Defamation

Index

Hunter v. Gerald Duckworth & Co Ltd. & Anor

[2003] IEHC 81 (31 July 2003)

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 31st of July, 2003.

By order of this Court of the 31st May, 2001 the second defendant was directed to set down for trial the following issues:

1. Whether the second named defendant in writing the booklet which is scheduled to the Statement of Claim is entitled by reason of Article 40.6.1.i. and/or Article 40.3 of Bunreacht na hÉireann to the right to express freely the statements, convictions, opinions and ideas therein and each and every one of them and to impart all the information therein with the result that the publication thereof cannot give rise to a cause of action in defamation at common law or under statute;

2. Whether the second named defendant as a citizen of the European Union in writing the said booklet was by reason of articles 6 and 49 of the Treaty establishing the European Union free to provide such professional services within the European Union and/or was free to exercise in the State his right of freedom of expression under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms made in Rome on 4th November, 1950 to which the State is a signatory (hereinafter referred to as “the European Convention on Human Rights”) with the result that the publication thereof cannot give rise to a cause of action in defamation at common law or under statute;

3. Whether the second named defendant in writing the said booklet is entitled by reason of Article 10 of the European Convention on Human Rights to the right to express freely the statements, convictions, opinion and ideas therein and each and every one of them to impart all the information therein with the result that the publication thereof cannot give rise to a cause of action in defamation at common law or under statute.

In the case of each of the plaintiffs it is pleaded in the Statement of Claim filed that the plaintiff in common with five other men known as “The Birmingham Six” was the victim of a miscarriage of justice in England arising out of the aftermath to the Birmingham pub bombing in 1974 in which atrocity upwards of 20 people were killed and injured. It is pleaded that the plaintiff Mr. Callaghan who resides in London is a published author and enjoys a wide reputation and that he has been widely written about in Irish newspapers and has appeared on the most popular radio and television programmes dealing with current affairs in Ireland. The first defendant is a publisher who published and distributed a booklet entitled “The Birmingham Six and Other Cases” and subtitled “Victimsof Circumstances”. The second defendant is the author of the booklet and is a Queen’s Counsel.

It is pleaded that the booklet was maliciously printed, published and distributed of and concerning the plaintiff and that the publication is defamatory of the plaintiff. In particular it is complained that the following words either in their natural or ordinary meaning and/or by way of inference and innuendo meant that the quashing of the plaintiff’s conviction did not and does not imply that the plaintiff is entitled to be presumed innocent and are defamatory of the plaintiff in seeking to deprive the plaintiff of the presumption of innocence arising from the quashing of his conviction:

“The successful Appeal against a guilty verdict by the Jury, so the argument runs, restores the Accused to the status of an innocent person which he is possessed at the beginning of the trial. That is not so. The law is, strictly speaking, unconcerned with guilt or innocence. Its concern is conviction or acquittal. Has the Crown proved its case? The Jury’s verdict of not guilty is unequivocally and incontestably to maintain the presumption of innocence. It is the end of the affair. The Jury is unaccountable for any verdict of acquittal. But a Jury’s verdict of guilt which is overturned by a Court of Appeal in law is only a wrongful conviction. The presumption of innocence which subsists only so long as the accused is unconvicted is not revivified.”

In their natural or ordinary or meaning and/or by way of inference or innuendo the defendants and each of them are stating that the quashing of the plaintiff’s conviction did not and does not imply that the plaintiff is entitled to be presumed innocent. In seeking to deprive the plaintiff of the presumption of innocence, arising from the quashing of his conviction, the defendants and each of them have defamed the plaintiff.

In advancing the defamatory thesis set out above, the defendants seek to contradict the judgment and decision of the English Court of Appeal in R. v. Michael Hickey, Vincent Hickey, James Robinson, Patrick Molley [1997] E.W.C.A .Crim 2028, known as the ‘Carl Bridgewater case’ wherein the Court said inter alia;

“If we concluded that the conviction were unsafe then the convictions would be quashed and the presumption of innocence which exists in favour of all convicted persons would be re-established”.

The said defendant, having quoted the above passage at p. 66 of the booklet, states :

“This is a highly questionable statement of the law. Indeed, it is probably wrong. The presumption of innocence survives only unless and until there is a conviction at the hands of the jury; the presumption is thus displaced.”

The above defamatory theme is repeated on the back cover of the said booklet in the following words:

“The presumption of innocence, which every accused is entitled to, abides until it has been overcome by evidence which convinces the jury of the guilt of the accused. Any conviction which is quashed on appeal does not revive the presumption.”

Reference is made to fact that in the booklet questions the statement in the judgment of the Court of Appeal in England in the Karl Bridgewater case where it was stated:

“If we concluded that the convictions were unsafe then the convictions would be quashed and the presumption of innocence which exists in favour of all convicted persons would be re-established”

It is pleaded that it was stated by the author:

Furthermore it is stated:

Further in the Statement of Claim reference is made to the following passages at p. 81 of the booklet where it is stated:

“The judicial definitiveness about the propriety of the Birmingham Six’s convictions were pounced upon by the supporters of the six men who, abetted by the media, succeeded in their incessant public efforts, not only ultimately to have the convictions set aside but in the process to undermine public confidence in English criminal justice. The former activity was laudable; the latter, opportunistic and misguided.”

Further at p. 81 aforesaid the defendants published the following passage:

“This skilful attack has been sustained by public acceptance of the view that ‘miscarriages of justice’ had undermined confidence in the criminal justice system. Credence for that view was even accorded recognition in the address by Lord Woolf on the occasion of the thanksgiving for the life and work of Lord Taylor of Gosforth on 15 July 1997. Lord Woolf alluded to Lord Taylor’s chief justiceship from 1992 to 1996 as having done, in Lord Woolf’s view, much as to restore public confidence in criminal justice after some ‘regrettable miscarriages of justice’.”

The plain and ordinary meaning of the above words and/or the inference or innuendo is that by their successful campaign for the vindication of the innocence of The Birmingham Six both the plaintiff and his fellow members of the “Six” and their supporters undermine public confidence in the criminal justice system. The inference clearly is that it was not the English criminal justice system that was wrong, but the campaign for the release of six men who had spent more than sixteen years each in prison as a result of convictions obtained through defective forensic evidence and unreliable confessions. A further inference was that activities of the supporters of The Birmingham Six, including the Plaintiff herein, were “opportunistic” and “misguided” and they were in fact guilty of the offences for which they were wrongly convicted.

Further in the opening page of the prologue (at p. 7) the defendant criticise and deprecate the use of the phrase “regrettable miscarriage of justice” by the Master of the Rolls, Lord Woolf of Barnes, on the occasion of his address at the service of his thanksgiving in St. Paul’s Cathedral for the life and work of Lord Taylor of Gosforth, the Lord Chief Justice of England from 1992 to 1996, who died on the 28th April, 1997. At p. 8 of the booklet the following passage appears:

“At the same time the Home Secretary, in the course of correspondence with the Birmingham Six over the level of the compensation offered, expressed his apologies for the miscarriage of justice they had suffered. And the distinguished writer and columnist in the Independent, Polly Toynbee, wrote, in welcoming Chris Mullin MP as the new chairman of the Home Affairs Select Committee, that ‘with very little support’, in the face of scathing indifference from many in his own party, he ploughed a lonely furrow in proving the innocence of the Birmingham Six’ (italics supplied).”

The Plaintiff avers that the continuous attack in the pages of the booklet against those who supported his innocence and campaigned for his vindication and release represents both an overt and covert attack on the innocence of the Plaintiff.

It is pleaded that the plain and ordinary meaning of these words and/or the inference or innuendo is that by their successful campaign for the vindication of the innocence of the Birmingham Six both the plaintiffs and their fellow members of ‘the Six’ undermined public confidence in the criminal justice system. It is pleaded that the inference clearly is that it was not the English criminal justice system that was wrong, but the campaign for the release of the six men who had spent more than sixteen years each in prison as a result of the convictions obtained through defective forensic evidence and unreliable confessions, that the activities of the supporters of the Birmingham Six were “opportunistic” and “misguided” and their “attack” on the verdict “skilful” only if the Birmingham Six, including the plaintiffs were in fact guilty of the offences for which they were wrongly convicted.

The plaintiffs plea that what they allege to be a continuous attack in the pages of the booklet against those who supported their innocence and campaigned for their vindication and release represents both an overt and covert attack on the innocence of the plaintiffs.

It is further pleaded that a central and reinforcing theme as to the suggested guilt of the plaintiff is the strong reliance placed on the circumstantial evidence adduced by the Crown during the prosecution. It is pleaded that further passages quoted by the plaintiffs in the Statement of Claim in their plain and ordinary meaning and/or by way of inference or innuendo are a clear invitation to the student or public reader to convict the Birmingham Six on the basis of the circumstantial evidence alone in the case. It is pleaded that the quoted passage flies in the face of the statement by the trial judge who is alleged to have stated that the matters of circumstantial evidence did not go beyond raising a suspicion and fell a long way short of anything that anyone could possibly regard as proof of involvement in the pub bombings.

It is pleaded that in the face of the clear direction to the jury by the trial judge regarding the total lack of value of circumstantial evidence as not going beyond raising a suspicion, that the emphasis placed by the defendants on the possibility of the circumstantial evidence alone sustaining the conviction of the Birmingham Six is clearly defamatory in suggesting the guilt of the Birmingham Six, including the plaintiffs.

It is further pleaded that other words published are in context a direct suggestion that the plaintiffs were in fact guilty of the “horrendous crimes” with which they were originally charged. It is pleaded further that in their contradiction of the charge of the trial judge to the jury the defendants are leaving a decision on the guilt of the Birmingham Six in the hands of the student or the reader or the public on the basis of the circumstantial evidence and in doing so that they defame the plaintiffs by the clear inference that a proper view of the circumstantial evidence would have led to a reaffirmation of the conviction of the Birmingham Six including the plaintiffs, which it is pleaded involves a total contradiction of the summing up of the trial judge to the jury. It is further pleaded that criticism of the prosecution and/or the trial judge for absolving the jury of any need to return a verdict on the charge of conspiracy and/or an attempt to cause explosions is a reiteration of the suggestion that, whatever about the result of the Court of Appeal in their favour, the Birmingham Six, including the plaintiffs were guilty of offences of conspiracy and attempting to cause explosions.

It is further pleaded that a comparison of the Birmingham Six and Guildford Four cases is used to defame the plaintiffs.

It is pleaded that passages dealing with the alleged facts were maliciously selected from the mass of evidence and were specific to the respective plaintiffs. It is pleaded that in the premises and relying on all the passages quoted and generally on the tenor and thrust of the entire of the booklet, and the back cover, the plaintiffs have been defamed and their right to a good name pursuant to the Constitution has been violated. It is pleaded that the words both in their ordinary and natural meaning, and the context in which they were published, and further and in the alternative by way of inference and innuendo, meant and were understood to mean various specified matters alleged to be defamatory of the plaintiffs.

A full defence has been filed to the plaintiffs’ claims herein including a plea that the second named defendant was entitled as a matter of public right to write and publish the booklet and each and every statement contained therein. It is pleaded that the booklet contains an analysis of English law on the function of the Court of Appeal in England in allowing an appeal against conviction, the position of circumstantial evidence in English law and the system of trial by judge and jury in English law. It is pleaded that as stated in the booklet, the second defendant has made this analysis principally but not exclusively in relation to the Birmingham Six and he has looked only at the transcripts of appeals heard in public in relation to the said case and in the Court of Appeal in 1987 and 1991 and checked facts with the book by Mr. Chris Mullin M.P. “Error of Judgment: the truth about the Birmingham Bombings” published in 1986 and revised in 1997.

It is pleaded that the Court of Appeal freed the plaintiffs because it decided that the verdict of the jury in the Birmingham Six case could not stand due to flawed forensic evidence and due to the inadmissibility of statements made to the police which had been obtained improperly. It is pleaded that in its judgment the Court of Appeal stated that it was neither entitled nor obliged under its statutory powers to say whether the plaintiffs were innocent; as that court was concerned solely with whether the verdicts of the jury at their trial could stand. It is pleaded that the verdict of the jury at the trial could not stand as being “unsafe or unsatisfactory”. It is pleaded that that court concluded that its role in quashing a wrongful conviction was a point of great constitutional significance meaning of great constitutional significance in England and Wales. It is pleaded that the second defendant in the booklet seeks to explain the point of constitutional significance, stating therein that no one can properly say that either plaintiff was guilty.

It is pleaded that in writing the booklet the second defendant was exercising his right to freedom of expression including the freedom to hold and express the opinions and convictions and impart the information and ideas expressed therein and each and every one of them, in particular and without prejudice to the generality of the foregoing, to study and express his views and opinions upon the legal issues and matters before the Court of Appeal in England in 1987 and 1991 relating to the Birmingham Six case.

The second defendant further pleads by reference to Article 40.6.1 of the Constitution to the right to express freely the statements, convictions, opinions and ideas therein and each and every one of them and to impart all of the information contained therein. It is pleaded that in writing the booklet he has exercised this right. It is further pleaded that the second defendant has under Article 40.3 of the Constitution a personal right to his freedom to express each and every statement, conviction, opinion and idea contained in the booklet and to impart all the information contained therein. It is pleaded in these premises that the publication thereof was not as a matter of law, defamatory of the plaintiffs or either of them as alleged or at all.

The second defendant further pleads that under Article 49 of the Treaty Establishing the European Union he was free to provide such professional services within the European Union and/or was free to exercise in the State his rights of freedom of expression under Article 10 of the European Convention on Human Rights.

The second defendant pleads that by reason of Article 6.2 of the Treaty on European Union the European Union shall have respect for fundamental rights guaranteed by the European Convention on Human Rights and by reason of same a citizen of the European Union has the rights guaranteed by the Convention specifically with regard to the provision of professional services by such a citizen in the Member States. The second defendant invokes his rights as a citizen of the European Union and in particular his rights under Article 10 of the Convention and/or his rights under Article 49 of the Treaty Establishing the European Community and pleads that in the premises the publication of the booklet was not as a matter of law defamatory of the plaintiffs as alleged or at all. It is pleaded that in the alternative under the law of the State there is an obligation to grant to a citizen of the European Union the rights under the Treaty Establishing the European Union and/or the European Convention of Human Rights when such citizens are defendants before the Courts of a state other than that in which they are domiciled by reason of the Brussels convention and in the premises it is pleaded that the publication of the booklet was not as a matter of law defamatory of the plaintiffs either as alleged or at all.

It is pleaded that in the premises the plaintiffs have no cause of action as pleaded or otherwise and the second defendant denies each and every allegation of defamation.

Submissions

On behalf of the second defendant (hereinafter referred to as ‘the defendant’)it is submitted by Mr. Michael Ashe Q.C. that the essential issue is whether the constitutional guarantee to express freely convictions and opinions prevails over the constitutional protection afforded to one’s good name. It is submitted that the defendant is entitled to express freely his convictions and opinions as appear in the booklet. It is submitted that what is at issue is the balance between Article 40.6.1 and 40.3.1 of the Constitution and Article 40.3.2. of the Constitution. The question posed is whether and to what extent the common law of defamation, which has been developed over centuries, reflects and implements an appropriate constitutional balance. It is submitted that the action herein represents a disproportionate interference with the right of freedom of expression. It is submitted that the right of the defendant to express freely his convictions and opinions about matters of importance is fundamental in a democratic society and the defendant’s contention is that the booklet represents such an expression on matters which are public property and further the booklet represents legal analysis and comment. Having regard to the provisions of Article 40.3.2 of the Constitution it is submitted that while an attack on the character is possible the Constitution is concerned with unjust attacks. It is submitted that the instant actions represent a disproportionate interference with the freedom of expression which pre-dominates as a constitutional right.

It is submitted that if the defendant is correct on the issue of freedom of expression, there can as a matter of law be no action in defamation in either case.

It is submitted that the appropriate balance is not achieved by the law of defamation as generally perceived and that the concomitant restrictions on the right to freedom of expression are invalid under the Constitution.

Counsel submits that the question is whether (and if so, to what extent) the common law of defamation, which has been developed over the centuries, reflects and implements an appropriate constitutional balance. It is submitted that whatever the rights of the plaintiffs, the present actions are a disproportionate intereference with the right to freedom of expression.

It is submitted that the booklet is about functions, powers and systems of evidence and trial in the courts of England and Wales. The defendant contends that the right to express freely his convictions and opinions about matters of importance is fundamental in a democratic society. Court proceedings are public property and the media have two distinct functions in relation to court proceedings. The first is the reporting and recording of proceedings as they unfold, in circumstances where at the time opinion and comment have to be avoided, and secondly, legal analysis and comment which has to await the conclusion of the proceedings. It is submitted that pure comment and opinion regarding legal proceedings are, when the proceedings have concluded, as important as reporting those proceedings while they are continuing.

Counsel concedes that the plaintiffs may be upset and annoyed at the revisiting of an awful event in their lives, but that in light of the freedom of expression enjoyed by the defendant the plaintiffs do not have a right of action against him.

Counsel refers to In re Hibernia National Review [1976] I.R. 389 where at p. 391 Kenny J. in delivering the judgment of the Supreme Court stated, inter alia, as follows:

“The Court wishes to emphasise that criticism of the retention of the death penalty, of the Offences Against the State Acts or of any of their provisions, and of the establishment of the Special Criminal Court are not a contempt of court. These are matters which may be debated in public even if the comments are expressed in strong language or are uninformed or foolish.”

With regard to the fact that the law of defamation is subject to constitutional limitations reliance is placed upon the dicta of Denham J. in O’Brien v. Mirror Group Newspapers Ltd. [2001] 1 I.R. 1 where she stated inter alia at pp. 32 and 33:

“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 art. 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.”

It is submitted that the standard of constitutional guarantee in Ireland is the standard against which the common law of libel has to be measured.

Further reliance is placed upon the dicta of Barrington J. in Irish Times Ltd. v. Ireland [1998] 1 IR 359 at pp.403 and 404 where he stated:

“The right to freedom of expression is one of the personal rights of the citizen which the State is bound to defend and vindicate, as far as practicable, in accordance with the provisions of Article 40.3 of the Constitution. It is of course surrounded by many reservations and safeguards. But it is a positive right which the State is pledged to defend and the function of the court is to preserve the balance between the guarantee and the reservations in such a way as to give to the right guaranteed life and reality. The position is totally different from the position in a common law country where the citizen is entitled to say anything he wishes as long as it is not illegal.”

Counsel submits that guidance as to the underlying philosophy of the right to freedom of expression can be gained from the jurisprudence of other countries including the United States of America. It is submitted that an award of damages in a libel suit represents a penalty on speech and raises the deterrent or chilling influence upon the exercise by citizens of their constitutional right to express freely their convictions and opinions. Counsel refers to New York Times v. Sullivan 376 U.S. 254 (1964) where Brennan J. in a seminal judgment of the United States Supreme Court stated, inter alia,

“[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.

Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth – whether administered by judges, juries, or administrative officials – and especially one that puts the burden of proving truth on the speaker. Cf. Speiser v. Randall,. The constitutional protection does not turn upon “the truth, popularity, or social utility of the ideas and beliefs which are offered.” N. A. A. C. P. v. Button, …. That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the “breathing space” that they “need . . . to survive,” N. A. A. C. P. v. Button, …. Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error…. If judges are to be treated as “men of fortitude, able to thrive in a hardy climate,” Craig v. Harney, supra, , surely the same must be true of other government officials, such as elected city commissioners. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.

If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central meaning of the First Amendment.

What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute.

…

The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous statements honestly made is no less essential here than was the requirement of proof of guilty knowledge which, in Smith v. California, we held indispensable to a valid conviction of a bookseller for possessing obscene writings for sale.

…

A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions – and to do so on pain of libel judgments virtually unlimited in amount – leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred…. Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” … The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” – that is, with knowledge that it was false or with reckless disregard of whether it was false or not….[W]e consider that the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for respondent under the proper rule of law.”

Counsel submits that the freedom to advocate an idea is a core guarantee of Articles 40.6.1. and 40.3.1. of the Constitution. Counsel refers to the jurisprudence of the U.S. Supreme Court relating to the freedom of expression guaranteed by the First Amendment of the U.S. constitution as opposed to the common law on defamation.

Counsel submits that the political function of free speech is of paramount importance in our constitutional democracy. Counsel refers to O’Brien v. Mirror Group Newspapers [2001] 1 I.R. 1 in which Denham J. indicated that the Constitution and the European Convention on Human Rights 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. Counsel further refers to Kelly v. O’Neill in which Denham J. stated that:

“…[f]reedom of expression is not an absolute right under the Constitution, however, it is a fundamental right of great importance in a democratic society.” In the same case Keane J. stated that “…[f]reedom of expression is undoubtedly a value of critical importance in a democratic society, but like every other right guaranteed, either expressly or by implication, by the Constitution it is not an absolute right.”

It is submitted that the freedom of expression recognised by the Constitution must not be inhibited by a deterrent factor of the law of defamation and that if the inhibition goes too far it may undermine the constitutional right to freedom of expression.

It is submitted that the freedom of expression involving the advancement of knowledge in the ‘market place of ideas’ is essential in a democratic society.

Counsel further refers to the judgment of Barrington J. in Irish Times Ltd. v. Ireland [1998] 1 IR 359 in which, having quoted Article 10 of the European Convention on Human Rights he stated, inter alia, as follows:

“It appears to me also that it is important to look at the context in which the right of the citizens to express freely their convictions and opinions is placed in the Constitution. Article 40.6.1° deals with three rights, the right of the citizens to express freely their convictions and opinions, the right of the citizens to assemble peaceably and without arms and the right of the citizens to form associations and unions. All of these relate to the public activities of the citizens and to the practical workings of a democratic society. They are part of the dynamics of political change. They are at once both vitally important to the success of a democracy and potentially a source of political instability. That is why the Constitution and the European Convention both assert and circumscribe them. That is also why it is so important to get the balance right in interpreting them.…. It therefore appears to me that the right of the citizens “to express freely their convictions and opinions” guaranteed by Article 40 of the Constitution is a right to communicate facts as well as a right to comment on them. It appears to me also that when the European Convention on Human Rights states that the right to freedom of expression is to include “freedom . . . to receive and impart information” it is merely making explicit something which is already implicit in Article 40.6.1° of our Constitution.

This interpretation appears consistent with the judgment of O’Higgins C.J. in Cullen v. Toibin [1984] I.L.R.M. 577, when, lifting an injunction on the publication of an article by a witness at a trial which purported to contain a description of how the accused had carried out the murder of which he had been convicted, while the accused’s appeal was still pending before the Court of Criminal Appeal, he said at p. 582:-

“There is . . . the matter of the freedom of the press . . . guaranteed by the Constitution and which cannot be lightly curtailed.”

….

Costello J. accepted that a “a right to communicate” was one of the unspecified rights of the citizen protected by Article 40.3 of the Constitution, and he reiterated this viewin Kearney v. Minister for Justice [1986] I.R. 116 at p. 118. I would be prepared to accept that such a right exists as one of the unspecified rights of the citizen but, if such a right exists, it must include not only the right to communicate facts but also the right to communicate convictions opinions and even feelings. The question then arises of what is the relationship between this right and the right of freedom of expression guaranteed by Article 40.6 of the Constitution.

In some respects the two rights may overlap and may be complimentary. But the right of freedom of expression is primarily concerned with the public statements of the citizen. When the Constitution guarantees the citizen liberty for the exercise of this right it is guaranteeing to him that he will not be punished by the criminal law or placed under any unconstitutional restriction for freely stating in public his convictions and opinions, be they right or wrong. A fortiori it guarantees him, but again subject to the same constitutional restrictions, the right to state the facts on which these convictions and opinions are based. The Constitution guarantees to the organs of public opinion liberty for the criticism of government policy. But it would be absurd to suggest that the press enjoys constitutional protection under Article 40.6.1° (i) when criticising government policy but not when reporting the facts on which its criticism is based.

The sister rights guaranteed by Article 40.6.1° are the right of the citizens “to assemble peaceably and without arms” and the right of the citizens “to form associations and unions” but it would be absurd to suggest that the right of the citizens “to assemble peaceably and without arms” guaranteed the right of the citizens to assemble but not their right actually to hold a meeting or that the right of the citizens “to form associations and unions” guaranteed the right of the citizens to “form” associations but not their right to manage or run them for any particular purpose. Likewise it seems to me absurd to suggest that the constitutional right of the citizens to express freely their convictions and opinions does not also protect, subject to constitutional exceptions, their right to state facts. In this context it is important to remember that we are construing, not a revenue statute, but a constitution.

The freedom of expression guaranteed by Article 40.6.1° of the Constitution includes criticism of government policy. A fortiori it includes criticism of other aspects of State activity including the working of the courts. Apart from particular statutes designed to protect privacy or the weaker members of the community there are only two kinds of restrictions on publicity or criticism concerning the courts. Both exist to protect the administration of justice. The first kind of restriction is on publicity which tends to deny to an accused person a fair trial and the other is on the kind of irresponsible and malicious criticism which damages the administration of justice by bringing the courts into contempt.”

Counsel further refers to New York Times v. Sullivan 376 U.S. 254 (1964) and Mills v. Alabama 384 U.S. 214 (1966) insofar as they refer to the constitutional right of free expression as enshrined in the First Amendment as being directed to the free discussion of governmental affairs.

Counsel further submits that one of the core functions of the constitutional guarantee of freedom of expression is to provide refuge for unpopular, unorthodox and provocative opinions. In support of this submission counsel refers to an academic work and to an authority of the U.S. Supreme Court in Terminiello v. Chicago 337 U.S. 1 (1949) in which Justice Douglas in delivering the majority opinion of the Court stated, inter alia, as follows:

“Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571 to 572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to reduce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest Counsel submits that the common law of defamation was not developed or formulated to reflect the delicate balancing exercise which the Constitution requires when there is a conflict between the constitutional right to freedom of expression and the constitutional protection of one’s good name. It is submitted that works of the nature of the subject booklet are written to put forward a view, provoke debate and evoke criticism, both favourable and unfavourable.”

It is submitted that the defendant should not be required to demonstrate that either his booklet attracts some privilege (which it is conceded is unlikely) or that the booklet is a matter of fair comment on a matter of public interest. As the defence of fair comment requires that the truth of the facts alleged or referred to in the words complained of to be proved by the defendant objectively in order to asset his freedom of expression, it is submitted that the law of defamation as currently recognised wholly fails to achieve an appropriate and proportionate balance between the right to freedom of expression and the protection of one’s good name from unjust attack. It is submitted that if an appropriate balance were to be achieved the defendant would not be subject to the law of defamation in respect of the booklet at issue. It is submitted that the common law must submit to the constitutional guarantee of freedom of expression if the reality of the democratic state referred to in Article 5 of the Constitution is fully to be realised. It is submitted that such a state is characterised by robust and open debate with society capable of accepting (even if not agreeing with) a plurality of views. It is submitted that commentators ought not to be inhibited from being vigorous in their opinions and should not be deterred from voicing their criticism even if such criticism and opinions offend. It is submitted that Article 40.6.1. of the Constitution recognises this, while the common law barely tolerates it. It is submitted that a person’s right to freedom of expression must prevail unless a plaintiff can establish to the satisfaction of the court that the publication constitutes an unjust attack on his good name such as to warrant the limitations on the former right inherent in an action in defamation.

It is submitted that the approach of the United States Supreme Court is similar to the recognition given to the freedom of expression under the Irish constitution. At the same time counsel stresses that he is not urging this court to reach the same conclusion as the U.S. Supreme Court in the case of New York Times v. Sullivan. However, it is submitted that the same philosophy applies in that case and under the Constitution in this jurisdiction.

Counsel refers to Article 10 of the European Convention on Human Rights (‘the Convention’) which provides:

“Article 10 – Freedom of expression

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

It is submitted that Article 10 involves a similar concept to that found in Article 46 of the Constitution albeit differently expressed. Counsel refers to portion of the judgment of Barrington J. in Irish Times Ltd. v. Ireland [1998] 1 IR 359 at p. 404 where he stated “…[i]f one compares Article 40.6.1o (i) of the Irish Constitition with art. 10 of the European Convention on Human Rights (which deals with freedom of expression) one finds significant similarities as well as important differences.”

Later at pp. 404 and 405 he stated as follows:

Article 40.6.1° (i) is unique in conferring liberties and rights upon the “organs of public opinion”. “Organs” are not capable of having rights so

this reference must be taken to mean a reference to those persons whether natural or artificial (such as the applicants in the present action) who control the organs of public opinion. These rights must include the right to report the news as well as the right to comment on it. A constitutional right which protected the right to comment on the news but not the right to report it would appear to me to be a nonsense. It therefore appears to me that the right of the citizens “to express freely their convictions and opinions” guaranteed by Article 40 of the Constitution is a right to communicate facts as well as a right to comment on them. It appears to me also that when the European Convention on Human Rights states that the right to freedom of expression is to include “freedom . . . to receive and impart information” it is merely making explicit something which is already implicit in Article 40.6.1° of our Constitution.

“There is . . . the matter of the freedom of the press . . . guaranteed by the Constitution and which cannot be lightly curtailed.” “

Counsel refers to the jurisprudence of the European Court of Human Rights in relation to Article 10 of the European Convention on Human Rights (‘the Convention’) in De Haes and Gijsels v.Belgium (1998) 25 EHRR 1 and Bladet Tromso and Stensaas v. Norway (1999) 29 E.H.R.R. 125. In the former case the Court reiterated that “freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb the State or any section of the community. In addition journalistic freedom also covers possible recourse to a degree of exaggeration or even provocation.” The court added that Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. In the latter case the Court stated, inter alia, as follows:

“One factor of particular importance for the Court’s determination in the present case is the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest …. In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation …. In cases such as the present one the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of “public watchdog” in imparting information of serious public concern.”

In Bladet Tromso and Stensaas v. Norway (1999) 29 E.H.R.R. 125 the Court indicated, inter alia, at para. 65 of its judgment:

“65. Article 10 of the Convention does not, however, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of paragraph 2 of the Article the exercise of this freedom carries with it “duties and responsibilities”, which also apply to the press. These “duties and responsibilities” are liable to assume significance when, as in the present case, there is question of attacking the reputation of private individuals and undermining the “rights of others”…. By reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.”

In that particular case the Court found that there had been a violation of Article 10 of the Convention as there was no reasonable relationship of proportionality between the applicant journalists’ right to freedom of expression and the legitimate aim pursued of protecting the reputation of the plaintiffs in defamation proceedings who were seal hunters. In regard to the instant case counsel relies upon the fact that the defendant’s booklet is self contained and comprehensive and relies on other material including transcripts and other publications. Counsel relies upon the fact that in the instant case the matters complained of are the opinions of the defendant. It is submitted that in writing a reflective booklet in relation to the case in which the plaintiffs were involved, the defendant was imparting his views and ideas on a matter of public interest given the notoriety of the case over a number of years. It is submitted just as press function is essential so is this function of imparting comment and opinion, even on matters that might offend.

It is submitted that in the booklet the defendant was imparting his views and ideas on a matter of public interest given the notoriety of the cases over a number of years and that just as press freedom is essential so is the function of imparting comment and opinion even on matters that might offend.

It is submitted that the jurisprudence of the European Court of Human Rights demonstrates the importance of the right of freedom of expression under the Convention. It does not ignore the legitimate protection of a good name. It is submitted that the approach is to limit the right of freedom of expression only where it exceeds the bounds of permissible criticism and that it does not require the maker of a statement to justify his freedom to express his comments and opinions. It is submitted that this is the approach of the Constitution. It is submitted that the booklet cannot be an unjust attack on the good name of either plaintiff. It is submitted that the cases referred to by counsel demonstrate the development of the case law of the European Court of Human Rights.

Counsel refers to Handyside v. The United Kingdom (1976) E.H.H.R. SeriesA no.24 in which it was stated, inter alia, as follows:

“Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (“prescribed by law”) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force ….

49. Nevertheless, Article 10 para. 2 does not give the Contracting States an unlimited power of appreciation. The Court, which, with the Commission, is responsible for ensuring the observance of those States’ engagements is empowered to give the final ruling on whether a “restriction” or “penalty” is reconcilable with freedom of expression as protected by Article 10 (art. 10). The domestic margin of appreciation thus goes hand in hand with a European supervision. Such supervision concerns both the aim of the measure challenged and its “necessity”; it covers not only the basic legislation but also the decision applying it, even one given by an independent court. In this respect, the Court refers to Article 50 (art. 50) of the Convention (“decision or … measure taken by a legal authority or any other authority”) as well as to its own case-law.

