Defamation
Bradley, practising as Malcomson Law Solicitors v Maher
[2009] IEHC 389, Clarke JJUDGMENT of Mr. Justice Clarke delivered on the 31st day of July, 2009
1. Introduction
1.1 The plaintiffs (“Malcomson Law”) are a firm of solicitors. The defendant (“Mr. Maher”) is in dispute with Malcomson Law arising out of the administration by Malcomson Law, as a firm of solicitors, of the estate of Michael Maher, deceased, an uncle of Mr. Maher. Mr. Maher was a beneficiary of that estate and complains that the estate has not been properly administered by Malcomson Law.
In that context, it would appear that Mr. Maher picketed Malcomson Law’s offices with placards setting out, it is alleged, untrue and defamatory statements to the effect that monies, relating to the administration of his late uncle’s estate and amounting to €150,000, had been withheld by Malcomson Law, without reason, from Mr. Maher for a period of more than five years and questioning whether the monies were used to fund political parties. Malcomson Law further claimed that Mr. Maher, his servants or agents, published or caused to be published a number of defamatory statements on the “Rate your Solicitor” website, www.rateyoursolicitor.com. The alleged statements state, inter alia, that a sum of money was missing or was withheld from the account of the late Michael Maher. Malcomson Law claim that these statements have a defamatory effect, and that in their natural and ordinary meaning, the statements meant and were understood to mean that Malcomson Law were engaged in unlawfully withholding monies from the estate of the late Michael Maher.
Malcomson Law further claim that Mr. Maher, his servants or agents, have published or caused to be published statements on the “Rate Your Solicitor” website encouraging members of the general public to inform Mr. Maher as to when Malcomson Law and their representative are attending court so that Mr. Maher might have an opportunity to mount a picket, and that Mr. Maher, his servants or agents, have published or caused to be published, on the “Rate Your Solicitor” website, personal details of members of the firm such as their home address or type of car.
1.2 It was in that context that these proceedings were commenced by Malcomson Law against Mr. Maher. Malcomson Law applied for and obtained an interlocutory injunction on 10th October, 2008, restraining Mr. Maher from making any further entries to the “Rate Your Solicitor” website. Mr Maher was further restrained from watching, besetting or otherwise picketing Malcomson Law’s premises and was restrained from communicating with members of the public by way of distribution of leaflets regarding any matter concerning Mr. Maher and Malcomson Law.
1.3 The basis of Malcomson Law’s claim is to the effect that Mr. Maher has been guilty of defamation in the circumstances referred to and also it is said that Mr. Maher has engaged in unlawful picketing.
1.4 Mr. Maher has put in a full defence to these proceedings together with a counterclaim. Some interlocutory issues concerning discovery have already been dealt with, but an important question has arisen arising out of the service by Malcomson Law of a notice of trial which purports to specify that these proceedings are to be tried by a judge sitting alone, and thus without a jury.
1.5 Mr. Maher seeks to have that notice of trial set aside on the basis of an assertion on his part that he is entitled to a jury trial, at least in respect of the defamation aspects of these proceedings. This judgment is directed to that issue. It is first important to note the precise claim made by Malcomson Law.
2. The Claim
2.1 The relief claimed in both the plenary summons issued by Malcomson Law and statement of claim filed by them is as follows:-
1. Damages for libel;
2. Damages for slander;
3. Damages for unlawfully picketing, watching, besetting, loitering and otherwise interfering with Malsomson Law’s quiet enjoyment of its premises and its ability to conduct its lawful business unfettered by interference from Mr. Maher;
4. An order preventing Mr. Maher from continuing to unlawfully picket, watch, beset, loiter and otherwise interfere with Malcomson Law’s quiet enjoyment of its premise and their professional practices unfettered by inference from Mr. Maher;
5. Such further or other order as this Court shall deem fit; and
6. Costs and interest pursuant to statute.
2.2 As will be clear from the above, there are, in substance, two aspects to Malcomson Law’s claim. The first is a claim for damages for defamation and damages for unlawfully interfering with Malcomson Law’s quiet enjoyment of its premises.
2.3 The second aspect of the claim is one in which Malcomson Law seeks to restrain what is said to be unlawful picketing, together with other similar relief.
2.4 It is clear that, in the ordinary way, a claim for damages for defamation in this Court is heard by a judge sitting with a jury. It is equally clear that a claim for damages for unlawful picketing, and the like, together with a claim for an injunction arising out of what is said to be such unlawful picketing, is a claim which would never have been tried before a jury but rather, given that an injunction is equitable relief, would have been heard by a Court of Chancery in historical times and would, after the unification of the various divisions of this Court, have been likely to have been listed for trial as part of the Chancery List of this Court.
In addition, regard has to be had to the defendant’s counterclaim which seeks as follows:
1. General, special and punitive damages for negligence and breach of fiduciary duty;
2. Any further order as this Court seems fit; and
3. Costs and interest pursuant to statute
2.5 It is equally clear, therefore, that the claim made by Mr. Maher in his counterclaim would, ordinarily, fall to be decided by a judge sitting alone. It is also clear that there is a real risk that there would be a substantial overlap between the evidence relevant to at least one aspect of the defamation proceedings, and the evidence relevant to Mr. Maher’s counterclaim. At the heart of the defamation proceedings are Mr. Maher’s allegations concerning the way in which the estate concerned was administered. To the extent that Mr. Maher may seek to justify anything said by him about Malcomson Law, then it would be necessary for him to seek to establish the truth of any allegations which he may be found to have made. Likewise, it is likely that the same, or quite similar, facts would be at the heart of his counterclaim.
2.6 Against that factual background, it is next necessary to turn to the legal principles.
3. The Law
3.1 The starting point has to be the provisions of s. 94 of the Courts of Justice Act, 1924, which preserved, in the Courts of Saorstát Éireann, the right to trial by jury in any case where a right to trial by jury in civil proceedings had previously existed. Section 94 stated as follows:-
“94. —Nothing contained in this Act shall take away or prejudice the right of any party to any action in the High Court or the Circuit Court (not being an action for a liquidated sum, or an action for the enforcement, or for damages for the breach of a contract) to have questions of fact tried by a jury in such cases as he might heretofore of right have so required in the Supreme Court of Judicature in Ireland, and with like directions as to law and evidence, but no party to an action in the High Court or the Circuit Court for a liquidated sum, or an action for the enforcement or for damages for the breach of a contract or in an action for the recovery of land shall be entitled to a jury unless the judge shall consider a jury to be necessary or desirable for the proper trial of the action, and shall of his own motion or on the application of any party so order. Subject to all existing enactments limiting regulating, or affecting the costs payable in any action by reference to the amount recovered therein, the costs of every civil action, and of every civil question and issue, tried by a jury in the High Court or the Circuit Court shall follow the event, unless, upon application made, the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct; and any order of a Judge as to such costs may be discharged or varied by the appellate tribunal.”
There is no doubt but that a right to trial by jury in defamation proceedings existed as of that time and was, therefore, continued in force by reason of that Act.
3.2 It seems equally clear that any entitlement to trial by jury in defamation proceedings is purely statutory, and does not derive from the Constitution. For example, defamation proceedings in the Circuit Court do not involve a jury. It has never been suggested that there is any constitutional infirmity in that arrangement.
3.3 It is, of course, the case that one significant aspect of the entitlement to trial by jury in civil proceedings was removed by virtue of s. 1 of the Courts Act 1988, The relevant provision is as follows:-
“1.—(1) Notwithstanding section 94 of the Courts of Justice Act, 1924 or any other provision made by or under statute, or any rule of law, an action in the High Court—
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision),
(b) under section 48 of the Civil Liability Act, 1961 , or
(c) under section 18 (inserted by the Air Navigation and Transport Act, 1965 ) of the Air Navigation and Transport Act, 1936 ,
or a question of fact or an issue arising in such an action, shall not be tried with a jury.
(2) Subsection (1) of this section also applies in relation to—
(a) an action in which damages are claimed both in respect of personal injuries to a person caused as specified in subsection (1) (a), or the death of a person, and in respect of another matter, and
(b) an action in which—
(i) the damages claimed consist only of damages in respect of a matter other than personal injuries to, or the death of, a person, and
(ii) the claim arises directly or indirectly from an act or omission that has also resulted in personal injuries to, or the death of, a person,
and in relation to a question of fact or an issue arising in an action referred to in paragraph (a) or (b) of this subsection.
(3) Subsection (1) of this section does not apply in relation to—
(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,
(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court, on the application of any party, made not later than 7 days after the giving of notice of trial or at such later time as the court shall allow, or on its own motion at the trial, that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespass to the person or both, as the case may be, in respect of that act or omission, or
(c) a question of fact or an issue arising in an action referred to in paragraph (a) or (b) of this subsection other than an issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional trespass to the person or both, as the case may be, in respect of the act or omission concerned.”
3.4 As is clear, therefore, a right to trial by jury in personal injury actions as defined in that provision was removed and is no longer available, except in claims for false imprisonment and trespass to the person, as set out in s. 1(3) of the Courts Act 1988.
