegation is inconclusive.”

6. In the wake of this letter the plaintiff was then invited to resume his teaching duties which he did on 30th April 2013. The plaintiff maintains, however, that the HSE investigation was seriously flawed and he commenced a third set of judicial review proceedings (2013, 203 JR) (“the 2013 proceedings”) seeking to quash the outcome of that investigation. The 2013 proceedings were subsequently amended in circumstances I shall later describe.

7. On 7th November 2013 the plaintiff then issued proceedings claiming damages for defamation under s. 29 of the 2009 Act. He also sought a correction order under s. 30 of the 2009 Act. The gist of the defamation proceedings is to the effect that the plaintiff alleges that on various dates between 14th December 2012 and 25th June 2013 Mr. Hamill conversed with the parents of children attending the school and that in these conversations Mr. Hamill said or implied that the plaintiff was a threat to children attending the school and that he should not have been permitted to return work.

8. On 27th January 2014 the High Court made an order by consent amending the 2013 proceedings. The additional relief and grounds thus added to those judicial review proceedings was to the effect that the HSE had acted ultra vires insofar as Mr. Hamill had communicated with the parents and had suggested that the plaintiff should not be allowed to resume his teaching duties. It is clear that there is a considerable overlap between the two sets of the proceedings.

9. On 24th November 2014 the respondent applied by motion to the High Court for an order consolidating the 2013 proceedings with the defamation proceedings and for general case management directions as to the mode of trial. In a ruling delivered on 15 January 2015 McCarthy J. held that the 2013 proceedings be listed together with the defamation proceedings, ruling that it was a matter for the trial judge whether to hear the cases together or successively. In the course of that ruling McCarthy J. said as follows:

“I think that the right to trial by jury is not an absolute one. There is an inherent jurisdiction in the Court to regulate its own procedure. There is indeed a jurisdiction or at least a duty on the Court to so regulate it to ensure that constitutional justice is afforded to all parties. It may also take into account another aspect of the public interest. There is always a public interest in affording constitutional justice to parties. Procedural issues in considerations such as the use of court time are entirely secondary to substantive issues of merit and must always take second place, notwithstanding the greater emphasis on such matters in more recent times on a practical level. However, it is not in the public interest that there be a multiplicity of trials where one trial would do justice between the parties. It is not in the public interest to use up or expend the time of the court unnecessarily. It is not in the public interest that parties be either put to the hazard of having orders for costs against them or, in the first instance, incur costs which they may or may not recover.

One can see, in other words, that there are sound reasons why a discretion is vested in the courts to direct cause of actions or proceedings to be heard even at the price, so to speak, of the exclusion of an entitlement to trial by jury.”

10. On an appeal to this Court, the single issue was whether the High Court was thereby entitled to make a case management direction which had the effect of depriving the plaintiff of his right to jury trial in respect of the defamation proceedings. It may be acknowledged at the outset that case management decisions of this nature should but rarely be upset on appeal. As Clarke J. pointed out in Dowling v. Minister for Finance [2012] IESC 32:

“The trial court must retain a very large measure of discretion over the directions which are appropriate and the measures to be adopted in the event of failure to comply. There would be no reality to the achievement of the undoubted advantages which flow from case management if this Court were, on anything remotely resembling a regular basis, to entertain appeals from parties who were dissatisfied with either the precise directions given or orders made by the Court arising out of failure to comply.”

11. It may next be accepted that there is a considerable overlap between the issues raised in both sets of proceedings. From the perspective of convenience and the avoidance of duplication of costs, the order made by McCarthy J. – whereby he directed that the two cases were to be heard either together or successively – has a very great deal to commend it. In the context of where there are two separate, overlapping proceedings, the entitlement of trial by jury in respect of the defamation proceedings presents considerable practical problems in terms of the efficient handling of the two cases. If, for example, the jury were to determine that the Hamill letter was not defamatory of the plaintiff, how would that impact on the judge’s assessment of not dissimilar questions which arise in the 2013 judicial review proceedings?

12. The existence of these and other similar practical difficulties were not really at issue in this appeal. The only real issue before the Court was whether the plaintiff’s right to jury trial in respect of the defamation action could properly be set aside on this account for reasons of efficient case management. It is, accordingly, first necessary to examine the nature of a party’s right to jury trial in defamation proceedings.

The right to jury trial in civil matters

13. The historical practice of the common law courts (as distinct, generally speaking, from the courts of chancery) was to provide for jury trial in civil matters. This is reflected in the 7th Amendment of the US Constitution (1791) which provided that “in suits at common law…the right of trial by jury shall be preserved.” In this jurisdiction, however, the right to jury trial in respect of common law actions was gradually eroded throughout the 19th century. The creation by statute of new courts with professional judges meant that many actions in what corresponds to the modern Circuit Court were now to be tried by judge alone. While the right to jury trial in actions for greater than £20 was preserved by s. 100 of the Civil Bill Courts (Ireland) Act 1851, nevertheless, given monetary values at the time, this meant that the majority of even common law actions heard by the then County Court were by judge alone. At around the same time court procedure for the common law courts was revolutionised by the Common Law Procedure (Amendment) Act 1856 (“the 1856 Act”). Section 4 of the 1856 Act allowed the parties in common law actions to agree that issues of fact – which heretofore the preserves of civil juries – might be determined by a judge alone.