The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued.

From another standpoint, whoever exercises his freedom of expression undertakes “duties and responsibilities” the scope of which depends on his situation and the technical means he uses. The Court cannot overlook such a person’s “duties” and “responsibilities” when it enquires, as in this case, whether “restrictions” or “penalties” were conducive to the “protection of morals” which made them “necessary” in a “democratic society”.”

Counsel refers to Nilsen and Johnson v. Norway in which the Court added at para. 43 of its judgment:

“As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.

The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see the Sunday Times v.United Kingdom (no. 1) judgment of 26 April, 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Bladet Tromsø and Stensaas v. Norway.”

With regard to this jurisprudence and the decision in New York Times v. Sullivan 376 U.S. 254 (1964) counsel submits that the defendant should not be subject to a test of strict liability. It is submitted that the right of freedom of expression should only be taken away by fault where it is shown. It is submitted that it is not right to force the defendant to defend his expression of opinions in the absence of fault. It is submitted that where it is shown that the defendant acted in bad faith or unreasonably this may amount to an unjust attack on the plaintiffs’ reputation. In this context counsel submits that acting unreasonably might include negligence. On this basis it is submitted that a correct approach of the law would be to require the plaintiff to establish fault on the part of the defendant. It is submitted that where an opinion is so unreasonable it should not be protected by the right of freedom of expression.

With regard to the law of the European Union it is submitted that as fundamental rights form an integral part of European Union law, including Article 10 of the Convention and national rules falling within the scope of European Union law. It is submitted that the defendant is providing a service within Article 49 of the E.U. Treaty and is entitled to exercise his rights under Article 10 of the Convention a and to be treated in accordance with a common code of fundamental values throughout the Union.

It is submitted that insofar as the common law does not reflect the freedom of expression recognised by the Constitution it has not been carried forward under Article 50 of the Constitution as it is inconsistent with it.

It is submitted that the booklet is there to provoke a reaction and in it the defendant expresses freely opinions on matters of public importance. It is submitted that the conclusions in the booklet are not about any particular individual. It is submitted that the defendant’s opinion is what is important and not whether people agree with it.

It is submitted that the defendant’s position is not protected under the existing law of privilege or fair comment. It is submitted that the defendant should not have to go to court to assert his right to freedom of expression. It is submitted that if a fair balance was struck in the law of defamation having regard to the Constitution, the defendant would not be subject to defamation proceedings in respect of the opinions contained in the booklet. It is submitted that the right to freedom of expression must prevail over the common law. It is submitted that the existing law puts the defendant “on the back foot” and that this is not consistent with the constitutional right to freedom of expression.

On behalf of the plaintiffs it is conceded that Article 10 does not form part of the domestic law of the State but the Court can have regard to its provisions. Counsel refers to the judgment of Hamilton C.J. in de Rossa v Independent Newspapers plc. [1999] 4 IR 432 where he stated at p. 450:

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

Geoghegan J., in the course of his judgment in Murphy v. I.R.T.C. [1997] 2 ILRM 467 stated at p.476:-

“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.”

Counsel further refers to Hynes-O’Sullivan. v. O’Driscoll [1988] I.R. 436 where Henchy J. stated, inter alia, at p. 450

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

Counsel refers to Article 10 of the Convention and submits that it is clear that it recognises that the exercise of the freedoms referred to in it may be subject to such restrictions and penalties as a prescribed by law in the States which are party to the Convention and which are necessary in a democratic society for the protection of the reputation and rights of others. Counsel notes that regard may be had by this court to the provisions of the Convention, although not part of the municipal law of the State. Counsel refers to portion of the judgment of Hamilton J. in de Rossa v Independent Newspapers plc. [1999] 4 IR 432 where he stated at p. 450:

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

Counsel further refers to portion of the judgment of O’Hanlon J. in Desmond v. Glackin [1993] 3 I.R. 1 at pp. 28 and 29 where he stated:

“As Ireland has ratified the Convention and is a party to it, and as the law of contempt of court is based (as was stated by Lord Reid) on public policy, I think it is legitimate to assume that our public policy is in accord with the Convention or at least that the provisions of the Convention can be considered when determining issues of public policy. The Convention itself is not a code of legal principles which are enforceable in the domestic courts, as was made clear in In re Ó Láighléis [1960] I.R. 93, but this does not prevent the judgment of the European Court of Human Rights from having a persuasive effect when considering the common law regarding contempt of court in the light of the constitutional guarantees of freedom of expression contained in our Constitution of 1937.”

With regard to de Rossa v. Independent Newspapers plc. [1999] 4 IR 432 it is submitted by reference to Tolstoy Milolavsky v. United Kingdom (1995) 20 EHRR 442 that while Article 10 may come into play in regard to the quantum of damages awarded in a defamation suit insofar as an award of damages must bear a reasonable relationship of proportionality to the injury to the reputation suffered, there is no legal basis for suggesting that that Article 10 of the Convention can displace a jury trial on an allegation of defamation by an Irish citizen.

Counsel refers to portion of the judgment of Hamilton C.J. in de Rossa v. Independent Newspapers plc where he stated at p. 456:

“By virtue of the provisions of Article 40.6.1° of the Constitution, the defendant is entitled, subject to the restrictions therein contained, to exercise the right to express freely its convictions and opinions.

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.

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

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] I.R. 436). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.

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 …”

As appears from the passage of the judgment of the European Court of Human Rights already quoted herein and which states 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.”

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”.

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.

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.”

Counsel further refers to portion of the judgment of the Chief Justice at p. 458 where he added:

“The obligations arising from the provisions of the Constitution and the Convention 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.

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 defendant.”

It is submitted that this statement, with which the majority of the Supreme Court agreed demonstrates how regard is to be had to the Convention. It is submitted that the defendant’s right to express freely statements, convictions, opinions and ideas in the booklet at issue is subject to the limitations arising under the common law relative to defamation arising on the balancing of rights under the Constitution between Articles 40.6.1. and Article 40.3., having due regard to the Convention and that the defendant cannot impugn these proceedings as they are presently constituted.

It is submitted that the plaintiffs have a cause of action, which does not amount to saying that they will succeed in their actions.

The plaintiffs apprehend that the defendant will seek to raise a defence of qualified privilege and in this regard refer to the decision of the Court of Appeal in Reynolds v. Times Newspapers Ltd. [1998] 3 AllER 961 and to the subsequent decision of the House of Lords at [1999] 4 All ER 609 in which Lord Nicholls expressed the view at p. 625 of the report that the common law approach to the issue of qualified privilege accorded with the then present state of the human rights jurisprudence.

Counsel further refers to Gately on Libel (9th Ed.) on the same topic.

It is submitted that the plaintiffs are private citizens who have the right to protect their good name by invoking the jurisdiction of this court in regard to the alleged defamation. It is submitted that the jurisprudence of the European Court of Human Rights in relation to qualified privilege circles around the issue of political affairs. Counsel stresses that the plaintiffs are private citizens

Counsel refers to McMahon & Binchy insofar as it is indicated that the approach of the courts has been that the common law principles in the law of defamation do not require to be modified in the light of the Constitution. In this regard reference is made to the judgment of Geoghegan J. in Foley v. Independent Newspapers [1994] 2 I.L.R.M. 61 where he stated that any consideration of Article 40.6.1.(i) would have to be balanced by consideration of Article 40.3.2. which requires the State by its laws to protect as it may from unjust attack and in the case of injustice done vindicate the good name of every citizen.

In conclusion counsel submits that the Irish courts see no difference between the common law, the Constitution and Article 10 of the Convention and the English courts see no difference between the common law and Article 10. It is submitted that the common law is clear and that subject only to the defence of privilege, a person is liable under current law for any untrue statement of fact which tends to lower another in the eyes of the average right-thinking person.

Mr. Eoin McCullough S.C. on behalf of the Attorney General submits that essentially the preliminary issue to be tried by this court relates to the balancing of conflicting rights afforded to citizens under Articles 40.6.1 (i) and 40.3.1 of the Constitution dealing with freedom of expression and the right of every citizen to their good name and whether in the circumstances of this case the constitutional guarantee to express freely convictions and opinion prevails over the constitutional protection of a good name.

The Attorney General agrees that a legal balance has to be maintained between the guarantee of freedom of expression and the protection afforded to one’s good name, both of which are constitutionally enshrined. The issue is to which right superior recognition is to be given in the case of a conflict. Counsel refers to Foley v. Independent Newspapers [1994] 2 I.L.R.M. 61 and Hynes-O’Sullivan. v.O’Driscoll [1988] I.R. 436 insofar as the Superior Courts had previously addressed the issue of these competing rights.

The Attorney General submits that when balancing these constitutional rights one must examine the circumstances of the particular case and evaluate the qualifications and/or exceptions to the rights under the Constitution. The Attorney General takes issue with the submission made on behalf of the defendant that the freedom of expression under the Constitution is paramount. It is submitted that nowhere does the defendant indicate the basis upon which criticism would be evaluated where he submits that freedom of expression “ought not to be curtailed unless it exceeds the bounds of permissible criticism”, for the purpose of determining whether the criticism in question is permissible or otherwise. On this basis the Attorney General submits that the full extent of the rights claimed by the defendant are not available to him.

Nevertheless the Attorney General acknowledges that the protection provided by the traditional law of defamation may be inadequate to meet the requirements of the Constitution. It is submitted that the rights embodied in the Constitution are not derived from the common law. It is submitted that the requirements of the Constitution are not necessarily met by the pre-existing common law of defamation. The correct balance between the competing rights is to be found in the Constitution itself which may be interpreted in the light of general international norms and standards. In this regard it is submitted that the provisions of the Convention are particularly significant, albeit not part of the domestic law of the State.

Counsel refers to the jurisprudence of the European Court of Human Rights and in particular to cases illustrating the protection afforded by Article 10 of the Convention to statements made on matters of public concern, where the same are made in good faith – Lingens v. Austria (1986) 8 EHRR 407; Oberschlick v. Austria (1995) 19 EHRR 389; Oberschlick v. Austria (No. 2) (Judgment 1 July, 1997) and Torgeirson v. Iceland (1992) 14 EHRR 843. It is recognised that insofar as expressions of opinion are concerned, the Convention does not require either that they be proved to be true or that the underlying facts be proved to be true. Even in respect to a statement of fact as opposed to expressions of opinion it is not always necessary for a defendant to prove the truth of same. If a statement is made in bad faith or without any attempt to check the facts of the matter, then Article 10 does not require that the statement be protected. Vide Prager and Oberschlick v. Austria (1996) 21 EHRR 1; De Haes and Gijsels v. Belgium (Judgment 24th February,1997). It is submitted that if the provisions of the Constitution are in accordance with Article 10 then free speech about affairs of public interest are in accordance with Article 10 of the Convention and free speech about affairs of public interest may require a greater degree of protection than has traditionally been understood to be provided by the pre-Constitution common law relating to qualified privilege. In particular, speech on matters of public concern consisting wholly or largely of the expression of opinion may not require in all cases to be justified and the truth of the facts underlying such opinion may not require in all cases to be proved.

Counsel for the Attorney General refers to developments in other common law jurisdictions tending to enlarge upon the range of material that can legitimately be published without fear of attracting liability, in some cases based upon a development of the common law and in other cases having a constitutional origin.

Counsel refers to the First Amendment to the U.S. Constitution and to the decision of the United States Supreme Court in New York Times v. Sullivan 376 U.S. 254 (1964) insofar as a restriction has been placed on the right of public officials to succeed in a claim for defamation where a plaintiff must be able to show “by clear and convincing evidence” that the defendant published the statement with knowledge of its falsity or in reckless disregard of its truth or falsity. This protection has now been extended to claims by “public figures”. The Attorney General does not contend that the good name of the individual guaranteed protection in the Constitution would be adequately vindicated by the adoption of such an approach in this jurisdiction.

Counsel refers to recent jurisprudence of the Australian courts in the cases of Theophanous v. Herald and Weekly Times (1994) 182 C.L.R. 104 and Lange v. Australian Broadcasting Corporation (1997) 182 C.L.R. 104. While there is no explicit guarantee in the Australian Constitution to freedom of speech, the courts have recognised that freedom of communication on matters of government and politics is an indispensable incident of Australian law. It has been determined that the law must be compatible with the guarantee of freedom of political discussion. There has been a development of the law with particular regard to the concept of qualified privilege. The common law in Australia has now recognised publication on a “government or political matter” as an occasion of qualified privilege, with reciprocity between the media and the public. The privilege covers political affairs at all levels and may extend to cover discussion of matters of a similar nature in other countries. There is an obligation on the defendant to show that he has satisfied the requirements of reasonable conduct. As a general rule a defendant must show that he/she had:

“reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open to verify the accuracy of the material and did not believe the imputation to be untrue. The defendant’s conduct will not be considered reasonable unless the defendant has sought a response from the person defamed and published a response made (if any) except in cases where the seeking of publication of a response was not practicable or it was unnecessary to give the plaintiff and opportunity to respond.”

The plaintiff will succeed if malice can be established. It is recognised that in the case of the subject publication that this development of the law might not avail the defendant as it is submitted that the publication at issue is at best marginally connected with the political process.

Counsel further refers this court to the development of the common law in New Zealand. In Lange v. Atkinson [1998] 3 N.Z.L.R. 424 and [2000] N.Z.L.R. 385 the Court of Appeal held that the defence of qualified privilege applies to generally published statements made by the actions and qualities of those currently or formerly elected to parliament and those with immediate aspirations to be members, so far as those aspirations and qualities directly affected the capacity to meet their public responsibilities. The Court held that the defamatory statement must bear on the actions and qualities of the politician which directly affect his/her capacity to meet his/her public responsibilities. The Court held that it was necessary to look at the circumstances of the publication, including the identity of the publisher, the context, the likely audience and the content of the statement.

This decision is subsequent in time to Lange v. Australian Broadcasting Corporation and refers to the decision in that case as well as to the provisions of the Convention and jurisprudence of the European Court of Human Rights. Having reviewed the law in a number of Commonwealth jurisdictions and also in the United States of America the court concluded on the issue of privilege and political statements as follows at p. 467 and 468 :

“14. Qualified privilege and political statements: conclusion

(a) Political statements may be protected by qualified privilege

Our consideration of the development of the law leads us to the following conclusions about the defence of qualified privilege as it applies to political statements which are published generally:

(1) The defence of qualified privilege may be available in respect of a statement which is published generally.

(2) The nature of New Zealand’s democracy means that the wider public may have a proper interest in respect of generally-published statements which directly concern the functioning of representative and responsible government, including statements about the performance or possible future performance of specific individuals in elected public office.

(3) In particular, a proper interest does exist in respect of statements made about the actions and qualities of those currently or formerly elected to Parliament and those with immediate aspirations to such office, so far as those actions and qualities directly affect or affected their capacity (including their personal ability and willingness) to meet their public responsibilities.

(4) The determination of the matters which bear on that capacity will depend on a consideration of what is properly a matter of public concern rather than of private concern.

(5) The width of the identified public concern justifies the extent of the publication.

(As appears from para. (3) above this judgment is limited to those elected or seeking election to Parliament.)”

In this case the Court of Appeal rejected the concept of reasonableness as applied by the Australian High Court in the Lange case.

Counsel refers to the recent decision of the House of Lords in Reynolds v. Times Newspapers Limited [2001] 2 AC 127 in which it recognised that there might be privilege in respect of the general communication of political information, which included not only information per se but extended to opinion and arguments concerning government or political matter that affect the people of the United Kingdom. It held that the questions of whether there is a duty and interest giving rise to qualified privilege falls to be determined on the basis of a number of factors, including inter alia, the seriousness of the allegation, the nature of the information , the source of the information, the steps taken to verify the information, the status of the information, the urgency of the matter, whether comment was sought from the plaintiff, whether the article contained the gist of the plaintiff’s side of the story, the tone of the article and the circumstances of the publication. It was indicated that this list is not exhaustive and that the weight to be given to these and any other relevant factors will vary from case to case. The court indicated that the decision on whether, having regard to the admitted or proven facts, the publication was subject to qualified privilege is a matter for the judge.

Gately points out that from a reading of the speeches in this case the following points emerge:

“[T]here is unanimous rejection of a “generic” qualified privilege for “political speech” and in this regard the House of Lords rejected the approach of New York Times v. Sullivan. Lord Nichols stressed that reputation “forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad.”

It was indicated that qualified privilege can only be defeated by the claimant establishing malice.

Counsel further submits that if one combines the Convention with the common law one must come to an altered view of the common law of defamation. Counsel submits that the law in Ireland properly viewed allows for qualified privilege for widely published statements on subjects of public interest, subject to restrictions, such as those imposed in Australia to deal with matters of reputation. It is submitted that on the basis of the law of fair comment it is not necessary for the defendant to prove the truth of all statements of fact upon which he relies.

It is submitted that the common law, properly understood, is to be seen in this or in a similar way. Counsel submits that on this understanding of the law there is no reason why the defendant should not defend the claim herein on the basis of the ordinary law of defamation.

The Attorney General submits that the Constitution, properly interpreted, may give rise to a wider form of entitlement to publish statements concerning matters of public concern than has hitherto generally been recognised. In light of the constitutionally recognised right of freedom of expression and freedom to communicate it is submitted that the limits placed on the expression or communication of material in relation to matters of public interest may legitimately differ from the limits to be placed on the expression or communication of other material. It is submitted that this distinction arises, inter alia, from the democratic nature of the State and the right to freedom of expression enshrined in the Constitution and is echoed in the jurisprudence of other jurisdictions and of the European Court of Human Rights. It is furthermore submitted that the limits to be placed on the expression or communication of statements of opinion may perhaps legitimately differ from the limits to be placed on expression or communication of factual statements. It is submitted that in a democratic society it is legitimate to place greater emphasis on the right to freely express one’s opinion than on the right freely to express or communicate statements of fact. Secondly, it is submitted that expressions of opinion are of necessity less damaging to the individual’s reputation than statements of fact, since they are perceived as being merely the opinion of the person that speaks them.

In respect of expressions of opinion on matters of public interest, the Attorney General submits that the appropriate constitutional balance does not protect statements made in bad faith or for an indirect purpose. It is submitted that insofar as expressions of opinion are concerned, it may not be constitutionally required of a defendant in every case to prove either the truth of the opinion or of the facts that underlie it. It is acknowledged that the rule applicable to statements of fact on matters of public interest does not arise in an acute form in the instant case, but it may nevertheless be the proper constitutional approach to provide that statements of fact on matters of public interest should be protected, where they are made in good faith or not for an indirect purpose and furthermore where reasonable attempts have been made to check on their truth and where they are made in circumstances that otherwise renders their publication reasonable.

The Attorney General submits that the right to freedom of expression is fundamental in a democratic society. One exception arises as a result of the constitutional protection afforded to Irish citizens under Article 40.3.2. It is submitted that the right to one’s good name must be balanced against the conflicting right in the context of the facts of each case. It is submitted that this is the process that should be followed in the instant case. It is submitted that it would not be appropriate for this court to assert that one particular constitutional right – the right to freedom of expression – should be considered and/ or declared to be paramount to another constitutional right. It is submitted that the correct method of dealing with this contention is that the Court should seek to balance both rights having due regard for the consequences which the exercise of these rights will have on the respective parties. It is submitted that the law of defamation as generally understood prior to the developments in judicial thinking in the United Kingdom, Australia and New Zealand together with the recent jurisprudence of the European Court of Human Rights may not adequately express the requirements and values of the Constitution and the Attorney General presents his observations in an attempt to suggest an appropriate test by which the respective rights of the parties to litigation such as this can be balanced.

In reply to the submissions made on behalf of the Attorney General and the plaintiffs, counsel for the defendant refers to the concession made on behalf of the Attorney General, and refers to the fact that in the light of the jurisprudence of the European Court of Human Rights the Court indicated that a “careful distinction needs to be made between facts and value judgments” and statements of opinion. Counsel submits that this is the thrust of Article 46.1.1 of the Constitution and it is submitted that harmony has to be achieved between the right freely to express opinions and the right to one’s good name.

Counsel submits that at common law the predominant aspect is the protection of reputation. Counsel submits that the common law approach is one of ‘strict liability’ and that the approach of the common law gives insufficient recognition to the right to freedom of expression or the right to make a value judgement.

Counsel submits that a reading of the Constitution shows that a distinction has to be drawn between an attack on one’s reputation and an unjust attack such that some fault must be established. Counsel submits that the freedom of expression recognised by the Constitution is not overshadowed by what he refers to as the ‘litigation chill factor’ by the fact that one has to vindicate this right solely by means of a defence to a claim for defamation. Counsel refers to the fact that the Attorney General’s submission amounts to saying that the defendant cannot rely upon the Constitution unless he can show that the existing law fails to vindicate his rights or amounts to an inadequate vindication of his right to freedom of expression.

Counsel submits that the remedy suggested by the Attorney General amounts to saying that the defendant must defend the case by pleading, albeit in a refashioned sense, qualified privilege or fair comment. The Attorney General submits that this Court should follow the Australian case of Lange v. Australian Broadcasting Corporation (1997) 182 C.L.R. 104 and refashion in an unspecified way the defence of qualified privilege to allow a person to express freely his opinions.

Counsel refers to the judgment of Henchy J. in Hanrahan v. Merck, Sharp and Dohme [1988] ILRM 629 at p. 636 where he stated:

“So far as I am aware, the constitutional provisions relied on, have never been used in the courts to shape the form of any existing tort or to change the normal onus of proof. The implementation of those constitutional rights is primarily a matter for the State and the courts are only entitled to intervene where there has been a failure to implement or, where the implementation relied upon is plainly inadequate, to effectuate the constitutional guarantee in question.”

Counsel submits that while the approach of the Attorney General is different to that of the defendants, their approach is no more revolutionary.

Counsel refers to W. v. Ireland [1997] 2 IR 141 and to portion of the judgment of Costello P. at p.167 where he said:

“The courts are required by the Constitution to apply the law and the causes of actions it confers and when these adequately protect guaranteed rights they are not called upon, in order to discharge their constitutional duties, to establish a new cause of action—indeed it would be contrary to their constitutional function to do so. Furthermore, to do so would be otiose. If a cause of action for damages for infringement of the constitutional right of bodily integrity were granted to the injured plaintiff in the example I have given, the court would have to consider whether there was any breach of the duty which the driver of the army lorry owed to the pedestrian (for the right is not an absolute one) and, in considering the nature and scope of the duty, would decide whether the lorry driver had failed to take proper care for the plaintiff’s safety, whether the pedestrian failed to take care for his own safety, apportion liability as required by the Civil Liability Act, 1961, assess damages in accordance with established principles, and in certain circumstances consider whether the claim was statute barred—in other words apply the law of tort to the new cause of action. There is therefore no need to construe the Constitution as conferring a new and discrete cause of action for damages in those cases in which the acts or omissions which constitute the alleged infringement also constitute an actionable wrong at law for which damages are recoverable. Of course, a provision of the law to be applied might not, in a given case, adequately protect the guaranteed right (for example the law might contain a limitation period which in the particular circumstance trenched unfairly on a guaranteed right and thus deprive the plaintiff of a right to compensation, as in O’Brien v. Keogh [1972] I.R. 144, then the law would be applied without the provision, which would be rendered invalid by the Constitution).”

It is submitted that the defendants have put the inadequacy of the law at the forefront and proposed, given the constitutional imperative, how the matter should be dealt with in this area. Counsel submits that there is an inadequacy with the remodelling proposed by the Attorney General.

Counsel submits that if one starts to refashion defences in the law of defamation one has to view the freedom of expression through the eyes of the law of tort. Counsel submits that the common law is premised on the existence of privileges. It is submitted that to put the defendant on the back foot is wrong. It is submitted that the defendants’ approach is to look at the right to freedom of expression through the lenses of the Constitution, to examine the right itself and then examine what limitations may be placed on the right. It is submitted that the common law of defamation puts ‘the cart before the horse’ and that this is not harmonious with the Constitution as it puts the protection of reputation first. It is submitted that in this way it fails to establish the necessary balance.

Counsel refers to the approach of the common law and refers to portion of the speech of Lord Nicholls in Reynolds v. Times Newspapers Ltd. [2001] 2 AC 127 at p.192 where he said:

“Defamation and truth

The defence of qualified privilege must be seen in its overall setting in the law of defamation. Historically the common law has set much store by protection of reputation. Publication of a statement adversely affecting a person’s reputation is actionable. The plaintiff is not required to prove that the words are false. Nor, in the case of publication in a written or permanent form, is he required to prove he has been damaged. But, as Littledale J. said in M’Pherson v Daniels (1829) 10 B & C 263 at 272, 109 E.R. 448 at 451: ‘… the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not, to possess.’ Truth is a complete defence. If the defendant proves the substantial truth of the words complained of, he thereby establishes the defence of justification. With the minor exception of proceedings to which the Rehabilitation of Offenders Act 1974 applies, this defence is of universal application in civil proceedings. It avails a defendant even if he was acting spitefully.

The common law has long recognised the ‘chilling’ effect of this rigorous, reputation-protective principle. There must be exceptions. At times people must be able to speak and write freely, uninhibited by the prospect of being sued for damages should they be mistaken or misinformed. In the wider public interest, protection of reputation must then give way to a higher priority.”

It is submitted that the premise upon which the common law operates is the opposite to that of the Constitution.

Counsel refers further to the speech of Lord Nicholls where he states at p.194:

“Over the years the courts have held that many common form situations are privileged. Classic instances are employment references, and complaints made or information given to the police or appropriate authorities regarding suspected crimes. The courts have always emphasised that the categories established by the authorities are not exhaustive. The list is not closed. The established categories are no more than applications, in particular circumstances, of the underlying principle of public policy. The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson’s dictum, in Adam v Ward [1917] AC 309 at 334, [1916-17] All ER Rep 157 at p.170170, is much quoted:

‘… a privileged occasion is … an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.’

It is submitted by counsel that the House of Lords was wrestling with the system which starts from the wrong premise.

Dealing with the question of reputation Nicholls J. stated at p. 201 as follows:

“Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognise that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others.

The crux of this appeal, therefore, lies in identifying the restrictions which are fairly and reasonably necessary for the protection of reputation. Leaving aside the exceptional cases which attract absolute privilege, the common law denies protection to defamatory statements, whether of comment or fact, proved to be actuated by malice, in the Horrocks v Lowe sense. This common law limitation on freedom of speech passes the ‘necessary’ test with flying colours. This is an acceptable limitation. Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth.

In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation. Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based.”

Counsel submits that a written constitution is alien to English law and as a result the thought process in approaching the law in England is radically different to that in Ireland. On this basis it is submitted that the decision in Reynolds v. Times Newspapers Ltd. is not an appropriate starting point. With regard to the decision of the Australian Courts in Lange v. Australian Broadcasting Corporation (1997) 182 C.L.R. 104 counsel refers to the fact that there is no express guarantee given to the freedom of expression. While the Court attempted to re-mould the common law, it is the common law which is the basic law of the land, albeit a Constitution Act has been enacted. It is submitted that the approach of the common law is to start with the premise that the statement complained of is a defamatory statement. It is submitted that the Australian approach is one of re-fashioning the law with regard to qualified privilege. It is submitted that the approach of the Australian court was based upon a reciprocity of interests.

In Lange, the Court added, at p. 570 of the report:

“The basis of this common law rule is that reciprocity of interest or duty is essential to a claim of qualified privilege at common law. Only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public. However, the common law doctrine as expounded in Australia must now be seen as imposing an unreasonable restraint on that freedom of communication, especially communication concerning government and political matters, which “the common convenience and welfare of society” now requires. Equally, the system of government prescribed by the Constitution would be impaired if a wider freedom for members of the public to give and to receive information concerning government and political matters were not recognised. The “varying conditions of society” of which Cockburn C.J. spoke in Wason v Walter now evoke a broadening of the common law rules of qualified privilege.”

Counsel submits that the fact that the words published may be considered hurtful of the plaintiffs does not render same an abuse of the Constitutional position contended for. It is submitted that the defendant was entitled to opine in the manner done, which it is submitted is a fundamental aspect of his freedom of expression.

With regard to the submissions of counsel for the plaintiffs it is submitted that the words complained of amount to an opinion on English law. It is submitted that nothing has been asserted in the pleading that makes the words defamatory as a matter of law, unless it can be shown that the words were published in bad faith or unreasonably. It is submitted that letting the matter go to the jury in the present format is wrong in law. Counsel re-iterates that the words cannot be defamatory. Counsel submits that the issue is not a moot. It is submitted that it would be preposterous for the defendants to go through the entire trial procedure on the basis of a re-fashioning of the common law.

Counsel submits that as the words complained of cannot amount to an unjust attack on the basis of the pleading that the matter should not be allowed to go to the jury.

Counsel submits that the manner contended for of approaching the Constitution gives a harmonious approach to the balancing of the respective constitutional rights at issue, as opposed to an approach of re-modelling the common law such as done in Australia.

Conclusion:

This court must recognise the fact that the Constitution gives recognition and expression both to the freedom of expression and to the right to a person’s good name. It is accordingly necessary that the law should balance these rights in an appropriate manner. The necessity for such a balance has been amply stated in the judgments of Denham J. in O’Brien v. Mirror Group Newspapers Ltd. [2001] 1 I.R. 1 and of Barrington J. in Irish Times Ltd. v. Ireland [1998] 1 IR 359. In this regard it is appropriate to repeat what was stated by Barrington J. when he stated at p.404:

“Article 40.6.1° deals with three rights, the right of the citizens to express freely their convictions and opinions, the right of the citizens to assemble peaceably and without arms and the right of the citizens to form associations and unions. All of these relate to the public activities of the citizens and to the practical workings of a democratic society. They are part of the dynamics of political change. They are at once both vitally important to the success of a democracy and potentially a source of political instability. That is why the Constitution and the European Convention both assert and circumscribe them. That is also why it is so important to get the balance right in interpreting them.

…. It therefore appears to me that the right of the citizens “to express freely their convictions and opinions” guaranteed by Article 40 of the Constitution is a right to communicate facts as well as a right to comment on them. It appears to me also that when the European Convention on Human Rights states that the right to freedom of expression is to include “freedom . . . to receive and impart information” it is merely making explicit something which is already implicit in Article 40.6.1° of our Constitution.”

I am satisfied that no essential difference exists between the provisions of the Convention and the provisions of Article 40.6.1o of the Constitution. What is relevant is how they should be interpreted. It is clear that the Convention does not provide as such for the protection of one’s reputation. However, Article 10 recognises that the protection given to freedom of expression may be curtailed and may be subject to restrictions as a prescribed by law and as are necessary in a democratic society for a variety of interests including the protection of the reputation or rights of others. It is, however, necessary to assess whether the common law of defamation as traditionally interpreted in this jurisdiction meets the requirements of the Constitution. In interpreting the Constitution this Court can have regard to the interpretation of the Convention insofar as it indicates how Article 40.6.1o may be interpreted.

It is clearly not the function of this Court to enter into the realm of policy formulation by suggesting reform of the law of defamation. In this regard I am influenced by the approach of Henchy J. in Hynes-O’Sullivan. v. O’Driscoll [1988] I.R. 436 where he stated at p. 450:

“I am of the opinion that the suggested radical change in the hitherto accepted law should more properly be effected by statute. The public policy which a new formulation of the law would represent should more properly be found by the Law Reform Commission or by those others who are in a position to take a broad perspective as distinct from what is discernible in the tunnelled vision imposed by the facts of a single case. That is particularly so in a case such as this, where the law as to qualified privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name. The articulation of public policy on a matter such as this would seem to be primarily a matter for the legislature.

Finally and perhaps most crucially, the suggested restatement of the law should in my opinion not be made in this case because it is not necessary for the purpose of doing justice.”

However, this court must assess the arguments put forward on behalf of the defendant and must assess whether it is necessary to conclude that the law of defamation as traditionally understood represents a violation of the right to freedom of expression enshrined in the Constitution and whether it should result in a fundamental re-appraisal of same or whether the law of defamation should be tempered to deal with the right to freedom of expression relied upon by the defendant.

I am not satisfied that the correct approach is to say that the right to freedom of expression should be viewed as paramount to the right to one’s reputation. I am satisfied that the right to freedom of expression may result in a situation where in the context of a democracy the position of the press and other organs of public opinion have to be respected and protected, having due regard to the right to one’s reputation. Accordingly, it is clear that the circumstances in which the right to freedom of expression is invoked may differ from one case to another and the relationship between that right and the right to one’s reputation may change depending on those circumstances.