3.5 In that context, the Supreme Court had to consider in Sheridan v. Kelly [2006] 1 IR 314, a situation which arises where multiple claims are made, some but not all of which would, in the ordinary way, attract an entitlement to a jury trial. In that case the Supreme Court came to the view s. 1(3) allowed for a trial by jury in a claim for damages for personal injuries caused by negligence, or other means, provided damages were claimed in respect of either false imprisonment or intentional trespass to the person. However the two causes of action must be linked by a claim that the damage arose in respect of the same act or omission. In Sheridan, the Supreme Court found that all of the plaintiff’s allegations, being a claim for personal injuries for negligence and for trespass to the person, could be traced back to the core allegation of the plaintiff’s claim. At page 319, Fennelly J. stated as follows:-
“(T)he subsection allows a plaintiff, in certain cases, and provided he claims damages as a result of one of the two specified cause of action, namely “false imprisonment or intentional trespass to a person”, or both also to seek jury trial where he pleads that he has suffered damages caused by, for example, negligence. The subsection requires, however, that there two causes of action be linked by a claim that the damages arose “in respect of the same act or omission”…The same act may give rise to a claim under different legal headings. Acts giving rise to a breach of contract may also, depending on the factual context, constitute negligence or trespass. The subsection does not require that the damages be identical.”
3.6 However, it seems clear that an important aspect of the consideration of the Supreme Court in Sheridan was the proper interpretation and application of s. 1 (3) of the Courts Act 1988.
3.7 More recently Dunne J. had occasion to consider an analogous issue in Kerwick v. Sunday Newspapers Limited Trading As Sunday World, (Unreported, High Court, Dunne J., 10th July, 2009). In that case the plaintiff concerned brought proceedings for defamation, a breach of the right to privacy, and negligent infliction of emotional distress. On the facts of the case concerned, Dunne J. determined that, notwithstanding the fact that, in the ordinary way, the defamation claim brought by the plaintiff concerned would have been tried by a jury, nonetheless, in all the circumstances, the interests of justice required that there be a single trial of all issues and that such a trial could not be before a jury. Dunne J outlined the difficulties of separating the claims into separate proceedings as follows:-
“Imagine that this case was set down for trial without a jury and that the plaintiff made an application to have the trial of two of the causes of action heard at the same time and the trial of the third cause of action held at a later time. Imagine that there would be two separate assessments made in respect of damages. There would be a duplication of evidence, the case would take longer, the costs would be greater and it is arguable that there could be an overlap in respect of the damages that might be awarded. It is difficult to see how such an approach could be permissible in any circumstances.”
3.8 Against that background it seems to me that the following general principles seem to apply. In the ordinary way, a plaintiff or defendant is entitled to a jury trial in this Court in defamation proceedings. However, that entitlement is not absolute. Where a single set of proceedings involve more than one cause of action, the court has to exercise a discretion as to the appropriate way in which all issues in the case can be disposed of. That discretion arises even in cases where no question of a right to trial by jury exists. For example, the question of whether all issues in a single case which is to be tried by a judge alone should be determined at a single unitary hearing, or in two or more separate hearings, is a matter over which the court retains a discretion which should be exercised, as should all judicial discretion, on a principled basis. For discussion of the principles to be applied in such cases see Cork Plastics Manufacturing & Ors v. Ineos Compound UK Ltd & Ors [2008] IEHC 93.
3.9 The available options, at the level of principle, in a case where defamation is but one of the issues arising seem to me to be the following:-
A. A single unitary trial in which all issues are determined at a single hearing. It seems clear that if that is the option which justice demands then it necessarily follows that such a trial will not be a trial by jury as it would be inappropriate to extend trial by jury to issues which are not properly tried, in civil proceedings, by a judge sitting with a jury. Obviously where one of the claims made is a personal injury claim then the application of s. 1(3) of the Courts Act 1988, would need to be considered.
B. Two fully separate trials. In such circumstances, the court has a discretion to direct that there should be a separate trial before a jury of the defamation aspect of the proceedings with a further trial of all other issues before a judge sitting alone. Clearly whether such a course of action is satisfactory will be highly dependent on the inter connection between the issues likely to arise at the respective hearings. Factors such as whether or not there is likely to be a significant waste of court time and parties expense in the duplication of evidence where the facts relevant to both matters are the same or similar will be an important factor. Likewise, the necessity to ensure consistency in relation to all findings of fact must be taken into account and may give rise to difficulties in circumstances where a jury will simply deliver a verdict on the basis of general questions asked of the jury concerned, and without giving detailed reasons or detailed findings of fact. The possibility of a judge being placed in the difficult position of having to assess the same facts as a jury had previously addressed with an obligation to give proper recognition to the findings of the jury, but at the same time being unaware of the precise factual basis on which the jury came to its conclusion needs to be weighed significantly in the balance. In addition, regard should be had to the circumstances in which the dispute between the parties as to whether there should be a jury trial has arisen. For example, note should be taken of the fact that it is normally a plaintiff who decides the causes of action which are to arise in a single set of proceedings (although, of course, as here, a defendant may add to those causes of action by reason of raising issues in a counterclaim). Care should be exercised to ensure that a plaintiff should not be allowed to exclude the possibility of a jury trial simply by adding some form of relief to a claim which is substantially one in defamation. It is, of course, the case that other factors may loom to a greater or lesser extent as important matters to be weighed in the balance on the facts of any individual case.
C. A hybrid trial. Order 36, rule 7 of the Rules of the Superior Courts provides as follows:-
“The court may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or party of fact and partly of law, arising in any cause or matter which, without any consent of parties, can be tried without a jury, and such trial may, if so ordered by the court, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.”
It is clear from that order that the court has an entitlement to direct that there be a trial of certain issues before a jury with the same trial judge continuing on to deal with other issues (not appropriate for jury trial) after the jury has reached its conclusions. It follows that, in such cases, the evidence heard before a jury will also form part of the evidence which the judge will be entitled to consider when dealing with any other issues which remain for decision by the judge sitting alone. Whether such a form of hearing is satisfactory (and that is the test for the rule speaks of it appearing “desirable”)will again depend on the circumstances of the case. The extent, for example, that it might be necessary to call the same witnesses again will be important. Such witnesses may have to be called again because lines of cross examination that might not have been relevant to the jury trial (and would therefore have been inappropriate to pursue before the jury) might nonetheless be appropriate in respect of issues which the judge had to try. All proper weight would need to be attached to any complications of that variety which might arise. Likewise, dependent on the facts of the case under consideration, the difficulties which the judge might encounter in having to approach the issues which were for the judge to determine on a consistent basis with the findings of the jury, but without knowledge of the precise basis on which the jury came to its conclusions, would arise under this heading as well. Furthermore, there is always the possibility that other individual aspects of any case under consideration might prove important to weigh in the balance under this heading as well.
3.10 It is clear, therefore, that the court retains a discretion as to which form of the conduct of the trial or trials necessary to resolve all issues between the parties is appropriate in all the circumstances of the case. I have sought to identify the principal factors that might be likely to influence a court’s decision as to where the justice of the case lies. However, it seems almost certain that each case will depend, to a significant extent, on its own facts.
3.11 In the light of those general principles, I propose approaching the facts of this case.
4. Application to the facts of this case
4.1 There is likely, on the facts of this case, to be a significant overlap between the factual matters that would need to be addressed in the defamation aspect of these proceedings, on the one hand, and the other aspects of Malcomson Law’s claim together with Mr Maher’s counterclaim, on the other hand. It is clear, therefore, that either a separate trial of the defamation aspects of the proceedings from those other aspects of the claim and counterclaim or a hybrid trial of the type which I have sought to describe, would involve at least many of the same facts having to be considered in both parts of any trial. In those circumstances an entirely separate trial of the non-jury issues which arise in these proceedings would seem to me to be highly unsatisfactory. There would be a considerable waste of court time and parties expense in having to go through the same evidence again. There would also be the risk of the judge dealing with the non-jury aspects of the case being placed in the sort of difficult position which I have sought to identify. In all the circumstances, it does not seem to me that the justice of the case could possibly lead to the view that two entirely separate trials could be satisfactory.
4.2 The question of a hybrid trial is somewhat more finely balanced. The trial judge who presided over the jury trial would, of course, have the opportunity to hear the evidence which the jury had to consider, and that evidence would form part of the evidence which the judge would need to take into account in determining the issues which arose at the non-jury part of the trial. However, it seems to me to remain the case that there would be a significant risk that some of that evidence would need to be revisited and subjected to different forms of examination (both in chief and as to cross examination), in order to properly deal with the issues which would arise in the non-jury aspect of the case. Likewise, the potential difficulties for the judge dealing with the non-jury aspect of the case in interpreting the precise factual basis on which the jury had come to its conclusions would remain and could well be important to the judge’s decision on the aspects of the case which were for the judge to decide.