14. The procedural fusion of the chancery and the common law courts into one High Court which was effected by the Supreme Court of Judicature (Ireland) Act 1877 (“the 1877 Act”) also weakened in practice the pre-eminent role which juries had previously enjoyed in common law actions. This was in part because there was now one unified High Court whose jurisdiction was governed by statute, but also because there was now effectively for the first time a procedure where common law and equitable claims could be combined in one set of proceedings which could be adjudicated by a judge sitting alone. Save in rare and special cases, there was in practice no entitlement to jury trial in the Courts of Chancery prior to the 1877 Act. Even then, however, s 48 of the 1877 Act provided that:

“…nothing in this Act, or in any rule made under its provisions, shall take away or prejudice the right of any party to any action to have questions of fact tried by a jury in such cases as he might heretofore of right have so required…..Provided also, that such right may be enforced by motion in the High Court of Justice….”

15. There is no question, however, but that immediately prior to the coming into force of the 1877 Act any party to defamation proceedings had the right to have such questions of fact tried by a jury.

16. The right to jury trial in civil matters was further eroded following independence as a consequence of s. 94 of the Courts of Justice Act 1924 (“the 1924 Act”) which provided:

“Nothing contained in this Act shall take away or prejudice the right of any party to any action in the High Court or the Circuit Court (not being an action for a liquidated sum, or an action for the enforcement, or for damages for the breach of a contract) to have questions of fact tried by a jury in such cases as he might heretofore of right have so required in the Supreme Court of Judicature in Ireland, and with like directions as to law and evidence, but no party to an action in the High Court or the Circuit Court for a liquidated sum, or an action for the enforcement or for damages for the breach of a contract or in an action for the recovery of land shall be entitled to a jury unless the judge shall consider a jury to be necessary or desirable for the proper trial of the action, and shall of his own motion or on the application of any party so order. Subject to all existing enactments limiting regulating, or affecting the costs payable in any action by reference to the amount recovered therein, the costs of every civil action, and of every civil question and issue, tried by a jury in the High Court or the Circuit Court shall follow the event, unless, upon application made, the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct; and any order of a Judge as to such costs may be discharged or varied by the appellate tribunal.”

17. Section 94 of the 1924 Act was itself amended by s. 20 of the Courts of Justice 1928 to provide that there was no right to jury trial in actions for breach of contract or for liquidated sums or in action for the recovery of land save where the court itself considered that this was “necessary or desirable” for the proper trial of the action.

18. The effect of s. 94 of the 1924 Act was in practice to remove the right to jury trial in actions for breach of contract, while otherwise preserving the right to jury trial which had in turn been previously preserved by the 1877 Act. As Clarke J. said in Bradley v. Maher [2009] IEHC 389. there is “no doubt but that a right to trial by jury in defamation proceedings existed as of that time and was, therefore, continued in force by reason of that Act.”

19. Two other important statutory changes from the 1970s and the 1980s respectively are also relevant to this question. First, s. 6 of the Courts Act 1971 (“the 1971 Act”) abolished the right to jury trial in all civil actions in the Circuit Court. This led to the situation for the first time where the Circuit Court heard defamation actions by a judge sitting alone. Second, s. 1 of the Courts Act 1988 abolished the right to jury trial in respect of personal injuries matters, save for claims for trespass to the person and false imprisonment.

20. The law in this matter as it stood immediately prior to the 1988 Act was thus helpfully summed up by McWilliam J. in McDonald v. Galvin [1976-1977] I.L.R.M. 41, 43:

“This leaves the present position such that a party has a right to a jury in all cases in which he had such a right prior to 1924 except in claims for breach of contract or for liquidated sums or for the recovery of land or for the recovery of land or claims in the Circuit Court.”

21. The net effect of these various statutory changes is that over 150 years the right to jury trial in civil matters has been gradually whittled away. Yet it is equally plain that the right to jury trial in respect of defamation actions in the High Court which existed immediately prior to the 1877 Act has not been altered by subsequent statutory changes. That right was preserved by s. 48 of the 1877 Act and, save for the abolition of the right to jury trial in the Circuit Court by s. 6 of the 1971 Act, that right has never otherwise been altered or diluted by the Oireachtas.

22. Indeed, it is clear, moreover, from the terms of 2009 Act that the Oireachtas assumed that all defamation actions would be tried in the High Court with a jury. Thus, for example, s. 14(1) of 2009 Act empowers the court in a defamation action to give a direction as to whether the statement in question is “reasonably capable” bearing the imputation asserted by the plaintiff. Assuming the answer to that question is in the affirmative, then the court is required to determine whether “that imputation is reasonably capable of bearing a defamatory meaning”. What is significant for present purposes is that s. 14(3) of the 2009 Act provides:-

“An application under this section shall be brought by notice of motion and shall be determined, in the case of a defamation action brought in the High Court, in the absence of the jury.”

23. It is plain, therefore, that the Oireachtas assumed that all defamation actions heard in the High Court would be tried by a jury.

24. Against that background, therefore, the question is whether a right to jury trial in defamation proceedings which was preserved by s. 48 of the 1877 Act and a series of other enactments can be compromised or set aside by a case management direction. It is true that there are two High Court decisions, Bradley v. Maher [2009] IEHC 389 and Kerwick v. Sunday Newspapers Ltd., High Court, 10th July 2009 which suggest that this question should be answered in the affirmative. We may now examine these decisions in turn.