Accordingly, I am satisfied that I must assess the right invoked by the defendant in this action on the basis of the assertion of that right advanced by him in his defence and must assess that situation and consider whether the law of defamation as traditionally understood represents a violation of that right and whether it should result in a fundamental re-statement of that law or a tempering of same.

The defendant in his defence has pleaded that the words published by him, the subject matter of the action against him, form part of an analysis of English law on the function of the Court of Appeal and that the analysis was largely made in relation to the ‘Birmingham Six.’ The defendant indicates that he engaged in research in writing the booklet and looked at transcripts of appeals heard in public and other source material. Clearly, the defendant advances his case on the basis that the booklet represents a work in which he asserts that he puts the case for an unbiased perspective on the trial of the Birmingham Six and other appeals. He is a Queen’s Counsel and the author of other works. In the prologue to the booklet the author indicates what he has attempted to address in the book itself, including the role of circumstantial evidence and the role of the Court of Appeal. He indicates that the motivation of the book has been the desire to redress the balance in the public perception of the criminal justice system. He states that the book explores the public perception about, and the professional failure to explain the function of, the Court of Appeal.

I am satisfied that I should assess the issue before this Court without determining the issues which remain to be determined before the court trying the substantive issues between the parties, but rather on the basis of the defendant’s assertions. I believe that I should assess his defence and determine whether it should permit him to raise a defence to the plaintiffs’ claims and whether the same is such as to preclude a valid claim being maintained by the plaintiffs. While the defendant asserts his entitlement to express his opinion as set forth in the book at issue, in exercise of his right to freedom of expression, the issue remains whether such an exercise precludes a valid claim for damages for defamation.

While the law of defamation at common law contains a “chill factor” such as may act as a disincentive to the freedom of expression, it is clear that any law which tempers the right to freedom of expression may have such an effect. It is also true that the common law may have the effect of putting a defendant ‘on the back foot’ such that a defendant may have to establish his right to raise a particular defence. Nevertheless, the defendant’s main contention is that the law as currently understood does not give sufficient recognition to the right to freedom of expression which he contends is paramount.

I am satisfied that I should only adopt the defendant’s contention as to how the law should be construed if the law of defamation cannot be construed in a more conventional manner such as to satisfy the requirements of the Constitution.

The jurisprudence of the European Court of Human Rights has largely been concerned with the right of freedom of expression of the press and the freedom to express opinions with regard to persons who are in public life. As indicated in the case of Litgens v. Austria, the limits of acceptable criticism are wider as regards politicians than for private individuals. The requirement of protecting the reputations of others has to be weighed against the interests of open discussion of political issues.

I am satisfied that in any given case it is necessary to establish whether the publication at issue is one which can be said to fall within the realms of freedom of expression this being one of the essential foundations of a democratic society. The necessity in a democratic society has to be assessed in the light of the restriction based on the protection of reputation and in this regard one must assess whether this is proportionate to the legitimate aim pursued.

In assessing whether it is appropriate to enlarge upon the traditional view of the law on defamation so as to permit a defendant such as the defendant in the case in question to write a booklet such as that at issue, I believe that guidance can be obtained from the decision of the House of Lords in Reynolds v. Times Newspapers Limited [2001] 2 AC 127 and in the decisions of the Australian and New Zealand courts referred to herein. I believe that the Reynolds case is of some assistance, being a persuasive authority especially insofar as it considered the common law in the light of the provisions of the European Convention of Human Rights. While the facts of that case were very different from the instant case, it does indicate that the law with regard to qualified privilege should be expanded to something close to a general public interest defence. It clearly recognises a wide interest of the public in receiving information from the press.

Insofar as the publication at issue in these proceedings largely comprises expressions of opinion, it appears that these can be addressed under the law as to fair comment, but that that law should be construed liberally to afford a proportionate right to freedom of expression of opinion, even when such expressions may give offence.

The approach of the High Court of Australia in Lange v. Australian Broadcasting Corporation (1997) 182 C.L.R. 104 is instructive insofar as that court considered it necessary to change the common law rules to reflect the requirements of the Constitution. The Court stated that it was necessary that the common law rules of qualified privilege should be developed to reflect the requirements of the Constitution. The court stated as follows at p. 571:

“Accordingly, this court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion — the giving and receiving of information — about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government.

Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level. Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable. Thus, the extended category of common law qualified privilege ensures conformity with the requirements of the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend.”

Dealing with the conditions for a plea of qualified privilege the Court stated:

“At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by malice in making the communication. n85 But, apart from a few exceptional cases, n86 the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. n87 Because privileged occasions are ordinarily occasions of limited publication — more often than not occasions of publication to a single person — the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation. As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory. But a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers.

No doubt it is arguable that, because qualified privilege applies only when the communication is for the common convenience and welfare of society, a person publishing to tens of thousands should be able to do so under the same conditions as those that apply to any person publishing on an occasion of qualified privilege. But the damage that can be done when there are thousands of recipients of a communication is obviously so much greater than when there are only a few recipients. Because the damage from the former class of publication is likely to be so much greater than from the latter class, a requirement of reasonableness as contained in s 22 of the Defamation Act, which goes beyond mere honesty, is properly to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires.

Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege. It is a concept invoked in one of the defences of qualified protection under the Defamation Codes of Queensland and Tasmania. And it was the test of reasonableness that was invoked in the joint judgment in Theophanous. Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege.”

Further it is to be noted that in New Zealand case of Lange v. Atkinson [1998] 3 N.Z.L.R. 424 the Court of Appeal held that qualified privilege applied to generally-published statements made about the actions and qualities of those currently or formerly elected to Parliament. The court held that there was no requirement of reasonable care for the defence of qualified privilege to be invoked. As indicated earlier in this judgment, in this regard there is a distinction between the approach of the courts in Australia and those in New Zealand.

While the requirements of the Constitution and of the Convention may require a similar approach to be taken in a like case, I consider it virtually impossible to define a right of a universal nature that will accommodate all cases where a contest exists between a claim of right to freedom of expression on the one hand and a right to the protection of one’s reputation on the other hand.

Were the Court to adopt the Australian approach to a case such as that seen in Lange v. Australian Broadcasting Commission, the issue would arise whether a concept of reasonableness should also be adopted.

With regard to whether the law should incorporate a concept of reasonableness, I believe that this is essentially a matter for legislative intervention if it is to be incorporated into the law in a manner akin to that in Australia, where it has had a legislative basis. In this regard I am conscious of the New Zealand decision of Lange v. Atkinson. This decision was decided in light of the New Zealand Bill of Rights which gives protection to the freedom of expression subject to limitation in the context of the protection of reputation. The Court of Appeal stated as follows, at pp. 468 to 470 of the report:

“(b) The protection of private reputation: the role of s 19

The emphasis just placed on the requirement that the statements relate to matters of proper public concern provides some protection for private rights and reputation — to return to that critical balancing factor. It is clear from s 5 of the Bill of Rights read with arts 19(3) and 17 of the covenant that the law must have regard to that matter. Section 19(1) of the Act also provides such protection. To repeat, it provides that the defence of qualified privilege fails if the plaintiff proves that, in publishing the matter:

“. . . the defendant was predominantly motivated by ill will towards the plaintiff or otherwise took improper advantage of the occasion of publication” (Elias J at p 34).

The “Report of the (McKay) Committee on Defamation” (1977) paras 148-155, 195-201 and 269-278 on which the 1992 Act was based makes it clear that the proposed changes to the common law of malice were changes of terminology rather than substance, designed to avoid the difficulty for the jury of distinguishing between the popular and legal meanings of “malice”. The cases on the common law concept, it was expected, would remain relevant; see to the same effect Rt Hon Justice McKay, Laws NZ, Defamation, para 123, and Todd, The Law of Torts in New Zealand, para 16.11.3.

Lord Diplock’s speech in Horrocks v Lowe is generally accepted as the leading authority. He stated at pp 149-150 three propositions relevant to the “ill will” part of s 19. The first and especially the second provide some protection to reputation:

1. “If it be proved that [the defendant] did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.”

2. “If [the defendant] publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false.”

3. “But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men.”

So far as the “improper advantage” element of s 19 is concerned, Lord Diplock said this at p 150:

“Even a positive belief in the truth of what is published on a privileged occasion — which is presumed unless the contrary is proved — may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames.”

(c) The reasonableness of the defendant’s conduct

Lord Diplock’s propositions 2 and 3 above are relevant to the question, touched on earlier in the discussion of the Australian Lange case, whether reasonable care or conduct on the part of the defendant is a part of the law of qualified privilege. He makes it plain that he does not consider that it is. While indifference to the truth defeats the privilege, carelessness does not. This Court has similarly said that negligence has no role in the law of defamation (except for damages): Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148 at pp 155-157, Balfour v Attorney General [1991] 1 NZLR 519 at p 529 and South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 at pp 298-299, 309 and 319. This is not an action brought in negligence as was Spring v Guardian Assurance Plc [1995] 2 AC 296 where Lord Woolf affirmed at p 350 that “Negligence has always been an irrelevant consideration (I am not referring to quantum of damages) and it will remain irrelevant in an action for defamation”.

Our review of the law as it has developed over the last two centuries or more confirms us in that conclusion. In particular neither the cases nor the legislation incorporate any requirement of reasonable care into the defence of qualified privilege. The very section which gives statutory protection by reference to the common law makes no reference to a duty of care and at the same time it saves the common law. The basis of qualified privilege is that the recipient has a legitimate interest to receive information assumed to be false. How can that interest differ simply because the author has failed to take care to ensure that the information is true? Next, any such reasonableness requirement would essentially make the statutory restatement of malice redundant.

As well, the introduction of a requirement of care in respect of political statements would raise the question whether it should not also apply in all other areas — with a consequent huge change in the balance of the law against freedom of expression in an area of law where the balance has been carefully and methodically worked out over a long period. And if instead a line is to be drawn between the present category of case and others, which we would doubt, principle might suggest that it would be drawn so as to advantage and not disadvantage political statements, given their importance.”

Proceeding to the case of Reynolds v. Times Newspapers Ltd. [2001] 2 AC 127, I believe that it is appropriate to quote certain passages from the speech of Lord Nicholls. At p. 201:

“The crux of this appeal, therefore, lies in identifying the restrictions which are fairly and reasonably necessary for the protection of reputation. Leaving aside the exceptional cases which attract absolute privilege, the common law denies protection to defamatory statements, whether of comment or fact, proved to be actuated by malice, in the Horrocks v Lowe sense. This common law limitation on freedom of speech passes the ‘necessary’ test with flying colours. This is an acceptable limitation. Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth.

With defamatory imputations of fact the position is different and more difficult. Those who read or hear such allegations are unlikely to have any means of knowing whether they are true or not. In respect of such imputations, a plaintiff’s ability to obtain a remedy if he can prove malice is not normally a sufficient safeguard. Malice is notoriously difficult to prove. If a newspaper is understandably unwilling to disclose its sources, a plaintiff can be deprived of the material necessary to prove, or even allege, that the newspaper acted recklessly in publishing as it did without further verification. Thus, in the absence of any additional safeguard for reputation, a newspaper, anxious to be first with a ‘scoop’, would in practice be free to publish seriously defamatory misstatements of fact based on the slenderest of materials. Unless the paper chose later to withdraw the allegations, the politician thus defamed would have no means of clearing his name, and the public would have no means of knowing where the truth lay. Some further protection for reputation is needed if this can be achieved without a disproportionate incursion into freedom of expression.

This is a difficult problem. No answer is perfect. Every solution has its own advantages and disadvantages. Depending on local conditions, such as legal procedures and the traditions and power of the press, the solution preferred in one country may not be best suited to another country. The appellant newspaper commends reliance upon the ethics of professional journalism. The decision should be left to the editor of the newspaper. Unfortunately, in the United Kingdom this would not generally be thought to provide a sufficient safeguard. In saying this I am not referring to mistaken decisions. From time to time mistakes are bound to occur, even in the best regulated circles. Making every allowance for this, the sad reality is that the overall handling of these matters by the national press, with its own commercial interests to serve, does not always command general confidence.”

Dealing with the approach of the Court of Appeal in that case, Lord Nicholls continued as follows at p. 202:

“As highlighted by the Court of Appeal judgment in the present case, the common law solution is for the court to have regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends upon its quality as well as its subject matter. This solution has the merit of elasticity. As observed by the Court of Appeal, this principle can be applied appropriately to the particular circumstances of individual cases in their infinite variety. It can be applied appropriately to all information published by a newspaper, whatever its source or origin.

Hand in hand with this advantage goes the disadvantage of an element of unpredictability and uncertainty. The outcome of a court decision, it was suggested, cannot always be predicted with certainty when the newspaper is deciding whether to publish a story. To an extent this is a valid criticism. A degree of uncertainty in borderline cases is inevitable. This uncertainty, coupled with the expense of court proceedings, may ‘chill’ the publication of true statements of fact as well as those which are untrue. The chill factor is perhaps felt more keenly by the regional press, book publishers and broadcasters than the national press. However, the extent of this uncertainty should not be exaggerated. With the enunciation of some guidelines by the court, any practical problems should be manageable. The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse. An incursion into press freedom which goes no further than this would not seem to be excessive or disproportionate. The investigative journalist has adequate protection.”

At pp. 204 and 205 Lord Nicholls states his conclusion in principle to the matters discussed when he stated as follows:

“Conclusion

My conclusion is that the established common law approach to misstatements of fact remains essentially sound. The common law should not develop ‘political information’ as a new ‘subject matter’ category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern. The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern.

Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. (1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. (2) The nature of the information, and the extent to which the subject matter is a matter of public concern. (3) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. (4) The steps taken to verify the information. (5) The status of the information. The allegation may have already been the subject of an investigation which commands respect. (6) The urgency of the matter. News is often a perishable commodity. (7) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. (8) Whether the article contained the gist of the plaintiff’s side of the story. (9) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. (10) The circumstances of the publication, including the timing.

This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.”

In considering the various authorities open to this Court I am persuaded that the flexible approach represented by the decision of the House of Lords in Reynolds v. Times Newspapers Ltd is the most appropriate way of approaching the problems in the instant case, in the absence of a clear legislative framework. It is clear that in the context of Ireland being a democratic state, clear recognition has to be given to the right to freedom of expression. I believe that this right should not be undermined by the provisions of the Constitution relating to the protection of one’s reputation. It is clear that the rights have to be construed on a harmonious basis. Nevertheless, it is clear that in certain cases, in the context of the democratic nature of the State, primacy may have to be given to freedom of expression. The approach adopted by the House of Lords has the merit of enabling the law to be developed on a case by case basis having regard to the requirements of the Constitution and the Convention which may inform the court in its approach to the interpretation of the Constitution. One must proceed on the assumption that the courts in addressing individual cases will have regard to the circumstances of each case and the nature of the rights pleaded by the parties and will be able to assess whether the right to freedom of expression contended for in any case is such that the defendant may rely upon a plea of privilege or fair comment having regard to the evidence in any given case. I am fully conscious of the ‘chill factor’ referred to in the speech of Lord Nicholls and in particular I agree with his observation where he said:

“The chill factor is perhaps felt more keenly by the regional press, book publishers and broadcasters than the national press.”

Insofar as judges are familiar with construing the law in light of the Constitution, and insofar as the decision whether to allow defences, including that of fair comment or privilege to go to a jury in any given case is one that is vested in the judge conducting the trial, I am confident that a judge can adequately deal with the requirements of the Constitution in reaching any such decision and, as circumstances ordain, in charging a jury in any particular case. It is for this reason that I believe that the flexible approach adopted in Reynolds v. Times Newspapers Ltd. is the best way in which the Courts, in the absence of legislative reform in this area, can protect the constitutional rights of parties coming before the Court where the rights such as those at issue in these proceedings are at issue.

In conclusion, I believe that I must rule against the defendant on the issue insofar as the same was formulated. Nevertheless, I am satisfied that the defendant has raised issues of particular importance on the trial of this issue, which have not been fully addressed previously. However, I believe that the issues raised on the trial of the issue before me are such that the defendant should be permitted to amend his defence in light of the ruling of this Court, with liberty to the plaintiff to plead to any such amended defence. I will hear counsel in relation to any time that may be required for such amended pleading.

Travers -v- Sunday Newspapers Ltd

[2012] IEHC 185

Judgment of Mr. Justice Hedigan delivered the 15th day of May 2012

1. The plaintiff resides at 177, Ardilaun, Portmamock, Co. Dublin. The defendant is a limited liability company, having it’s registered office at 5th Floor, Independent House, 27-31 Talbot Street, Dublin 1.

2. The defendant seeks the following relief:-

1. An Order pursuant to section 14(1) of the Defamation Act 2009 that the publication by the defendant on 31”January 2010 which is the subject matter of these proceedings is not reasonably capable of bearing the following imputations contended for by the plaintiff:-

(i) The imputation contended for at Paragraph 7 (i) of the Statement of Claim.

(ii) The imputation contended for at Paragraph 7 (ii) of the Statement of Claim.

(iii) The imputation contended for at Paragraph 7 (v) of the Statement of Claim.

2. An Order pursuant to section 14(2) b of the Defamation Act 2009, striking out paragraphs 7(i), 7(ii) and 7 (v) of the Statement of Claim, and dismissing the Plaintiffs claim insofar as it relates to those paragraphs, and such further or consequential orders as are necessary.

Background Facts

3.1 In the substantive proceedings, the plaintiff seeks inter alia damages for defamation in respect of an article published by the defendant on the 1st January 2010, under the headline “€7.6m tiger raid was nothing to do with me”. The proceedings were commenced by way of plenary summons issued on 12th March 2010. The statement of claim was delivered on the 12th May 2010. A full defence was delivered by the defendant on the 13th June 2011. At paragraph J of the defence, it is pleaded inter alia that the words and photographs published by the defendant do not bear the meanings set out at paragraph 7 of the statement of claim, save those pleaded at paragraph 7 (iii) and 7 (iv). At paragraph 4 of the defence, it is pleaded inter alia that the material published by the defendant is true in substance and in fact but in its natural and ordinary meanings, and not the meanings pleaded by the plaintiff.

The within application is one brought by the Defendant pursuant to s. 14 (1) (a) of the Defamation Act 2009, wherein the defendant seeks orders from this Court that certain of the meanings contended for by the plaintiff at paragraph 7 of the statement of claim are meanings that are not reasonably capable of arising from the publication by the defendant in respect of which the plaintiff sues. That is, of the five meanings contended for by the plaintiff, the defendant maintains that three of those meanings are not reasonably capable of arising there from.

3.2 Section 14 of the Defamation Act 2009 provides as follows:-

“14. (1) The court, in a defamation action, may give a ruling:-

(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and

(b) (where the court rules that that statement is reasonably capable of bearing that imputation) as to whether that imputation is reasonably capable of bearing a defamatory meaning, upon an application being made to it in that behalf.

(2) Where a court rules under subsection (1) that:-

(a) the statement in respect of which the action was brought is not reasonably capable of bearing the imputation pleaded by the plaintiff, or

(b) that any imputation so pleaded is not reasonably capable of bearing a defamatory meaning, it shall dismiss the action in so far only as it relates to the imputation concerned.

(3) 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.

(4) An application under this section may be brought at any time after the bringing of the defamation action concerned including during the course of the trial of the action.”

3.3 The plaintiffs statement of claim contends at paragraph 7 that, in its natural and ordinary meaning the impugned publication meant and was understood to mean that:

(1) The plaintiff was, in some way, a willing participant in the organization and carrying out of the largest bank heist in the history of the State.

(2) The plaintiff had in some way benefited and/or gained financially from the bank heist to such an extent as to enable him to enjoy material wealth and riches associated with expensive cars and holidays abroad.

(3) The plaintiff was, and remains, suspended from his duties at Bank of Ireland, his place of employment, pending the outcome of a Garda or criminal investigation.

(4) The plaintiff had not satisfied his employers that he was not a member of the group or party who had carried out the said bank heist.

(5) That the plaintiff had some inside information on the said bank heist which he had not disclosed to persons in authority and/or to An Garda Siochana.

The defendant seeks a ruling and an appropriate order pursuant to s.l4(l)(a) of the Defamation Act 2009, that the publication by the Defendant on 31st January, 2010 is not reasonably capable of bearing any of the imputations contended for by the plaintiff at paragraphs 7 (i), 7 (ii) and 7 (v) of the statement of claim.

Defendants Submissions

4.1 The defendant submits that in an application such as the present, the question of whether a publication is capable of bearing a particular meaning is a question of law for the judge. The procedure set out in section 14 of the Defamation Act 2009 reflects a practice that had existed both in this jurisdiction and in England and Wales, whereby it is for the judge to lay down the limits of the range of the possible defamatory meanings of which the words are capable, and for the jury to determine the actual meaning of the words within that permissible range. It is stated in Gatley on Libel and Slander 11th Edition, at p.103 that:-

“In ruling on meaning, the court is not determining the actual meaning of the words but delimiting the outside boundaries of the possible range of meanings and setting the “ground rules” for the trial.”

The defendant submits that in the present application, the Court is fully entitled to delimit the range of meanings which the words are reasonably capable of bearing.

4.2 In Duncan and Neill on Defamation, 3rd Edition, at p.33 the authors state inter alia that:-

“The natural and ordinary meaning of the words is the meaning ascribed to the words by the court as the meaning the words would convey to the notional reasonable reader. Where there is a possible range of meanings, a single or ‘right’ meaning is selected as the natural and ordinary meaning”.

In Jeynes v. News Magazines Limited [2008] EW CA Civ 130 The Court of Appeal in England and Wales outlined what is meant by the so-called “reasonable reader”, Clarke M.R. stated at paragraph 14:-

“The legal principles relevant to meaning … may be summarised in this way: (I) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…’ …. (8) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.”

4.3 A mere reference to a person being under suspicion does not amount to an inference of guilt. In Lowry v Smyth, (Unreported), High Court, 1Oth February 2012, Kearns P. refused an application for summary judgment by the plaintiff under the 2009 Act, and in so doing, referred to the meanings of the words complained of as follows:-

“In relation to the other matter complained of, I certainly believe it is open to the defendant to argue that to report the mere fact that a tribunal is investigating a person’s possible involvement in a series of property transactions with a possible link to the awarding of a mobile phone license is not necessarily defamatory per se. Two cases amply bear out this proposition. Both were cited to this court in Griffin v. Sunday Newspapers [2011] IEHC 331, in which the defendant newspaper sought an order under s.14 (1)(a) of the Defamation Act 2009 to narrow down the scope of the plaintiffs claim on the basis that certain imputations ascribed to an article were not reasonably capable of bearing the defamatory meanings contended for by the plaintiff.

That case concerned a newspaper article which stated that there was a military investigation underway into allegations that members of the Army Rangers Wing took leave of absence to give weapons training to police in the Seychelles. The issue which the court had to consider was whether a statement that an inquiry or investigation was under way was of itself indicative of wrongdoing and of having the defamatory meanings contended for by the plaintiff.

In the course of argument, reference was made to two cases which provided considerable assistance.

In Lewis v. Daily Telegraph Ltd. [1964] A.C. 234, the facts were that the City Fraud Squad in London were inquiring into the affairs of a limited company of which Mr. Lewis was chairman. Both he and the company of which he was chairman issued writs against the newspapers who had issued front-page stories to that effect. It was alleged that the words were defamatory in their ordinary and natural meaning and were meant and were understood to mean that the plaintiffs had been guilty of fraud or dishonesty. In the course of his judgment Lord Reid stated as follows in relation to reports about ongoing investigations (at p. 259):-

“What an ordinary man, not avid for scandal, would read into the words ‘complained of must be a matter of impression. I can only say that 1 do not think he would infer guilt of fraud merely because an inquiry is on foot. And, if that is so, then it is the duty of the trial judge to direct the jury that it is for them to determine the meaning of the paragraph but that they must not hold it to impute guilt of fraud because as a matter of law the paragraph is not capable of having that meaning.”

A similar view was expressed by Lord Justice Hirst in Mapp v. Newsgroup Newspapers Ltd. [1998] QB 520, to emphasize that the reference to an investigation could not reasonably be read as imputing guilt to the plaintiffs as contrasted with reasonable suspicion of guilt. In that case the court had to consider whether the reference to the suicide of a police officer in conjunction with a report of the existence of an investigation was such as to transform a reasonable suspicion of guilt into something more.

In Griffin, this Court endorsed the approach taken by Lord Reid in Lewis and by Hirst L.J. in Mapp to hold that, while the impugned article contained many statements to the effect that allegations had been raised, there was no suggestion that these allegations had been proven or that findings had been made adverse to the plaintiff.”

It is clear therefore that a mere reference to a person being under suspicion does not amount to an or inference of guilt.

4.4 The defendant submits that it now well settled law that it is unreasonable to infer guilt from a statement of suspicion. At paragraph 7 (i) of the plaintiff’s statement of claim, the meaning being contended for by the plaintiff is that the plaintiff has criminal responsibility for the robbery. The defendant submits that this contended meaning cannot arise, for a number of reasons but not least since it essentially involves the plaintiff in arguing that the publication excludes the possibility of his being entirely innocent. The headline sets out the plaintiff’s position that the robbery was nothing to do with him. The words above the headline state that he has been released but that the investigation is ongoing. In the third paragraph of the article it is stated that the plaintiff is denying any involvement in the tiger kidnap, and that the plaintiff was “forced” to stuff four laundry bags with money. Further on in the article it is stated that he was released without charge from Garda custody. It is further stated that the defendant “…understands that [the plaintiff] insists that he had nothing to do with the heist”, that the plaintiff was “forced” to drive to the Bank, that the plaintiff reported the matter to Gardai, that on the morning of the raid he arrived at the Bank distraught, and a caption refers to “…the house where [the plaintiff] was kidnapped”. In light of these examples the defendant submits that the hypothetical reasonable reader would not take the meaning contended for by the plaintiff from the article.

Plaintiffs Submissions

5.1 The plaintiff submits that the defendant is not entitled to an Order pursuant to section 14(1) (a) of the Defamation Act, 2009 as sought in the Notice of Motion. The question for determination is whether or not the words are reasonably capable of carrying the meanings contended for by the plaintiff. The plaintiff relies on Gatley on Libel and Slander, 11th ed, 2008, the learned author states as follows at page 101:-.

“Although it has been said that the question as to meaning that the words convey to the ordinary person should be a simple and straightforward one, as befits a Jaw that governs the everyday life and actions of all levels of persons in the community yet, only in a very simple case are words capable of conveying a single, clear, indisputable imputation…..Logically anterior, therefore, to the question of whether the words are capable of being defamatory in law is the question of what meaning or meanings the words are reasonably capable of bearing. Where an action for defamation goes to full trial it may be before a jury and the jury is then the arbiter, subject to the limited powers of the court of appeal of what the words do convey and whether they are defamatory. In this sense, therefore, the meaning of words is a question of fact. But it is for the judge to rule whether the words contended for are capable of bearing the meanings contended for and if so whether any of those meanings is capable in law of being defamatory. The judge’s function in this regard is no more and no less than to pre-empt perversity.”

5.2 Meaning is something peculiarly for the jury and neither party is allowed to adduce evidence of meaning. The test laid down by the Supreme Court in Quigley v. Creation Ltd. [1971] IR 269 is that a trial judge should not withdraw a question of meaning from the jury unless it is satisfied that it would be “wholly unreasonable” to leave that question to the jury. Quigley concerned a well known actor who took a libel action against the publisher of a magazine article. The actor contended that the ordinary meaning of certain words in the article was that he did not work in Ireland and that he chose to work and live in London because the rewards and opportunities there were better than in Ireland. The plaintiff actor was successful before a jury and the publisher appealed. On appeal, the publisher submitted that the relevant words and their meaning as found by the jury were incapable of being defamatory because they only amounted to a statement that the plaintiff had left Ireland to improve his financial position. In disallowing the appeal, the Supreme Court per Walsh J. stated:-

“In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libelous meaning to the words complained of. In determining this matter, the judge will construe the words in accordance with a fair and natural meaning such as would be given to them by reasonable persons of ordinary intelligence in our own community…”

5.3 In Magee v. MGN Limited [2003] IEHC 87 Mc Kechnie J. referred to the “unique” role of the jury in determining questions of meaning. That case involved an individual who had been convicted of the Brighton bombing. The plaintiff claimed to have been defamed by an assertion fifteen years later inter alia that he was not a supporter of the peace process in Northern Ireland. That case involved a different application than the application the subject matter of the motion before the Court. It was an application to strike out the plaintiff’s claim as frivolous and vexatious. McKechnie J. considered that he could not conclude at that stage of the proceedings that the plaintiff’s proceedings must fail. He stated as follows at paragraph 35:-

“…it seems to me that I cannot say at this stage of the within proceedings that the plaintiffs claim must fail. In other words that it cannot possibly succeed. In other words that before a properly representative jury he could not even argue that the imputations as alleged were defamatory of him. I cannot agree that this is necessarily so. In such altered circumstances I believe that the existence or not, as the case may be, of damage to reputation, is at least capable of argument. Such a finding, one way or the other, as Griffin J. said in Barrett v. Independent Newspaper Ltd. [1986] I.R. 13 at p. 28, is to a considerable extent, “a matter of opinion” as distinct from judgments as to actual fact and. Furthermore in my view, there is no doubt but that society’s opinion is capable in a way recognised by law of changing from time to time either to lead or to respond to events or other social changes. In my opinion, therefore given this crucial role which a jury plays on an issue such as this in a libel action, I cannot. as previously stated, conclude with certainty that right thinking members of society generally could not, despite the plaintiffs past, hold in his favor in the present proceedings.”

5.4 The plaintiff submits that the article meant that he was:-

(i) “In some way, a willing participant in the organization and carrying out of the largest bank heist in the history of the State”.

(ii) That he “in some way benefited and/or gained financially from the bank heist to such an extent as to enable him to enjoy material wealth and riches associated with expensive cars and holidays abroad”

…

(v) That he “had some inside information on the bank heist which he had not disclosed to persons in authority and/or to An Garda Síochána”.

The article includes a photograph of the plaintiff standing in front of a Ferrari and it includes captions such as “high life”. The plaintiff submits that this Court should not remove from the jury, decisions about the overall meaning of the article. This is particularly so when it has to be conceded that the average reader is drawn to large colour photographs and headlines more than to the small text of the article. It is further submitted that because the article is reasonably capable of bearing the meanings contended for by the plaintiff, the defendant’s application must fail.

Decision of Court

6.1 The within application is one brought by the defendant pursuant to s.14 (1) (a) of the Defamation Act 2009, wherein the defendant seeks orders from this Court that certain of the meanings contended for by the plaintiff at paragraph 7 of the statement of claim are meanings that are not reasonably capable of arising from the publication by the defendant on which the plaintiff sues. That is, of the five meanings contended for by the plaintiff, the defendant maintains that three of those meanings are not reasonably capable of arising.

6.2 Section 14 of the Defamation Act 2009 provides as follows:

“14. (1)The court, in a defamation action, may give a ruling:-

(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and

(b) where the court rules that that statement is reasonably capable of bearing that imputation as to whether that imputation is reasonably capable of bearing a defamatory meaning, upon an application being made to it in that behalf.

(2) Where a court rules under subsection (1) that:-

(a) the statement in respect of which the action was brought is not reasonably capable of bearing the imputation pleaded by the plaintiff, or

(b) that any imputation so pleaded is not reasonably capable of bearing a defamatory meaning, it shall dismiss the action in so far only as it relates to the imputation concerned.

(3) 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.

(4) An application under this section may be brought at any time after the bringing ofthe defamation action concerned including during the course of the trial of the action.”

6.3 The plaintiff’s statement of claim contends at paragraph 7 that, in its natural and ordinary meaning the publication meant that:-

(i) The plaintiff was a willing participant in the carrying out of the bank heist.

(ii) The plaintiff had gained financially from the heist to such an extent as to enable him to enjoy expensive cars and holidays abroad.

(iii) The plaintiff remains suspended from his duties at Bank of Ireland.

(iv) The plaintiff had not satisfied his employers that he was not a member of the group who had carried out the heist.

(v) That the plaintiff had some inside information on the bank heist.

The defendant seeks a ruling and an appropriate order pursuant to s. 14 (1)(a) of the Defamation Act 2009, that the publication by the defendant on 31st January, 2010 is not reasonably capable of bearing any of the imputations contended for by the plaintiff at paragraphs 7(i) 7 (ii) 7(v) of the statement of claim.