4.3 On balance, I have come to the view that a hybrid trial would not be in the interests of justice in this case. Neither am I satisfied that this is a case where there is anything inappropriate in the joinder of the defamation and picketing aspects of the case so that is could be said that their joinder was device to deprive Mr. Maher from an entitlement to a jury trial. Rather it is obvious that both aspects of the claim are real, connected and proper to be decided in one set of proceedings.
4.4 I also gave consideration as to whether it was appropriate to have regard to the fact that Mr. Maher is a litigant in person in coming to a view in relation to any of the questions which I have addressed. It is, of course, the case that litigants in person frequently experience difficulties in presenting proceedings before the courts because they are, for entirely understandable reasons, often unfamiliar with procedural or evidential law. In a trial before a judge sitting alone, it is normally possible to get round any such difficulties even though same may well lead to the proceedings taking a lot longer than might otherwise be the case. Such difficulties have the potential to come into particularly sharp relief in a civil jury action. Even when parties in such actions are represented by experienced counsel, it is not unknown for a jury to have to be discharged because of some turn in the case which, in the view of the trial judge, has given rise to prejudice which could not be remedied by an appropriate charge to the jury concerned. The risk of such an occurrence must be very great indeed in a case where one of the parties is unrepresented.
4.5 However, it does not seem to me that this is an appropriate factor that could be properly taken into account in deciding whether there should be a jury trial. A litigant in person has the same right to jury trial as any other party. Such litigants must, of course, be aware (and should, in my view, be warned in advance by the trial judge) of the consequences of matters being said to the jury which might cause prejudice to the jury such as comments being made for which there was no evidence. The fact that the jury might have to be discharged in such circumstances and that the costs of the aborted trial might well have to be visited on the party who had caused the jury to be discharged, would also need to be emphasised. However, it seems to me that such a consequence (i.e. the award of costs for any aborted trial) is the proper means of dealing with any such problem, at least in respect of an initial occurrence of such a problem. I would not, however, rule out the possibility that a litigant in person who proved unable, despite being given the opportunity on all appropriate guidance from the bench, to conduct a jury trial in a proper fashion might lose any such entitlement to a jury trial. A party is not entitled to a infinite number of chances to get it right. However, it seems to me that a party, such as Mr. Maher, would, ordinarily, be entitled, if all other factors pointed in that direction, to be given the opportunity to conduct a jury trial himself. I did not, therefore, take into account, in reaching my decision, the fact that Mr. Maher is a litigant in person.
5. Conclusions
5.1 For the reasons which I have sought to analyse, I am not satisfied that the balance of justice in this case would favour two separate trials of the jury and non-jury aspects of the issues which arise in these proceedings. Likewise, I am not satisfied that the balance of justice would favour a hybrid trial.
5.2 In those circumstances, I am driven to the conclusion that the only fair and just way of resolving all of the issues between these parties is by a single trial, and for the reasons which I have already set out, such a trial must be a trial without a jury. In those circumstances, it does not seem to me to be appropriate to set aside the notice of trial without a jury which has already been served.
Tracey t/a Engineering Design & Management v Burton
[2016] IESC 16
Judgment of Mr. Justice John MacMenamin dated the 25th day of April, 2016
1. This is an appeal against a judgment of the President of the High Court, Kearns P., delivered on the 6th December, 2010. In that ex tempore decision (which is referred to in more detail below), Kearns P. ordered that a notice of trial before judge and jury dated the 28th October, 2008 be vacated, that the plaintiff’s (hereinafter the appellant) proceedings be transferred from the Dublin Jury List to the Dublin Non-Jury List, and that the appellant pay the respondents the costs both of the motion, and the order made thereunder, when taxed and ascertained.
2. The appellant is a chartered engineer by qualification; he was allegedly formerly entered into a contractual arrangement with the respondents, a firm of consulting engineers. I make no comment on the nature of the contract. Whether it was a contract of service, or for services, is immaterial. The appellant describes the agreement as a contract for services. This contract was terminated. He brought proceedings seeking damages from the termination of this contract. The President held that the proceedings were not defamation proceedings, that the appellant had no right to a jury trial, and, for that reason, ordered the matter should be transferred to the non-jury list.
3. Two issues arise in this appeal against that order: first, whether the High Court should have proceeded with the hearing in the appellant’s absence; second, whether these proceedings can properly be described as “defamation” proceedings which, the appellant contends, entitle him to a trial with a jury.
The Plenary Summons
4. The order appealed against was a step in protracted litigation, originally issued by the appellant as long ago as the 9th May, 2006, now some 10 years ago. The appellant, a litigant in person, made the following claim in the plenary summons:
“The plaintiff’s claim is for damages for breach of contract, financial loss owing and overdue, damage to his good character, damage to his good professional name and status, emotional and psychological damage, acute disruption to his life, distress, inconvenience, severe upset and expense, caused and occasioned to him by reason of serious wrongdoing on the part of the defendants, their servants or agents, in or about their termination of the contract for services with the plaintiff, together with interest pursuant to Statute and cost.”
5. Even from the outset, therefore, it is evident that the precipitating event for the proceedings was the alleged wrongful termination of the contract. Three years elapsed between the time of the plenary summons and the statement of claim herein, delivered on the 20th April, 2009.
The Statement of Claim
6. The statement of claim is lengthy and carefully drafted. It sets out a series of allegations in great detail. The appellant says that he was employed by the respondents under a contract for services, which was finalised in writing on the 24th February, 2004. The Statement of Claim sets out the terms of the contract, including hourly rates and profit sharing arrangements. It alleges that the respondents confirmed to the appellant that they were in financial difficulties requiring a reduction of fees to him, and that he was given an assurance that they (the respondents) would pay outstanding amounts due to him at a later date. The appellant pleads that, on or about the 4th October, 2004, he was called to a meeting-room and told that his contract was being terminated without any reason, and later he was offered 16 weeks pay in lieu of notice, in accordance with the contract. The Statement of Claim describes subsequent events over a period of 3 weeks, during which time, it is said, the appellant’s personal property was removed from the respondent firm’s premises, and he was prevented from working any further there as a qualified chartered engineer.
7. The statement of claim does include a plea that the appellant was exposed to public ridicule, humiliation and mental distress; but only in so far as, it is alleged that on the day the contract was terminated the firm’s staff lined up at the windows and stared at him as he transferred his belongings from the office to his car. There are pleas of conversion of property. It is said that the respondents dishonoured pledges to pay the appellant on outstanding invoices. Various heads of general and special damage are pleaded, giving rise to sub-heads of liquidated sums. However, there are no words pleaded which might be construed as being defamatory. The height of any such claim is the alleged exposure to humiliation as to the manner in which the appellant had to pack his goods into his car.
8. At the conclusion of the Statement of Claim, there is a sub-heading “damages claim”. Twelve causes of action are pleaded. These are:
(1) fundamental breach of contract for services,
(2) breach of trust,
(3) breach of duty of care/negligence,
(4) gross humiliation, intimidation and embarrassment,
(5) harm to the plaintiff’s excellent professional name and standing within the industry, and his good character,
(6) financial loss,
(7) loss of profit,
(8) loss of opportunity,
(9) conversion of personal and intellectual property,
(10) nuisance,
(11) mental distress caused to the plaintiff,
(12) a range of special damages, many unquantified, but insofar as identified totalling a sum of €825,843.
9. A fundamental question which arises is whether, on these pleadings, there is sufficient pleaded material for them to be described as “defamation proceedings”, or even proceedings involving defamation of character. In Duncan and Neill, the classic work on Defamation, the authors wrote:
“2.01 In order to establish at cause of action in an action for defamation, it is necessary to show that the words complained of were defamatory. It is true that defamatory gestures and defamatory sounds may be slanderous. There may be an occasion when defendants so conduct themselves as to convey a defamatory meaning about the plaintiff to third persons, giving rise to an action for slander.” (see Duncan and Neill, Butterworth 1983, 3.04)
The tort of defamation is now defined by s.6(2) of the Defamation Act, 2009. The essential element, both before and after that statutory reform of the civil wrong, is that, generally, there must be some statement that tends to injure a persons reputation in the eyes of reasonable members of society.
10. Classically, a defamatory statement could consist of words but also, perhaps, conduct, such as an imputation that a plaintiff was guilty of, or was suspected of guilt of a criminal offence, justifying arrest to all those present in a betting shop. But here, in the absence of any plea of defamatory words, what is the “conduct” alleged in the claim? The pleas go no further than those of emotional harm and psychological damage, and humiliation, embarrassment and distress, which are said to have been caused, both to the appellant and his wife, by reason of the alleged dismissal. (The appellant’s wife is not joined as a party to these proceedings).
11. Any impression that these proceedings cannot properly be characterised as “defamation proceedings” is fortified by the original defence filed herein. That defence does not contain any plea regarding a claim in defamation. An amended defence, filed subsequently, does not contain any such plea either. The most that can be said on publication (in the sense that it arises in defamation) is to say that two employees were allegedly present at the time of a conversation, between the appellant and the first and second named defendants, terminating his contract. It is not pleaded this was unnecessary publication, or why these persons may have been present.