The decisions in Kerwick v. Sunday Newspapers and Bradley v. Maher

25. In Kerwick v. Sunday Newspapers Ltd. High Court, 10th July, 2009 the plaintiff concerned brought proceedings for defamation, a breach of her constitutional right to privacy, and negligent infliction of emotional distress. Dunne J. determined that, notwithstanding the fact that, in the ordinary way, the defamation claim brought by the plaintiff concerned would have been tried by a jury, nonetheless, in all the circumstances, the interests of justice required that there be a single trial of all issues and that such a trial could not be before a jury. Dunne J outlined the difficulties of separating the claims into separate proceedings as follow:

“Imagine that this case was set down for trial without a jury and that the plaintiff made an application to have the trial of two of the causes of action heard at the same time and the trial of the third cause of action held at a later time. Imagine that there would be two separate assessments made in respect of damages. There would be a duplication of evidence, the case would take longer, the costs would be greater and it is arguable that there could be an overlap in respect of the damages that might be awarded. It is difficult to see how such an approach could be permissible in any circumstances.”

26. Clarke J. took a similar view in Bradley v. Maher. In that case the plaintiff solicitor contended that the defendant had engaged in an unlawful picket of the plaintiff solicitor’s offices and, furthermore, that the placards used by the defendant were defamatory. The plaintiff accordingly sought an injunction to restrain the picketing along with damages for defamation. Clarke J. observed that this was not a case:

“Where there is anything inappropriate in the joinder of the defamation and picketing aspects of the case so that it could be said that their joinder was a device to deprive Mr. Maher from an entitlement to a jury trial. Rather it is obvious that both aspects of the claim are real, connected and proper to be decided in one set of proceedings.”

27. Although the defendant contended that he was entitled to a jury trial in respect of the defamation portion of the claim, Clarke J. ruled that it was in the interests of justice that the entire action be tried by a judge sitting alone:

“Against that background it seems to me that the following general principles seem to apply. In the ordinary way, a plaintiff or defendant is entitled to a jury trial in this Court in defamation proceedings. However, that entitlement is not absolute. Where a single set of proceedings involve more than one cause of action, the court has to exercise a discretion as to the appropriate way in which all issues in the case can be disposed of. That discretion arises even in cases where no question of a right to trial by jury exists. For example, the question of whether all issues in a single case which is to be tried by a judge alone should be determined at a single unitary hearing, or in two or more separate hearings, is a matter over which the court retains a discretion which should be exercised, as should all judicial discretion, on a principled basis.

28. Clarke J. then proceeded to give immensely practical reasons as to why a unitary trial presided over by a single judge was the most practical and efficient method of disposing of this case. Judged from the perspective of case management and efficiency, one could not possibly dissent from that conclusion. It was these very self same considerations which prompted McCarthy J. to make the order which he did.

29. Nevertheless, where I respectfully differ from the approach taken by the High Court in Kerwick and Bradley and in the present case is that in each of these three cases, the court proceeded from the premise that the right to jury trial in defamation proceedings was not something to which the party was entitled to as of right and that any such pre-existing right should yield to the demands of case management and the efficient operation of the administration of justice. With respect, however, I do not believe that the High Court enjoys any such jurisdiction.

30. As we have seen, any party to defamation proceedings had the unquestioned right at common law to opt for jury trial. That right pre-existed the enactment of the 1877 Act and, as we have seen, was expressly preserved by s. 48 of that Act. Section 48 of the 1877 Act further provided that such right could be enforced by the High Court by motion. That statutory right has never been diluted in any way by any subsequent legislation (save for the abolition of the right to jury trial in the Circuit Court by s. 6 of the 1971 Act) and nor has the Oireachtas created any discretionary exceptions to that right. Indeed, as we have seen, s. 14 the 2009 Act provided that in defamation proceedings certain preliminary matters (such as whether the publication was capable of having a defamatory meaning) should be determined by a judge alone. The Oireachtas has not elected to set out any further circumstances in which a defamation action in the High Court (or any feature thereof) could be tried otherwise than by a jury.

31. Indeed so far as cases such as Bradley are concerned, it may be observed that, prior to the 1877 Act, the plaintiff would have had no entitlement to combine a claim for an equitable remedy such as an injunction with the quintessentially common law claim in defamation in one set of proceedings. Although the 1877 Act permitted this to be done, s. 48 expressly preserved the right to jury trial at common law which had heretofore existed. It follows that the plaintiff’s right to bring hybrid common law and equitable claims in a single set of proceedings – which by now is so common and standard that we have almost forgotten that it was not possible prior to the enactment of the 1877 Act – nevertheless derives from that 1877 Act. Yet, as we have seen, s. 48 of the 1877 Act expressly provided that “nothing in this Act” should be taken as compromising any party’s pre-existing right to jury trial. It follows, therefore, that a plaintiff’s right to combine a claim for defamation and an injunction in single proceedings (which was permitted by the 1877 Act) could not prejudice a defendant’s entitlement to opt for jury trial in respect of the defamation claim by reason of s. 48 of that self same Act.

32. In these circumstances, the High Court simply has no jurisdiction to create what in effect would amount to a discretionary exception to this common law right which has been copper-fastened by legislation, even if this was done for the very understandable reasons of efficiency and case management. Insofar as the decisions in Kerwick and Bradley suggest otherwise, I believe that, with respect, they were wrongly decided and should not be followed.

33. In any event, quite apart from the issue of principle, I consider that this conclusion is supported by other authority: see Delany, The Courts Acts 1924-1997 (Dublin, 2000) at 59-60. We may commence with a pre-1924 Act authority, Magill v. Magill [1914] 2 I.R. 55. This was a case where the plaintiff had sued for damages for breach of contract and the High Court had directed that the case be heard without a jury. While the case is somewhat inadequately reported, the headnote to the Irish Reports records the (former) Court of Appeal as having held that, in the absence of consent, the High Court had no jurisdiction to make such an order.