6.4 It is well established that a judge should not withdraw a question of meaning from the jury unless satisfied that it would be “wholly unreasonable” to leave that question to the jury. The test laid down by the Supreme Court in Quigley v. Creation Ltd. [1971] IR 269 where Walsh J. stated as follows at 272:-

6.5 In determining an application such as this it seems to me that the same principles apply. I accept therefore that the Court must take into account the “unique” role of the jury in determining questions of meaning see Magee v. MGN Limited [2003]1EHC 87 cited above.

6.6 Written words must be construed in the context in which they appear. The hypothetical reasonable man that is referred to in Jeynes v. News Magazines Limited (cited above) whilst not overly suspicious can read between the lines and determine what is actually meant by the article. There may well be phrases present that are attributable to the plaintiff which claim his innocence, however it seems to me that the fact that the article sets out the plaintiffs denial of involvement in the bank robbery does not preclude the plaintiff from alleging the meanings for which he contends. The article includes captions such as “high life” beside a photograph of the plaintiff standing in front of a ferrari. It is plain that some meaning must be adduced by the reasonable reader from the presence of such a photograph. The high life ferrari style is not normally associated with the life style of a bank clerk. By juxtaposing the photo with the text, the defendant has it seems to me very arguably suggested the plaintiff is not to be believed. Whether this is so is a matter for the jury. It seems to me that the article when viewed objectively from the viewpoint of the hypothetical “reasonable reader” is capable of giving rise to the meanings contended for at paragraphs 7(i) 7(ii) and 7(v) of the statement of claim. I am satisfied therefore that it would be unfairly prejudicial to the plaintiff to prevent the pleas contended for at paragraphs 7(i), 7(ii) and 7(v) of the statement of claim from being put before the jury at the trial of the action. In light of these findings the defendant’s application is refused.

Corrigan -v- Kevin P Kilrane and Company Solicitors

[2017] IEHC 488

JUDGMENT of Mr. Justice Robert Eagar delivered on the 26th day of July, 2017

…..

Decision

55. Section 6(2) of the Defamation Act 2009 states:-

“The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “defamation” shall be construed accordingly.”

56. There is no definition of defamation provided in legislation, however, Gatley, On Libel and Slander, 12th Edn. (2013) states as follows. ‘Defamatory’ implies a harm being caused to a person’s reputation, however:-

“there is no wholly satisfactory legal definition of the term. Three formulae have been particularly influential:-

(1) Would the imputation tend to lower the plaintiff in the estimation of right ` thinking members of society generally?

(2) Would the imputation tend to cause others to shun or avoid the claimant?

(3) Would the words tend to expose the claimant to “hatred, contempt or ridicule?”

57. Order 19, rule 28 of the Consolidated Superior Court Rules provides:-

“The court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

58. Section 34(2) of the Defamation Act 2009 provides:-

“The court in a defamation action may, upon the application of the defendant, dismiss the action if it is satisfied that the statement in respect of which the action was brought is not reasonably capable of being found to have a defamatory meaning.”

59. Section 14 of the Defamation Act 2009 states:-

“(1) The court, in a defamation action, may give a ruling—

(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and

(2) Where a court rules under subsection (1) that—

(a) the statement in respect of which the action was brought is not reasonably capable of bearing the imputation pleaded by the plaintiff, or

(b) that any imputation so pleaded is not reasonably capable of bearing a defamatory meaning, it shall dismiss the action in so far only as it relates to the imputation concerned.”

60. The court also has regard to the decision of McCauley v. Aer Lingus Ltd., Frank Feeney & Serena Wyse [2014] 3 I.R. 383. In the course of that judgment Hedigan J. stated:-

“For the purposes of considering whether to accede to an application based on O. 19, r. 28, the court must proceed on the basis that the statements of fact contained in the pleadings sought to be struck out are true and can be proved by the party.”

61. The plaintiff’s central allegation is that the email sent by the defendant’s carbon copied to the Supreme Court Office on the 25th November, 2015 is defamatory.

62. The court is satisfied that there is nothing in the email of Emma Brennan sent at 11:53 on the 25th of November, that is any way defamatory of the plaintiff. At its highest, the email could be described as terse. Correspondence between parties after a lengthy appeals process can understandably at times be terse.

63. The court is satisfied that the plaintiff may genuinely have believed what Mr. Butler had informed him about the books of appeal, but Ms. Brennan’s email did not suggest that he was dishonest in asserting that belief.

64. Legal practitioners and litigants commonly dispute who sent what document to whom in the context of litigation, particularly after waiting for three or more years for an appeal to be heard.

65. In this case, the appeal had been initiated as far back as 2nd of November, 2007 to the appeal hearing in January 2016, a period of nine years. In this Court’s view the email does not carry any imputation that one or other of the parties is a liar, is dishonest or unprofessional, it just implies there is a disagreement between the parties as to who is in possession of what documents. In her affidavit, Ms. Brennan suggests that the imputations as pleaded are unreasonable and hyperbolic and the court agrees with this characterisation of the claims in this case.

66. Further s. 18(2) of the Defamation Act 2009 says:-

“Without prejudice to the generality of subsection (1), it shall, subject to section 19, be a defence to a defamation action for the defendant to prove that—

(a) the statement was published to a person or persons who—

(i) had a duty to receive, or interest in receiving, the information contained in the statement, or

(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and

(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.”

67. It is clear that Ms. Cuddihy of the Supreme Court office had a duty to receive the information contained in the email, in circumstances where she had initiated the email correspondence. It is clear that Ms. Brennan must have believed that she had a corresponding duty to communicate the information to such person or persons.

68. Section 19(1) of the Defamation Act 2009 provides:-

“In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that the defendant acted with malice.”

69. The court is satisfied that the onus is on the plaintiff to prove that the defendant acted with malice, and the court is satisfied that the plaintiff must fail in this action.

Summary

(1) The decision of the court is that the words contained in the email and the email from Ms. Brennan to the plaintiff and carbon copied to the Supreme Court office did not contain any information which was false and that what was stated in the email was true.

(2) The court is satisfied that defence of qualified privilege is established by the defendant in relation to the statement which is claimed to be defamatory.

Decision

70. The court will dismiss the proceedings on the grounds that the statement of claim discloses no reasonable cause of action against the defendant. The court also will dismiss the proceedings on the grounds that pursuant to s. 34(2) of the Defamation Act 2009 that the statement in respect of which the action was brought in the email of the 25th of November, 2015 is not reasonably capable of being found to have a defamatory meaning.

71. The court also finds that pursuant to s. 18(2) of the Defamation Act 2009 the court finds that the statement was published to a person (namely Trish Cuddihy of the Supreme Court office) who had a duty to receive or interest in receiving the information contained in the statement and that the defendant had a corresponding duty to communicate or interest in communicating the information to such person or persons.

Gilchrist -v- Sunday Newspapers Ltd & ors Rogers -v- Sunday Newspapers Ltd & ors

[2017] IECA 190

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 21st day of June 2017

1. These appeals concern the jurisdiction of the Court to strike out part of a plaintiff’s claim for defamation pursuant to its inherent jurisdiction upon the grounds that the pursuit of such a claim is an abuse of process. In particular the appellants seek to persuade the Court that it should follow the approach of the English courts and strike out claims for damages for defamation as an abuse of process where the probable benefit to the plaintiffs, if successful, is minimal and disproportionate to the costs of the proceedings and use of court time. Particular reliance is placed on the judgment of the English Court of Appeal in Jameel (Yousef) v. Dow Jones & Co. Inc. [2005] QB 946 and explanation therein of the English Courts’ approach to striking out libel claims as being an abuse of process.

2. These appeals were heard at the same time as two appeals in relation to applications pursuant to s.14 of the Defamation Act, 2009 in 2013 defamation proceedings brought by the same plaintiffs against the same defendants in respect of which a separate judgment is being delivered by the Court today.

Background facts

3. For the purposes of these appeals it is sufficient to state that the plaintiff Mr. Gilchrist is a former member of An Garda Síochána who had attained the rank of Detective Inspector and was engaged by the force as an operative in the force’s witness protection programme. He retired from the force in 2008 with a certificate of exemplary service. The plaintiff Ms. Rogers is a psychotherapist who resides in England and provided professional services, as a psychotherapist to An Garda Síochána and in particular the witness protection programme. The plaintiffs are now married to each other.

4. The proceedings in which these appeals occur were commenced in May, 2014. Each plenary summons claims damages for defamation in respect of two sets of statements. First, statements allegedly published by the third named defendant (whilst carrying out her employment duties for the first defendant) on 28th March, 2014 to Mr. John O’Brien, a retired Detective Chief Superintendent. Second, damages for defamation in respect of statements contained in a newspaper article published by the first named defendant in the Sunday World on 30th March, 2014. There is a further claim for damages for defamation in relation to further online publication in respect of the statements in the said article.

5. Following an exchange of pleadings the defendants brought a motion in each proceeding in the High Court seeking:

1. An order pursuant to the inherent jurisdiction of the Court striking out the paragraphs in each of the plaintiffs’ statements of claim relating to the statements published to Mr. O’Brien on 28th March, 2014 on the grounds that the pursuit of the claims in those paragraphs amounts to an abuse of process.

2. Further or in the alternative, an order pursuant to the provisions of O. 19, r. 27 of the Rules of the Superior Courts striking out the same paragraphs in each statement of claim on the grounds that the said paragraphs contain pleas which are unnecessary.

6. The two motions were heard in the High Court by MacEochaidh J. at the same time as the two motions in the 2013 proceedings seeking orders pursuant to s. 14 of the Defamation Act, 2009.

7. In a short ex tempore judgment delivered on 15th March, 2016, MacEochaidh J. dismissed the application to strike out the claims in respect of the publication on 28th March, 2014. His decision was that the pursuit of those claims in the proceedings was not an abuse of process. It is not clear from the judgment whether the application pursuant to O. 19, r. 27 was pursued in the High Court. In any event it is not an issue relied upon in the notice of appeal and therefore does not require to be considered on the appeal.

8. The trial judge dismissed the applications essentially for two reasons. Firstly, having set out briefly his understanding of the abuse of process jurisdiction explained in Jameel he stated “I am not of the view that the Jameel authority is good law in Ireland”. Notwithstanding that view he continued to consider, if he was wrong in that view, whether the defendants had discharged the burden of persuading the Court in accordance with the approach in Jameel that the pleas in question should be struck out and concluded that they had not done so. In the course of doing so he stated:-

“I take the strong view that if a person has been defamed twice they’re entitled to litigate both occasions of defamation and even if they are very, very similar, and even if one of the occasions was to one person only, they are entitled to their day in Court in respect of that matter.”

9. The appellants in their grounds of appeal and submissions contend that the High Court judge erred in refusing to strike out the relevant paragraphs in the statements of claim as an abuse of process principally by reference to the line of authority in Jameel. They also rely upon the judgment in McSorley v. O’Mahony (Unreported, High Court, Costello P., 6th November, 1996) in support of following the Jameel approach in this jurisdiction. They seek an order from this Court striking out the relevant paragraphs in each statement of claim “on the grounds that the inclusion of the said paragraphs amounts to an abuse of process.” They do so in a context where they make no objection to the continuation of the remainder of the claims in relation to the article published in the Sunday World and on the internet.

10. The parties informed the Court at the hearing that there is no written judgment in this jurisdiction on what they term the “Jameel point”.

Discussion and decision

11. The claims brought by the plaintiffs are for damages for the alleged commission of torts of defamation as now defined in s. 6 of the Defamation Act 2009. Section 6(2), (4) and (5) provide:

“(2) The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “ defamation ” shall be construed accordingly.

…

(4) There shall be no publication for the purposes of the tort of defamation if the defamatory statement concerned is published to the person to whom it relates and to a person other than the person to whom it relates in circumstances where—

(a) it was not intended that the statement would be published to the second-mentioned person, and

(b) it was not reasonably foreseeable that publication of the statement to the first-mentioned person would result in its being published to the second-mentioned person.

(5) The tort of defamation is actionable without proof of special damage.”

12. It is not in dispute that each of the plaintiffs has pleaded in the relevant paragraphs in the statements of claim the making of allegedly defamatory statements by the third defendant to Mr. O’Brien on 28th March, 2014. The defences admit the making of the statements and plead (1) that the words complained of were true in substance and in fact, (2) deny certain of the meanings pleaded and (3) that they were published on an occasion of qualified privilege both at common law and pursuant to s. 18 of the 2009 Act.

13. Accordingly, it is not in dispute that each plaintiff has pleaded a claim for damages for what arguably constitutes the tort of defamation within the meaning of the 2009 Act in relation to the statements made on 28th March, 2014. The have also pleaded claims in relation to the alleged defamation by the publication of the article in the Sunday World 30th March 2014 and on the internet.

14. The trial judge in his short reasoning in relation to his rejection of the approach in Jameel referred to the constitutional right of access to the courts. That constitutional right of access to the courts is of course not an absolute right and it is well established that it may be controlled by the courts inter alia in reliance upon its inherent jurisdiction to strike out or stay proceedings which constitute an abuse of process.

15. The first question is what is the “Jameel point” or as sometimes termed “Jameel abuse of process”. It is perhaps best understood by considering the conclusion reached at para. 69 of the judgment of the Court, delivered by Lord Philips of Worth Matravers MR, in Jameel:-

“69 If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.”

16. That conclusion must be understood firstly in the context of the facts of Jameel in which a claim was made in respect of an article posted by the defendant on web servers in New Jersey. The only publication in England was a publication to five persons who had accessed the article, three of whom were connected with the plaintiff. The defendant Dow Jones did not object to the jurisdiction of the English courts. .

17. Notwithstanding that the decision in Jameel may be considered to have been influenced by a view that no substantial tort was committed in England, it appears clear from certain of the reasoning of the Court that the pursuit of a libel claim will be considered to be an abuse of process in England where the probable costs which may be incurred in the proceedings and the use of judicial and court resources will be disproportionate to the damages and vindication which may be achieved by the plaintiff if successful. This appears from the explanations given earlier in the judgment in Jameel at paras. 55 and 57:-

“55. There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more proactive. The second is the coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, in so far as it is possible to do so…

…

57. In Schellenberg v British Broadcasting Corpn [2000] EMLR 296 the claimant had settled defamation actions against the “Guardian” and the “Sunday Times” on disadvantageous terms, when it seemed likely that he was about to lose. He then pressed on with this almost identical action against the BBC. Eady J struck this out as an abuse of process. He rejected the submission that he should not do so as this would deprive the claimant of his “constitutional right” to trial by jury. He said, at p 318:

“I see no reason why such cases require to be subjected to a different pre-trial regime. It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality. Here there are tens of thousands of pounds of costs at stake and several weeks of court time. I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile. ”

He added that the overriding objective’s requirement for proportionality meant that he was bound to ask whether “the game is worth the candle”. He concluded, at p 319:

“I am afraid I cannot accept that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources.”

18. I understand from the above that the “Jameel point” is the recognition and exercise by English courts of an inherent jurisdiction to strike out as an abuse of process a libel (or a defamation) claim which may yield a plaintiff some benefit but where the probable damage to the defendants in terms of costs and the impact on court resources will be disproportionate to the probable benefit for the plaintiff in succeeding. It has subsequently been applied in England in this way. (See inter alia Noorani v. Calver [2009] EWHC 561 (QB) and Cammish v. Hughes [2012] EWCA Civ 1655 per Arden L.J.)

19. The overriding objective of the English Civil Procedural Rules (CPR) referred to by Lord Phillips at para. 55 of Jameel and by Eady J. in Schellenberg set out above is relevant to an understanding of the jurisdiction now exercised in England. Rule 1.1(1) provides that the CPR is a new procedural code with “ the overriding objective of enabling the court to deal with cases justly and at proportionate cost”. Further Rules 1.1(2)(b)(c) &(e) provide that:-

“(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable-

. . .

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

…

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”

20. Further, insofar as the obligations on the courts pursuant to s. 6 of the Human Rights Act 1998 is relied upon by Lord Phillips it is relevant to observe that there is no similar provision in the European Convention on Human Rights Act 2003 in this jurisdiction. The courts are expressly excluded from the definition of organs of the State for the purposes of the 2003 Act. Further no submission was pursued before us in reliance on the European Convention on Human Rights as implemented by the 2003 Act. Thus, it would appear that neither of the recent developments referred to by Lord Phillips in Jameel expressly apply in this jurisdiction.

21. However, the question is whether, in accordance with the principles applied in this jurisdiction, it would be an abuse of process for a plaintiff to pursue a claim for defamation where as a matter of probability if he succeeds he will obtain some benefit but where the probable benefit appears disproportionate to the costs for the parties of litigating the claim and the impact on court resources.

22. The inherent jurisdiction of the Irish Courts to restrict the constitutional right of access to the Court by striking out or placing a stay on a claim which is an abuse of process is, as already stated, well established. The plaintiffs drew attention to the summary of the established bases for striking out proceedings as an abuse of process in Hogan and White, J.M. Kelly: The Irish Constitution, 4th Ed., (Dublin, 2003) at para. 7.3.138:-

“The right to litigate must be read subject to the judicial power to strike out an action so as to prevent an abuse of judicial process. If it is established that proceedings are frivolous or vexatious or if it is clear that the plaintiff’s claim must fail, the court has an inherent jurisdiction, in addition to a jurisdiction conferred by the Rules of the Superior Courts, to stay the action, though this jurisdiction must be exercised sparingly and only in clear cases. The court may also strike out an action if it has been taken for a purpose that the law does not recognise as a legitimate use of the remedy sought [such as bringing proceedings to gain an advantage over a competitor] or if there has been an inordinate and inexcusable delay in pursuing a claim that prejudices the defendant and makes the conduct of a fair trial impossible. Moreover both the High and Supreme Courts may restrain a person from instituting legal proceedings without first obtaining the consent of the respective court where this is necessary in order to prevent an abuse of court processes or the pursuit of vexatious litigation.”

23. The appellants relied upon a test as to what might constitute an abuse of process enunciated by Costello P. in McSorley v. O’Mahony:

“It is an abuse of the process of the courts to permit the court’s time to be taken up with litigation which can confer no benefit on a plaintiff. It is also an abuse to permit litigation to proceed which will undoubtedly cause detriment to a defendant and which can confer no gain on a plaintiff.”

24. On the facts of that case prior to stating the above Costello P. had concluded that the action should be stayed on the grounds both that it was “vexatious and an abuse of the Court’s process”. He analysed two causes of action one of which by reasons of events which post dated the commencement of the proceedings no longer existed and the second from which he concluded the plaintiff could obtain “no benefit from maintaining these proceedings for the purpose of obtaining an award against the defendant”. That conclusion was by reason of an award of damages already made against another defendant, Cork Corporation in the same proceedings which the trial judge observed was not insolvent.

25. I draw attention to the fact that the test stated by Costello P. is of proceedings which can confer “no benefit” or “no gain” on the plaintiff.

26. This same test was considered by Hardiman J. in the Supreme Court in Grant v. Roche Products (Ireland) [2008] 4 IR 679 in a judgment with which Murray C.J. and Geoghegan J. concurred. The claim in those proceedings was for damages for an alleged wrongful death pursuant to Part IV of the Civil Liability Act 1961. The defendants made an open offer without admission of liability for the maximum amount payable pursuant to s. 49 of the 1961 Act and the funeral expenses and costs but without admission of liability. They then sought to have the proceedings struck out upon the basis that their continuation would be an abuse of the process of the Court.

27. Hardiman J., in considering whether or not the continuation of the claim in respect of the alleged wrongful death of the deceased would constitute an abuse of process, referred firstly to what he termed “the classic and long-established definition of an abuse of process” as being that set out by Isaacs J. in Varawa v. Howard Smith Company Ltd. (1911) 13 C.L.R. 35 at p. 91:-

“In the sense requisite to sustain an action, the term ‘abuse of process’ connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate, they are regarded as an abuse of process for this purpose …”

28. He then observed that the Varawa test was not relied upon by the defendants as it was conceded that the plaintiff had no ulterior or improper purpose in pursuing the proceedings (as is the position in these appeals) but rather that they submitted that they could meet the less onerous test derived from the judgment of Costello P. in McSorley in respect of which Hardiman J. stated:-

“This is the test that there is quite simply ‘no tangible benefit’ which the plaintiff can hope to gain by pursuing the proceedings. They are therefore, it is submitted, pointless and thus an abuse of process. In another sense they are moot by reason of this lack of tangible benefit.”

29. It therefore appears to me that on present authority, the jurisdiction of the Irish courts to strike out proceedings as an abuse of process where the plaintiff has no ulterior purpose in pursuing the claim (and it is not frivolous or vexatious or repeat litigation or bound to fail) is where a defendant establishes that there is no benefit to the plaintiff in successfully pursuing the claim. Whilst I have noted that Hardiman J. uses the phrase “no tangible benefit”, I do not understand him to use it in a sense which would include an award of damages which may be minimal or small vindication of a reputation as he considered the absence of a tangible benefit would mean, the proceedings would be pointless or moot. That is the threshold which a defendant must meet.

30. The issue must, however, be decided by reference to the plaintiff’s claim alone. It is only where a defendant can persuade a court that the plaintiff can obtain no benefit or no tangible benefit (in the sense used by Hardiman J.) from the proceedings that they may be struck out as an abuse of process. Essentially it is because the proceedings are then pointless and, in those circumstances, it would be an abuse of process to permit them to proceed and in doing so cause detriment to the defendant or abuse the use of court time.

31. What does not appear permissible on an application to strike out proceedings as an abuse of process is to conduct what is referred to in Mullis and Parkes, Gatley on Libel and Slander, 12th Ed., (London, 2015) at para. 30.48 in relation to the Jameel abuse of process as “in essence a cost-benefit calculation” between the potential probable benefit to the plaintiff if successful and probable costs and use of court time if the proceedings continue and determine whether it is proportionate to permit the proceedings to continue.

32. This conclusion is informed by the fact that the jurisdiction to strike out proceedings or a claim without a hearing on the merits is one which limits the constitutional right of access to the Courts. Also, it is of course a jurisdiction which must be exercised sparingly and only in clear cases: Barry v. Buckley [1981] I.R. 306 and Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425.

33. Accordingly, I have concluded that the trial judge was correct in deciding that the approach of the English courts, as explained in Jameel, to striking out a defamation claim as an abuse of process where the potential benefit to a plaintiff is disproportionate to the probable costs and use of court resources is not a basis upon which the Irish courts will exercise an inherent jurisdiction to strike out proceedings as an abuse of process.

34. There is no other basis upon which the claims in question may be struck out as an abuse of process. The applications, as already stated were not to strike out the entire defamation proceedings brought by each plaintiff. Rather they were to strike out only one distinct claim in each relating to the defamation alleged by the publication to Mr. O’Brien on 28th March 2014. Much emphasis was placed by the appellants upon the fact that this was a publication to one person only and that he was a person, it was to be inferred, sympathetic to the plaintiffs as they were made aware of the publication to him. The fact that it was a publication to one person only, does not detract from it potentially being a commission of the tort of defamation as defined by s. 6(2) of the Defamation Act 2009 which expressly includes in its definition publication “to one or more than one person”. Section 6(5) of the 2009 Act also expressly provides that the tort of defamation is actionable without proof of special damage.

35. I consider the trial judge was correct when he concluded:-

“. . . if a person has been defamed twice they’re entitled to litigate both occasions of defamation and even if they are very, very similar, and even if one of the occasions was to one person only. . .”.

36. It is not suggested that any provision in the 2009 Act or any principle of the law of defamation precludes the plaintiffs from pursuing claims for damages and to vindicate their good name in relation to the distinct torts alleged to have been committed by the publications on 28th March notwithstanding a similarity with the content of the statements in the articles published on 30th March 2014. Any restriction on a person’s rights to pursue each such claim is a matter for the Oireachtas.

37. The appellants have not established that these distinct claims in relation to the publications on 28th March will yield no benefit to the plaintiffs if successful. Accordingly it is not an abuse of process on the facts herein for the plaintiffs to pursue the claims pleaded in relation to the publications on 28th March 2014 together with the other claims in the proceedings.

38. Accordingly, I would dismiss the appeals.

John McAuley -v- Brenda Power & Anor

[2012] IEHC 174

JUDGMENT of Kearns P. delivered on the 27th day of April, 2012.

This is a defamation action brought by the plaintiff in respect of the publication of an article written by the first named defendant in the Sunday Times Newspaper in its edition dated 1st March, 2009. In the application presently before this Court the defendants seek by motion to have the plaintiffs claim struck out or dismissed, either under O. 19 of the Rules of the Superior Courts or under the inherent jurisdiction of the court or on the basis that the words published are not reasonably capable of having the defamatory meanings ascribed to them in the statement of claim.

Order 19, rule 28 provides:-

This case is one which pre-dates the commencement of the Defamation Act 2009 which contains a provision in the following terms:-

“14.- (1) The court, in a defamation action, may give a ruling-

(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and

(b) (where the court rules that the statement is reasonably capable of bearing that imputation) as to whether that imputation is reasonably capable of bearing a defamatory meaning, upon an application being made to it in that behalf.

(2) Where a court rules under subsection (1) that-

(a) The statement in respect of which the action was brought is not reasonably capable of bearing the imputation pleaded by the plaintiff, or

(b) That any imputation so pleaded is not reasonably capable of bearing a defamatory meaning, it shall dismiss the action insofar only as it relates to the imputation concerned.”

In Griffin v. Sunday Newspapers Ltd [2011] IEHC 231, this Court accepted the contention of the parties in that case that this particular section in the Defamation Act 2009 did nothing more that codify existing legal principles and did not, of itself, constitute any significant extension of those principles.

This is evident from decisions such as McGarth v. Independent Newspapers (Ireland) Ltd. [2004] 2 IR 465, in which Gilligan J. also dealt with a preliminary issue as to whether an article was capable of having a defamatory meaning or any of the defamatory meanings pleaded in the statement of claim so that he might dismiss the claim m circumstances where he concluded the article or words were not so capable.

The present application may thus be best understood as one of a sui generis character peculiar to the law of defamation. While Order 19 has been invoked on the basis that the claim is frivolous or vexatious, that case has not been pressed on behalf of the defendants.

THE ARTICLE

The article in question appears under the by-line “A Star is born, but not on Camera”. The article was accompanied by a large photograph of the plaintiff and his partner, Ms. Jurgita Jachimaviciute.

The article was written in the aftermath of certain proceedings brought by the plaintiff in the Circuit Court in which he claimed damages for breach of contract against Iris Halbach, a midwife, and Mount Carmel Hospital after being asked to stop filming the labour of his partner, Jurgita Jachimaviciute in that hospital in December 2006.

The original Irish Times account of the court proceedings records that in evidence the plaintiff told the Circuit Court that the couple’s private consultant, Mr. Gerry Rafferty, had told them months before the birth that he saw no problem with filming the birth of their child. The plaintiff also gave evidence to the effect that he had obtained permission for this purpose from hospital staff. While he had no filming contract in writing, he considered he had a legal agreement with the hospital to permit the filming to proceed. However, while claiming that he had been prevented from filming, the plaintiff in the course of cross examination conceded that all Ms. Halbach, who was assisting with the baby’s birth on that occasion, had said was: “Maybe we could hang on a little with the filming until the baby is all recovered, if you don’t mind.”

This remark was made apparently in the context that Ms. Jachimaviciute was undergoing a caesarean delivery and a complication had arisen. Ms. Halbach had asked for a momentary stop in filming while she carried out a procedure to clear the baby’s airways after delivery. A further contemporary account of the Circuit Court case in the Irish Independent recorded that, about 40 minutes later, the plaintiff was filming his daughter in the hospital créche when Ms. Halbach entered the room and again allegedly asked him to stop filming.

At the conclusion of the plaintiff’s case in the Circuit Court, the trial judge, his Honour Joseph Matthews, acceded to a defence application that the case be dismissed and this application was successful. The learned Circuit Court Judge in the course of his ruling characterised the events as being an “emergency medical procedure” and further held that the plaintiff’s evidence was entirely incapable of being considered as amounting to a breach of contract. It is difficult to see how he could have found otherwise.

In the course of her article Ms. Power wrote:

“If a man in the delivery room has any purpose, which is debatable anyway, it’s to help to reassure and offer his hand to be squeezed, not to stick a camera in your face and ask if you’re ready for your close-up. John McAuley confirms every suspicion I ever had about the kind of man who films a birth. Last week McAuley failed in a law suit to win compensation after a midwife dared to interrupt him as he attempted to record ‘every precious moment of the first minutes of his baby’s life’. McAuley brought the claim against Iris Halbach and Mount Carmel Hospital after being asked to stop filming the labour of Jurgita Jachimaviciute in December 2006. A judge threw out the €38,000 claim for breach of contract. McAuley argued that he didn’t want any money, and his beef was that Halbach gave no explanation for filming to stop. But he didn’t include in his action the consultant who had given approval for the filming and who, as the most senior member of the medical team, would have been accountable had anything gone wrong.

McAuley aside, I’ve always suspected that there is a type of man who just can’t get his head around the fact that he is not, actually the most important person in the room when his wife or girlfriend is having a baby. He can’t face being an extra, there on sufferance. He has to be the director, the producer, the star. So he takes in a camcorder to film the birth. This is not, trust me, because friends and family are gagging to view the gory details, but because it wrests back control for him. It puts him at the centre of the action, and turns the event into another episode in his personal drama, in which women are bit-players.

McAuley’s daughter Simone was born by emergency section, and she needed emergency intervention to get her breathing. You’ve got to wonder how many more ’emergencies’ would have been required to merit McAuley’s full attention. There would have been silence in the theatre when she emerged, no sound of a cry because her airways were blocked with mucus and needed suctioning. Her mother would have been listening anxiously for the baby’s first wails and her father, you’d imagine, would have had more on his mind than camera angles and zoom positions – like comforting and reassuring her, for a start. But McAuley kept filming.

He says he wasn’t getting in the midwife’s way, as she hastened to get the baby breathing, but he was definitely getting up her nose. Her polite request that he ‘hang on a little with the filming until the baby is all recovered, if you don’t mind’ – which he couldn’t dispute, since he’d recorded it himself- was probably prompted more by astonishment at his behaviour than medical necessity. In the circumstances I’d say she was commendably restrained. Yet he claimed this remark proved she was ‘irrational’. Presumably a ‘rational’ person would have realised that this occasion was all about McAuley, and not about the tiny girl struggling to breathe, or the woman on the operating table with five layers of skin and muscle tissue sliced open.

Midwives work too hard, and their task is too important, to concern themselves with tiptoeing around the sensitivities of a father with a lawyer on speed-dial. The award of her legal costs won’t compensate the midwife that McAuley sued for the trauma of that trial. The midwife on duty really should have absolute power to evict anybody from the delivery room with no fear of legal consequences.

Most men come away from witnessing their child’s birth humbled, moved and in awe. The majority of chaps, given the choice, would rather wait outside with a box of cigars and a mobile phone to call the grannies.

But a small number of men clearly can’t accept the lowliness of their role in such a monumental enterprise, and do their damnedest to project themselves centre stage. For the sake of staff, and babies, and women who may not feel able to resist the will of such men, they may have to be run out of delivery rooms by the midwives in charge.

They won’t be hard to spot: they’ll be the guys with the laminated birth plans, the store of high energy bars – for themselves- and those goddamned camcorders.”

In the statement of claim it is contended that these words published by the first and second named defendants were in their natural and ordinary meaning and/or by way of innuendo, meant or were intended to mean the following:-

“(a) That the plaintiff showed no consideration or care for his partner;

(b) That the plaintiff was insensitive and/or had no concern for his partner or their new born baby in an alleged life threatening situation;

(c) That the plaintiff failed to reassure or comfort his partner during an alleged medical emergency;

(d) That the plaintiffs newborn baby had failed to breathe while the plaintiff continued filming;

(e) That the plaintiff acted immorally and irresponsibly;

(f) That the plaintiff was motivated by selfish self interests with no appreciation of his role at the delivery of his baby.”

It is further contended that the article caused the plaintiff extreme distress, embarrassment and humiliation and brought him into odium, ridicule and contempt by right thinking members of society, and gravely injured his character, credit and reputation.