12. I mention, in passing, that the absence of any specific plea in defamation would appear to have become clear to the appellant himself. Part of the book of appeal consists of a written memorandum by himself stating:
“At the hearing in the Supreme Court, on the 1st May, 2015, the respondents acknowledge(d) to the court that are issues of defamation in the case as outlined in the statement of claim.”
I do not regard such an acknowledgment, if one was made, as determinative of the issue of law which this Court must now decide.
13. I return now to the chronology of events which occurred prior to the High Court order now under appeal. A number of procedural mis-steps appear to have taken place between 2006 and 2010. There were significant elapses of time between each step in the proceedings. It is unclear whether any notice of intention to proceed was served by the appellant at any point. No point is made on this. The issue herein came to a head when the claim was, ultimately, set down to be tried by a judge and jury, which steps became the subject matter of Kearns P.’s judgment on the 6th December, 2010.
14. However, it is necessary now to look at a second dimension to the appeal. The appellant was not present, nor represented, when the order appealed against was made. He claims the judge was biased against him, first in having previously required satisfactory and clear medical certificates prior to the hearing, scheduled for the 6th December, and second in proceeding to determine the issue of the mode of trial in the appellant’s absence.
15. The appellant now says he was seriously ill during the year 2010. He says he was in correspondence with a number of judges of the High Court on this illness. It is unclear whether this correspondence concerned this, or a number of other proceedings in which he is involved. The appellant identifies, by name, other such judges who received communications from him or his wife on this matter during that year. He states that he never failed to appear in court when he was fit. He says now, that on the occasion when the matter came before Kearns P. on the 6th December, 2010, a friend of his, Sean Ryan, was late getting to court because of extremely snowy conditions. However, there is no affidavit evidence as to when Mr. Ryan did arrive at court, or what he did on finding the order had been made.
16. The appellant says his understanding was that the case was only in for mention on the 6th December, 2010. It does not appear to be disputed that the President had directed that a comprehensive medical certificate be available for that day, however. The appellant refers also to the fact that, on a previous occasion when an order was again made directing that the matter should be dealt with by a judge and jury, the respondents did not appear. This prior order was, apparently, vacated.
17. One point is, however, clear. It is that the issue decided on 6th December, 2010, was whether the order directing a jury trial should stand. This was, obviously, an issue which touched on the appellant’s right of audience in, and right of access to, the Court, including the principle of audi alteram partem. But, equally important is the fact that a costs order was made on that occasion against the appellant. It would now appear, (albeit with hindsight) that there was, in fact, some form of explanation available, however unsatisfactory, both for the appellant’s absence, and also for the absence of his representative. This Court has been told Mr. Ryan was “delayed”. We have not been told precisely how Mr. Ryan, or the appellant, ascertained what had happened, without even going to the question of whether Mr. Ryan had any right of audience, or whether the court would, in any case, have accepted what Mr. Ryan might have had to say in the admitted absence of a comprehensive medical certificate identifying the nature of the appellant’s illness.
18. The fact that the appellant is a litigant in person does not alter the duties he owes a court, or his obligation to comply with the rules of court. That fact does not alter, either, the procedure which would normally be followed in a case like this. Where a judgment or order is made in the absence of one party through inadvertence or mistake, the accepted procedure is for that party to explain such absence to the court, and immediately apply to have such judgment or order set aside. The appellant did not do this, either himself, or, (however irregularly), through a proxy. It is evident that he must, soon thereafter, have become aware that Mr. Ryan had not attended in court. To reiterate, there is no information as to when, precisely, the appellant became aware of the President’s order. Instead of applying to set aside that order, however, the appellant appealed to this Court. Inevitably, this caused delay.
The High Court Judgment
19. It is now necessary to deal with what was said in the High Court judgment under appeal. The President observed that the appellant was an experienced serial litigant, and that this was one of a number of cases which he was maintaining. He described the application as being one to transfer a claim for damages for wrongful termination and breach of contract for services, from the jury list to the non-jury list, brought on the respondent’s application. The President observed that there had been repeated adjournment applications in this, and other pieces of litigation in which the appellant was involved. These were, he pointed out, referable to Mr. Tracey’s inability, or incapacity, to attend court through illness. The President referred to correspondence which he had received from the appellant’s wife in September and October, 2010, saying that the appellant was ill, and also to the fact that, on occasion, a person said to be representing the appellant had attended court and handed in a letter from the appellant’s general practitioner, saying that he would be under medical care for the next 6 months, during which time he would be unable to conduct his affairs.
20. The judgment refers to the fact that, at a previous “mention date”, the 8th November, 2010, the President had directed that he be furnished with a comprehensive medical report setting out precise details of the appellant’s illness, to be furnished to the court before the 6th December, 2010. The judgment recites that on the same date, 8th November, 2010, the President had indicated to a gentleman who attended court on behalf of Mr. Tracey, that, in the absence of a medical report of a detailed nature, any litigation in which Mr. Tracey was involved was likely to be dismissed. I emphasise the last word “dismissed” in that it indicates that what was in question on the 6th December, 2010 was by no means a routine listing for mention. Such indication was given in circumstances where, apparently, neither the appellant’s wife, nor the gentleman who attended court, nor the report of the general practitioner, had, on those earlier dates, given the court any clear indication of the nature of the appellant’s illness. A previous general practitioner’s medical report was, the President considered, entirely inadequate.
21. Up to the 6th December, the President had acted entirely correctly in the exercise of his discretion. There is no indication of bias or any impropriety. As and from the 8th November, 2010, the appellant must be taken as having been well aware that the onus was on him to provide a fully comprehensive medical report. He does not say otherwise.
22. But by the 6th December, 2010, the High Court still had no clear explanation as to the nature, gravity or likely duration of the appellant’s illness. There was no adequate information as to why he himself, or any representative of his, was absent, or why there was no comprehensive medical report. The President ordered, therefore, that the notice of trial dated the 28th October, 2008, be set aside, and directed that the proceedings be transferred from the Dublin jury list into the non-jury list. He awarded costs against the appellant. There can be no doubt that the judge acted entirely correctly on the information available to him, in an area where he was exercising the court’s inherent discretion to conduct and manage a procedural step in litigation. The appellant filed a Notice of Appeal against this order. There was no application to set aside the judgment, and costs order, which could have been done within days.
23. In fact, after the notice of appeal dated the 24th January, 2011, was filed, no further steps took place in the appeal for a considerable time. No book of appeal was filed. The appeal was not certified as ready to proceed. No application was made for priority in the Supreme Court list.
24. On the 18th February, 2015, the Supreme Court office sent a letter to the appellant, indicating that the office was conducting a review of all appeals which remained uncertified, with a view to ensuring that there was no undue delay with proceeding with any of the appeals, and disposing of those which it was not intended to pursue. The matter was listed before this Court on the 13th March, 2015 in order to ascertain the position.
25. As a matter of fairness to the appellant, however, it must be recorded now that a letter was made available to this Court in the appeal. This letter was dated the 2nd December, 2010. I accept the letter at face value. It was addressed to the President of the High Court, and written by Ms. Karen Tracey, the appellant’s wife. It indicated that, as of the 2nd December, 2010, no further medical report had been received, despite efforts to obtain one. Ms. Tracey apologised for the delay, but stated she had no control over the matter, and asked the Court to rely on the previous medical report furnished by her husband’s general practitioner. When that hospital consultant’s report had actually been requested was not made clear. This Court has also been referred to a number of letters, dated from January and February, 2011, and, therefore, subsequent to the High Court hearing in question, wherein Ms. Tracey again referred to her efforts to obtain a hospital consultant’s report.
26. The appellant says now that a series of other cases involving him came before the President on 4th March, 2011. These included cases taken by him against the State for malicious prosecution. The appellant says that the President was disinclined to accept a new medical report, dated 23rd February, 2011, to the effect that the appellant would be unable to work for another 6 months.
27. In fact, when the matter first came before this Court on the 13th March, 2015, a question arose as to whether, in fact, this entire claim had actually been entirely struck out by the High Court. A confused sequence of events is said to have taken place.
28. The appellant says he and a friend visited the Central Office of the High Court, and found that this case had not, in fact, been struck out, but rather another notice of trial had been struck out on the “1st October, 2013”. The appellant says that he was not aware of this until the 13th March, 2015. How this might have occurred is not clear. The appellant says he was told that no court order was, in fact, made on the 1st October, 2013, even for a strike-out of the notice of trial. Mr. Tracey says he was then advised to file a new notice of trial in the claim. However, he informed this Court that, not unreasonably, he did not wish to pre-empt the decision regarding the present appeal, and consequently did not seek to serve another notice of trial. It is impossible to criticise the appellant for this decision.
29. Completing the sequence of events, this appeal came on for hearing before this Court on the 15th July, 2015, having been mentioned in a call-over list on the 1st May, 2015, on which date, the appellant says, the respondents acknowledged there were “issues” of defamation in the case.