34. In McDonald v. Galvin [1976-1977] I.L.R.M. 41 the plaintiff sued the defendant for assault and battery which was alleged to have been perpetrated on the plaintiff in the drawing room of the defendant’s house. The defendant sought to have the action remitted to the Circuit Court, but the plaintiff contended that this would deprive him of his right to trial by jury.

35. McWilliam J. approved a statement from Wylie’s Judicature Acts (1905) with regard to the statement of the pre-1877 Act law to the effect that ([1976-1977] I.L.R.M. 41, 43) that:

“In common law courts a party had a right to trial by jury in all cases except certain cases concerning accounts and that, in the Court of Chancery a party had no right to a jury except in a very few cases…This is an action at common law and, no argument having been advanced to the contrary, I am satisfied that, for whatever reason or on whatever principle, the plaintiff would be entitled to a jury in the High Court as of right.” (emphasis supplied).

36. Ultimately, however, McWilliam J. held that this did not avail the plaintiff because he was satisfied that the maximum damages which the plaintiff might recover in the circumstances were well below the maximum which the Circuit Court was then entitled to award and the action was then remitted to the Circuit Court. Nevertheless, this decision constitutes an impressive authority for the proposition that where the High Court is properly seized of a common law action such as defamation or assault, then a party to such litigation is entitled to a jury trial as of right.

37. A similar conclusion had been reached by the Supreme Court in a series of (pre-1988 Act) cases dealing with the question of whether the plaintiff was entitled to a jury trial in respect of a claim in negligence. Thus, for example, in Cox v. Massey [1969] I.R. 243 Ó Dálaigh C.J. said ([1969] I.R. 243, 248) that as the plaintiff had sued in negligence for personal injuries:

“The plaintiff…had a right to have his action tried by a jury. Section 48 of the Supreme Court of Judicature (Ireland) Act 1877 preserved this right and s. 94 (as amended) of the Courts of Justice Act 1924, continued it in force.”

38. Similar views were expressed in Finlay v. Murtagh [1979] I.R. 249, a case where the plaintiff had sued his solicitor in both negligence and for breach of contract. In the High Court D’Arcy J. had refused to set aside the plaintiff’s notice of trial with a jury and this conclusion was upheld by the Supreme Court. The judgments delivered by Henchy, Griffin and Kenny JJ. all held that the action was in substance an action in negligence. It is significant, however, that all three judgments proceed on the basis that the plaintiff was entitled to trial by jury as of right.

39. This point was expressly made by Griffin J. who said ([1979] I.R. 249, 263) that as the action was one in negligence “the plaintiff is entitled as of right to have his action tried before a judge and jury”. Kenny J. spoke to the same effect ([1979] I.R. 249, 264)) when he stated that “the plaintiff has sued in tort [for negligence] and so is entitled to have his case tried by a jury: see s. 94 of the Courts of Justice Act 1924.” Subsequently in another negligence case, Holohan v. Donohoe [1986] I.R. 45, 49, Finlay C.J. observed that s. 94 of the 1924 Act gave “to a plaintiff in certain types of cases, of which this is one, the right in the High Court to trial involving the determination of questions of fact by a jury.”

40. While it is true that this right to jury trial was removed by the 1988 Act so far as actions in negligence is concerned, this does not take from the underlying principle which emerges from cases such as McDonald and Finlay, namely, that the effect of both s. 48 of the 1877 Act and s. 94 of the 1924 Act is that where a party to common law litigation had a right to jury trial prior to the operation of the 1877 Act and that right was not subsequently altered or diluted by statute, then that party was entitled to a jury trial as of right.

41. This case-law further re-inforces the conclusion that the High Court simply has no jurisdiction to dilute the plaintiff’s right to jury trial in respect of this defamation action. It is accordingly clear that the plaintiff is entitled by virtue of these statutory provisions to jury trial as of right and that entitlement, where applicable, cannot be abrogated by judicial order under any circumstances, even if (as here) the step was taken for the most understandable reasons of efficiency and case management.

Conclusions

42. For the reasons just stated, therefore, I would accordingly allow the appeal and declare that the plaintiff is entitled to a jury trial in respect of the defamation proceedings.

Ward & anor -v- The Donegal Times Ltd & anor

[2016] IEHC 711

JUDGMENT of Mr. Justice McDermott delivered on the 8th day of November, 2016

1. The plaintiffs claim damages for defamation in respect of two articles published by the first named defendant and written by the second named defendant, in his capacity as editor and journalist for the first named defendant, on 25th September and 9th October, 2013.

2. The first named plaintiff, Mr. Daniel Ward, was and is financial controller of Donegal Town Enterprise Scheme Limited which runs and operates an inshore leisure boat, known as the Donegal Bay Waterbus. The second named plaintiff, Mr. Sean Quinn, was and is the CEO of the Donegal Town Enterprise Scheme Limited which operates the Donegal Waterbus.

3. The first named defendant is a limited liability company with registered offices at The Diamond, Donegal Town, County Donegal and is the publisher of The Donegal Times, a newspaper circulating mostly in County Donegal. The second named defendant is a Director and/or Shareholder and/or Manager of the second named defendant for which he works as journalist and editor.

4. Plenary summons’ in respect of both actions issued on 21st May, 2014 and each defendant entered an appearance on 28th May, 2014. The statements of claim were delivered on 16th June, 2014. An offer to make amends pursuant to section 22 of the Defamation Act 2009 (“the 2009 Act”) was made by the defendants in respect of each plaintiff on 11th December, 2014. This offer was accepted by the plaintiffs by letters dated 10th February, 2015.