DECISION

The test on an application of this nature has been outlined in a number of English cases, notably, Lewis v. Daily Telegraph Ltd [1964] A.C. 234, Charleston v. Newsgroup Newspapers Ltd [1995] 2 AC 65 and Mapp v. Newsgroup Newspapers Ltd [1998] QB 520. Rather than extrapolate passages from those cases I propose instead to refer to the passage in the judgment delivered by Gilligan J. in McGarth v. Independent Newspapers (Ireland) Ltd. [2004] 2 IR 465, referred to above, which to my way of thinking set out the legal position in admirably lucid terms. At p. 433 the learned Judge stated as follows:-

“The issue which I have to determine is whether the words are capable of bearing a particular meaning and counsel for the defendant has conceded that he is not entitled to re-argue this issue again before the trial judge if unsuccessful in this application. Counsel for the defendant accepts that he asks the court to determine the issue as a preliminary issue and that that has put the issue in the same position as if it was being determined during the course of the trial by the trial judge. At the trial it is for the judge to decide as a matter of law whether the words are capable of bearing a defamatory meaning on the principle that it is for the court to say whether the publication is fairly capable of a construction which would make it libellous and for the jury to say whether in fact that construction ought, under the circumstances, to be attributed to it. In determining whether the words are capable of a defamatory meaning the court is obliged to construe the words according to the fair and natural meaning which would be given to them by reasonable persons of ordinary intelligence and will not consider what person setting themselves to work to deduce some unusual meaning might extract from them. The court should avoid an over elaborate analysis of the article because the ordinary reader would not analyse the article in the same manner as a lawyer or accountant would analyse documents or accounts. In deciding the issue I am satisfied that I am entitled to consider the impression that the article has conveyed to me personally in considering what impact it would make on the hypothetical reasonable reader and lastly, the court should not take a too literal approach to its task.”

Applying those principles to the instant case I am satisfied that the meanings contended for para. 6 of the statement of claim are in some respects clearly incapable of having a defamatory meaning. The assertion that the words meant that the plaintiffs newborn baby had failed to breathe while the plaintiff continued filming cannot be characterised as importing a defamatory meaning. Nor in my view can it seriously be argued that the article suggested or meant that the plaintiff acted “immorally”.

However, it does seem to me that in the overall context the remaining meanings contended for are capable of having a defamatory meaning, although of course it will ultimately be for a jury to determine if in fact the words ought to have or do have the meanings contended for on behalf of the plaintiff. Beyond so holding, I do not feel it is my function to add anything further by way of comment or otherwise.

In the course of submissions to the Court, Mr. Dermot Gleeson, S.C. for the defendants, argued that, even if the Court found that the article or parts of it were capable of a defamatory meaning, that his application should nonetheless succeed on the basis that the contents of the article were either privileged as a report of court proceedings or were matters of fair comment. Various passages from Gatley’s Libel and Slander, 11th Ed. were cited to this effect.

The first contention can be quickly dealt with. The article in the Sunday Times, unlike the contemporaneous accounts of the court case in the press generally, was not and did not purport to be an account of those proceedings. Rather it was a piece of commentary on the plaintiff which was prompted by the information disclosed by the bringing of the proceedings themselves. It can not therefore enjoy the privilege attaching to a contemporaneous report.

Insofar as any defence of fair comment is concerned, this contention raises the interesting point as to whether, on an application of this nature, the Court can go further than to hold that the article and words are capable of a defamatory meaning to hold further that a defence of fair comment must necessarily succeed. I do not believe that is the Court’s function at this point in the proceedings. The defence of “fair comment” is precisely that: a defence. In much the same way as the Statute of Limitations can be raised as a bar or defence to a good cause of action, it seems to me that the defence of fair comment in a defamation case is in much the same position.

Perhaps more importantly, I do not accept the contention advanced by counsel on behalf of the defendants that the article was all part of a piece with the court case which claimed damages for breach of some supposed contract. It was, to say the least of it, an extraordinary claim to have brought and, as pointed out by counsel for the defendants, there was no appeal from the ruling and decision of the learned Circuit Court Judge. However, any comments made about the wisdom or otherwise of bringing such a legal claim must be distinguished from commentary on the propriety of the plaintiff’s actions and behaviours while attending at the birth of his child. It is Ms. Power’s commentary on the latter which is the subject matter of the plaintiff’s complaint. What might be fair comment in the case of the former may not be such when applied to a father who is present at the birth of his child and who, with the consent of his partner and medical personnel, is permitted to record the birth of his child. Quite why such filming was permitted by the hospital to the degree it was is quite beyond me but that is not an issue with which this Court is concerned.

Furthermore, a defence of fair comment may in turn be defeated by malice or an absence of bona fides and, while a reply was not delivered to the defence in this case, it is clearly pleaded at para. 5 of the statement of claim, that the article in question was “malicious”. For that reason and notwithstanding that no reply to the defence has been delivered in this case, I do not regard such omission or failure as undermining the plaintiffs capacity to join issue with the defendants on any defence that may be raised during the course of the trial to the effect that a defence of fair comment must succeed. In the course of argument before this Court, counsel for the plaintiff suggested that the journalist in question had an agenda of gender bias when writing the article sufficient to defeat any claim of fair comment. He suggested that the purpose and intention of the article was to make a category of men, and in particular this plaintiff, look like ‘idiots’. The Court has no intention of expressing any view in relation to any such contention, other than to say that the mere fact that such areas of dispute may arise at trial strongly reinforces my view that the Court, on an application of this nature, should confine itself strictly to the issue as to whether the words complained of are capable of bearing a defamatory meaning.

The Court will therefore strike out those portions of the statement of claim which, as already indicated, it regards as incapable of bearing a defamatory meaning, but will otherwise decline to grant the relief sought by the defendants.

Dardis & anor -v- Bus Eireann / Irish Bus

[2016] IEHC 621 (08 November 2016)

URL: http://www.bailii.org/ie/cases/IEHC/2016/H621.html

Cite as: [2016] IEHC 621JUDGMENT of Mr Justice Max Barrett delivered on 8th November, 2016.

I. Facts

1. Bernadette Curtis (“Ms Curtis”) and her sister, Joan Dardis (“Ms Dardis”), are regular visitors to the Shrine of Our Lady of Knock. On 23rd June, 2013, they went with eight family members to Busáras. Among those family members was Ms Dardis’ adult daughter, Jennifer (“Ms Jennifer Dardis”). The intention of the family-party was to take a bus from Busáras to Athlone, and to change bus there for Knock.

2. Ms Curtis and Ms Dardis were travelling on free travel passes. Ms Curtis is entitled to such a pass as she has a disability. Ms Dardis was travelling on a carer’s pass; however, the person for whom she cared had, regrettably, passed away some years previous to June, 2013, and a carer’s pass is only good for free travel when the holder of same is travelling with the person for whom s/he cares. So Ms Dardis had no entitlement to travel on the carer’s pass.

3. Ms Jennifer Dardis had her two children with her, one a toddler, the other nine years old. When the family party got on the bus, the toddler was resting on her mother’s shoulder. So Ms Jennifer Dardis asked if she could settle the child before paying the driver. He agreed to this and continued to take fares from other passengers who were boarding. When, after a few minutes, Ms Jennifer Dardis had not returned to pay the fares owing, the driver went down the bus to collect those fares.

4. According to both Ms Curtis and Ms Dardis (no-one else from the family-party gave evidence), Ms Jennifer Dardis had by this time sent her son up the bus with a €50 note to pay the driver; however, he refused to take money from a child. The driver, a soft-spoken gentleman, who gave evidence and who did not strike the court as a person who would be roused swiftly to temper, denied that he was ever approached by the nine-year old or refused to take payment. The court believes him and does not believe that Ms Jennifer Dardis ever sent her son up the bus with a €50 note.

5. In terms of what the driver allegedly did next, there was a striking inconsistency in the evidence offered by the two sisters. Ms Curtis claims that the driver came down the bus, roused to a temper by the fact that a nine year-old had been sent to pay him, asked to see the passes that the older passengers were using, and then said words to the effect of ‘Right, all of you off the bus.’ Ms Dardis’ account was different. She said the driver came down the bus and asked Ms Jennifer Dardis to pay. (This is also what the driver says he did). At this point, according to Ms Dardis, Ms Jennifer Dardis indicated that she was not going to pay for her children.

6. It is not clear why, after getting on the bus, Ms Jennifer Dardis had an apparent change of mind as to the need to make payment. The evidence of both appellants is that Ms Jennifer Dardis asked the driver if she could settle the child before paying, a request to which the driver politely acceded. Yet a few minutes later, according to Ms Dardis, Ms Jennifer Dardis was telling the driver that she was not obliged to pay the fares that he was seeking. In any event, according to Ms Dardis, after the driver met with Ms Jennifer Dardis’s refusal to pay, he asked to see the passes that various family members were using. Then, she claims, he erupted into a temper and said words to the effect of ‘Right, all of you off the bus’.

7. In short, according to Ms Curtis, the driver came down the bus in a temper because Ms Jennifer Dardis’ son had the audacity to offer payment. But, according to Ms Dardis, the driver came down the bus, sought payment of Ms Jennifer Dardis, and then erupted into a temper.

8. The inconsistencies do not end there. According to Ms Curtis, after the driver directed everyone to get off the bus, they did so. Yet she went on to say that when the Gardaí were called to resolve the altercation that had now arisen between the driver and the family group, she (Ms Curtis) was still on the bus. Ms Dardis’s testimony was that when the driver asked everyone to get off the bus, they did. Which sister’s evidence is to be preferred? In fact, the court prefers the evidence of the driver which was entirely coherent, contained no inconsistencies, and chimes with common-sense. He stated simply that he came down the bus, asked for payment, was refused payment, and went to fetch an inspector.

9. Around this time, the Gardaí were called for, presumably at the behest of the inspector, to resolve the difficulty that had now arisen. The evidence of the garda who attended at the scene, evidence that the court accepts as entirely true, was that, when he arrived, the family-party was still on the bus and that he (quite sensibly) asked them to get off so that matters could be resolved discreetly instead of in front of all the other passengers. The family-group acceded to this invitation and got off the bus. The fact that they were still on the bus at the time the garda arrived gives lie to the suggestion that the driver put the family-group off the bus.

10. The discussion that followed with the garda was calm and there was no great altercation. Both driver and garda indicated in evidence that at no stage was there ever any offer by any of the family-party to hand over the €50 that Ms Jennifer Dardis (according to both Ms Curtis and Ms Dardis) had allegedly handed to her child, only to deny moments later (according to Ms Dardis) that she was liable to pay a fare. Had there been such an offer, the driver indicated, he would simply have accepted the payment and headed off with the bus. But no payment being forthcoming, the family party could not travel as a complete party on the bus. So the bus left without them and they took a taxi to Heuston Station where they caught the train to Claremorris and travelled together to Knock.

11. What does the court accept to be the true facts of what occurred? It has indicated some of its conclusions above but it is as well to re-state them here:

(1) the family-party boarded the bus;

(2) Ms Jennifer Dardis asked if she could settle her infant child before paying such fares as were due;

(3) the driver acceded to this request;

(4) no payment being forthcoming, the driver subsequently went down the bus to collect the fares due from Ms Jennifer Dardis;

(5) Ms Jennifer Dardis’ son was not sent up the bus with a €50 note to pay the fares owing;

(6) Ms Jennifer Dardis denied that she was liable to make any payment for her children;

(7) the driver then got off the bus to fetch an inspector;

(8) the driver did not at any time explode in temper;

(9) the driver did not put the family-party off the bus;

(10) after the driver dis-embarked, the family-party remained on the bus;

(11) the Gardaí were sent for by Bus Éireann;

(12) the garda who attended at the scene got on the bus and asked the family-party to disembark so that matters could discreetly be discussed;

(13) the family-group acceded to this invitation and got off the bus;

(14) the discussions that followed were polite and restrained;

(15) at no time in the course of these discussions was any payment proffered;

(16) due payment not having been made, the family-party could not travel as a complete party and the bus left without them;

(17) the family-party subsequently made its way to Knock by train instead.

II. Ms Curtis’ Claims.

12. Ms Curtis comes now to court claiming that Bus Éireann, its servants or agents are guilty of the wrongs identified below. These wrongs were unsuccessfully sued upon in the Circuit Court and the matter now comes before this Court on appeal.

(a) A failure to inquire quietly and politely of the circumstances.

Having regard to the conclusions of fact reached above, the court considers no such failure to arise.

(b) The making of innuendoes that Ms Curtis had failed or refused to purchase a ticket to travel on the bus.

Having regard to the conclusions of fact reached above, it appears to the court that the focus of the events that transpired was Ms Jennifer Dardis’ refusal to pay for her children. As to the family’s getting off the bus, this was a sensible suggestion by the garda who attended at the scene; he invited the family-party to disembark so that he could get to the bottom of matters discreetly; as the family-party were travelling as a party it was natural that they would disembark together; and they acceded to what they perceived as an invitation. The court does not consider that any innuendo was made at any point that Ms Curtis had failed or refused to purchase a ticket to travel on the bus. Even asking her to produce her free travel pass for checking did not involve any such innuendo; many people are often asked to produce a ticket or bus-pass when travelling on public transport and no-one thinks anything of it.

(c) A failure to take any or any reasonable care for Ms Curtis.

Having regard to the conclusions of fact reached above, there is no basis for this assertion.

(d) A failure to implement a system of surveillance, management or control of their premises and vehicles in order to prevent the type of incident that in fact occurred

This amounts in effect to a contention that Bus Éireann should have a system in place whereby young mothers are refused permission to settle down infant children on a bus before they furnish a bus-fare. The court must admit to some surprise that such an ideal would be contended for. Certainly the court finds no legal failing that such a system does not pertain. If anything, the driver in this case is to be commended for his politeness in allowing a young mother to board a bus and settle a child down, rather than refusing her permission to board until full payment was made, as he was perfectly entitled to do.

(e) Injuring Ms Curtis’ credit, character and reputation, subjecting her to scandal, ridicule and contempt, and causing her to suffer shame, embarrassment, humiliation, mental distress, loss, damage, convenience and expense.

Having regard to the conclusions of fact reached in Part I, it appears to the court that the focus of the events that transpired was Ms Jennifer Dardis’s refusal to pay for her children. Ms Curtis was not the focus of attention. As to the family’s getting off the bus, this was a sensible suggestion by the garda who attended at the scene; he invited the family-party to disembark so that he could get to the bottom of matters discreetly; and they acceded to what they perceived as an invitation.

Bus Éireann contended that, given a single public order offence of which Ms Curtis was convicted in the past, she has little or no reputation that could be sued upon in defamation in any event. This aspect of matters is considered later below.

(f) Wrongfully, and in breach of contract, in breach of representations made and warranties given, Bus Éireann, its servants or agents, failed, refused and/or neglected to comply with the terms and conditions attached to the use of free travel passes, acting in a manner at variance with the representations and statements made regarding the use of free travel passes.

Ms Curtis was entitled to travel on her free travel-pass and, notwithstanding what occurred, could have gone to Athlone (and then Knock) on the bus by herself. She elected not to do so when the rest of the family-party were not travelling with her. But that she elected so to proceed does not yield the conclusion that Bus Éireann is guilty of the above-mentioned wrongs, and as a matter of law they are not.

(g) By reason of the matters aforesaid, defamation, negligence, breach of duty, breach of contract and misrepresentation, as a consequence of which Ms Curtis has suffered various types of injury.

Having regard to all of the various conclusions reached above, there is no basis in fact or law for any of these alleged wrongs.

III. Ms Dardis’ Claims.

13. Ms Dardis comes to court claiming that Bus Éireann, its servants or agents are guilty of the wrongs identified below. These wrongs were unsuccessfully sued upon in the Circuit Court and the matter now comes before this Court on appeal.

(a) A failure to inquire quietly and politely of the circumstances.

Having regard to the conclusions of fact reached above, the court considers no such failure to arise.

(b) The making of innuendoes that Ms Dardis had failed or refused to purchase a ticket to travel on the bus.

Ms Dardis was travelling on a carer’s pass, but, as of 23rd June, 2013, the person for whom she cared had, regrettably, passed away some years previously, and a carer’s pass is only good for free travel when the holder of same is travelling with the person for whom s/he cares. In other words, Ms Dardis failed to purchase a ticket to travel on the bus when she ought to have done so.

(c) A failure to take any or any reasonable care for Ms Dardis.

Having regard to the conclusions of fact reached in Part I, there is no basis for this assertion.

(d) A failure to implement a system of surveillance, management or control of their premises and vehicles in order to prevent the type of incident that in fact occurred.

(e) Injuring Ms Dardis’ credit, character and reputation, subjecting her to scandal, ridicule and contempt, and causing her to suffer shame, embarrassment, humiliation, mental distress, loss, damage, convenience and expense.

As mentioned above, Ms Dardis was travelling improperly on a carer’s pass. She had failed to purchase a ticket to travel on the bus even though she ought to have done so. Even had the driver pointed directly at her and said ‘You have not paid your fare when you ought to have done so’, something the driver never did, he would have been entirely correct in such an assertion.

Bus Éireann contended at the hearing that, given a multiplicity of dishonesty offences of which Ms Dardis was convicted in the past, she has little or no reputation that could be sued upon in defamation in any event. This aspect of matters is considered later below.

As mentioned above, Ms Dardis was travelling improperly on a carer’s pass. She had failed to purchase a ticket to travel on the bus even though she ought to have done so. She therefore had no entitlement to travel on the bus.

(g) By reason of the matters aforesaid, defamation, negligence, breach of duty, breach of contract and misrepresentation, as a consequence of which Ms Curtis has suffered various types of injury.

14. Having regard to all of the various conclusions reached above, there is no basis in fact or law for any of the wrongs alleged by Ms Dardis to have been done to her.

IV. The Decision in Watters

15. Under s.6(2) of the Defamation Act 2009, the tort of defamation consists of “the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person).” Section 2 of the Act of 2009 defines a “defamatory statement” as “a statement that tends to injure a person’s reputation in eyes of reasonable members of society”. Bus Éireann queried at the hearing of the within appeal whether either of Ms Curtis or Ms Dardis has much, if any reputation, given Ms Curtis’ conviction for a single public order offence in the past, and Ms Dardis’ conviction for a multiplicity of dishonesty offences in the past. Counsel for each of Ms Curtis and Ms Dardis relied on the decision of the Circuit Court in Watters v. Independent Star Ltd. [2010] IECC 1 in support of the contention that, notwithstanding these convictions, each of Ms Curtis and Ms Dardis enjoys, at the least, a ‘residual reputation’ that can be sued upon in defamation.

16. In Watters, the plaintiff was serving two sentences of imprisonment for certain child pornography offences, these being offences that rightly attract very considerable public opprobrium. He sued for defamation following publication of a newspaper article which alleged that he had been engaged in a “seedy” and “weird” relationship with another prisoner who had attracted a certain notoriety for the offences he had committed. It was claimed that the men had been “alone in the showers” and “that no-one ever caught them doing anything” but noted that it had been “suggested that something might be going on”. The plaintiff claimed that there was a defamatory innuendo that he had been engaged in an “illicit homosexual relationship” with the other prisoner and was not sincere in seeking rehabilitation in respect of his addiction to child pornography.

17. Counsel for the defendant in Watters relied on Australian authority (Rivkin v. Amalgamated Television Services PTY Limited (2001) NSWSC 432) to argue that it is not defamatory in this day and age to say of a person that s/he is engaged in lawful sexual activity with another adult. In the Circuit Court, Matthews J. found that there were distinctive reasons for identifying a defamatory dimension to the allegations of homosexual conduct in that case, viz. (1) the prison-rule breaking aspect of the acts involved, (2) the notorious character of the alleged associate and (3) the hypocritical stance implicitly assigned to a plaintiff who had “sought in particular with…family members who had supported him to be truthful and honest with respect to his relationships with people and his behaviour in prison”.

18. Subtracting elements (1) to (3), it is clear that Matthews J. did not question the general proposition that it is not defamatory to allege that a person engages in lawful sexual activity. And, if the court might express an obiter opinion, rightly so. The enlightened general perception of homosexuality evidenced, inter alia, by the approval of the 34th Amendment of the Constitution, appears to this Court to have the necessary consequence that no defamation can nowadays arise in an allegation that (i) a person engages in some lawful sexual activity, and/or (ii) has a particular sexual orientation, save, in each case, where such allegation involves innuendo, e.g., as to dishonesty. Thus, Reynolds v. Malocco [1999] 2 IR 203, must, it seems to the court, be seen as, at the least, no longer correct in its contrary findings. If language is a living thing, so too are the predominant mores and opinions shared by “reasonable members of society”. Of course, the particular significance of Watters in the context of the within proceedings is in the findings of Matthews J. as to ‘residual reputation’, viz:

“Although he has suffered a substantial loss of reputation the Plaintiff cannot reasonably be said to be in the same category as a convicted prisoner who refuses to accept his guilt, continues to deny all offences and do absolutely nothing but serve a sentence under protest of innocence with no remorse, contrition, acceptance of wrongdoing or any intention to rehabilitate or not re-offend. There is therefore in my view in this Plaintiff a residual ‘reputation’ capable of being damaged by the nature of the allegations suggested in the [impugned] article….He has because of the manner in which he has met the case against him in the Circuit Criminal Court a residue of reputation that is capable of being damaged and fits into a category of prisoner who is different in degree, if not in kind, to those who, in similar circumstances, simply deny all wrongdoing despite their conviction.”

19. The court does not know how Ms Curtis or Ms Dardis met the criminal charges that were successfully laid against them in the past. Neither, however, does the court consider that one or more public order or dishonesty convictions, now of some years’ vintage, of themselves necessarily deprive a person of reputation sufficient to ground an action for defamation at some later stage, albeit that the existence of a criminal record may impact (less so perhaps in the case of a single public order conviction, more so certainly in the case of a multiplicity of dishonesty offences) on the amount of damages that might be awarded if the various elements of defamation are established, and here, of course, they have not been established. For the reasons identified previously above, the court does not consider that any of the incidents that occurred at Busáras on 23rd June, 2013, and of which each of Ms Curtis and Ms Dardis separately makes complaint, involved the publication of a defamatory statement concerning either of them to one or more other persons.

V. Damages Sought by Ms Curtis.

20. Ms Curtis seeks, inter alia, damages for (1) defamation, negligence and breach of duty, (2) breach of contract and/or misrepresentation, (3) wrongful interference with Ms Curtis and breach of her constitutional right to a good name and privacy; (4) loss of reputation in the eyes of right-thinking members of society. Having regard to all of the various conclusions reached above, all of Ms Curtis’ claims for damages are refused.

VI. Damages Sought by Ms Dardis.

21. Ms Dardis seeks, inter alia, damages for (1) defamation, negligence and breach of duty, (2) breach of contract and/or misrepresentation, (3) wrongful interference with Ms Dardis and breach of her constitutional right to a good name and privacy; (4) loss of reputation in the eyes of right-thinking members of society. Having regard to all of the various conclusions reached above, all of Ms Dardis’ claims for damages are refused.

VII. Costs.

22. The court will hear the parties on the issue of costs.

Gilchrist -v- Sunday Newspapers Ltd & ors

Rogers -v- Sunday Newspapers Ltd & ors [2017] IECA 191

Judgment of Ms. Justice Irvine delivered on the 21st day of June 2017

1. This judgment relates to two appeals brought by the defendants/appellants against the order and judgment of the High Court (MacEochaidh J.) of the 15th March, 2016. In particular, it addresses the ex tempore judgment of the High Court judge which refused an application brought by the defendants in both actions seeking orders pursuant to s. 14(1)(a) and (b) of the Defamation Act 2009 (“the 2009 Act”).

Background

2. The plaintiff/respondent in the first of the above-entitled proceedings, Mr. Patrick Benedict Gilchrist (“Mr. Gilchrist”), is a former member of An Garda Síochána who, prior to his retirement, had attained the rank of Detective Inspector. It is common case that whilst so employed he was involved in the State’s Witness Protection Programme (“WPP”).

3. Ms. Isabel Rogers (“Ms. Rogers”), the plaintiff in the second of the above-entitled proceedings, is a psychotherapist by profession. It does not appear to be in dispute that she was retained for the purpose of providing professional services in the context of the State’s WPP. Mr. Gilchrist and Ms. Rogers are now married to each other and reside in England.

4. By separate proceedings each issued on the 22nd October, 2013, Mr. Gilchrist and Ms. Rogers commenced proceedings against Sunday Newspapers Limited, its editor, Mr. Colm McGinty, and Ms. Nicola Tallant, a journalist employed by Sunday Newspapers. They are claiming damages for defamation arising out of articles authored by Ms. Tallant which were published in the Sunday World on the 9th and 16th June, 2013. For the purposes of this judgment, I will refer to the three defendants as “the Newspaper” as nothing turns on the individual involvement of the three defendants.

5. Insofar as these appeals relate to applications brought by the Newspaper concerning the meanings which Mr. Gilchrist and Ms. Rogers seek to impute to the article of the 16th June, 2013, I have decided to reproduce the text of that article in full immediately below. For reasons to do with the pleadings which I will later explain, some of the text appears in italics, some in bold print and other parts have been underlined. I will then describe some of the more significant features of the earlier article insofar as the principal complaint made on this appeal is that the High Court judge erred in law when he concluded that the article of the 16th June was reasonably capable of bearing the imputations and meanings pleaded by the plaintiffs by reference to the “get up”, photographs, headlines and text of the earlier article of the 9th June, 2013.

Article of 16th June, 2013

6. The article of the 16th June, 2013 appears below a photograph of Ms. Rogers and Mr. Gilchrist with the following headline and text:

“Force faces investigation on spending”

“The Garda Síochána have been given two weeks to disclose a raft of receipts and documents relating to monies alleged to have been spent by the Special Detective Unit to protect State witness Dave Mooney.

The State has to furnish the details of its spending, including fees paid to a “doctor” who is not registered on the medical councils in Ireland or the UK and who went on to marry Mooney’s Garda handler.

The High Court has ordered the discovery of all documents, including the bills charged by therapist Isabel Rogers who, it is claimed by Mooney, was passed off as a doctor to examine him.

Last week the Sunday World revealed how Rogers and former top cop Benny Gilchrist are at the centre of the case.

Divorced

It is understood Gilchrist later left his wife, divorced and married Rogers.

The investigation into funds and expenses is believed to have examined how the pair travelled first-class around the world and stayed in five-star hotels with other SDU officers at the expense of the State.

During the trial of CIRA extortionists Billy Clare and Martin Kelly it was claimed that almost €40,000 was spent on the State witness Mooney.

However, the businessman disputes this. He says he lived for about €130 a week in safe houses as he waited to give evidence and had to make that stretch to grocery shopping, medical supplies and even his clothing.

He is taking the case because he says he was promised a Green Card to go to the US and a new identify after his evidence helped successfully jail Kelly and Clare, but instead he says he got nothing and is still living in Ireland in fear for his life.”

Article of 9th June, 2013

7. The earlier article of the 9th June, 2013 is what can only be described as a colourful, eye catching report spread over two pages with approximately one third of the total area given over to the text of the article. There are two photographs of Ms. Rogers, one with Mr. Gilchrist and one of her on her own. Beside the latter photograph is the following headline: “PROBE: Isabel Rogers is not registered with the medical councils in either Ireland or England (left) with Benny Gilchrist”. There are three photographs of Mr. Gilchrist. Alongside one of these is the caption: “STUNNED: Gilchrist refused to comment”. There is also a photograph of two cars beneath which is the caption: “LAVISH LIFESTYLE: Flash cars parked outside the home of Gilchrist and Rogers”.

8. The two main headlines to the article are printed in a large bold font and read “THE WORLD IS WATCHING COPS UNDER SPOTLIGHT” and “WITNESS PROTECTION”, beneath which are three headlines set out in large bold type and in bullet point format. These read as follows:-

“• Landmark case set to expose the “shambles” at heart of secret Garda unit

• Doctor who assessed witnesses wasn’t registered with Irish Medical Council

• She became the lover of cop handler who was probed over unit’s cash”

9. There then follows the text of the article which deals with the author’s “Special Investigation” into Mr. Gilchrist and Ms. Rogers where she details her understanding of the role of Mr. Gilchrist and Ms. Rogers in relation to the State’s WPP. She refers to a “probe” set to re-ignite accusations concerning Mr. Gilchrist’s expenditure and lifestyle while carrying out his role and the fact that he was previously investigated for suspected misappropriation of funds. She refers to “thousands in cash” paid to Ms. Rogers for one brief examination of a witness within the WPP. The article reports that accusations had been made to the effect that Ms. Rogers had travelled first class around the world at the expense of the State, to the fact that she was not a medical doctor and that she had passed herself off as such. It also reports that the Newspaper had “tracked down” Mr. Gilchrist and that when he had been contacted he was in no mood to talk. The article also referred to the affluent lifestyle, home and cars enjoyed by Mr. Gilchrist and Ms. Rogers.

The claims of Mr. Gilchrist and Ms. Rogers

10. The statement of claim in each action was delivered on the 14th November 2013.

It is important in this regard to make clear that while the Newspaper’s applications pursuant to section 14(1) of the 2009 Act were directed to the imputations alleged by each plaintiff in relation to the article of 16th June, 2013, the statement of claim in each case claims that the two-page article published on the 9th June, 2013, which I have used my best endeavours to describe, was grossly defamatory of and concerning the plaintiffs. In the case of Mr. Gilchrist, some 15 defamatory imputations are pleaded while there are 17 defamatory imputations pleaded in the case of Ms. Rogers.

11. At para. 9 of his statement of claim, Mr. Gilchrist, having set out the words which appear in italics above from the article of the 16th June, 2013, claims that the Newspaper falsely and maliciously published those words and/or statements of him and that:-

“In their natural and ordinary meaning, whether or not in combination with the reference to the article of the 9th June 2013, the said words and/or statements meant and/or were understood to mean that:-

(a) the plaintiff was responsible for improperly passing off his lover as a ‘doctor’ to examine a witness on the Witness Protection Programme;

(b) the plaintiff had arranged for the payment of inappropriate payments of fees to his lover.

12. At para. 10 of his statement of claim, Mr. Gilchrist pleads that the Newspaper falsely and maliciously published the words and/or statements which are underlined in the article above and which he states in their natural and ordinary meaning meant or were understood to mean that:-

(a) He had misappropriated State funds (either funds meant for the witness or otherwise), to his own use and that of his lover, for use in travelling first class around the world and staying in five star hotels (or other inappropriate spending);

(b) he had misappropriated State funds (either funds meant for the witness or otherwise), to his own use and that of his lover, for use in travelling first class around the world and staying in five star hotels (or other inappropriate spending), with the result that witness in question was abandoned and left in fear of his life;

(c) he had made false promises to Mr. Mooney in return for his participation in the Witness Protection Programme;

(d) he had acted inappropriately and unprofessionally in his role as an officer within the Witness Protection Programme.

13. Insofar as Ms. Rogers is concerned, at para. 7 of her statement of claim, in respect of the text which is printed in bold in the article of the 16th June, 2013 reproduced above it is asserted that the Newspaper falsely and maliciously published those words and statements concerning her and that:-

“In their natural and ordinary meaning and/or by innuendo from the words and/or statements themselves, the said words and/or statements meant or were understood to mean that:-

(a) The plaintiff fraudulently passed herself off as a medical doctor to Mr. Mooney and to An Garda Síochána;

(b) the plaintiff concealed her fraud until the Sunday World revealed it;

(c) the plaintiff carried out tasks for which she was not professionally qualified including medical assessments;

(d) that any fees paid to the plaintiff, were on foot of improper bills and/or demands made by her;

(e) that the plaintiff was the beneficiary of State funds spent inappropriately;

(f) that the plaintiff participated with members of An Garda Síochána in spending money inappropriately;

(g) the plaintiff had taken advantage of her role and had dishonestly misappropriated tax payers’ money to enrich herself and/or derive other benefits from her appointment and her role including first class travel and five star accommodation;

(h) the plaintiff so enriched herself with the consequence that monies intended for a witness under the scheme were misappropriated to her use leaving the witness abandoned and in fear of his life.”

The Newspaper’s application

14. The Newspaper issued a motion pursuant to s. 14 of the 2009 Act in each set of proceedings. In Mr. Gilchrist’s proceedings the Newspaper’s application was directed to both articles whereas in Ms. Roger’s case the application was confined to the imputations that might reasonably be sustained by the article of the 16th June, 2013. This appeal is only concerned with whether the words contained in the article of the 16th June, 2013 are capable of bearing the imputations and meanings pleaded on behalf of Mr. Gilchrist and Ms. Rogers.