The Appeal
30. For this appeal, the appellant has furnished carefully thought out and detailed submissions. He contends now that his case concerns a breach of “an employment contract” “involving defamation of the appellant by the respondents, and further defamation by them against the appellant.” But, this contention is not part of the pleadings; rather, it is a submission. He relies on the European Convention on Human Rights Act, 2003, Schedule 1, Article 6.1; the Irish Constitution, Article 40.1 and Article 40.3.1., and a range of case law, to which it is unnecessary to refer in detail. Each authority refers to well known principles of law. Certain specific authorities are referred to in more detail below.
31. The appellant now submits that the learned High Court judge was biased against him in previously rejecting medical certificates; that the High Court judgment indicated a predisposition on the judge’s part to strike out or dismiss the proceedings; that the judge’s unwillingness to accept the word of a general practitioner regarding the appellant’s medical condition was surprising; and that explanations had already been given for the fact that a consultant’s report had not been available. He says that on the 4th March, 2011 the President rejected a renewed, updated medical certificate dated the 23rd February, 2011, which said that the appellant would not be able to work for 6 months. The appellant submits that the principle of audi alteram partem was not observed. He cites Dellway Investments Limited & Ors v. NAMA & Ors [2011] IESC 4, [2011] 4 I.R. 1; The State (John Joseph Furey) v. Minister for Justice and Attorney General [1988] I.L.R.M. 89, in this regard. He says that the case was listed for mention only on the 6th December, 2010, and not for hearing. He contends that the President had no jurisdiction to determine the matter.
32. I entirely reject any imputation that the President of the High Court was biased, or in any way acted improperly. The true question here, albeit raised only with some degree of hindsight, is can justice now be said to be seen to be done, even though it is impossible to conclude the President did anything wrong on the information available. The appellant’s claim was not, in fact, dismissed; instead, a procedural order of far lesser import was made; one, moreover, which as this judgment now explains, was a correct one.
33. On the issue of a right to a jury trial, the appellant cites McMullan v. Mulhall and Farrell [1929] I.R. 470, and Bennett v. Crane [1948] Irish Jurist Reports 28. He submits that he was entitled as of right to a jury trial, because there is a defamation aspect to the case, and he now says, words imputing unfitness for office were spoken by the respondents on the 19th October, 2004. But, no such words are pleaded in the Statement of Claim. No claim in “defamation”, or in the guise of libel or slander, in terms, is to be found in any of the pleadings.
34. There can be no doubt that there is a right to jury trial in cases of defamation, properly so called. The Court of Appeal, (Peart J., Irvine J. and Hogan J.), concluded this was a statutory right in Lennon v. HSE [2015] IECA 92. That court had to consider the point in circumstances where two separate sets of proceedings had been issued by Mr. Lennon. The appellant heavily relies on this decision, contending that it shows he too is entitled to a jury trial as of right.
35. The judgment in Lennon, undoubtedly, considers a range of legal authorities and statutes in relation to the right to jury trial in defamation cases, properly so called. But, crucially, it deals with proceedings in which a claim in defamation has actually been brought and pleaded.
36. In Lennon, the Court of Appeal, by implication, in effect, overruled certain previous procedural judgments of the High Court, which included claims for defamation, or defamation combined with other claims. (See, for example, Bradley & Ors (t/a Malcomson Law) v. Maher [2009] IEHC 389 (per Clarke J.). The Court of Appeal considered the approach previously taken by the High Court in Bradley was erroneous, in that, such decisions proceeded on the premise that entitlement to jury trial in defamation proceedings was not as of right, and that any such entitlement should yield to the demands of case management and the efficient operation of the administration of justice (see paragraph 29).
37. Speaking in the Court of Appeal, Hogan J. at paragraph 32 concluded that the High Court had no such discretionary jurisdiction, and the right to jury trial in defamation proceedings was guaranteed by statute. For those reasons, that Court declared the plaintiff in that case was entitled to a jury trial in respect of the defamation proceedings, although an order had been made on a case management basis to the contrary.
38. It is not necessary to express any view in relation to the correctness, or otherwise, of the decision in Lennon, and I do not do so. But, two vital points of distinction from that decision are clear. First, that judgment addressed a situation where there were two separate sets of proceedings. Second, and vitally, there was no doubt that one of these cases was a defamation case brought by Mr. Lennon. The, quite separate, question before the Court of Appeal, therefore, was how those two sets of proceedings, one of them a defamation case, properly brought and framed, were to be case-managed? These are critical distinctions.
39. The true question which arises in this appeal is what is the nature of these proceedings, as actually pleaded? I am unable to accept that these proceedings can, properly, be characterised as “defamation proceedings”. There is no such plea. Defamation requires explicit and clear pleading. It cannot be implied or inferred. The conduct referred to is entirely peripheral to the main issue in the appellant’s case, which is an alleged breach of a contract for services.
40. No motion to amend the pleadings, so as to specifically plead defamation, was ever brought in the High Court. Such a motion cannot be brought for the first time in this Court. Such amendment cannot be brought about, either, by some form of “collateral” process in this Court. Even if, hypothetically, this Court were to allow the case to be now regarded as a defamation action, clear prejudice would now accrue to the respondents, who have not made any defence to such a claim, in either the original or the amended defence. Many years have now elapsed since the events in question took place. As well as clear pleading, time and memory of words spoken, or precise conduct, are of the essence in a defamation action. There is a short limitation period. The elapse of years which has occurred was not the respondent’s fault.
41. A Court sometimes exercises a degree of latitude towards litigants in person. But the appellant is a very experienced litigant. In his submissions, the appellant refers to the fact that he has been involved in some thirty-one cases involving, inter alia, malicious prosecution.
42. It does not lie within the power of this Court to now, effectively, “transform” this claim into “defamation proceedings”, or even a “part-defamation” proceedings. To do so, would be to wrongly assume that the Statement of Claim had been amended to plead defamation. Time-limitation questions would undoubtedly now arise.
43. The question is, rather, whether or not any part of the order granted by the President in 2010 was in error, even if that error appears only in hindsight? I again reject any contention that the conduct of the President was other than entirely proper. He engaged in a process where the appellant had been given ample and clear warning of the fact that his claim might be dismissed in the event of there being no proper medical certificate. The courts are entitled to monitor and police their own proceedings to avoid drawn out litigation. Acting within jurisdiction, the judge did not dismiss the claim, but rather simply made an order setting aside notice of trial with a jury.
44. Giving the appellant the maximum latitude, I do, however, have a residual concern that justice be seen to be done. An order for costs was also made against the appellant. Should the entirety of the judgment and order made in the appellant’s absence, and concerning him, stand in the circumstances, as they now emerge? I think not. I would, therefore, exceptionally, set aside that part of the High Court judgment and order which awarded costs, and now remit the balance of this case to the High Court. I point out again that this Court has now given the appellant an extraordinary degree of latitude.
45. Certain recent incidents which have occurred in other court proceedings make it necessary to reiterate some matters which are fundamental. In all legal proceedings, whether a litigant is legally represented or not, a point may be reached where the conduct of such litigation is so dilatory, or so vexatious, or proceeds in a manner which either breaks or ignores rules of procedure, or where there is such egregious misconduct either before court, or in court itself, as to raise questions as to whether the right of access to the court should be limited, or, in extreme cases, whether a case should actually be struck out. Put simply, the questions are whether there is abuse of process to such a degree that a claim simply should not be allowed to proceed, or whether such a claim should be allowed to proceed only under identified procedural conditions, or in a manner proportionate to the circumstances, while seeking, as far as is practicable, to vindicate that constitutional right to litigate proceedings. If a litigant engages in conduct amounting to contempt of court, either with regard to the court itself, or court officials, that too may have to be addressed in the same way. The time has long past where it is either necessary, or desirable, to permit litigants, or their legal representatives, to read documents or submissions “into the record of the court”, or where court time, a scarce public resource, is unnecessarily wasted. Court time is not solely the concern of litigants, or their legal representatives. There is a strong public interest aspect to these issues. Time allotted to the parties may be apportioned by a judge fairly, prior to, or during a hearing. But, such time must be predicated on a realistic appraisal of the time a case, or matter, should, ordinarily and properly, take. As Denham J. pointed out in O’Reilly McCabe v. Minister for Justice,& Patrick Cusack Smith & Co (Agents of Thomas McCabe, Ward of Court & Minor) [2009] IESC 52 at par. 33, the constitutional right of access to the courts, while an important right, is not an absolute one. As a corollary of that right, a court must also protect the rights of opposing parties; the principle of finality of litigation; the resources of the courts; and the right to fair procedures which accrue to each party to litigation, as well as plaintiffs. It is an injustice that defendants or plaintiffs be exposed to repeated and vexatious litigation, in which either party incurs unnecessary legal costs which may not easily be recoverable against an offending party. The public have a right to a court system which operates effectively and expeditiously in the public interest, while ensuring that justice is administered as the Constitution requires. Finality is necessary in the interest of justice. It must be clearly understood that one adverse ruling, or even a series of adverse rulings, by a court is not, without significantly more, to be regarded as grounds for claiming either subjective or objective bias.