5. In the absence of agreement between the parties as to the terms and conditions of the offer of amends, the matter came on for trial before this Court on 26th and 27th May, 2016 to assess damages and costs pursuant to section 23 (1) of the 2009 Act. When the matter came on for trial, the Court was informed that a further related action in these proceedings, brought by Donegal Town Enterprises Limited had been resolved. Proceedings were adjourned until 16th June when the matter recommenced. Oral evidence was given and written and oral submissions were received by the Court.

The impugned articles

6. The first article, the subject of these proceedings was published on page 25 of the 25th September, 2013 edition of the Donegal Times in the section entitled “An Editor’s Diary by Liam Hyland”. The text of this article is as follows:

“Friday 13th: A new company has been formed, Donegal National Hostel Limited. Its registered address is c/o Sean Quinn, Killymard, Donegal Town and its named directors are David Kearney, Co. Dublin and William Curran, Co. Dublin; who are also directors of 5,123 other Irish companies, 1,185 of which are now closed. With a purpose to renovate the National Hotel, the newly formed company intends to re-open it as an accommodation establishment. It’s been a great year on the water. Well done to them. Roll on the Annual General Meeting, and a set of figures that members can take home with them.”

7. The second impugned article was published on page 25 of the 9th October, 2013 edition of the Donegal Times again in the section entitled “An Editor’s Diary by Liam Hyland”. The text of this article is as follows:

“Saturday 28th: Well done to the Waterbus boys who are winding down after a very successful year. In the months April to end of September, the vessel carried over 40,000 passengers – at €15 a go – you can work out the math. Then the bar takings. Being easily the most successful voluntary enterprise in town, this Community Scheme, already debt free, should be ready to deliver a fair amount of dosh to local groups, worthy charities, and organisations like Town Chamber and Bosco. With the committee and crew working for nothing, almost all turnover should translate into profit. Maith a gasurí.”

8. The plaintiffs claim that the words published in these articles were defamatory of and concerning the plaintiffs. The first named plaintiff, Mr. Ward’s, statement of claim states that the articles and, in particular, the words set out therein, in their natural and ordinary meaning and/or by way of innuendo meant and were understood to mean that:

a. The plaintiff participated in financial malpractice and mismanagement of monies associated with the Donegal Waterbus;

b. The plaintiff was willing to act as financial controller of an enterprise that was engaging in financial malpractice;

c. The plaintiff acted improperly, unethically and/or corruptly.

The first named plaintiff states that the publication of the words complained of has gravely injured his reputation in his personal and professional capacity and has exposed him to public scandal and contempt and caused him great embarrassment and distress in his job as financial controller that requires the utmost integrity and propriety. I am satisfied on the evidence that this is so.

10. The second named plaintiff, Mr. Quinn, claims that the words set out in the articles in their natural and ordinary meaning and/or by way of innuendo meant and were understood to mean that:

a. The plaintiff did not carry out his function of CEO with due care, diligence and the utmost good faith;

b. The plaintiff was party to financial malpractice and mismanagement of monies associated with the Donegal Waterbus;

c. The plaintiff was willing to act as CEO of an enterprise that was itself engaging in financial malpractice;

d. The plaintiff acted improperly, unethically and/or corruptly in his position as CEO.

He claims that the publication of the articles injured his reputation in both his professional and personal capacity and has exposed him to public contempt and distrust and caused him grave embarrassment and distress. I am satisfied that this is so.

11. The plaintiff’s claim includes a claim for aggravated and/or exemplary damages.

Sequence of events

12. Letters were sent on behalf of Mr. Ward and Mr. Quinn by McCanny & Co. solicitors to the Donegal Times and Mr. Hyland respectively on 4th December, 2013 complaining about the articles. They set out in detail the alleged defamatory nature and effect of the articles.

Mr. Ward’s letter

13. The letter sent on behalf of Mr. Ward to the Donegal Times refers to both articles published by the Donegal Times on 25th September and 9th October, 2013. It states:

“Those articles clearly show the continuous malevolent and malicious publication regarding the Donegal Waterbus and have been motivated by personal vindictiveness and ongoing malice which has continued through numerous articles published by you down the years since February 2009”.

14. It notes that Mr. Ward prepares and calculates the figures for the purpose of preparing the company accounts of Donegal Town Enterprises Limited to be presented by the board of the company to the AGM. It states:-

“This article is an attempt to slur by innuendo Mr. Ward’s personal and professional reputation and the reference to the accounts in this article is clearly libellous of our client.”

15. In relation to the article published on 9th October, 2013, it is claimed that the reader was invited to multiply the figure of 40,000 passengers by €15 to conclude that the turnover of the waterbus business was €600,000 .The letter states:

“You and your paper are well aware that when you say ‘you can work out the math’ that this is factually incorrect as there are substantial discounts given to various types of groups of passengers… The purpose of these articles is to give an exaggerated picture of, in the first instance, the turnover of the business and then, in the second instance, to indicate there is a limited overhead by virtue of ‘with the committee working for nothing – almost all turnover should translate into profit’. Since you are fully aware that the full adult fare is €15, you cannot but be aware of the ‘family friendly discounts’ being advertised several hundred times every year as the van with the PA system advertising this passes your open office window many times every day. Furthermore by your family connection and social connection with past officers of the company, you would be fully aware of the custom and practice to discount coach group tours. Finally, on this point, you would most definitely know that Mr James White, who is bringing 10,000 plus passengers to the waterbus annually since March 2012, is paying substantially less than the full ticket price due to such volume. In any event, DTES Ltd accounts are freely available on the CRO website and you could have accessed this information, as you have previously done and obtained the real level of turnover as opposed to the inflated figure that has been implied by you through your newspaper.