15. The Newspaper’s argument focused upon the difference between an article which would suggest to the reasonable reader that a person had actually engaged in particular activities or was guilty of certain identified wrongdoing and one which, like that of the 16th June, 2013, might reasonably be considered to bear the imputation or be understood to mean that the person was suspected of doing those things or was perhaps under investigation for the wrongdoing reported. The Newspaper accepted that the article had undoubtedly reported, in the context of an order for discovery made in High Court proceedings, that a Mr. Dave Mooney, who was a participant in the State’s WPP, had made wide ranging allegations concerning the conduct and lifestyle of Mr. Gilchrist and Ms. Rogers while working for the State’s WPP. However, the Newspaper’s case is that the article was not reasonably capable of meaning that each of those allegations were true and that Mr. Gilchrist and Ms. Rogers were guilty of the misconduct alleged.

Judgment of the High Court Judge.

16. The trial judge commenced his analysis of the defendants’ application by focussing upon the article of the 9th June, 2013 which the Newspaper maintains is not admissible for the purposes of the meaning to be attributed to the article of the 16th June, 2013. He states in his ex tempore judgment that the impression created by the article of the 9th June, with its dramatic photographs of flashy cars and of people taken without their knowledge when combined with the lack of clarity as to the nature of the investigations referred to therein, compelled him to refuse the Newspaper’s application given that he was satisfied that the reasonable person of normal intelligence who read the article would likely be left with the same impression. He was satisfied that he could read the publications in conjunction with each other as he was of the view that the reader of the article on 16th June was likely to have read the article featured in the same newspaper the previous week. The High Court judge then considered the article of the 16th June noting that insofar as the article refers to an investigation it was not at all clear what the investigation was, whether it was an investigation by the court, by a judge, the police force or, indeed, the newspaper itself. The High Court judge emphasised the fact that the investigation had not been contextualised in the article which left open a number of different possibilities.

17. The trial judge set out that the case made by the defendants is that at their height the articles indicate that the plaintiffs are the subject of certain investigations and that a reasonable reader would not read into the text that they are guilty. He distinguished the facts of the present case from those in Lewis v. Daily Telegraph Ltd. [1964] A.C. 234 and Griffin v. Sunday Newspapers [2011] IEHC 331 where there clearly were actual investigations under way. He noted from the article of the 9th June, 2013 that the investigation referred to was being carried out by the newspaper itself and this was to be inferred from the dramatic photographs, the fact that individuals were being door-stepped, photographs were taken without their knowledge and people were being tracked down. The lack of specificity as to what investigations were being conducted and by whom seemed to compel the trial judge to reach the conclusion that he should refuse the defendant’s application.

18. In summary, it would seem that the High Court judge refused the Newspaper’s applications for three reasons:-

1. He considered that the meanings which the plaintiffs sought to attribute to the article of the 16th June, 2013 might be determined by the reasonable reader based on the assumption that they had read the article of the 9th June and in the context of the impression that that article would likely have had on them when it came to considering the meaning of the article of the 16th June, 2013.

2. Taking judicial notice of the fact that people who read Sunday newspapers tend to do so on a loyal basis, the fact that the articles were only one week apart allowed the court to take the view that persons reading the second publication would likely have had some memory of the first article and were prompted to connect the material contained in the two articles;

3. The fact that the investigations mentioned in the articles had not been contextualised left open the meanings contended for.

Submissions

19. Mr. Oisín Quinn S.C., on behalf of the Newspaper, submits that the trial judge erred in law while considering the s.14 application, which required him to consider whether the article of the 16th June, 2013 was reasonably capable of the meanings contended for by the plaintiffs, when he looked to the content of the article of the 9th June 2013 for that purpose. He accepted that the decision in Travers v. Sunday Newspapers Ltd (see Hedigan J. in High Court [2012] IEHC 185 and ex tempore judgment of Hardiman J. in Supreme Court delivered on 12th October, 2015 (upholding the High Court decision)) was clear authority for the proposition that, when ruling on meaning, the court could look to the impression created by the “get up” of the article concerned, including its photographs and headlines. However, he submits that it was not authority that when considering meaning in the context of one article, the court was entitled to look back on the content or “get up” of an earlier article, as had occurred in the present case.

20. Counsel submits that the decisions in Bradley v. Independent Star Newspapers [2011] 3 IR 96 and Hayward v. Thompson [1982] Q.B.47 do not support the entitlement of a plaintiff to rely upon an earlier article for the purposes of considering the meanings that may be imputed to a later publication. Those cases concerned the entitlement of a jury to consider a later publication purely for the purposes of identifying the person about whom an earlier highly defamatory article had been written.

21. It is submitted that the big difference between the present case and the identification cases such as Bradley and Hayward is that the reasonable reader is expected only to remember the name of the person about whom the earlier article had been written. In the present case, the jury would be asked to proceed on the basis that the reasonable reader should be assumed to have bought both papers and at the time of reading the second article had remembered the previous article sufficiently well to allow them to interpret the latter article in light of the initial article. This was not a reasonable assumption.

22. Counsel for the Newspaper submits that the High Court judge acted impermissibly when he referred back to the article of the 9th June, 2013 when deciding whether the article of 16th June, 2013 was reasonably capable of bearing the imputations and meanings contended for by the plaintiffs. It would not be reasonable to assume that the reader of the later article would have had a copy of the earlier article beside them as they were reading it even if there was a reference to the earlier article therein. Neither was it realistic to suggest that the reasonable reader would have remembered enough about the first article such that it would have informed their view of the meaning of the second article. There could be no reliable analysis of what an article actually meant if its meaning was to be gleaned by reference to the impression left by on the mind of the reasonable reader by an earlier article.

23. When considering the imputations and meanings which the article of the 16th June, 2013 might reasonably bear, the article was not to be treated in the same manner as a statement published in a book or one published in a book which was serialised or, for that matter, something that may have been published in a two day exposé in a newspaper, as was the case in Galloway v. Telegraph Group Ltd. [2004] EWHC 2786 (QB). In such cases, it is expected that the reader will carry forward the impression created by what is essentially the earlier part of the same publication.

24. Mr. Quinn submits that if this Court should conclude that the trial judge erred in law in looking to the earlier article of the 9th June, 2013 as to the meanings that might be ascribed by the notional reasonable reader to the words in the article of the 16th June, 2013, then it must proceed to examine the article of the 16th June on its own merits to see if, applying the correct test, the article is capable of bearing the imputations and meanings contended for by the respondents in their respective statements of claim. He submits that the meanings which Mr. Gilchrist and Ms. Rogers seeks to impute to the article of the 16th June, 2013 are perverse and could not be allowed to go to a jury.

25. In particular, Mr. Quinn places emphasis on the distinction between a statement as to a party’s guilt or culpability in respect of some particular type of action and a statement that they are or were suspected of or under investigation in respect of their conduct. He relies upon the judgment in Lewis v. The Daily Telegraph [1964] A.C. 234 and, in particular, the decision of Reid LJ. He submits that the ordinary reasonable reader would be expected to be suspicious about the conduct of Mr. Gilchrist and Ms. Rogers as a result of what was printed in the article of the 16th June but that such a reader would likely postpone judgment on their actions to the outcome of the case referred to in the article. Counsel emphasises that it is not alleged in either statement of claim that the article is defamatory because it means there was an investigation into Mr. Gilchrist’s conduct or that Mr. Gilchrist was suspected of the actions referred to at paras. 9(a) and (b) but that the article could be taken to mean that he did those acts. Likewise, in relation to Ms. Rogers, the claim of defamation is that the article is stated to mean that she had done each of the matters referred to at paras. 7(a) to (h) inclusive. The article is not claimed to be defamatory because Mr. Gilchrist or Ms. Rogers were merely suspected of those actions. They might, as Mr. Quinn observed, have opted to claim that they had been defamed because the Newspaper alleged that they were suspected of these things but they had not chosen such an approach.

26. Mr. Quinn also submits that it was irrelevant for the purposes of the s. 14 application that there was a lack of clarity as to precisely what investigation had been carried out or might have been underway in respect of the conduct of Mr. Gilchrist or Ms. Rogers. The article was not claimed to be defamatory because it had reported that there was or had been an investigation into their conduct. According to Mr. Quinn, the plaintiffs had “gone for broke” in claiming that the article meant they were actually guilty of the conduct mentioned therein. Accordingly, the High Court judge had erred in law when he factored into his consideration the fact that it was unclear as to what, if any, investigation was being referred to in the two articles. It was submitted that any such lack of clarity could not be relied upon to support a claim that the reasonable reader might understand the publication to mean that the plaintiffs were guilty of rather than merely under investigation or suspected of the conduct identified therein.

27. Mr. Quinn concedes that if the High Court judge was entitled to consider the range of imputations and meanings which the article of the 16th June might reasonably bear having regard to the impression created by the earlier article of the 9th June 2013, that his s. 14 application and, by necessity, this appeal cannot succeed. T hat he has adopted such a position is perhaps not surprising in light of the fact that the same meanings were pleaded by Mr. Gilchrist and Ms. Rogers in respect of the article of the 9th June, 2013 yet no application was brought under s. 14 seeking to strike out those meanings as ones which would be wholly unreasonable.

The plaintiff’s submissions

28. Mr. Dermot Gleeson S.C., on behalf of Mr. Gilchrist and Ms. Rogers, submits that the trial judge was correct as a matter of law when he concluded that he could consider whether the article of 16th June, 2013 was reasonably capable of bearing the imputations and meanings contended for by them in their statements of claim by reference to the content and “get up” of the earlier article of 9th June, 2013. He submits that there is no logical distinction that can be drawn between these two articles and a letter which forms part of a chain of correspondence or the serialisation of a book in a newspaper or a series of television programmes when it comes to consider the meaning of an allegedly defamatory statement or publication. In such cases, meanings are to be determined by looking at the entirety of the publication. In particular, he relies upon the decision in Galloway v. The Telegraph Group Ltd. [2004] EWHC 2786 (QB) and [2006] EWCA Civ 17 in which the court considered the meanings to be imputed to a number of articles concerning the plaintiff published by the newspaper in two consecutive editions. Of importance, Mr. Gleeson submits, is the fact that the article of the 16th June, 2013 refers the reader back to the earlier article. He also relies upon the fact that the article of 9th June remained online and was capable of being accessed by anyone who read the article of 16th June, 2013.

29. The decision in Travers v. Sunday Newspapers Ltd. [2012] IEHC 185, according to Mr. Gleeson, makes clear that a judge should not withdraw a question of meaning from a jury unless satisfied that it would be “wholly unreasonable” to leave the question go to the jury. Meaning had to be ascertained from the context in which the words complained of were published and in this case that context included not only the article of the 16th June and its contents but also the “get up”, photographs and headlines of the earlier article of the 9th June, 2013. He highlighted a number of comments, headlines and photographs in the article of the 9th June, 2013, all of which he maintained imputed guilt to his clients rather than an imputation that they were merely suspected or were being investigated in respect of certain conduct. The clear implication was that they had done or been responsible for all of the things stated in the article. Mr. Gleeson also highlights the fact that no application was made by the Newspaper to strike out the same meanings as are pleaded in respect of the article of the 16th June, 2013 insofar as they are repeated in the context of the article of the 9th June, 2013. Accordingly, regardless of whether the Newspaper was or was not successful on this appeal, these meanings would be going before a jury in any event concerning the article of the 9th June, 2013 and that was another reason why the appeal should not be allowed.

30. Applying the principle in Travers to the present case, in particular the requirement that the court import by way of context the language and photographs used in the earlier article, counsel for the plaintiffs submits that whether what was written on the 16th June, 2013 implied guilt on the part of Mr. Gilchrist or Ms. Rogers was a matter that had to be left to the jury.

31. If the trial judge was not entitled to consider whether the article of the 16th June, 2013 was reasonably capable of sustaining the imputations and meanings pleaded in the context of the earlier article of the 9th June, 2013, Mr. Gleeson nonetheless seeks to argue that when read on its own the imputations and meanings pleaded in the article of the 16th June can reasonably be sustained. He submits that it is the broad impression conveyed by a defamatory publication that has to be considered and not the meaning of each word under analysis. A statement of suspicion, he argues, may in fact impute guilt. He relies in this regard upon the decision of Devlin LJ. in Lewis v. Daily Telegraph Ltd. [1964] A.C. 234 and, in particular, his warning at p. 285 that:-

“A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire (…) One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. (…) loose talk about suspicion can very easily convey the impression that a suspicion is well founded.”

Mr. Gleeson also relies upon that part of his judgment to the effect that the layman reads in an implication or meaning into a publication much more freely than a lawyer will.

32. Mr. Gleeson also submits that the Newspaper’s reliance upon the decisions in Lewis and Griffin v. Sunday Newspapers [2012] 1 IR 114 is misplaced. The facts in both of those cases established that there had in fact been an actual investigation. Accordingly, it was reasonable for the defendants in those cases to then assert that there was a difference between a publication which stated specifically that a party was being investigated in respect of some wrongdoing and one where it was to be inferred from the article that they had actually been found guilty of wrongdoing. Here there was no investigation of Ms. Rogers and, insofar as there was an investigation into Mr. Gilchrist, that was in respect of alleged misuse of overtime and he had been fully investigated and exonerated. Lewis and Griffin could therefore be distinguished on their facts.

Discussion

33. It is not disputed that the Newspaper’s appeal raises two substantive issues. The first of these is whether the trial judge erred in law in concluding that it was legitimate for him to consider the contents of the article of the 9th June, 2013 for the purposes of deciding upon the meaning of the article of the 16th June, 2013. The second issue is whether, excluding any consideration of the earlier article of the 9th June, 2013, the words contained in the article of the 16th June, 2013 are reasonably capable of bearing the meanings pleaded on the plaintiffs’ behalf.

34. Section 14(1) of the Defamation Act 2009 provides as follows:-

14(1) “The court, in a defamation action, may give a ruling-

(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and

(b) (where the court rules that that statement is reasonably capable of bearing that imputation) as to whether that imputation is reasonably capable of bearing a defamatory meaning,

upon an application being made to it in that behalf.”

35. It is not disputed that for the purposes of an application under section 14 (1) of the 2009 Act, the onus rests upon the defendant to establish that the article complained of is not reasonably capable of bearing the imputations and meanings pleaded by the plaintiff. The test to be applied by the court is whether the article, when viewed objectively by the reasonable reader, is capable of giving rise to the pleaded meanings (see Hardiman J. in Travers). It is also not disputed that the role of the judge on a s. 14 application is not to determine the meaning of the words or article published but to delimit the outside boundaries of the possible range of meanings that might be ascribed thereto by the notional reasonable reader. Clarke M.R. in Jeynes v. News Magazines Limited [2008] EWCA Civ 130 helpfully summarised the principles relevant to how the meaning of words should be determined as follows:-

“(1) The governing principle is reasonableness.

(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(3) Over-elaborate analysis is best avoided.

(4) The intention of the publisher is irrelevant.

(5) The article must be read as a whole, and any “bane and antidote” taken together.

(6) The hypothetical reader is taken to be representative of those who would read the publication in question.

(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…’.”

36. Guidance as to the general approach to be adopted by a court when faced with a s. 14 application may be found in the helpful decision of Walsh J. in Quigley v. Creation Limited [1971] 1 I.R. 269 albeit that his judgment is one which addresses the circumstances in which a judge should, or should not, withhold a particular meaning from the jury. This is what he said at p. 272 of his judgment:-

37. It is also well settled law as is set out, for example, in the decision of Hedigan J. in Travers v. Sunday Newspapers Limited [2012] IEHC 185 that the words complained of must be construed in the context in which they appear. That case involved an article written by the newspaper which the plaintiff maintained was defamatory on the basis that the hypothetical reasonable reader would likely conclude that he had been involved in his own kidnapping. The newspaper brought an application pursuant to s. 14(1) of the 2009 Act seeking an order declaring that the publication was not reasonably capable of bearing the imputations and meanings contended for by the plaintiff i.e. that he was a willing participant in his own kidnapping with the result that he enjoyed significant material wealth which had allowed him purchase expensive cars and holidays abroad. The newspaper, in pursuing the application, relied upon the fact that there were many phrases in the article which suggested the plaintiff’s innocence and in particular the headline had stated that the robbery had nothing to do with him. It had also reported that he had been released from Garda custody without charge, that he had reported the matter to An Garda Síochána and had been distraught during the kidnapping.

38. However, the plaintiff relied upon what is commonly described as the “get up” of the whole article to submit that the overall impression created by the article was that he was a willing participant in the heist and that he had benefited financially from it. He relied upon the fact that the article had included a large colour photograph of him standing in front of a Ferrari along with captions such as “high life” to submit that the notional reasonable reader would be capable of attributing to the article the meanings which the newspaper sought to strike out. The plaintiff argued that the judge should not remove from the jury decisions about the overall meaning of the article particularly when the average reader is drawn to large colour photographs and headlines more than they are to the small text that may be contained in the article.

39. Hedigan J. concluded that the article, when viewed in the context of the photographs and captions, depicted a style of life that was not normally associated with the lifestyle of a bank clerk. He further held that, when viewed objectively from the viewpoint of the hypothetical reasonable reader, the publication was capable of giving rise to the meanings contended for. Thus it was he expressed himself satisfied that it would be unduly prejudicial to the plaintiff not to allow the meanings which the newspaper had sought to challenge be put before the jury.

40. In his ex tempore judgment delivered on the appeal, Hardiman J. upheld the decision of the High Court. In so doing, he relied upon the decision in Lewis v. Daily Telegraph Limited [1964] A.C. 234 as support for the proposition that whether a particular publication is capable of bearing the meanings pleaded by a plaintiff is a question of impression and the court had to consider the whole of the publication, which included the “get up” – headlines, pictures and captions. All of this had to be taken into account. Further, he specifically rejected the submission made by counsel for the newspaper that if any part of the article was logically inconsistent with the implication claimed that no other part of the article could be capable of that implication.

41. It is also beyond doubt that it is permissible for a jury to look at a second article to see to whom an earlier article, which is alleged to be defamatory of a plaintiff, refers. It is not the case, however, that a plaintiff can attempt to establish that an innocent earlier publication could be rendered defamatory by a consideration of facts later revealed in a distant publication as was the case in Grappelli v. Dereck Block Ltd. [1981] 1 W.L.R. 822.

42. A case in point is that of Bradley v. Independent Star Newspapers [2011] 3 IR 96, in which Hardiman J. concluded that the High Court judge had erred in law, having belatedly concluded that a second newspaper article was admissible for the purpose of establishing the identification of persons referred to in the earlier article, in failing to so advise the jury.

43. In Bradley, the first article published by the newspaper described two brothers as the most dangerous criminal gang operating in Dublin. They were alleged to have made several million euro from their crimes and to have benefited from a string of cash in transit robberies. The two brothers were not named. Some months later, the newspaper published another article which was clearly about the plaintiffs. It gave their names and published, as part of the second article, a photograph of the first article and also a picture of Mr. Bradley on another page beside a headline “We are not ATM thieves”. Underneath the photograph of the earlier article was a headline: “Star Sunday June 13th – We first told of CAB probe”.

44. Starting at para. 48 of his judgment, Hardiman J. commenced his consideration concerning the extent to which a second article might be relied upon to establish whether another article was published “of and concerning” the plaintiff. In reaching his conclusion, he relied upon the decision in Hayward v. Thompson [1982] Q. B. 47, where, in relation to two articles published in a Sunday newspaper on consecutive Sundays, the trial judge had ruled that it was permissible for the jury to look at the second article to see to whom the first article referred because a grave injustice would occur if this was not to be permitted. In Hayward, the court was concerned with what is referred to as the “Scott affair”. The allegation was that a man called Andrew Newton had been paid £5,000 to murder Mr. Norman Scott who had claimed to have had a homosexual relationship with Mr. Jeremy Thorpe.

45. In Hayward, the first article published by the newspaper claimed that the names of two more people connected with the affair had been given to the police and that one was a wealthy benefactor of the Liberal Party. Mr. Hayward was a well known philanthropist who had given significant sums to the Liberal Party but he was not named in the first article. However, a week later, a second article published by the newspaper contained his name. As a result, Mr. Hayward claimed damages for the libel contained in the first article. The trial judge ruled that the second article could be considered by the jury in order to determine to whom the first article referred.

46. What is important about the decision in Hayward is that the words in the first article were clearly defamatory on their face and were intended to refer to the plaintiff. The only question unresolved by the first article was the identity of the person about whom the article had been published. It was not a case in which the first article contained what would otherwise have been an innocent statement which the plaintiff sought to contend could later be rendered defamatory by some fact which emerged in a later article.

47. Hardiman J., in the course of his judgment in Bradley, explained why a second article might be admissible to establish the identity of a person the subject matter of an earlier publication. He did so by reference to the following brief extract from the judgment of Sir Stanley Rees in Hayward where at p. 72 he stated that if the second article was not admissible as to the identity of the person the subject matter of the first article:-

“… it would be open to a newspaper to publish a virulent libel without identifying the person defamed but adding a statement that the victim would be identified in a week’s time. The newspaper could then a week later publish the name of the person defamed without attracting liability for libel.”

48. At para. 64 of his judgment, Hardiman J. compared the facts in Hayward v. Thompson to those before him in Bradley. He stated that the only thing lacking in the first article was an express statement as to the identity of the people in question and that this information was later supplied by the same author and publisher in a subsequent edition of the same newspaper allied to which the second article had boasted of being the first to reveal in its original article that the brothers who were then named were the subject of a “massive” Criminal Assets Bureau investigation.

49. At para. 69 of his judgment, he stated as follows:-

“[69] This does not mean, however, that evidence that the same author and publisher have published a subsequent article linking the plaintiffs by name to the allegations previously made of two unnamed brothers of the same age as the plaintiffs, who are also brothers of the stated ages, is inadmissible and must be excluded from consideration in an action based on the first article. To do so would be highly unrealistic, in the sense that it would exclude from the jury’s consideration material which every person of normal intelligence would consider relevant to the question, who was the first article published about? It is one thing to say that intention is neither necessary nor sufficient to constitute a libel: it is quite another to say that a specific article undoubtedly published in the same newspaper by the same journalist, who was an employee of the same defendant, must be excluded from consideration on the question of identification.” (my emphasis added)

50. Accordingly, it is well established law in this jurisdiction that a plaintiff can seek to rely upon a second article published by the same newspaper for the purposes of establishing the identity of the person about whom an earlier article was published. However, the decisions in Bradley and Hayward provide no support for the approach which the High Court judge was urged to take by the plaintiffs in the present proceedings when called upon to consider the outside boundaries of the meanings that the reasonable reader might attribute to the article of the 16th June, 2013.

51. Mac Eochaidh J. was urged to consider the meaning of the article of the 16th June, 2013 not merely by reference to the impression that that article’s own headlines, “get up” and captions would likely have on the reasonable reader, as in Travers, but based first on the assumption that they had read the earlier article and as to the likely impression that that article would have had on them when it came to their consideration of the imputations and meanings that might be borne by the later article. In other words, the High Court judge found that the article of the 9th June was to be part of the “context” for the purposes of considering the meaning to be attributed to what was published in the article of the 16th June, 2013.

52. It is certainly true to say that there are cases in which a plaintiff may seek to rely on more than one article published by the same newspaper to establish the imputations and meanings for which they contend. The following is what is stated in Gatley on Libel and Slander (12th ed., Sweet and Maxwell 2013) concerning that entitlement at para. 32.27:-

“Where either party relies for meaning on more than one article in the same newspaper, the key issue is whether the articles are sufficiently closely connected to be regarded as a single publication, and it makes no difference of principle whether the articles are on continuation pages or a different part of the same newspaper. So also in the case of an internet libel, where it may be appropriate to put in any other page from which the reader would have proceeded (e.g. by hyper-link) to the words complained of. Articles in other issues of a newspaper, before or after the article complained of, may on occasion be properly regarded as part of the context, for instance where the article is part of a series. Where the libel is contained in a letter, a previous letter (referred to in the letter complained of and read by the publishee of the alleged libel) may be put in evidence.”

53. The first of these scenarios would appear to involve an assessment of whether the reasonable reader who has read one of two articles concerning the same matter in a particular paper on a given day is likely to have read both such that the impression created by one can likely be stated to have influenced their impression of the other. Matters such as whether the articles refer to each other might prove material. However, the articles, the subject matter of the instant proceedings, do not fall into this category as they were written a week apart even if there is a reference in the article of the 16th June 2013 to the fact that: “Last week the Sunday World revealed how Rogers and former top cop Benny Gilchrist are at the centre of the case”. There was nothing in the article of the 9th June, 2013 to indicate that its content might be relevant to anything which might later be published concerning Mr. Gilchrist or Ms. Rogers. It was published as a stand-alone article.

54. The decision of the English High Court in Galloway v. Telegraph Group Ltd. [2004] EWHC 2786 (QB) is a good example of the second scenario referred to by Gatley above. That was a case in which the plaintiff successfully established his entitlement to have the jury bear in mind, when it came to consider the meaning of articles published by the newspaper on a particular day, the impression created by other articles published about the plaintiff in the same newspaper the previous day.

55. Eady J. explained that such an approach was warranted on the facts of that case because the law requires that the natural and ordinary meaning of words should be determined by reference to the context in which they were published. He set this out as follows:-

“48. Context is always important. In order to determine the natural meaning of the words of which a claimant complains, it is necessary to take into account the context in which they were used and the mode of publication. Thus, a claimant cannot seek to isolate a passage in an article, and complain of that alone, if other parts tend to throw a different light on that passage: see e.g. per Lord Bridge in Charleston v News Group Newspapers [1995] 2 AC 65, 70.

49. Context is perhaps especially important in this case, where the Claimant is complaining of parts of newspaper articles spread over two days and consisting of a total of thirteen pages. The context would thus include other parts of the coverage of which no complaint is made. In particular, it is necessary to take account of the content of the Baghdad documents (set out above) which were reproduced in the newspaper for readers to consider.

50. Furthermore, when judging the meaning of the 23rd April articles, it is necessary to bear in mind that many readers will have had a general impression of their reading from the day before. It is legitimate to take that into account when assessing the meaning of the second day’s coverage. The reverse is not the case, since it is not permitted when attributing a meaning or meanings to a published article to refer to subsequent material.”

56. However, it is important to recognise just how unusual the facts of Galloway were. The perceived importance of the story was such that the newspaper gave over thirteen pages on two successive days to what I will describe as a highly charged report concerning Mr. Galloway’s alleged financial involvement with the Saddam Hussein’s regime. I should say that it is not clear from either the High Court decision or that of the Court of Appeal whether the articles printed on the first day gave any indication that the story would be continued the following day. Clearly if such an indication had been given the reader would have been encouraged to carry over their consideration of Mr Galloway’s conduct to the following day, much like what would occurr where a story is serialised.

57. However, regardless of whether there was, or was not, an indication that the story would be followed up the following day, the facts in Galloway are very different from those which arise in the present procceedings. While the first article of the 9th June, 2013 was indeed a large exposé covering two pages there was no indication that it was to be, for example, the first of a two part series concerning the conduct of Mr. Gilchrist and Ms. Rogers. Neither did it suggest that the story would be continued the following week at which point further “revelations” would be made such that the reader might be expected to hold in their head all that had been published until the following week. There was nothing in the article of the 9th June, 2013 from which it could be inferred that the person who had read it would, when they purchased the next issue, be looking to find anything further written concerning the plaintifffs.

58. Even if it be the case that a court should assume that the hypothetical reasonable reader buys the same newspaper each Sunday, is it to be assumed that they read every article every week and remember its contents so that if they should come across an article about a matter which happened to be the subject matter of an article the previous week they should have remembered it with sufficient particularity so that it is safe to assume that their impression of the second article was informed by an accurate impression of the first? I suggest not.

59. There would simply be far too many variables if this was the approach to be taken. The articles under consideration on the present appeal are simply not sufficiently proximate or otherwise connected to each other to warrant the approach taken by the High Court judge which was to conclude that the article of the 9th June was part of the relevant context to be considered when seeking to attribute meaning to the article of the 16th June, 2013.

60. Accordingly, and particularly in light of the fact that no clear legal authority has been produced to support the position advanced by the plaintiffs on facts equivalent to those which arise for consideration on this appeal, I have come to the view that it would be wrong in law if a jury in these proceedings was to be permitted to rely upon the article of the 9th June, 2013 when it came to its consideration as to the imputations or meanings which might reasonably be borne by the article of the 16th June, 2013. It is noteworthy that the plaintiffs do not argue that the imputations and meanings for which they contend can only be sustained in reliance on the context created by the article of the 9th June, 2013.

61. I should also state that the fact that the earlier article of the 9th June. 2013 will, in any event, be before the jury because of the separate claims for defamation stated to arise from that publication, is not a valid reason for contending that the jury should be permitted to consider the meaning of the later article by reference to the earlier one. That, in my view, is legally impermissible and would risk a wholly, unjust result.

Is the article of the 16th June considered in isolation from the article of the 9th June, 2013 reasonably capable or supporting the imputations and meanings pleaded?

62. Given that the High Court judge erred in law when, for the purposes of considering the Newspaper’s application under s.14 of the 2009 Act, he considered the meanings of the article of the 16th June, 2013 in the context of the impression that the article of the 9th June would likely have had on the reasonable reader, it might well be said that the s. 14 application ought properly be referred back to the High Court for a re-consideration of the application absent any consideration of the article of the 9th June, 2013. However, the trial of these proceedings is due to take place later this month and in circumstances where this Court has heard this particular issue fully argued by the parties, I am satisfied that the justice of the case is best served for this Court to address the issue de novo.

63. Having fully considered the submission of the parties and the relevant authorities, and in particular the decisions in Lewis and Griffin, I am not satisfied that the article of the 16th June, 2013 is capable of bearing the imputations and meanings contended for by Mr. Gilchrist at paras 9(a) and (b) and 10(a) to (d) of his statement of claim or those contended for by Ms. Rogers at paras.7(a) to (h) of her statement of claim.

64. In Lewis, the newspaper reported that the Fraud Squad was enquiring into the affairs of a limited company of which Mr. Lewis was the chairman. In his proceedings, Mr. Lewis alleged that the words in their ordinary and natural meaning meant or were understood to mean that he had been guilty of fraud or dishonesty. The Newspaper inter alia denied that the words meant or were capable of meaning that he was guilty of fraud or dishonesty and at the conclusion of the evidence submitted to the trial judge that such a meaning should be withdrawn from the jury. The trial judge ruled that the words could bear the meaning alleged in the innuendo relied upon and directed the jury that they might so find.

65. The Court of Appeal reversed the decision of the trial judge and in doing so sought to draw a distinction between publications in which a person was stated to be under investigation and those which imputed guilt with several members of the court giving helpful guidance. The following observations of Reid LJ. at p. 259 are apt in the context of the present case:-

“In this case it is, I think, sufficient to put the test in this way. Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question. So let me suppose a number of ordinary people discussing one of these paragraphs which they has read in the newspaper. No doubt one of them might say – ‘Oh, if the fraud squad are after these people you can take it they are’. But I would expect the others to turn on him, if he did say that, with such remarks as – ‘Be fair. This is not a police state. No doubt their affairs are in a mess or the police would not be interested. But that could be because Lewis or the cashier has been very stupid or careless. We really must not jump to conclusions. The police are fair and know their job and we shall know soon enough if there is anything in it. Wait till we see if they charge him. I wouldn’t trust him until this is cleared up, but it is another thing to condemn him unheard.

What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression. I can only say that I do not think that he would infer guilt of fraud merely because an inquiry is on foot. And, if that is so, then it is the duty of the trial judge to direct the jury that it is for them to determine the meaning of the paragraph but that they must not hold it to impute guilt of fraud because as a matter of law the paragraph is not capable of having that meaning. So there was here, in my opinion, misdirection of the two juries sufficiently serious to require that there must be new trials.”

66. For my part, I agree with Reid and Morris LJJ. in Lewis that it is indeed a grave thing to say that someone is fraudulent and that is quite a different thing to say that they are suspected of fraudulent conduct and that the reasonable reader will discern the difference. Whilst I accept that a court must assume that such a reader may occasionally engage in loose thinking, they should nonetheless be credited with knowing the difference between an article which reports that a person is suspected of wrongdoing from the article that implies that thay actually committed that wrong.

67. I have considered the article of the 16th June, 2013 bearing this guidance in mind. The article is replete with references to “investigations” and “allegations” all of which are stated to be material to an upcoming High Court case which would likely throw greater clarity on the conduct of Mr. Gilchrist and Ms. Rogers. In my view, while the reasonable reader might be suspicious (my emphasis) as to whether they were guilty of the conduct alleged, only an unduly suspicious reader would conclude that they were actually engaged in the activities which were stated to be under invesigation. That being so, I am satisfied that the article of the 16th June, 2013 is not reasonably capable of bearing the imputations and meanings pleaded by Mr. Gilchrist and Ms. Rogers. This is particularly so given that the article of the 16th June, 2013 was not one where the Newspaper’s reference to the plaintiffs as being under investigation, a matter which is repeated four times in the article, could in the mind of the reasonable reader have been overborne by any imputation of actual guilt generated by the accompanying photograph. That photograph was a benign one, which was not reasonably capable of imputing actual guilt, as was clearly the case in relation to the photograph in Travers.