46. As to persistent frivolous and vexatious proceedings, useful principles were outlined by O’Caoimh J. in the High Court in Riordan v. Ireland No. 5 [2001] 4 I.R. 463 at 463, 466 & 471; and see my judgments in the High Court in McMahon & Sharma v. W. J. Law & Company LLP & Ors [2007] IEHC 51 at par. 21, [2007] IEHC 194 at paragraph 29.
47. In addition to the factors outlined in those decisions, however, a court is entitled to generally have regard to the manner in which proceedings are conducted. While the jurisdiction to strike out proceedings for abuse of process, in one form or another, is to be exercised sparingly, it is a sanction which cannot be ignored. Similarly, while parties have a right to defend proceedings, it may be necessary to identify the manner in which defendants’ rights are best vindicated. A court may, under the Constitution, take whatever proportionate steps are necessary to protect the integrity of its own processes and procedures, and the inherent right of courts, themselves, to manage their own procedures in a manner which balances the rights of litigants with the rights of the public, and other litigants.
48. Subject to the Constitution, the administration of justice in public does not debar a court from assisting litigants, and their advisors, by considering the papers in a case beforehand; by sifting through the documentation in order to see what is relevant and what is not; by identifying the issues which truly fall to be decided; and by directing whatever written submissions may be necessary in order to ensure justice is done, effectively and efficiently. Litigants, and their legal representatives, must abide by rulings as to the apportionment of time, or length of submissions, and other matters identified herein, or run the risk of the imposition of proportionate conditions on the litigation, or more radical sanctions, such as wasted costs orders, adjourning proceedings until proper procedures have been carried out, or, in extreme cases, actually striking proceedings out for abuse of process.
49. I do not say these considerations are true of this case. Here every possible step has been taken to facilitate the appellant in this litigation. There can be no further delay. I bear in mind that the appellant has been an assiduous attender in court at each step of this appeal.
50. I would, therefore, set aside the High Court order on costs, but otherwise affirm that judgment and order. It follows that this claim, under a contract for services, should be remitted to the High Court, and heard by a judge sitting alone. A number of other points arise, which the High Court may conclude should be dealt with as preliminary issues as part of case management.
51. First, the respondents are named as Michael Burton and Charles O’Connor, and Burton & O’Connor Limited and FPQ Consulting Engineers. Are all the parties necessary to the proceedings?
52. Second, and in the context of the above, any question of any personal liability of the first and second named defendants should be clarified.
53. Third, the question of whether there was accord and satisfaction may have to be determined. It is pleaded at paragraph 30 of the defence that a cheque in the sum of €91,528.82, being the respondents’ calculation of the sum due to the appellant, was forwarded to the appellant’s (unnamed) solicitors in September, 2005. This cheque, it is said, was cashed by or on behalf of the appellant on the 29th September, 2005. It is unclear who were then the appellant’s solicitors, or what, if any, correspondence took place at that stage; if the cheque was indeed cashed, and if so, what, if any, sums are outstanding.
54. Fourth, it is necessary that the losses which are claimed by the appellant should be properly quantified and vouched. I note that there has been a lodgement; however, that lodgement was made in the absence of any full quantification and valuation of the losses claimed.
55. I would, therefore, allow the appeal on the issue of costs only, set aside the High Court judgment and order in that regard, but otherwise affirm the High Court order. I would remit the balance of the case to the High Court (judge alone) for determination of all the issues in question, if deemed necessary, for case management; and also, if deemed necessary, for determination of preliminary issues.
Michael Barrett v Independent Newspapers Ltd
1985 No. 117
Supreme Court
12 March 1986
[1986] I.L.R.M. 601
(Finlay CJ, Henchy, Griffin, Hederman and McCarthy JJ)
FINLAY CJ
delivered his judgment on 12 March 1986 saying: This is an appeal by the defendants against a judgment entered against them in the High Court after a trial with a jury awarding to the plaintiff £65,000 damages for libel.
There are in effect two grounds of appeal: the first is that the learned trial judge erred in law in not leaving a question to the jury as to whether the words complained of were defamatory, but instead directing them that they were, and the second is that the damages awarded were excessive.
The Facts
The plaintiff is a Teachta Dála and a member of the Fianna Fáil Party, representing a Dublin constituency. The defendants are the publishers of The Evening Herald newspaper. In the issue of that newspaper dated 8 February 1983 they published an article written by one of their then employees, John Feeney, describing the scene which occurred in and outside Leinster House at the conclusion of a meeting of the Fianna Fail Parliamentary Party which was concerned with the leadership of Charles Haughey, TD. In the course of that article there occurred the following words:
There were savage scenes as TDs left Leinster House early today. Michael Barrett, TD, a Dublin Haugheyite, leaned over and pulled at my beard and said: ‘You thought you’d dance on his grave’.
On the day following this publication the plaintiff wrote, himself, to the editor of The Evening Herald newspaper a letter in which he complained that the report stated that he, the plaintiff, had assaulted Mr Feeney on the previous evening, denying the truth of that, but making no claim for either an apology or for damages. In evidence he stated that what he intended was that the defendants would have published this letter of refutation in their newspaper. To that letter the editor replied, on 11 February 1983, stating that he had spoken to the writer of the article, John Feeney, that he was adamant that the incident as reported by him took place, that the report was factual and correct and that he had several witnesses to the incident. The letter from the plaintiff was not published.
The plaintiff then consulted a solicitor who, on 14 February 1983, wrote a letter to the defendants alleging that the plaintiff had been defamed, denying that the plaintiff had assaulted or touched Mr Feeney in any way and seeking the publication of an apology and damages to be paid to a charity of the plaintiff’s nomination. To that letter there was no reply.
These proceedings were then instituted and the defence, apart from a denial that the words complained of were defamatory and denial of damages, constituted in effect a plea of justification.
Tragically, the author of the article, Mr John Feeney, and the editor of the newspaper at the time, Mr Niall Hanley, were killed in an aircraft accident before the proceedings came to trial and were, by consent, struck out of the proceedings before trial.
The plea of justification was not withdrawn by the defendants at any stage up to and including the trial and the verdict, and the plaintiff was cross-examined to test the accuracy of his account of what occurred in Leinster House. The *603 judge, at the conclusion of the evidence for the plaintiff, no evidence having been called by the defendants, refused to leave a question as to whether the words were defamatory or not, but directed the jury that the words were defamatory in that they constituted an accusation of assault by the plaintiff.
Submissions on behalf of the defendants
On the issue of liability the defendants firstly submitted that the learned trial judge being satisfied, as they conceded he was correctly satisfied, that the words were capable of a defamatory meaning, was obliged to leave a specific question to the jury as to whether the words were defamatory or not. They contended that this obligation existed on the authorities, irrespective of a properly held view that the words were incapable of any meaning other than a defamatory meaning.
In the alternative, it was argued that if there was a right in a trial judge, in a defamation action tried with a jury, to direct the jury that the words were defamatory and ask them to assess damages only, that it was a right confined to a case where a jury could not reasonably have reached any conclusion other than that the words complained of were defamatory and that this was not such a case.
On the issue of damages, the defendants submitted that the damages awardable in respect of the defamation were compensatory only and that even bearing in mind the matters and factors properly relevant, such as the conduct of the defendants after the publication of the libel and up to and including the trial, the amount awarded was grossly excessive.
The Law
I reject the first submission made on behalf of the defendants. There does not appear to me to be either logic or justice in a principle which would prevent a judge of trial satisfied that words complained of could not possibly be understood otherwise than to be defamatory, from so directing a jury. It is clear from all the authorities that if a jury enters a verdict holding that words complained of and published were not defamatory, that that verdict can, in exceptional and rare cases, it is stated, be set aside, on appeal, on the grounds that the words were incapable of an innocent interpretation and that a jury could not reasonably have reached the conclusion that they did (cf. Lockhart v Harrison (1928) 139 LT 521). This principle clearly formed the basis of the dissenting judgments of FitzGerald and McLoughlin JJ in Berry v The Irish Times Ltd [1973] IR 368, where their view was, not only that the appeal against the dismissal of the plaintiff’s claim should be allowed, but that the order should be that the case should be remitted for a new trial confined to an assessment of damages only. Furthermore, the majority decision of the court, being the judgment of O Dálaigh CJ, does not appear to be inconsistent with that situation, but is based on a conclusion differing from FitzGerald J and McLoughlin J, that the words complained of must, as a matter of law, be held defamatory.
I am satisfied that if an appellate court can set aside a verdict of a jury finding words not to be defamatory on the basis that it was perverse and unreasonable, that it is an inevitable consequence that a trial judge has not only a right but, in *604 my opinion, a duty in an appropriate case to prevent such a perverse or unreasonable verdict by directing the jury.