What this article does is to platform the innuendo that the figures that will be presented at the AGM will not accurately reflect the turnover or the expenses, thereby casting a grave and malicious slander on our client in his role as financial controller…

The libellous materials which you have published in the recent past and referred to above have so far not been actioned by our client although we have corresponded with you in this regard. Our client has been extremely patient and did not wish to become involved in further litigation with yourself and the Donegal Times but you have continued to ignore previous requests to cease your disparaging articles about the waterbus, its directors and employees. It is now clear however, that you have ignored these requests and that the publication of the articles referred to in this letter demonstrate clear levels of malice on your part against our client and despite the fact that Mr Bustard successfully sued you and the Donegal Times you have thought it proper and acceptable to publish articles which are libellous, malicious and untrue. Our client is no longer able to accept the continuous attempt to denigrate his personal and professional reputation and that of the company. He and his fellow directors have worked tirelessly to improve and expand this flagship tourism product only to have innuendo thrown out by your paper to the general public in an attempt to create a frenzy of concern regarding the financial probity of our client, the employees, the directors and the company itself.

Our client has suffered much hurt, distress and embarrassment and damage to his professional reputation as a financial controller given the fact that it is a job which requires the utmost integrity and propriety.

Unless an apology in the terms attached is published on the front page of the Donegal Times in its next edition, and an undertaking is given not to publish any further material suggesting financial impropriety on the part of our client, and that further you pay damages in a sum to be assessed, then High Court proceedings will be issued against you without further notice… these proceedings will include a claim for punitive and exemplary damages based on the clear malice that you have evinced through the articles referred to above and our clients will of course seek the full costs of these proceedings against both the newspaper and the editor personally as joint defendants.”

Mr. Quinn’s letter

16. The solicitor’s letter sent on behalf of Mr. Quinn sets out in similar terms the defamation as alleged by him against Mr. Hyland. This letter also refers to the articles of the 25th September and 9th October, 2013 and states that “[t]hose articles carried serious innuendos in relation to the financial aspects of the business and the management thereof”. It sets out the contents of the articles sequentially, dealing first with the paragraph that indicated that Mr. Quinn was involved in a new company and speculating as to the financial dealings of the Waterbus. The article states:

“a new company has been formed Donegal National Hostel Limited. Its registered address is c/o Sean Quinn, Killymard, Donegal Town and its named directors are David Kearney, Co. Dublin and William Curran, Co. Dublin who are also directors of 5,123 other Irish companies, 1,185 of which are now closed… It’s been a great year on the water. Well done to them. Roll on the Annual General Meeting, and a set of figures that members can bring home with them.”

The letter states that “[i]t is clear from this assertion that…either Mr. Quinn intends to run an unsuccessful business or that he will in some way strategically allow the business to close thereby benefiting himself in some financial way”. It goes on to assert that there is then a “reference to the AGM of the Donegal Waterbus Company….with a scandalous suggestion that a set of figures would be presented to the members which would not bear scrutiny outside the room of the AGM”. The plaintiff, through his solicitor states that “the totality of this article is again an attempt to slur by innuendo Mr Quinn’s reputation and the whole tenor of this article is clearly libellous of our client.”

17. The letter also sets out the misleading figures regarding the Waterbus’ profit as implied by the article of the October, 2013. It refers to the invitation extended in the article for the reader to “work out the math” stating that “you and your paper are well aware that when you say [this], that this is factually inaccurate as there are substantial discounts given to various types of groups of passengers.” The letter goes on to make the point that:

“[w]hat this article does is to platform the innuendo that the figures that will be presented at the AGM will not accurately reflect the turnover or the expenses, thereby casting grave and malicious slander on our client, by hinting that he would stand over any such impropriety. The reality is that the accounts are audited and are filed in the Companies Registration Office”.

18. The letter then makes reference to previous alleged libellous materials published in the past and the fact that these “have so far not been actioned by our client although we have corresponded with you in this regard”. It goes on to say:

“[o]ur client is no longer able to accept the continuous attempt to denigrate his personal and professional reputation and that of the company… Unless an apology in the terms attached is published on the front page of the Donegal Times in its next edition, and an undertaking is given not to publish any further material suggesting financial impropriety on the part of our client, and that further you pay damages in a sum to be assessed, then High Court proceedings will be issued against you without further notice. We would advise that these proceedings will include a claim for punitive and exemplary damages based on the clear malice that you have evinced through the articles referred to above…”

19. In response to these letters, RDJ Glynn, solicitors for both defendants, wrote to the plaintiffs by letters dated 21st January, 2014. These letters, though worded slightly differently, set out in similar terms, the defendants’ position. The letters stated that the defendants “denie[d] that the articles carried any innuendos in relation to the financial aspects of the business or that there has been a continuous malevolent and malicious publication regarding the Donegal Waterbus”. The letters went on to state that their:

“clients are willing to offer the publication of a reasonable clarification in words to be agreed with your client explaining that in fact, as a standard procedure, when a new company is incorporated it is often done through professional company formation agents who because of the nature of their work are directors of multiple companies, many of whom ultimately cease trading or “are closed” but in circumstances where those professional company formation agents have no part in the operation of the company.”

They further stated that they were willing to receive a draft clarification for consideration from the plaintiffs with suggestions as to the position in the newspaper where it should be placed and a date of publication to be agreed upon. An apology was not at this stage forthcoming.