68. Finally, it is perhaps worth recording that the High Court judge in making his decision that the article of the 16th June was reasonably capable of bearing the imputations and meanings pleaded, albeit impermissibly influenced by the article of the 9th June, 2013, was clearly influenced by the fact that it was not clear from the articles as to what, if any, investigation/investigations had been or were being carried out into the conduct of Mr. Gilchrist and Ms. Rogers and if so, by whom. However, any confusion in the mind of the reasonable reader concerning the nature of any such investigation was, in my view, irrelevant to his consideration as to whether the meanings pleaded might be permitted to be considered by the jury. Whether or not there was any investigation and if so the nature of that investigation could only have been of relevance if the Newspaper had delivered a defence of truth to a complaint made by the plaintiffs that it was defamatory to say they were under investigation for the conduct referred to in the article. However, no such plea is made and the plaintiffs, as Mr. Quinn described it in the course of his submissions, have instead opted to “go for broke” in alleging that the article imputes or means that they were guilty of the conduct alleged rather than defamatory by reason of reporting that they were, or had been, under some type of investigation for such conduct.

Conclusion

69. For the reasons earlier set out in this judgment, I am satisfied that the High Court judge erred in law when he concluded that in determining whether the article published by the newspaper on the 16th June, 2013 was capable of bearing the meanings contended for by Mr. Gilchrist at paras. 9(a)-(b) and 10(a)-(d) of his statement of claim and by Ms. Rogers at para. 7.(a)- (h) of her statement of claim, that it was legitimate to consider that article in the context of the impression that the earlier article published on the 9th June, 2013 would likely have had on the reasonable reader.

70. Accordingly the High Court judge failed to lawfully rule upon the Newspaper’s applications pursuant to s. 14 (1) of the 2009 Act.

71. In other circumstances it might have been appropriate to remit the Newspaper’s s. 14 applications back to the High Court to be determined there absent any consideration of the earlier article of the 9th June, 2013. However, in circumstances where the plaintiffs’ trials are imminent and this Court has had the benefit of considering all of the materials and submissions as were available to the High Court judge, I am satisfied that the justice of each case is best served by this court determining the Newspaper’s applications de novo in accordance with the prevailing principles.

72. For the reasons earlier stated, I am satisfied that the article of the 16th June, 2013, when considered in accordance with those principles, is not reasonably capable of bearing the imputations and meanings pleaded by Mr. Gilchrist at paras. 9(a)-(b) and 10(a)-(d) and Ms. Rogers at para. 7(a)-(h) of their respective statements of claim.

73. Accordingly, I would allow the Newspaper’s appeals.

Jones -v- Coolmore Stud

[2016] IEHC 329 Ms. Justice Costello delivered on 14th day of June, 2016

Introduction

1. The plaintiff is a former employee of Coolmore Stud, the defendant. The defendant is one of the largest commercial thoroughbred breeding and racing operations in the world and has a wide range of operations in Ireland, the United States and Australia. Its principal place of operations is from a stud farm in Co. Tipperary. Subsequent to the termination of his employment, which I shall explain more fully below, the plaintiff wrote and published a book about the operations and business of the defendant entitled “The Black Horse Inside Coolmore”(“the book”). These proceedings relate to the plaintiff’s book.

2. The plaintiff seeks four injunctions against the defendant as follows:-

“(i) Preventing the defendant and/or its representatives from threatening any bookshops or websites with legal action for defamation relating to the book, ‘The Black Horse Inside Coolmore’;

(ii) Compelling the defendant and its representatives to immediately withdraw in writing all threats of legal action previously made to bookshops and Amazon in relation to ‘The Black Horse Inside Coolmore’;

(iii) Declaring that ‘The Black Horse Inside Coolmore’ is not defamatory on the face of it and may be sold in outlets where books are sold; and

(iv) Instructing the defendant to provide the plaintiff in this action all evidence without exception relating to their claim that ‘The Black Horse Inside Coolmore’ is defamatory and if they refuse to do so they will pay the plaintiff’s costs unless the court decides the refusal is reasonable”.

3. The plaintiff commenced the proceedings by way of plenary summons issued on 13th April, 2016, and by an ex parte motion docket dated 8th April, 2016, he sought reliefs in precisely the same terms as the general indorsement of claim. No interim relief was granted but instead the matter has proceeded before me as an application for interlocutory injunctions as set out above.

4. The plaintiff was an employee of the defendant for nine years. In 2014 he brought a claim arising from his employment before the Labour Relations Commission. The claim was compromised, with the assistance of a Rights Commissioner, and the agreement was reduced to writing on 12th December, 2014. The agreement provides as follows:-

“1. It is agreed the claimant will retire on Friday 16 January ’15 as per his normal retirement date and all staff of the respondent will be informed accordingly.…

3. The claimant accepts he was provided with the opportunity to get professional advice prior to signing this agreement but he declined this offer and that he was happy to sign this as written.

4. The claimant accepts he has no further claim against the respondent under any other relevant employment legislation (including, but not limited to, Unfair Dismissals, Employment Equality and Protected Disclosures Acts), Personal Injuries or common law whatsoever.

5. He withdraws his claim r 147483-ir-14 which is before the Rights Commissioner.…

7. This agreement is strictly private and confidential to the parties involved except where called upon by the statutory bodies or by law. Confidentiality is an essential term of this agreement on both parties.

8. It is a term of this agreement that no records relating to animals or clients will be disclosed by claimant.

9. Both parties agree they will not make any derogatory comments about each other at any time in the future.…

12. The respondent will pay to the claimant the sum of €30,000 (net) as a gesture of appreciation (which shall be inclusive of redundancy) and no further sums are due to the claimant.”

5. The agreement was signed by both the plaintiff and Mr. David Gleeson on behalf of the defendant. The agreement has been performed by both parties: the plaintiff has vacated the property where he resided upon his retirement and has surrendered keys, equipment, and other property to the defendant. The plaintiff has withdrawn his claim before the Rights Commissioner. The defendant has paid the plaintiff €30,000.00.

6. On 23rd November, 2015, the plaintiff published the book. Prior to its publication by letter dated 8th June, 2015, the defendant’s solicitors, Arthur Cox, reminded him of his contractual obligations, in particular clauses 7, 8 and 9 of the agreement of 12th December, 2014. The plaintiff replied by e-mail dated 8th June 2015. He stated:-

“In writing my book I have already received barrister’s advice about what I can and can’t refer to and I have, accordingly, complied with the terms of the Agreement.”

7. On 29th July, 2015, Arthur Cox wrote asking if he would send them a copy of the manuscript of his book so that their client could satisfy itself that no breach of the agreement would arise by reason of the publication of the book. The plaintiff responded by e-mail dated 30th July, 2015, stating that he was under no obligation to show Arthur Cox a copy of the manuscript before the book went on sale. In reply, by letter dated 13th August, 2015, Arthur Cox stated:-

“We did not suggest that you were under any obligation to share your manuscript. Our client is however seeking assurance that its contents uphold and abide by the confidentiality agreement signed by both parties, and to ensure the privacy and confidentiality of clients and staff is upheld, and also that it does not contain any defamatory material. …

Please note that our client is committed to and has upheld its responsibilities under the confidentiality agreement.

Furthermore, after the lengthy exchange of correspondence and allegations made by you prior to your retirement, there are reasonable grounds for serious concern that individuals connected to and employees of Coolmore Stud may be defamed by your book.

We would be grateful if you could notify us of the distributors / sales outlets you intend for the publication of your book. We consider that it is reasonable and fair for them to be made aware of their liability in law if any defamatory material is contained in the publication, and it will advise them of same accordingly.”

8. The plaintiff replied by e-mail dated 14th August, 2015, stating:-

“I refer to your email dated 13 August 2015. I have previously stated my position and I believe your email is an attempt to harass and intimidate me. I have considered your reference to a liability in law for anyone connected with my book and your misplaced belief that you should be able to advise them accordingly. It will not be for you or your clients to decide if I defame anyone either now or in the future and whether connected to Coolmore Stud or a completely separate situation. It would be decided by an Irish court [sic].

I take this opportunity to remind you of point 7 of the agreement between your clients and myself dated 12 December 2014. ‘This agreement is strictly private and confidential to the parties involved except where called upon by the statutory bodies or by law.’ I am not impressed at all by your intimidation tactics. I will be more than happy to argue the toss with you in open court if that is what you want. It would be great publicity for my book. I also point out that I have an investigative journalist with RTE now shadowing my story, so please don’t think I am on my own.”

9. Arthur Cox wrote again on 19th August, 2015, reminding the plaintiff that the relevant terms of the agreement were not limited to clause 7 but also they would be relying upon clauses 8 and 9. The plaintiff replied by e-mail of 21st August, 2015, complaining that they were trying to harass and intimidate him and that they had already received his answer.

10. The defendant’s solicitors corresponded with Amazon EU Sarl, UK Branch, in advance of the publication of the book. The letter of the 19th August, 2015, was addressed to Amazon UK Services Ltd., Legal Department, and was headed “Re: NOTICE OF DEFAMATORY CONTENT ‘The Black Horse Inside Coolmore’ by William Jones”. The letter stated:-

“Our client is concerned that the Book could contain material which could be defamatory of our client and/or its customers, owners and staff. This letter therefore constitutes a Notice of Defamatory Content under your Conditions of Use and Sale.”

The letter outlined the concerns of the defendant in relation to the book and the potential reputational damage and damage to relationships of confidentiality with their clients which could arise from the publication of the book. The letter went on to state:-

“Having regard to all of the foregoing, we are seeking confirmation from you that Amazon will not distribute the Book until:

1. Mr Jones sends the Book to us for review on behalf of our client; and

2. our client is satisfied that Mr. Jones has not breached his obligations of confidentiality to our client and that the Book does not contain any defamatory material.

In this regard, we undertake on our client’s behalf that our review will be completed within 14 days of receipt of the Book. Please note that our client does not wish to prohibit the distribution of the Book outright, however it does wish to protect its rights and reputation, as well as those of its client.”

11. Amazon replied by letter dated 25th August, 2015, indicating that while it understood the defendant’s concerns it would be merely one of many potential retailers of the book and accordingly it suggested that the proper remedy lay with the author and/or publisher of the book.

12. Thus, prior to the publication of the book the defendant had made clear to the plaintiff that:

i. It was intending to rely upon the terms of the agreement of 12th December, 2014, and in particular clauses 7, 8 and 9 of the agreement.

ii. If the book contained any defamatory material it would make distributors and sales outlets aware of their potential liability in law arising from the distribution by them of defamatory material.

iii. It was not seeking to prohibit the distribution of the book outright, but it was prepared to protect its rights and the reputation of the defendant, its clients, employees, and persons associated with the defendant in reliance both upon the agreement and the law of defamation.

In addition, it is to be noted that the plaintiff stated that he had taken legal advice with regard to the contents of his book.

13. On 23rd November, 2015, the plaintiff published the book. It is the defendant’s case that in publishing the book the plaintiff is in breach of the agreement of 12th December, 2014. The book breaches the undertaking as to confidentiality, it discloses records relating to animals or clients of the defendant and it is replete with derogatory comments about the defendant. In addition they complain that the book contains material which is defamatory both of the defendant and other parties and contains material which infringes the copyright of a number of third parties. The plaintiff denies all of these allegations as I shall discuss more fully below.

14. However, the defendant elected not to sue the plaintiff, the author of the book, or his company, Gold Rush Publications Ltd., the publisher of the book. Instead it wrote to various distributors of the book, advising them of the fact that the book contained material which breached the defendant’s legal rights and which was defamatory. On 26th November, 2015, Arthur Cox wrote to Amazon, stating:-

“Our client and its legal advisors are reviewing the [book] but it is already clear that the [book] breaches our client’s legal rights causing serious damage to our client, its employees and other persons associated with our client. Our client considers that by this publication, Mr Jones has breached confidentiality obligations which Mr Jones owes to our client, secondly, that the content of the [book] is defamatory and damaging to the reputation and good name of our client and its employees and thirdly, it breaches the intellectual property rights and privacy of our client, its employees and persons associated with our client by the publication of photographs and personal information without permission or consent.…

We are obliged to put you on notice that if the [book] is not removed from sale on the Amazon website having been put on notice of its defamatory content, our client may be obliged to hold Amazon liable for the damage caused by any ongoing sales that are made through its website.”

15. This letter was followed up the following day by a further letter sent by email on 27th November, 2015, which stated, inter alia:-

“We have also spoken directly with customer service of Amazon today in order to emphasise the necessity that this issue is dealt with as a matter of urgency and have been informed that your legal department has been contacted to notify them that this is a matter to be dealt with as a matter of priority. Our client is extremely concerned that the [book] remains listed for sale through your website despite the fact that you have been on notice of its defamatory content since yesterday and were put on prior notice since 19 August 2015. We also confirm that the Irish book stores and online retailers that we are aware of that were stocking the book have on being contacted by ourselves on behalf of our client confirmed that they have removed it from sale immediately.”

The letter drew the reader’s attention to seven matters which the solicitors stated were false and seriously damaging to the defendant’s reputation and its relationship with its clients, breaches of copyrights and disclosure of commercially sensitive information and straightforward factual inaccuracies. The letter continued:

“This list is not exhaustive but there have clearly been a serious [sic] breach of our client’s rights which we are pursuing on its behalf directly with Mr. Jones.… You are also on notice that given the steps that we are taking on behalf of our client to notify any book stores that are selling this publication that Amazon may be the only retailer selling the [book].”

16. The defendant’s solicitors wrote to independent retailers in similar terms stating that the defendant considered that the book contained material which was defamatory of it and/or its customers, owners and staff, stating:

“We are hereby putting you on notice of the defamatory content of this publication. Our client also believes that the Book is a breach of confidentiality obligations owed by Mr. Jones to our client and breaches other legal rights including intellectual property rights and privacy rights.”

The letter went on to describe the business of the defendant and the relationship between the defendant and the plaintiff, and went on:-

“Having regard to all of the foregoing, we are seeking confirmation from you that [the retailer] will not sell or distribute this book in the absence of Mr Jones complying with his legal obligations on confidentiality to our client and ensuring that the Book does not contain any defamatory material.…

Please note that if you fail to provide this confirmation, our client may hold [the retailer] liable for any damage suffered by sales of the book through your stores or your website and will rely on this letter to show that you were put on notice of these matters.”

17. Four such letters addressed to four different retailers dated 30th November, 2015, 11th January, 2016, 2nd February, 2016, and 11th March, 2016, were exhibited. The response of Amazon and each of the booksellers was to withdraw the book from sale.

18. The defendant’s solicitors wrote to the plaintiff on 26th November, 2015, stating that the following issues arose:-

“1. The book is defamatory of our client, its employees and individuals associated with our client and the defamatory content is such as may cause enormous reputational damage and a breach of our client’s relationship of confidentiality with its clients. This arises despite the assurances provided by you in previous communications that it would not contain defamatory material.

2. There is clearly a breach of the agreement dated 12 December 2014 between you and our client and in particular, clauses 7, 8 and 9 therein.

3. There is a breach of other rights of our clients, its employees and individuals associated with our client, including a breach of their right to privacy by the publication of personal details in relation to certain individuals and the reproduction of photographs without their permission or consent.”

The letter called upon the plaintiff immediately to cease distributing and selling the book and to recover any copies that had already been distributed and reserved the rights of the defendant to take such legal action as it considered necessary in order to protect and vindicate its reputation and the reputation of its employees and individuals associated with the defendant.

19. In response, on 27th November, 2015, the plaintiff complained that the letter gave him no specific details of what the complaint was about and asked the defendant’s solicitors to provide those details. The e-mail continued:-

“I will point out at this stage, as you will know only too well, that the main defence as far as an accusation of defamation is concerned is the defence of truth. I have not included anything in my book which I am unable to show as the truth.

You are perfectly entitled to commence whatever legal action you want, but please be assured that I am primed and ready to defend what I have written, line by line if necessary.”

20. The defendant’s solicitors responded by letter dated 4th December, 2015, stating that the book contained content which was seriously defamatory of the defendant and which was inaccurate and untrue. It also stated:-

“A further issue which you consistently chose to ignore in your communications with this firm, is that the contents of this book are also in breach of the agreement which you reached with our client on 12 December 2014….

You are clearly in breach of these obligations owed to our client. Your book also infringes other rights including intellectual property rights and privacy rights of our client, its employees and persons associated with our client by the publication of photographs and personal information without permission or consent.”

The letter set out the seven matters that were set out in the letter to Amazon in relation to allegations which were said to be false and seriously damaging and which amounted to a breach of copyright or breach of confidentiality obligations or were simply inaccurate. The letter explained why the defendant’s solicitors had written to the retailers of the book in the following terms:-

“We are entitled on behalf of our client to draw to the attention of any third party who may be involved in the distribution or sale of this book, the fact that this book contains defamatory content, which is untrue, breaches your obligations of confidentiality to our client and also infringes other rights of our client, its employees and other person [sic] associated with our client. Once those parties are on notice of this content, they have a potential liability to our client if they decide to continue selling the book. That liability is independent of any liability that you may have to our client in respect of being the author and publisher of the book. That is a matter between ourselves and the book sellers and our client has no intention of changing that position.”

21. It is clear therefore that the plaintiff had been plainly informed of the defendant’s position and of its justification for the manner in which it chose to deal with this book. The plaintiff does not accept that the defendant is entitled to act as it has done and continues to act. The plaintiff is of the view that his book is not defamatory because he says he can prove the truth of the contents of the book. He objects to the fact that the defendant would not sue him for defamation but instead instructed its solicitors to write to the various booksellers stating that the book contained defamatory material and, as he saw it, threatening them so that they were bullied into withdrawing the book from sale. He said that they were wrong to threaten the bookshops and that they should have gone to court and sued him. Furthermore, they had failed to specify fully what they say was defamatory. He therefore instituted these proceedings seeking the relief I have set out above. Initially he sought it on an ex parte basis but the matter has proceeded before this Court on an interlocutory basis.

The Law

22. Since Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88 the test for the grant of a prohibitory interlocutory injunction has been that the applicant must establish:

i. that there is a fair question to be determined at trial concerning the existence of the right which he seeks to protect or enforce by injunction;

ii. that damages are not an adequate remedy;

iii. that the balance of convenience lies on the side of the granting of the injunction.

However, where a party seeks a mandatory injunction the Supreme Court held in Maha Lingham v. Health Service Executive [2006] 17 E.L.R. 137 that the moving party must establish that he has a strong case in order to obtain a mandatory injunction. In Bank of Ireland & Anor. v. O’Donnell [2015] IECA 73, at para. 105 of the judgment, the Court of Appeal held that where:-

“the substance of respondents application for the interlocutory relief sought was mandatory it required to be considered in accordance with what has been referred to a variation of the ‘pure’ Campus Oil test where the courts have required the plaintiff not just to establish a fair or arguable case but rather the higher standard of a strong case in accordance with the Supreme Court judgment of Fennelly J in Maha Lingam.”

23. The first relief sought by the plaintiff is a prohibitory interlocutory injunction. The second and fourth reliefs in substance are mandatory injunctions in that they seek to compel the defendant to do something. I am thus satisfied that in respect of the first relief, the appropriate threshold to apply is the Campus Oil test of whether the plaintiff has established that he has a fair or arguable case. In respect of the latter two reliefs, he must establish that he has a strong case. It is not open to the court to grant a declaration at an interlocutory stage and the plaintiff has not advanced any basis for such relief at this stage in the proceedings.

Has the plaintiff established an arguable case?

24. The plaintiff alleges that the writing of letters to booksellers by the defendant’s solicitors is wrongful on a number of grounds. Firstly, he says it is incorrect to state that the book is defamatory as the book cannot be defamatory unless and until a court of law holds that it is defamatory. Secondly, he has a good defence to the allegation that the book is defamatory as he is in a position to establish that the book is true and therefore it cannot be defamatory. Thirdly, he says that the defendant ought to sue him in defamation rather than threaten booksellers. Fourthly he says the defendant should give details of what the defendant says is defamatory in the book. None of these arguments establishes an arguable case.

25. Even if a party has a cause of action against another party, there is no obligation on that party to sue. Therefore, the fact that the defendant has chosen not to institute defamatory proceedings against the plaintiff cannot constitute a wrongful act on the part of the defendant giving rise to a cause of action by the plaintiff against the defendant.

26. The defendant has written to third parties complaining about the book on various grounds as set out above. These letters were not improper letters to write. Still less, do they establish an arguable cause of action against the defendant. If a party has been defamed, it is appropriate to write a letter asserting that the publication was defamatory and calling upon the publisher of the defamatory material to withdraw the publication before instituting proceedings. Inevitably such a letter would have to assert defamation prior to the fact of defamation being established at trial. It simply cannot be correct that a party cannot protect his rights by asserting that he has been defamed and calling upon a party to remedy the alleged wrong on the grounds that a court has yet to hold whether or not the material is defamatory of the plaintiff. The argument is circular and means that a party defamed can never seek a retraction or apology prior to succeeding at trial. This is clearly not so.

27. The right to send such a letter is inherent in the right of access to the courts. Furthermore, it is implicit in the Defamation Act 2009. Section 27 affords a defence of innocent publication. It provides as follows:-

“27.— (1) It shall be a defence (to be known as the ‘defence of innocent publication’) to a defamation action for the defendant to prove that—

(a) he or she was not the author, editor or publisher of the statement to which the action relates,

(b) he or she took reasonable care in relation to its publication, and

(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.

(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if—

(a) in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,

(b) in relation to a film or sound recording containing the statement, he or she was responsible for the processing, copying, distribution, exhibition or selling only of the film or sound recording,

(c) in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.

(3) The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did caused or contributed to the publication of a defamatory statement, have regard to—

(a) the extent of the person’s responsibility for the content of the statement or the decision to publish it,

(b) the nature or circumstances of the publication, and

(c) the previous conduct or character of the person.”

28. The seller of defamatory material is potentially liable to a defamed person for publishing defamatory material separately from the liability of the author of the defamatory material. Section 27 of the Act was inserted to afford a defence to a person, such as a retailer, who did not know and had no reason to believe that what he did caused or contributed to the publication of the impugned statement. It is inherent in this section that the person claiming to be defamed may notify any such third party publisher of his belief that the statement is defamatory of them. It is then a matter for the third party publisher to make his or her own assessment as to whether or not to publish the statement. This means that the person alleged to be defamed may be protected against further unwitting- and unintentional- publication of defamatory material on the one hand, and that publishers of potentially defamatory material are given a fair opportunity either to withdraw or cease the publication concerned, or to proceed, but in the knowledge that the defence of innocent publication may no longer be available to them. I do not accept that it was wrong, much less an actionable wrong, for the defendant to instruct its solicitors to write in the terms of the letters quoted above to the retailers of the plaintiff’s book.

29. The plaintiff says that he can prove the truth of the contents of the book and accordingly the letters in dispute are wrong and the defendant’s solicitors had no right to send the letters on behalf of the defendant. The fact that a party may have a full defence to a letter threatening proceedings does not mean that the writing of such a letter itself ,whether to the party concerned or a third party, gives rise to a cause of action. It is possible that a letter written without any justification, mala fide and with a view to causing damage to another party rather than a bona fide defence of the rights of the letter writer, could give rise to a cause of action but that is very far from the case here. The evidence establishes that the defendant has at all times been anxious to rely upon the agreement of 12th December, 2014, and to defend itself, its staff and persons associated with it from defamation. This is entirely legitimate and in the circumstances the writing of the letters in question does not give rise to a cause of action by the plaintiff against the defendant.

30. Finally, it is not necessary to set out in such a letter the entire case in defamation as it will be pleaded if the matter goes to court. Therefore the plaintiff’s complaint that the defendant has not detailed every matter which it says is defamatory cannot give rise to a cause of action by him against them.

31. The matter might well be different if the publisher of material said to be defamatory was genuinely anxious to remove offending material from a publication so that the work could be published without defaming anyone. That is not the case here. The plaintiff’s correspondence with the defendant’s solicitors and his submissions to court shows that he does not admit that any of the contents of the book is defamatory and he will, if necessary, seek to prove the truth of everything he has said in the book. As the plaintiff does not wish to engage with the defendant to try to agree what he may or may not publish, the request for particulars, for such in effect it is, is not made with a view to resolving the dispute between the parties. It follows that no useful purpose would be served by the defendant detailing each and every item which they allege ought not to be published on the grounds that it is defamatory. In any event, this argument also overlooks the fact that the defendant says that the plaintiff is not entitled to publish the book on the grounds that it breaches the terms of the agreement of 12th December, 2014.

32. In summary, the plaintiff has not established that he has an arguable cause of action against the defendant and on that basis he is not entitled to an interlocutory injunction against the defendant. As I have held that the plaintiff has not established an arguable case and therefore is not entitled to the first relief he seeks, it follows that he also has failed to establish that he has a strong case for relief as required by Maha Lingham and therefore he is not entitled to reliefs 2 and 4 of his notice of motion on this basis also.

Are damages an adequate remedy?

33. It is well established law that a plaintiff will be refused an interlocutory injunction if, were he to succeed at full trial, the financial loss suffered by him between the date of the refusal of the interlocutory relief sought and the date of judgment would be quantifiable in money terms. It is clear that this is the case in respect of the plaintiff’s claim. In his e-mail of 7th December, 2015, he stated that he would hold the defendant “responsible for any lost sales of my book from the date the book was withdrawn from any shop or website and I will be taking legal action for damages as a result.” He concluded by stating that if the defendant did not retract its communications with bookshops and websites he would “pursue a claim for damages for any losses and costs I incur as a result.” He followed with a further letter on 4th January, 2016, stating that he would make “a substantial claim for damages as a result of [the defendant’s] actions”. Quite apart from the fact that this correspondence suggests that the plaintiff himself believes that the damage he may suffer will be measured by loss of sales of the book and therefore is quantifiable, in a letter of 11th March, 2016, written to the defendant’s solicitor, the plaintiff stated that he had “now all but sold out of the first edition of [his] book”, so the substance of his claim is open to question.

34. The nearest he comes to making a claim that his losses do not sound in damages is to be found in para. 15 of his affidavit when he stated that as a result of an article appearing in the Sunday Times on 3rd April, 2016, he had an opportunity of a deal with “the largest book wholesaler in the UK to have my book distributed anywhere in the world.” He gave no detail in respect of this possible deal other than to say that he would be unable to secure the deal “with the threats made by the Defendant’s solicitors hanging over bookshops and websites.”

35. While I acknowledge that the plaintiff is representing himself, nonetheless I may only act upon the evidence put before me. The plaintiff has had a number of weeks in which to present his case and in which to reply to the affidavits filed on behalf of the defendant in opposition to his application. There is no evidence before the court which would justify me in concluding that damages would not fully satisfy the plaintiff’s claim were he to succeed at the trial of the action. Accordingly, on this ground also his claim to relief must be refused.

Equitable relief

36. Injunctive relief is equitable relief and a court will not grant equitable relief where the party seeking the relief has himself behaved in an inequitable fashion. In this case the defendant’s primary objection is that the plaintiff has acted in breach of the agreement of 12th December, 2014, in publishing the book. It submits that the plaintiff is not entitled to equitable relief which has as its object and effect the protection of breaches of negative covenants binding upon him. Mr. David Gleeson swore the principal affidavit on behalf of the Defendant. At para. 6 he avers:-

“The Book contains multiple references to records relating to animals or clients of Coolmore and contains numerous derogatory comments about Coolmore, its employees and persons associated with Coolmore.”

37. In para. 10 of his affidavit he quotes comments which are derogatory of Coolmore, its employees and persons associated with Coolmore at pp. 70, 113, 121, 123, 137, 147, 148 and 270 of the book. He states that these are illustrative but not exhaustive. Having read these comments, I am in no doubt that they are derogatory of the defendant and persons associated with it and prima facie constitute breaches of the agreement.

38. At para. 9 of his affidavit Mr. Gleeson gives two examples from the book of material relating to animals and clients of the defendant which he says was published in breach of the agreement. Pages 89 – 90 of the book discloses information regarding an operation carried out on the stallion Galileo, information regarding Galileo’s daily routine, his foals and the defendant’s breeding practices. At p. 116 the book discloses information regarding certain clients of the defendant who entered into a foal sharing deal with the defendant in relation to the stallion Sadler’s Wells.

39. In answer to the allegation that the publication of the book constituted a breach of the agreement of 12th December, 2014, quite apart from any issue of defamation, the plaintiff asserted that he was not bound by the terms of the agreement as the agreement had been procured by duress. This cannot provide an answer to the clear express terms of the agreement. In the first place, the plaintiff has received benefit under the agreement. He cannot now ignore it and he has not sought to set it aside. Accordingly he remains bound by it. Secondly, in correspondence with the defendant’s solicitors he himself purported to rely upon the agreement and made no assertion that the agreement was void for duress until 7th December, 2015, one year later. Thirdly, he has given no sworn testimony to this Court to support the assertion that the agreement was procured by duress. The sole reference to duress is in the letter of 7th December, 2015. On the other hand he confirmed in oral submissions what is recorded in the agreement: that he had the opportunity to obtain legal advice at the time and declined to accept it.

40. In addition the plaintiff submitted that he was entitled to refer to information that was in the public domain despite the terms of the agreement of 12th December, 2014. It is no answer to the obligations set out in clause 8 to state that the information in respect of world renowned horses is already in the public domain. The use of the material is in breach of this agreement regardless of the fact that the information may or may not be readily available to other persons.

41. As things stand I must proceed on the basis that there is an existing valid agreement and quite clearly the actions of the plaintiff in publishing this book amount to grave breaches of that agreement.

42. The defendant also adduced evidence that the book breaches the copyright of four individuals who have sworn affidavits in support of the defendant in these proceedings. The affidavits establish that there was considerable plagiarism of the book “Northern Dancer: the Legend and His legacy” by Ms. Muriel Lennox. The plaintiff was aware of the fact that he was required to obtain her permission prior to using her material as he submitted that he had contacted her and asked for her permission to use the material but had received no reply. It would appear that he did not attempt to contact the other three individuals who have shown in their affidavits that their writings in respect of which they asserted copyright were copied verbatim or virtually verbatim by the plaintiff in his book. The plaintiff has not produced any evidence controverting this evidence.

43. It follows, that if the plaintiff were to obtain the injunctive relief he seeks, the court would be assisting him in relation to clearly established breaches of an agreement which has been performed by both parties and under which the plaintiff received a benefit. It would also involve affording protection to a work which itself infringes the copyright of four individuals. Even if the plaintiff satisfied the tests required in Campus Oil and Maha Lingham, which he has not, in my judgment it would not be appropriate for a court to grant equitable relief in these circumstances.

44. Finally, it is relevant to note that the plaintiff has chosen not to avail of the opportunities afforded to him to resolve any issues between himself and the defendant outside of court. The correspondence both prior and post publication reveals that the plaintiff had little interest in abiding by the terms of the agreement of 12th December, 2014. On the contrary, it indicates that if anything, he was anxious for the defendant to sue him. He clearly welcomed the opportunity to argue a defence of truth in defamation proceedings which he anticipated the defendant would bring against him in respect of his book. In the event, his wish was not fulfilled due to the approach adopted by the defendant as I have outlined in this judgment. In the circumstances, it is open to the Court to conclude that these proceedings were brought because the plaintiff was frustrated by the failure of the defendant to sue him for defamation and not because he had a genuine belief that the defendant had acted wrongfully towards him. It is of course important to note that it is not open to the plaintiff to sue the defendant in respect of any wrongs allegedly perpetrated by the defendant to third parties such as Amazon or the various booksellers contacted by the defendant.

45. For these reasons, I refuse the application.

McAlpine v Bercow

[2013] EWHC 1342 (QB) (24 May 2013)

URL: http://www.bailii.org/ew/cases/EWHC/QB/2013/1342.html

Cite as: [2013] EWHC 1342 (QB)Mr Justice Tugendhat :

This hearing is to determine the meaning of the words complained of in this libel action (“the Tweet”), and whether they are defamatory of the Claimant. The Tweet was published on 4 November 2012. The question of its meaning is being tried separately as a preliminary issue. That is not uncommon in libel actions nowadays, in cases where it is agreed that the trial will be by a judge sitting without a jury.