I am, therefore, satisfied that the real issue on liability in this case is as to whether it would be possible for a reasonable jury to conclude that the words complained of had a meaning other than a defamatory meaning.
Counsel for the defendants has stated that it was, and that such a meaning, for example, could have been that the plaintiff had on this occasion in ‘pulling at’ Mr Feeney’s beard and saying the words: ‘You thought you’d jump on his grave’ merely have been adopting a gesture of emphasis such as the prodding of a person on the shoulder or the slapping of a person on the back to convey good news. It was conceded, of course, that notwithstanding the judge’s direction on the defamatory nature of the words complained of this interpretation was put by counsel, in cross-examination of the plaintiff and his witnesses and in submissions to the jury at the conclusion on the issue of damages. It is difficult to ignore, as matter of common sense, the extraordinary unlikelihood that a jury which assessed the damages for the words which were complained of at a sum of £65,000 if left a question as to whether the words were defamatory or bore some such innocent meaning as has been contended for by the defendants, would have answered on the basis that they were no defamation. Quite apart from that, however, it seems to me quite impossible to construe the words in the manner which has been contended for or in any other innocent manner. Whatever possibility there might have been is, in my view, clearly destroyed by the juxtaposition immediately in front of the words specifically referring to the plaintiff of the words ‘There were savage scenes as TDs left Leinster House early today’. There could not be any possible sense or reason in following that sentence with a reference to the allegation that the plaintiff pulled at the journalist’s beard, if that allegation was capable of being construed as an indication only of the emphasising of the remark which accompanied it.
Once it must be concluded that what was alleged was an assault, although not a wounding or damaging assault, it seems to me to follow that this Court must be driven to the conclusion that to allege that a member of Dail Eireann, in the precincts of the Dail, assaulted a member of the press, in public and on a public occasion, is necessarily defamatory and could not by right-minded persons be considered otherwise. I am, therefore, satisfied that the appeal against the finding of liability must fail.
Damages
With regard to the appeal against the amount of the damages, certain principles of law are applicable. Firstly, whilst the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy. Secondly, it is clear that whilst the damages in this case at least, where no question of punitive or exemplary damages arises, are fundamentally compensatory in form, that the plaintiff is entitled not only to be compensated for the damage to his reputation *605 arising from the publication of the defamation, but also for the hurt, anxiety and distress to him arising by its publication and by the subsequent conduct of the defendants right up to the time of the assessment of the damages. Included amongst the factors which the jury were entitled to have regard to in assessing damages in this case (and this is not intended to be an exhaustive list) are, in my view, the following matters:
(1) The plaintiff is, and was at the time of the publication of this libel, a wholetime politician.
(2) The accusation of the plaintiff was not only of conduct as a politician likely to bring him into disrepute with right-minded people, but was of such conduct in the precincts of the Dail, which could be taken to aggravate the extent of the damage caused by the words.
(3) The plaintiff was denied by the defendants the opportunity at the time when the words were newly published and the matter was on people’s minds of even making, through the same newspaper, a simple denial of the accusation against him.
(4) The justification of the words was maintained by the defendants right up to the time of the verdict and yet was unsupported by any form of evidence.
It would appear to me that these considerations, to use the phrase of Reid LJ in Broome v Cassel & Co Ltd [1972] AC 1027, would have justified the jury in going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.
Notwithstanding these views, and notwithstanding the fact that this is clearly a case in which a jury would be entitled to award really substantial damages, I am forced to the conclusion that the sum of £65,000 awarded by the jury is so far in excess of any reasonable compensation for the allegation which was made, that it should be set aside.
I would, therefore, allow this appeal on the issue of damages only and direct a re-trial confined to the assessment of the plaintiff’s damages.
HENCHY J:
In February 1983 the Fianna Fail Party had a leadership crisis. On 7 February 1983 the Fianna Fail Parliamentary Party met in Leinster House to deal with a resolution that Mr Charles Haughey be removed from the leadership of the party. Amongst those present at the meeting was the plaintiff, who was and is a Fianna Fail TD for the constituency of Dublin North-West. The meeting lasted about twelve hours and ended at about 11 p.m. with the defeat of the resolution. The plaintiff was one of the majority who voted for the retention of Mr Haughey as leader of the party.
As the members of the parliamentary party were leaving the meeting, they had to pass through the foyer of Leinster House. There a group of journalists had gathered, avid for news or comment from the departing parliamentarians, but a rope placed on each side of the route taken by the parliamentarians ensured that there would be no physical contact between them and the journalists. It is agreed that as the plaintiff was passing the journalists he made some such remark as ‘You will have to dance on some other body’s grave now’. By this remark he was no doubt expressing his loyalty to Mr Haughey and reproving *606 those journalists who had seemed to rejoice prematurely in the political demise of Mr Haughey as leader of the party.
What has given rise to this libel action by the plaintiff against Independent Newspapers Ltd is the account of the affair published in The Evening Herald (one of the Independent Group of newspapers) on 8 February 1983. The relevant part of the article, which was written by a journalist named John Feeney, was as follows:
There were savage scenes as TDs left Leinster House early today. Michael Barrett, TD, a Dublin Haugheyite, leaned over and pulled at my beard and said, ‘You thought you’d dance on his grave’.
The plaintiff’s reaction when he read this article was to write a letter to the editor of The Evening Herald complaining that it was a distortion of the facts to say that he had assaulted Mr Feeney. The editor’s reply was to say that Mr Feeney insisted that the report was factually correct. There followed a solicitor’s letter written on behalf of the plaintiff to the editor of The Evening Herald , to Mr Feeney and to the defendants as printers and publishers of The Evening Herald , asserting the libellous nature of the article, requesting an appropriate retraction of and apology for the allegation of assault, and claiming payment of his costs and the donation of an agreed sum to a charity to be nominated by the plaintiff. In the event of those conditions not being met, proceedings would be commenced without further notice. The conditions were not met and the present proceedings were instituted in the High Court and were tried before a judge and jury. Counsel for the defendants applied to the judge to leave it to the jury to decide whether the words complained of were defamatory. The judge, however rejected that application and ruled as a matter of law that the words were defamatory. The case went to the jury, therefore, only for assessment of damages. These were assessed at £65,000. The present appeal by the defendants is on two grounds: (1) that the judge produced a mistrial, and usurped the jury’s function, in ruling as a matter of law that the words complained of were defamatory; and (2) that the damages awarded are insupportably high and need to be reassessed.
At the trial no evidence was given for the defence, for the writer of the article and the editor of The Evening Herald had both been killed in an aeroplane accident. Accordingly there was no attempt to justify the allegation made in the article. The article was relied on by the plaintiff at the trial as amounting to a complaint that he (the plaintiff) had committed an assault by pulling at Mr Feeney’s beard. The uncontroverted evidence given by and on behalf of the plaintiff was that he had not made any physical contact with Mr Feeney and that he had not touched his beard. It was a nice question, therefore, on the evidence whether what was alleged in the article (‘pulled at my beard’) amounted to an assault or merely amounted to a disrespectful or disparaging gesture.
In a libel action such as this where the defamatory nature of the words complained of is in issue, observance of the respective functions of the judge and jury is of crucial importance. It is for the judge in the first instance to decide the preliminary question whether the words complained of are reasonably capable of bearing the defamatory meaning alleged. If the judge answers that question in *607 the negative, the case cannot go to the jury and the action must be dismissed. But if the judge rules that the words complained of are capable of bearing the defamatory meaning alleged, it is then for the jury to say whether the words do in fact carry that meaning. Because the community standard represented by the jury may differ radically from the individual standard of the judge in determining what is defamatory, it would be a usurpation of the jury’s function in the matter if the judge were to take upon himself to rule conclusively that the words were defamatory. ‘If he (the judge) were to take upon himself to say that it was a libel, he would be wrong in so doing’: by Alderson B in Parmiter v Coupland (1840) 6 M. & W. 105 at p. 109. ‘A judge is not entitled to say to the jury “I direct you that the words are defamatory and your duty is to assess damages”’: by Sankey LJ in Broome v Agar (1928) 138 LT 698 at p. 702.
A clear and concise statement of the law on this matter, based on judicial dicta such as those I have referred to, is to be found in Gatley on Libel and Slander , 8th edn. (1981), para. 1491:
Where the words are capable of a libellous meaning, the judge must always leave it to the jury to decide whether they are or are not a libel, except where the fact is already admitted on the pleadings. The proper course is for the judge to instruct the jury as to what amounts to a libel in point of law, and then leave it to them, as persons of ordinary intelligence, to say whether the words fall within that definition or not. The judge is not bound to, but he may express to the jury his own view of the meaning of the words, provided that he makes it quite clear that the ultimate decision rests with them. In an ordinary case he must not go further than this. If he directs the jury as a matter of law that the words are libellous, or so directs them as to the meaning of the words that there must be a verdict for the plaintiff, he is determining a question which is not within his province but the province of the jury to determine, and the court will grant a new trial on the ground of misdirection, unless a verdict contrary to the judge’s direction would have been perverse.