20. By letters dated the 7th March, 2014 to both plaintiffs, the defendants repeated their offer to publish a clarification and, “if appropriate and wording can be agreed, a form of apology for any misunderstanding caused by the article, which can be published on a date to be agreed and, should your client require it, on the front page of the required edition of the newspaper.”

21. In response to these two letters the plaintiffs’ solicitors wrote two similar letters to the defendants’ solicitors on 21st March, 2014. These letters stated “we note from your letter that there is no attempt to make an offer of an apology to our client”. The letters state in respect of the offer to publish a clarification, “we feel that this offer is merely an attempt to thinly massage the damage done to our client’s reputation”. In response to the suggested apology to the plaintiffs as formulated, the plaintiffs’ solicitors stated that they “were at a loss to comprehend [the] wording of misunderstanding as there is total clarity that [our clients’] professional and personal reputation[s] were lacerated by your client’s venomous article.”

22. The letters also state that the defendants’ offer of clarification and a form of apology for any misunderstanding caused by the article seemed to suggest that the plaintiffs “would be satisfied with this, in total satisfaction in respect of the damage to our client(s’) reputation and the outrageous libel caused to [them]”. This letter clearly rejects the proposal put forward by the defendants in their letters dated 21st January, 2014 and 7th March, 2014 as entirely inadequate.

23. On 23rd May, 2014, Plenary Summons’ issued and Statements of Claim were delivered on 16th June, 2014.

24. The defendants’ solicitors wrote to the plaintiffs’ solicitors on 22nd July, 2014 to suggest that the issues between their respective clients be referred to mediation, pursuant to the Rules of the Superior Court (Mediation and Conciliation) 2010, No. 502 of 2010 and S.I. 209 of 2011 European Community (Mediation) Regulation 2011.

25. This suggested mediation never came to fruition and a motion for judgment in default of defence issued against the defendants on the 14th October, 2014.

26. On the 11th December, 2014 the defendants’ solicitors again wrote to the plaintiffs’ solicitors to make an offer of amends pursuant to section 22 of the Defamation Act 2009. The offers to both Plaintiffs were “in respect of the entire of the statement”.

27. On the 10th February, 2015 the plaintiffs indicated their willingness to accept this offer to make amends and requested details of the defendants’ offer concerning:

“1. The retraction and apology

2. Damages in respect of the two publications”.

Offers of amends

28. On the 3rd March, 2015 the defendants’ solicitors wrote to the plaintiffs’ solicitors making the following offer:

“(a) Our client proposes to publish the following apology

‘DONEGAL TOWN ENTERPRISE SCHEME LIMITED, SEAN QUINN AND DANIEL WARD – APOLOGY

In the Donegal Times on 25 September 2013 and 09 October 2013 we published two editorials about the Donegal Bay Waterbus. We accept that the editorials were misleading in terms of the inferences to be drawn in relation to the finances of the Donegal Bay Waterbus. We wish to retract the statements made in the said editorials and also wish to apologise to Donegal Enterprise Scheme Limited and to Sean Quinn and Daniel Ward, the CEO and Financial Controller of Donegal Town Enterprise scheme Limited respectively, which runs and operates the Donegal Bay Waterbus, for any upset and distress caused.’

(b) Our client proposes to publish the apology noted at (a) in the next available edition of the Donegal Times, subject to your client’s agreement, on page 3.

(c) Our client is prepared to pay your client a sum of €25,000 in compensation together with the costs to be taxed in default of agreement. As you are aware, there are related proceedings involving Mr Ward and Donegal Town Enterprise Scheme Limited. The three sets of proceedings are virtually identical. While we are agreeing to pay your client’s costs to be taxed in default of agreement, we respectfully submit that there would be significant duplication across the three matters and therefore there should not be three full sets of costs.”

29. By letter dated the 10th July, 2015 the plaintiffs’ solicitors wrote to the defendants’ solicitors to advise that the offers were not accepted by the plaintiffs.

30. A notice of motion subsequently issued on 23rd July, 2015 and the matter came on for trial before this Court on 26th May, 2016.

Evidence

31. The nature and effect of the defamatory statements contained in the articles as outlined in the extracts from the initiating letters set out above were largely confirmed by the evidence of Mr. Ward and Mr. Quinn which was in its essential features unchallenged.

32. Mr. Ward, a native of Donegal, qualified as a civil engineer and was first employed on a project in Donegal Town in 1979. Thereafter, he worked in New York from 1985 for a period of approximately ten years following which he returned to Ireland. He married in 1992 in Glenties and he and his wife returned to New York but intended to return home if the opportunity arose. In 1994 they returned home and purchased a bar and he developed it as a business until it was sold in or about 2004.

33. He became involved in the waterbus venture for Donegal Town in or about 1997 and contributed to the project with others. He became friendly with Mr. Quinn. He devoted himself on a full-time basis to the waterbus project under and within Donegal Town Enterprise Limited which appointed him as financial controller in or about 2009. He also carried out a wide variety of jobs as required on the waterbus during its operational season.

34. Mr. Ward described the devastating effect of the publication of these articles on his standing and reputation in the community. He could not understand how Mr. Hyland could write the material contained in the articles. He and his family were extremely embarrassed by the articles which circulated in his home town, surrounding towns and Donegal Town. He considered himself to be sociable and outgoing but he felt people were now “looking the other way” on his approach. He considered that his good name had been blackened. There was a cloud over his reputation personally and in his work which required probity and honesty. He had behaved correctly in his professional and business life. His financial work with the waterbus was subject to audit and was fully recorded and a matter of record.