If I find that the Tweet is not defamatory of the Claimant, that will be the end of the action. If I find that it is defamatory, then the case will proceed to the assessment of damages (unless the parties reach an agreement). If I find that the Tweet is defamatory, the Defendant does not seek to defend any defamatory meaning as true, or on any other basis. I am not asked to decide the number of people who read the Tweet and understood it in a defamatory meaning.

THE TWEET

The Tweet reads:

“Why is Lord McAlpine trending? *Innocent face*”

People who are not familiar with Twitter may not understand the words “trending” and “innocent face”. But users of Twitter would understand.

The Twitter website has a screen with a box headed “Trends”. It lists names of individuals and other topics. Twitter explains that this list is generated by an algorithm which

“identifies topics that are immediately popular, rather than topics that have been popular for a while or on a daily basis, to help you discover the hottest emerging topics of discussion on Twitter that matter most to you. You can choose to see Trends that are tailored for you…”

The Defendant accepts that the question in her Tweet impliedly states that the Claimant was trending on 4 November.

It is common ground between the parties that the words “innocent face” are to be read like a stage direction, or an emoticon (a type of symbol commonly used in a text message or e-mail). Readers are to imagine that they can see the Defendant’s face as she asks the question in the Tweet. The words direct the reader to imagine that the expression on her face is one of innocence, that is an expression which purports to indicate (sincerely, on the Defendant’s case, but insincerely or ironically on the Claimant’s case) that she does not know the answer to her question.

Twitter permits users to express themselves in tweets of no more than 140 characters. Tweets are used in a similar way to ordinary conversation. People tweet descriptions of what they are doing or would like to do, jokes and gossip, and comments on people or topics at large, and anything else they want to say. They tweet using conversational words and expressions. The print outs of the Defendant’s tweets illustrate how she uses Twitter in these ways.

THE PARTIES TO THE ACTION

The parties to this action, and the action itself, are now very well known. Apart from publicity about them on other occasions in the past, the parties have received extensive publicity since the publication of the Tweet. But I have to decide the meaning of the Tweet without the benefit of hindsight. I must decide the meaning as at the date on which it was read.

The Defendant is well known to the public for a number of reasons. Amongst these is that she is the wife of the Speaker of the House of Commons. She has appeared on television on a number of occasions in well known broadcasts. For present purposes what is most relevant is that she has a Twitter account on which she has tweeted regularly. On 4 November 2012 she had over 56,000 followers.

The Claimant is a former Deputy Chairman of the Conservative Party and a former Party Treasurer. He was a close aide to Margaret Thatcher during her time as Prime Minister. As a result of his positions and his work with the Conservative Party, he had a significant political profile during the late 1970s and the 1980s. He was made a life peer in 1984. He retired from working for Conservative Party Central Office in 1990 (that is over twenty years ago) and since 2002 has lived in southern Italy out of the public eye.

THE CIRCUMSTANCES IN WHICH THE TWEET WAS PUBLISHED

For reasons which I will explain, it is important that I should distinguish between facts which are agreed, or which I find to be facts, and those facts which were also known to readers of the Tweet.

There has been no witness called at the trial of this preliminary issue. That is mainly because, as a matter of law, evidence is not admissible as to what any individual reader claims to have understood a publication to mean.

The Claimant has proved a fact in this case if the Defendant has admitted it in her Defence. But he will also have proved a fact if it is an inference which I find ought properly to be drawn, as being more probable than not, arising from those facts which the Defendant has admitted.

The relevant circumstances are largely agreed. They include the following. On the evening of Friday 2 November 2012, the BBC’s current affairs programme Newsnight broadcast a report (“the Newsnight report”) which included a serious allegation of child abuse. The allegation was made by a complainant, a Mr Messham, who was undoubtedly abused when he was a boy living at the Bryn Estyn care home in Wales in the 1970s and 1980s. He alleged that one of his abusers was a person who was variously referred to in the Newsnight report by expressions such as “a leading Conservative from the time”, “a leading Conservative politician from the Thatcher years”, “a senior public figure”, “a shadowy figure of high political standing”, “a prominent Tory politician at the time”. But sadly for all concerned, it was a case of mistaken identity. The person who abused Mr Messham was not the politician who he had believed him to be.

As lawyers, journalists, and many other people, are all too well aware, some of the worst miscarriages of justice have occurred when a person has been the victim of a serious crime, but makes a mistake in identifying the criminal. It is not relevant to the question I have to decide, but it is important as a matter of fairness to the parties, that I should say that the Claimant has vehemently denied that he was ever engaged in the sexual abuse of anyone. It is accepted by the Defendant, and by the complainant, and by the public at large that the Claimant was entirely innocent of any of the veryserious crimes of which the children in Wales were undoubtedly the victims. The Defendant accepted that very soon after 4 November.

The Newsnight report did not broadcast the name of the politician Mr Messham had identified. Towards the end of the report the presenter said they did not have enough evidence “to name names”.

There then followed a number of publications in the media. The Claimant has alleged in his Statement of Case, and the Defendant has admitted:

“The Newsnight report itself and its contents immediately became a prominent news story. Between 2 and 4 November, online and traditional media widely reported upon, and repeated, Newsnight’s allegations. The coverage included, but was not limited to the following articles: The Guardian on 3 November …’ www.telegraph.co.uk on 3 November …The Sunday Telegraph for 4 November and www.telegraph.co.uk … and MailOnline on 4 November…”

The Tweet is not timed. But in a printout of the tweets published by the Defendant, it appears as the third of fourteen which she published on that day. I infer, as Mr McCormick submits I should, that it was probably published early on that Sunday.

Sir Edward draws my attention particularly to those newspaper and web reports which give some details of the description of the man alleged to have been the abuser.

In the issue of The Guardian dated 3 November 2012 the article includes the following:

“Man claims he was sexually abused by Tory politician

…

A victim of the sexual abuse at north Wales children’s homes in the 1970s has called on the Prime Minister to launch a fresh investigation into the scandal, claiming that he was sexually assaulted at the time by a former senior Conservative figure.

… The former political figure, who was not named but was reportedly a senior official during the Thatcher era, has ‘vehemently denied’ the allegations, according to Channel 4 news. …”.

In the article in The Telegraph published on its website on 3 November there appeared the following:

“BBC’s Newsnight airs claims of child abuse against ‘leading Tory politician’.

A senior Conservative Politician has been accused by the BBC’s current affairs programme Newsnight of abusing under- aged boys at a children’s home in North Wales.

The unnamed politician was said to have taken part in the rape and abuse of young boys from the homes, as part of a paedophile ring operating in Wales during the 1970s and 1980s.

Steve Messham told Newsnight that he was abused by a leading Conservative politician while he was a child in care…

He and another victim also told the BBC a leading Thatcher era Conservative politician took part in the abuse.

But there was criticism of Newsnight’s handling of the latest revelations, after Iain Overton, one of the contributors to its investigation, tweeted earlier yesterday that the programme would expose ‘a very senior political figure who is a paedophile’.

That set off a frenzy of unsubstantiated speculation on social networking sites, with several politicians being named as the likely subject. Newsnight did not name the politician in its Newsnight report on Friday night…

The politician at the centre of accusations has denied the claims and said he is prepared to sue the BBC for libel.

He told The Telegraph the allegations were totally untrue … I have never been to this children’s home. The fact is that if they publish anything about me they will get a writ in the morning, I wouldn’t wait two minutes.

Since the Jimmy Savile sex abuse allegations surfaced, politicians have been raising questions about other historic abuse cases…”

In the MailOnline website as from 00:45 on 4 November 2012 there was published the following:

“Tory rapist told me he’d kill me if I told police”: …

Steven Messham… said on one occasion he was abused in a hotel room by the political figure …

Two senior Conservatives accused of being involved with a ‘paedophile ring’…

A sex abuse victim who told the BBC’s Newsnight he was raped by a ‘leading politician from the Thatcher years’ as a child has said the top Tory told him he’d be killed if he told police.

Steven Messham revealed he was contacted by detectives yesterday following Friday’s programme which alleged he was raped ‘more than a dozen times’ by the man described by Newsnight as a ‘shadowy figure of high public standing’. …

Despite a string of damning allegations, Newsnight said it didn’t have ‘enough evidence’ to name the politician, sparking angry claims on Twitter that the Beeb had ‘bottled it’.

[The article includes an image of two tweets which read]

‘P… M… So #Newsnight bottled it again tonight re exposing a paedophile?…’

‘B … Speculation and gossip now rife’…

Newsnight took the decision despite Mr Overton’s crystal clear message online: ‘If all goes well we’ve got a Newsnight out tonight about a very senior political figure who is a paedophile’ [and it printed an image of Mr Overton’s tweet]…

It piles more pressure on the beleaguered corporation after last month it was revealed Newsnight dumped an investigation into paedophile Sir Jimmy Saville, even though they had interviewed his victims…”

In the issue of The Sunday Telegraph dated 4 November there is included:

“Senior Tories accused over child abuse…

During the Waterhouse inquiry it was claimed that abuse took place at the country home of a senior Tory politician…

One of the politicians named at the inquiry, a former confidant of Baroness Thatcher who is still alive but retired from public life, has firmly denied any involvement.

The latest allegations follow claims last week that another of Lady Thatcher’s closest aides was implicated in the north Wales scandal”.

On the other hand Mr McCormick draws my attention to other media reports which contain either no details, or fewer details, about the alleged abuser which might identify him. He also reminds me that the media reports to which the Claimant refers are not in the tabloid newspapers which have the largest circulation figures.

In the issue of The Daily Mirror dated 3 November 2012 there is included:

“Newsnight in battle to out paedo at No 10; Beeb in new pervert scandal. Report will expose a ‘senior political figure’ …

The BBC was yesterday preparing to expose a ‘senior political figure’ as a paedophile… [then it too quotes Mr Overton’s tweet] …

There was an internet frenzy of speculation about the identity of the pervert following the tweet.

Channel 4’s Michael Crick, who used to work on Newsnight, also took to Twitter to claim he had spoken to the man involved, who had not been contacted by the BBC.

He tweeted: ‘Senior political figure due to be accused tonight by BBC of being paedophile denies allegations + tells me he’ll issue writ against BBC’.

The battle to expose the public figure comes weeks after the BBC was rocked by revelations that a Newsnight investigation had uncovered evidence of Jimmy Saville’s sick activities last year but was axed by the editor”.

The print issue of The Daily Telegraph for 3 November identifies the accused person only as ‘politician’, ‘senior figure’ and ‘senior political figure’. It quotes Mr Overton’s tweet in full.

The print issue of The Guardian for 3 November contains similarly limited identifying details:

“Senior figure from Thatcher years ‘vehemently denies’ allegations of paedophile activity, according to Channel 4 News. A former senior political figure is said to have rejected claims that he sexually assaulted one of the hundreds of children who were abused over two decades in Welsh children’s homes”.

It is common ground between the parties that these very well known news media, and other news media which published similar stories, are widely read in England and Wales.

I infer the following matters are more likely than not, and so that the Claimant has proved them: (1) there were a substantial number of viewers of the Newsnight report itself, not least because of the unusual way that it had been trailed on Twitter by Mr Overton; (2) by early on 4 November a very large number of people in England and Wales had read one or more of the media reports I have quoted; (3) the people who viewed the Newsnight report and the people who had read one or more of the media reports referred to by Sir Edward included a substantial number of readers of the Tweet.

Mr McCormick asks me to note certain matters that the Claimant has not attempted to prove in court. The Claimant has not pleaded in his Particulars of Claim tweets dated earlier than the Tweet which referred to the Claimant. There are afew in the bundle which are of later in date, and which do not assist me in what I have to decide.

Obviously if the Claimant was trending (as the Defendant’s Tweet said he was) then there must have been many tweets referring to him which preceded her own. The Claimant does not ask me to make, and I do not make, any finding as to what those other tweets said about the Claimant. I find that there were such tweets, because the Defendant’s Tweet said there were (and it is not suggested she was mistaken about that). There are in the bundle a few tweets dated on 2nd and 3rd November which name the Claimant. They are of assistance to me only to this extent: they do not name him in connection with any story other than the Newsnight report.

WHAT THE PARTIES CONTEND THAT THE TWEET MEANT

The Claimant’s case is that in their natural and ordinary meaning, and/or in the alternative, by the way of innuendo (a legal term I explain below) the Tweet meant that he was a paedophile who was guilty of sexually abusing boys living in care.

The Defendant denies that her Tweet meant that, or that it meant anything defamatory of the Claimant. Her case is that the question she asked in her Tweet was simply a question. She accepts that the question implied that the Claimant was trending, but that by itself is entirely neutral, and there is nothing else to be inferred from the question she asked. Her question does not suggest any reason why the Claimant was, or might have been, trending. Her question was as neutral as the statement on the Twitter screen itself which listed the Claimant under the heading “Trends”.

It will be necessary to return in more detail to the contentions of the parties. But before doing that it is necessary to set out the relevant law which I have to apply in resolving this dispute.

WHAT DOES THE LAW MEAN BY THE WORD DEFAMATORY?

The applicable law is well established and not in dispute. As a matter of law, words are defamatory of a claimant if (1) they refer to that claimant and (2) they substantially affect in an adverse manner the attitude of other people towards the claimant, or have a tendency so to do.

There is no dispute that the Tweet refers to the Claimant, because it names him. The issue here is what the Tweet means, and whether it defames him.

If the Tweet does mean that the Claimant abused children, then there is obviously no dispute that that is one of the most seriously defamatory allegations which it is possible to make against a person.

In libel actions there is often room for argument as to what a statement means. Even if it is defamatory, there can be argument as to whether the allegation is a very serious one, or some less serious one.

A classic example is Rubber Improvements Ltd and Lewis v Daily Telegraph Ltd [1964] AC 234. In that case The Daily Telegraph had published an article headed “Inquiry on Firm by City Police” and the Daily Mail had published an article headed “Fraud Squad Probe Firm”. The plaintiffs claimed that those articles meant that they were guilty of fraud. The defendants admitted that the articles were defamatory, but they maintained that the articles did not go so far as to include actual guilt of fraud, but something less. The House of Lords held that the articles could not mean that the plaintiffs were guilty of fraud. As Lord Devlin put it at p286:

“If the ordinary sensible man was capable of thinking that wherever there was a police inquiry there was guilt, it would be almost impossible to give accurate information about anything…”

More recently three different levels of possible defamatory meaning have been explained by the Court of Appeal in Chase v Newsgroup Newspapers Ltd [2003] EMLR 218, [2002] EWCA Civ 1772 at 45:

“The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act.”

The court is not bound to choose between the contentions of the parties as to what the Tweet means. I must make up my own mind. Mr McCormick submits that if, contrary to his case, I find that the Tweet is defamatory, I should not find that it means that the Claimant was guilty of child abuse. Instead I should find that it means something less, that is to say, that there are grounds for investigating whether he had committed child abuse, or that there are grounds to suspect that he had committed child abuse.

In the course of argument Mr McCormick referred to what he called “reportage”. So it is necessary to explain two further rules of law.

One of these is known as the repetition rule. Under that rule a defendant who repeats a defamatory allegation made by another is treated as if he had made the allegation himself, even if he attempts to distance himself from the allegation: Flood v Times Newspapers Ltd [2012] UKSC 11; [2012] 2 AC 273 para [5] and Gatley on Libel and Slander 11th ed (2008) para 11.4.

The harshness of that rule is tempered by another rule, known as reportage. As Lord Phillips explained in Flood at para [34] a defence known as Reynolds privilege could be made out:

“in respect of a report in a newspaper of defamatory allegations made in the course of an ongoing political debate, notwithstanding that the publishers had made no attempt to verify the allegations. The newspaper had not adopted or endorsed these allegations. … [in] circumstances where both sides to a political dispute were being reported “fully, fairly and disinterestedly” and where the public was entitled to be informed of the dispute. In such circumstances there was no need for the newspaper to concern itself with whether the allegations reported were true or false. The public interest that justified publication was in knowing that the allegations had been made, it did not turn on the content or the truth of those allegations. A publication that attracts Reynolds privilege in such circumstances has been described as “reportage”. In a case of reportage qualified privilege enables the defendant to avoid the consequences of the repetition rule.”

The Defendant has not raised a defence of privilege or reportage in this case. Mr McCormick was using the term “reportage” in a different sense. He was submitting that if (contrary to her case) I find that the Tweet was defamatory of the Claimant, then it was not adopting Mr Messham’s allegation of guilt of child abuse, but she was instead suggesting something less serious.

HOW THE COURT MUST DECIDE AN ISSUE AS TO MEANING

Two different kinds of meaning

The meanings of words for the purposes of defamation are of two kinds. There may be a natural and ordinary meaning and there may be an innuendo meaning.

In Jones v Skelton [1963] 1 WLR 1362 at 1370-1 the court explained what is meant by a natural and ordinary meaning as follows:

“The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. …. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.”

An innuendo meaning (in the technical legal sense) is something more than a meaning that can be implied from the words complained. It is a meaning which can be implied from the words complained of, but only if the reader also knows other facts (which are not general knowledge). These are generally called extrinsic facts.

In respect of an innuendo meaning, a claimant must, in addition to identifying the meaning complained of, prove the extrinsic facts relied upon and prove that these facts were known to readers (Gatley on Libel & Slander 11th ed. §3.19). The claimant will have been defamed in the minds of those readers, but not in the minds of the readers who did not know the extrinsic facts.

There may be an issue between the parties whether the circumstances of a publication amount to extrinsic facts, which have to be proved as such to support an innuendo, or whether they are general knowledge, which can be relied on in support of its natural and ordinary meaning. Either way, the court must find that the facts are known to the reader.

In the present case there is no dispute about the truth of the fact that the Claimant was a prominent Conservative politician from the Thatcher years. The issue is as to whether any reader of the Tweet knew who the Claimant was.

In the present case the Tweet would mean little to a reader who had no knowledge of any of the Claimant, of the Newsnight broadcast or of the media reporting of the Newsnight broadcast in the period immediately preceding the Tweet. So in the present case I have to decide whether the Newsnight report and the media reporting are to be treated as part of the general knowledge of the Defendant’s followers who read the Tweet on 4 November 2012, or whether they are to be treated as extrinsic facts, that is to say, knowledge that would be known only to a limited number of people. If they would be known only to a limited number, then the Claimant must prove that there were readers in that number, and how big that number was.

In cases where the extrinsic fact is obscure a claimant will have to adduce evidence from witnesses or documents to prove that the readers of the words complained of knew the extrinsic facts. But in other cases a claimant may rely on an inference prove that some readers had the necessary knowledge of the extrinsic facts.

In Fullam v Newcastle Chronicle & Journal Ltd [1977] 1 WLR. 651 the plaintiff complained that an article in a local newspaper meant that he had fathered an illegitimate child. But the meaning in question could only be understood by readers of the newspaper who knew facts about the plaintiff’s wife and child (the date of the marriage and the date of the birth) which were not set out in the article he complained of. At 659 Scarman LJ explained:

“There may well be cases in which it would not be necessary to plead more than the fact of publication by newspaper and the extrinsic circumstances, leaving it to be inferred that there would be readers with knowledge of the facts [about his wife and child].

For instance, the facts may be very well known in the area of the newspaper’s distribution — in which event I would think it would suffice to plead merely that the plaintiff will rely on inference that some of the newspaper’s readers must have been aware of the facts [about his wife and child] which are said to give rise to the innuendo.”

In the present case the Claimant’s primary case is that his having been a politician, the gist of the Newsnight report, and the reporting of it by the media, were so well known to Twitter followers generally that these facts should be treated as part of their general knowledge. If he is wrong about that, his alternative case is that he relies on inference. He submits that the court should infer that there probably were some readers who knew these facts, as explained in the Fullam case.

The test of reasonableness

The legal principles to be applied when determining the question of meaning are in part derived from the Rubber Improvements case. They were summarised by Sir Anthony Clarke MR in Jeynes vNews Magazines Limited [2008] EWCA Civ 130 at [14]-[15] (where “he” means “he or she”):

“The legal principles relevant to meaning have been summarised many times and are not in dispute…. They may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question.”

It is important in this case to stress point (6). The Tweet was not a publication to the world at large, such as a daily newspaper or broadcast. It was a publication on Twitter. The hypothetical reader must be taken to be a reasonable representative of users of Twitter who follow the Defendant. What the characteristics of such people might be is in part agreed, and in part for submissions by the parties as to what I should infer from what is agreed.

The Defendant’s tweets which are in the court bundle include a number which relate to politics or current affairs as well as a number which do not. Because of that, and because of her political links, Sir Edward submits that followers of the Defendant probably included a significant number who shared her interest in politics and current affairs. A significant number retweeted the Tweet to their own followers. The fact that the Defendant’s followers use Twitter implies that they like to be up to date with such matters. I did not understand Mr McCormick to dispute this, and I would infer that it is the case.

It is also common ground between the parties that, in the past, some Twitter users have used Twitter to identify alleged wrongdoers, and others whom the traditional media have not identified when reporting a story. An example of this was in 2011 when Twitter users identified a footballer who had obtained a privacy injunction in an action where he was identified in the public court papers only by initials. Although the Defendant does not dispute this, she does not admit how great a number of readers of the Tweet would have known this fact about how Twitter was used (or any of the other facts which she agrees to be facts). And she does not accept that even those readers who did know that Twitter had been used in this way in the past (or the other agreed facts) would understand the Tweet to mean what the Claimant contends it means.

There are, of course, also references in the newspaper reports I have quoted above to Twitter being used in this way in this very case. Examples are the “frenzy of unsubstantiated speculation on social networking sites, with several politicians being named as the likely subject” (paras 22 and 26 above) and the tweets of which The MailOnline published images (para 23 above).

The law is clear that words may be defamatory in whatever form they are used. A question, or a rhetorical question, or any other form of words may, in principle, be understood to convey a defamatory meaning. The meaning of a statement or question depends on the context. The extent to which a reader can draw defamatory inferences from neutral words depends on the context. The writer is not responsible for an inference unless it is one that a reasonable person would draw: Gatley para 3.17.

Although there is no dispute that the principles listed in Jeynes set out the law to be applied, there is a difference of emphasis between the parties in relation to the words in principle (2) “and someone who does not and should not, select one bad meaning where other non-defamatory meanings are available”.

There was in the early 17th century a rule of law that words alleged to be defamatory were always to be construed in the most inoffensive sense reasonably possible (see Ajinomoto Sweeteners Europe SAS v ASDA Stores Ltd [2010] EWCA Civ 609 at para [1]). This rule was to discourage suits and prosecutions. Or as we would express it today, it was to discourage litigation which might interfere with the right of freedom of expression. But that has not been a rule of law since then, and it is not one now. Sir Edward notes that the editors of Duncan & Neill 3rd ed para 5.15, at footnote 3, caution that a jury could be confused if those words from Jeynes were included in a direction on the law from the judge.

On the other hand, as Mr McCormick rightly submits those words from principle (2) in Jeynes were specifically approved by the Court of Appeal in Tesla Motors v BBC [2013] EWCA Civ 152 at para [19].

I interpret those words as being part of the description of the hypothetical reasonable reader, rather than as a prescription of how such a reader should attribute meanings to words complained of as defamatory. If there are two possible meanings, one less derogatory than the other, whether it is the more or the less derogatory meaning that the court should adopt is to be determined by reference to what the hypothetical reasonable reader would understand in all the circumstances. It would be unreasonable for a reader to be avid for scandal, and always to adopt a bad meaning where a non-defamatory meaning was available. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.

SUBMISSIONS FOR THE CLAIMANT

Sir Edward submits that the Tweet taken just by itself, consisting of its seven words, suggests that the Claimant has done something wrong. It is not neutral, even to a reader who knew none of the events of the preceding two days. The question is followed by the words “innocent face”.

The parties differ as to what the words “innocent face” should be understood to mean in this context. Sir Edward submits that the words “innocent face” are to be read as irony, that is, as meaning the opposite of their literal meaning. People sometimes ask a question to which they already know the answer. They may do that as an indirect way of bringing out into the open something they already know, or believe to be, a fact. They sometimes seek to conceal what they are up to (or pretend to conceal what they are up to) by putting on an expression which suggests that they do not already know the answer to the question. Sir Edward submits that the reasonable explanation for the Defendant inserting the words “innocent face” in the Tweet is to negate a neutral interpretation, and to hint, or nudge readers into understanding that the Claimant has been doing wrong.

He submits that the court should infer that (by Sunday 4 November) a substantial number of Twitter followers of the Defendant would reasonably recognise that the Claimant fitted the description of the abuser given in the Newsnight report and the other media referred to above. Against the backdrop of that report and those media publications, the answer to the question the Defendant asked in the Tweet would, to the reasonable reader, be that the Claimant was trending because he was the senior Tory politician from the Thatcher years who Mr Messham had identified as his abuser in the children’s home in Wales.

Sir Edward accepts that many of the Defendant’s followers were too young ever to have heard of the Claimant in the days when Margaret Thatcher was Prime Minister, and others had probably forgotten about him before he started the trending to which the Tweet referred.

Sir Edward submits that the Defendant has not suggested any reason why he should have been trending in 2012, other than because his name had been linked to the abuse allegations. So the question in the Tweet is just a device the Defendant used to draw the readers’ attention to an answer which a reasonable reader would understand that she already thought she knew.

A reasonable reader of a Tweet, or anything else, does not just look at the words. A reasonable reader would ask him or herself what the Tweet is about, if it was not pointing the finger of blame at the Claimant. And there would not be a reasonable alternative meaning that would spring to mind.

Sir Edward submits that if the circumstances in which the Tweet were published do not amount in law to general knowledge known to the Defendant’s followers, then, because they had been reported in public sources to so great an extent, the court should infer that they were probably known to a substantial number of readers of the Tweet. He submits that I should infer that the Newsnight report, and the allegations made in it, were one of the biggest domestic news stories that weekend.

So if the Tweet is not defamatory in its natural and ordinary meaning, he submits that it is defamatory in an innuendo meaning to that substantial number of readers who did know of the Newsnight report and the other media reports referred to above.

SUBMISSIONS FOR THE DEFENDANT

Mr McCormick submits that the words “innocent face” are to be read literally: that the expression which the reader is being invited to imagine on the Defendant’s face in asking the question is “deadpan”. It is an expression to convey that she is asking it in a neutral and straightforward manner. She has noticed that the Claimant is trending and all she is asking is that someone should tell her why.

He emphasises that the Claimant’s career, distinguished as it was, ended some 20 years ago. Newsnight is not a programme that attracts particularly large numbers of viewers. It is notable that the Claimant has been unable to include in the media reports he relies on reports on other TV programmes, or on radio broadcasts. The media reports he relies on are not front page coverage, and are not in the mass market tabloid press. The media reports to which he drew my attention, as set out above, give very little detail to describe the person accused of abusing Mr Messham.

The position as at 4 November 2012 must not be confused with the position as it became later that week, when, in a notorious incident, an interviewer could be seen on TV handing to the Prime Minister a list of names on which the Claimant’s name could be seen by viewers. The coverage after that, he submitted, could be described as blanket coverage, but not the coverage before 4 November. That is why, submits Mr McCormick, the Claimant has to rely on an innuendo meaning in this case.

Mr McCormick submits that the reasonable reader of the Tweet would not understand the Defendant to be referring to the allegations in the Newsnight report or suggesting any wrongdoing. The question was consistent with her having noticed he was trending, but not having investigated the reason. Only an unreasonable reader, avid for scandal, would read the Tweet as asking anything other than a straightforward question. If readers were to take this Tweet as meaning that the Claimant was guilty of child abuse it would be almost impossible to tweet about anything. She cannot reasonably be understood as adopting Mr Messham’s allegations. Even if she is understood to refer to those allegations at all, she is referring only to a controversy, and IS not taking sides.

Mr McCormick submits that the Defendant’s followers would know that there can be any number of reasons why a person might trend, and it is not necessary for the Defendant to suggest any particular reason why the Claimant might have been trending. That is why she asked the question.

Mr McCormick emphasises that the Claimant had not been named in the Newsnight report or the media relied on by him, and that by 2012 very few people would be likely to know or to remember what he had done some 20 years before. At best he was only one of a number of people from the Thatcher years who would have fitted the very vague description given of the alleged abuser. The Newsnight report and other media reports did not just report Mr Messham’s allegation. They also reported that the person who he identified had unequivocally denied the allegation, and that the BBC had insufficient information to name that person. Just because Twitter was sometimes used by tweeters to disclose the names of people when others were trying to keep the names out of the public eye, it would not be reasonable for a reader to infer that that was what the Defendant was doing with her Tweet.

DISCUSSION

In my judgment followers of the Defendant on Twitter probably are very largely made up of people who share her interest in politics and current affairs. They probably are people who, by 4 November, knew these elements of the story told in the Newsnight report: that Mr Messham had been abused at a children’s home in Wales some 20 years or so before, that the man he identified as his abuser was a leading Conservative politician from that time, and that the decision of the BBC not to name the person Mr Messham identified was the subject of public controversy.

In my judgment some followers of the Defendant probably did also have prior knowledge of the Claimant as a leading Conservative politician of those years. Some followers probably did remember him in that capacity, and some others probably had sufficient interest in politics to have read about him. 56,000 is a substantial number of people, although I do not find that all of those read the Tweet.

However, in my judgment it was not necessary for a reader of the Tweet to have had any prior knowledge of the Claimant as a leading politician of the Thatcher years in order for them reasonably to have linked the Tweet naming him with what I have found they knew about the allegations in the Newsnight report. This is because the Tweet identified him by his title, Lord McAlpine, that is to say, as a peer of the realm. It is common knowledge that peers nowadays are generally people who have held prominent positions in public life, in many cases in politics, including as members of the House of Lords. The Tweet asked why the named Lord was trending, in circumstances where (1) he was not otherwise in the public eye on 4 November 2012 and (2) there was much speculation as to the identity of an unnamed politician who had been prominent some 20 years ago.

In my judgment the reasonable reader would understand the words “innocent face” as being insincere and ironical. There is no sensible reason for including those words in the Tweet if they are to be taken as meaning that the Defendant simply wants to know the answer to a factual question.

The Defendant does not have any burden of proof in the issue I have to decide. She does not have to offer an alternative explanation of why a peer, whose name and career is known to few members of the public today, might have been trending on 4 November 2012 without her knowing why he was trending. But where the Defendant is telling her followers that she does not know why he is trending, and there is no alternative explanation for why this particular peer was being named in the tweets which produce the Trend, then it is reasonable to infer that he is trending because he fits the description of the unnamed abuser. I find the reader would infer that. The reader would reasonably infer that the Defendant had provided the last piece in the jigsaw.

That leads to the question: what is the level of seriousness of the allegation that the Claimant fits the description of the unnamed abuser?

The Newsnight report was not a report of an investigation by the police (or by anyone else). Nor do the media reports suggest that they were reporting on an investigation. The Newsnight report, and all the other reports are of the allegations of a man who complained he was sexually abused. It is true that some reports also included that the unnamed person who is accused of the crime has vehemently denied it. But what is reported is the accusation. The Tweet is linked to those reports, in that it adds a name that was not in the reports themselves. So it is by implication a repetition of the accusation with the addition of the name which had previously been omitted.

The effect of the repetition rule is that the Defendant, as the writer of the Tweet, is treated as if she had made, with the addition of the Claimant’s name, the allegation in the Newsnight and other media reports which had previously been made without his name. It is an allegation of guilt. I see no room on these facts for any less serious meaning. The fact that the accused’s denial was also reported in media (other than Newsnight) may be one of a number of factors that the Defendant can rely on in mitigation of damage, but it does not reduce the seriousness of the allegation.

If the Defendant wished to avail herself of a public interest defence, such as Reynolds privilege or reportage, she would have had to plead it. She has not done so. Given the well known risk that a victim of a real crime may make a mistaken identification of the criminal, I do not find it surprising that she has not pleaded any defence of that kind.

CONCLUSION

It follows that, for these reasons, I find that the Tweet meant, in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care.

If I were wrong about that, I would find that the Tweet bore an innuendo meaning to the same effect. But if it is an innuendo meaning it is one that was understood by that small number of readers who, before reading the Tweet on 4 November, either remembered, or had learnt, that the Claimant had been a prominent Conservative politician in the Thatcher years.

At this stage I am not asked to find how many followers of the Defendant read the Tweet or understood it in the meaning I have found it bore.

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