35. He withdrew socially. He continued to golf but went out early in the morning to avoid people. He had been involved in training with his local football club which he stopped. He restricted his involvement in the club because of the articles and decided not to seek any club position because he was fearful that the club’s interests or fundraising might be tarnished by his involvement. He suffered many sleepless nights as a result of the personal distress and that of his family caused by the articles and the damage they inflicted on his reputation. He believed that Mr. Hyland wrote the articles knowing that they were untrue and felt that he had been wrongfully accused of embezzlement.

36. Mrs. Ward fully corroborated the serious effect which the damage caused to her husband’s reputation in the community had on her husband and his social and personal life. In particular, she noted his reluctance to become involved in fundraising events in the community in case they might become tainted by association with him because of the articles.

37. Mr. Quinn gave evidence of the effect of the articles on his personal and professional reputation. He also was a native of Donegal. Following the early death of his father, he was reared with his three siblings by his mother in Donegal. He obtained a scholarship and having qualified as a mechanical engineer, he embarked on a very successful career with a major supplier and manufacturer of machine tools and lifting equipment. He was one of the group’s youngest directors. In or about 1990 he took the opportunity to move with his family to Donegal where he invested in and ran a bar, large bed and breakfast and other business interests. He became involved in the waterbus company in or about 1997 as did Mr. Hyland. There were originally twenty members of the scheme who funded it with subscriptions of 500 each. In 2005 he and Mr. Ward were elected as directors of the company. He became chief executive officer.

38. In 2005/6 a new waterbus was commissioned and entered service profitably providing tours around Donegal Bay for considerable numbers of tourists. It provided a badly needed attraction to increase tourist numbers in the town. Mr. Hyland was said to have commenced “uncomplimentary” coverage of the company in or about February 2009.

39. Mr. Quinn states that he was well known throughout Donegal where he has many relations and friends. He was motivated on his return to Donegal with his family to become involved in the community. He had established in his business life a good reputation based on honesty and integrity. He found the allegations contained in the articles to be devastating, hurtful and offensive. He was being portrayed as a person engaged in large scale embezzlement of the profits of the community enterprise company. He had four school-going children who heard their father described as a person “on the take” as a result of these articles. He was trying to hide his embarrassment from his wife and children. It was physically upsetting and caused him sleepless nights of worry. He found that ordinary engagement with people was affected by the articles. When he entered his local barber shop a silence would descend. He has curtailed socialising and does not go out for a drink very often. He feels restricted to his own home by reason of the embarrassment caused to him by the contents of the articles. He attends early mass to avoid a greater crowd at a later one.

40. I am satisfied on the evidence that the publication of these articles brought the plaintiffs into public ridicule and contempt and damaged their good names and reputations personally and professionally for which they are entitled to damages. I am also satisfied that I must in fairness to the defendants take proper account of the fact that the Donegal Times is a local newspaper which has a limited circulation in Donegal, where most of its interested readership resides. Its circulation was said to be approximately 5,000 copies and it had an internet presence at the time, though no formal evidence was adduced to support that figure which was offered by counsel.

41. The assessment of damages must be calculated on the basis of common law principles and the 2009 Act.

The 2009 Act

42. Section 22 of the 2009 Act provides that:

“22. (1) A person who has published a statement that is alleged to be defamatory of another person may make an offer to make amends.

(2) An offer to make amends shall—

(a) be in writing,

(b) state that it is an offer to make amends for the purposes of this section, and

(c) state whether the offer is in respect of the entire of the statement or an offer (in this Act referred to as a “ qualified offer ”) in respect of—

(i) part only of the statement, or

(ii) a particular defamatory meaning only.

(3) An offer to make amends shall not be made after the delivery of the defence in the defamation action concerned.

(4) An offer to make amends may be withdrawn before it is accepted and where such an offer is withdrawn a new offer to make amends may be made.

(5) In this section “ an offer to make amends ” means an offer—

(a) to make a suitable correction of the statement concerned and a sufficient apology to the person to whom the statement refers or is alleged to refer,

(b) to publish that correction and apology in such manner as is reasonable and practicable in the circumstances, and

(c) to pay to the person such sum in compensation or damages (if any), and such costs, as may be agreed by them or as may be determined to be payable,

whether or not it is accompanied by any other offer to perform an act other than an act referred to in paragraph (a), (b) or (c).”

43. S. 23 of the 2009 Act concerns the “Effect of offer to make amends”; sub-s. (1) (c) states that:

“if the parties do not agree as to the damages or costs that should be paid by the person who made the offer, those matters shall be determined by the High Court or, where a defamation action has already been brought, the court in which it was brought, and the court shall for those purposes have all such powers as it would have if it were determining damages or costs in a defamation action, and in making a determination under this paragraph it shall take into account the adequacy of any measures already taken to ensure compliance with the terms of the offer by the person who made the offer”.

44. Section 24 of the Act concerning “Apology” provides :

“(1) In a defamation action the defendant may give evidence in mitigation of damage that he or she—

(a) made or offered an apology to the plaintiff in respect of the statement to which the action relates, and

(b) published the apology in such manner as ensured that the apology was given the same or similar prominence as was given to that statement, or offered to publish an apology in such a manner,

as soon as practicable after the plaintiff makes complaint to the defendant concerning the utterance to which the apology relates, or after the bringing of the action, whichever is earlier.”

45. Section 31 of the Act sets out the factors which the Court must address and take into account when assessing damages:

“(1) The parties in a defamation action may make submissions to the court in relation to the matter of damages.

(2)….