In this case, counsel for the defendants applied to the judge to leave it to the jury to decide if the words complained of were defamatory, but the judge refused to do so. He thereby usurped the jury’s function. If the matter had been left to the jury, having regard to the ambiguous evidence as to the alleged assault and to the circumstances generally of the incident, I would not be prepared to say that the jury would be perverse were they to hold that the words complained of were not defamatory. The law reports provide many examples of cases where the jury were held entitled to find that the words were not defamatory when the ruling of a judge on the point would have led to the opposite conclusion, see, for example, Australian Newspaper Co v Bennett [1894] AC 284; Broome v Agar (1928) 138 LT 698. The community verdict of a jury is not to be condemned as perverse merely because it does not accord with that of a judge. It is to be deemed perverse only when no jury of reasonable men, applying the law laid down for them by the judge and directing their minds to such facts as are reasonably open to them to find, could have reached the conclusion that the words were not defamatory. That, in my view, was not the case here. What the words complained of alleged against the plaintiff could conceivably have been treated by the jury as carrying an imputation less than that alleged, and therefore as not being defamatory.
I would allow the appeal on this ground.
The second ground of appeal is that the award of £65,000 is so excessive as to be unsustainable.
In a case such as this in which there is no question of punitive, exemplary or aggravated damages, it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right-thinking people as a result of the words complained of. The jury have to be told that they must make their assessment entirely on the facts as found by them, and they must be given such directions on the law as will enable them to reach a proper assessment on the basis of those facts. Among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the plaintiff, the extent of the publication, the conduct of the defendant at all stages of the case, and any other matter which bears on the extent of the damages. The judge, quite properly, in this case told the jury to ignore all matters in the article save the allegation of an assault. Also, quite properly, he told the jury that they should not allow their assessment of damages to be affected by the fact that the plaintiff had agreed to donate the damages to charity. Indeed it is right to point out that no criticism was made at the trial by either side of any part of the judge’s address to the jury.
The fact remains, however, that the jury were not given any real help as to how to assess compensatory damages in this case. A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of, namely, that in an access of triumphalism at his leader’s success the plaintiff attempted to tweak the beard of an unfriendly journalist. The jury might then have been asked to fit that allegation into its appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected. Had they approached the matter in this way, I venture to think that having regard to the various kinds of allegations of criminal, immoral and otherwise contemptible conduct that might have been made against a politician, the allegation actually complained of would have come fairly low in the scale of damaging accusations. The sum awarded, however, is so high as to convince me that the jury erred in their approach. To put it in another way, if £65,000 were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exhaltation, the damages proper for an accusation of some heinous and premeditated criminal conduct would be astronomically high. Yet, a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.
I would allow the appeal on both the grounds argued and direct a new trial on all issues.
GRIFFIN J:
The facts have been set out in the judgments of the Chief Justice and Henchy J. At the close of the evidence the learned trial judge indicated that *609 he intended to leave to the jury only the issue of damages and intended to rule as a matter of law that the words ‘he pulled my beard’ are clearly defamatory. Counsel for the defendants, whilst conceding that the words used are capable of a defamatory meaning, submitted that in a libel action it is peculiarly the function of the jury to decide whether in the particular circumstances they were defamatory. He pressed the trial judge to leave such a question to the jury for their determination. The learned trial judge however ruled that the words were defamatory and left only the question of damages to the jury. The first ground of appeal argued was that he erred in law in having done so. The second ground was that the damages of £65,000 were excessive.
The first question raises an important question as to the respective functions of the judge and jury in an action for libel. There have been many cases in which this question was discussed and in my view the law on the question is now well settled by authority. It is for the judge to decide as a question of law whether the words complained of are capable of conveying a defamatory meaning. If the words are so capable, it is then a question for the jury whether the words do in fact convey a defamatory meaning, and the judge cannot remove that question from the province of the jury. I propose to examine a number of the cases in which the respective functions of the judge and jury in a libel action was considered.
In Parmiter v Coupland (1840) 6 M. & W. 105, a series of libels had been published in a newspaper of the mayor of Winchester, importing to him partial and corrupt conduct and ignorance of his duties as mayor and justice of the peace. The jury having found for the defendant, the plaintiff obtained a rule nisi for a new trial, on the ground, inter alia, that the trial judge ought to have directed the jury that, in point of law, the publications complained of were libels on him. In the course of his judgment, Parke B said:
The verdict is unquestionably wrong, and there ought to be a new trial, but on the ground of its being a wrong verdict only … One of the grounds upon which this rule was obtained was that the learned judge ought to have told the jury that the terms of these papers were libellous, and not to have left that as a question of fact for them to determine. But it has been the course for a long time for a judge, in cases of libel, as in other cases of a criminal nature, first to give a legal definition of the offence, and then to leave it to the jury to say, whether the facts necessary to constitute that offence are proved to their satisfaction; and that, whether the libel is the subject of a criminal prosecution, or civil action (at p. 107).
Alderson B said at p. 108:
The first question is, whether the learned judge ought to have laid it down positively, that if the publications were proved, and the words were used in their ordinary sense, the jury must find that they were libels. I think it would not be correct so to do; but that he ought — having defined what is a libel — to refer to the jury the consideration of the particular publication, whether falling within that definition or not. I think that if he were to take it upon himself to say that it was a libel, he would be wrong in doing so.
In Australian Newspaper Co v Bennett [1894] AC 284, where a newspaper was called the Evening Ananias , and the jury found for the defendants, the Privy Council overruled a decision of the Full Court of New South Wales setting aside *610 the verdict. Lord Herschell said at p. 288, ‘Whether a word is, in any particular instance, used and would be understood as being used for the purpose of conveying an imputation upon character must be for the jury’.
In McInerney v Clareman Printing and Publishing Co Ltd [1903] 2 IR 347, Holmes LJ said:
The question ‘libel or no libel’, if the language complained of is capable of bearing a defamatory meaning, must always be submitted to a jury. Although the judge is at liberty, and it may often be his duty to state his own opinion, he cannot direct a verdict or enter judgment for the plaintiff, unless this issue is found in his favour. Our courts have thought it right to follow, in libel actions, the rule prescribed by Fox’s Act in criminal prosecutions, and I have never known this practice departed from or doubted. But while a finding by the jury that the publication is a libel is a condition precedent to the plaintiff obtaining judgment, a finding of no libel is not necessarily final. It is liable to be set aside like other verdicts, if it is a conclusion to which reasonable men could not, or ought not, to have come (at p. 405).
In Broome v Agar (1928) 138 LT 698, a chauffeur sued his former mistress for the publication of words which would appear to have been clearly defamatory of the plaintiff. The jury found that the words were not defamatory of the plaintiff but the Court of Appeal refused to grant a new trial. In the course of his judgment, Scrutton LJ said:
Since Fox’s Act of 1792 (32 Geo. 3, c. 60), it has been a commonplace of civil procedure that ‘libel or no libel, since Fox’s Act, is of all questions peculiarly one for a jury’, perLord Coleridge CJ in Saxby v Easterbrook (3 C.P. Div. 339, at p. 342). There are also the weighty words of Sir James Shaw Willes in Henwood v Harrison (22 L.T. Rep. 938, at p. 945; L. Rep. 7 C.P. 606, at p. 627): ‘the jury in civil cases, equally as in criminal cases, are the proper tribunal to determine the question of libel or no libel. This was affirmed by the declaratory Act of 1792, and has been often recognised’ … The legislature by Fox’s Act adopted the view of Willes J [in Rex v Shipley 4 Doug. 73], and it has been since a fundamental principle that libel or no libel is for the jury.
One restriction has indeed been made; it is well established that if the judge is of opinion that the words are not capable of a defamatory meaning he should withdraw the case from the jury. This restriction is in favour of the defendant … But it is a long step to pass from the power of a judge to withdraw the case from a jury on the ground that he thinks that the words are not capable of a defamatory meaning to the position that, if a judge or judges think that words are only capable of a defamatory meaning, he or they can enter judgment for the plaintiff without a finding of the jury, or direct the jury to find that the words are defamatory’. And at p. 700 he said: ‘I might have given a different verdict, but I am not the tribunal to answer the question. Libel or no libel is for the jury, if the words are capable of a defamatory meaning’ (at p. 699).
Sankey LJ said:
What then are the proper functions of judge and jury in an action for libel and slander? So far as the judge is concerned it is for him to say whether the words complained of can, under the circumstances, bear a defamatory meaning. If they cannot, it is his duty to withdraw the case from the jury. It is not, however, open to the judge to say that the words do bear a defamatory meaning, that is for the jury, but the jury must have evidence upon which they can found their verdict, and if there is no evidence upon which they can find the words were not defamatory, or if it can be conclusively proved that they have not exercised any reasonable discretion at all an appellate court may grant a new trial (at p. 701).
In Lockhart v Harrison (1928) 139 LT 521, the defendant anonymously wrote *611 a letter for publication in a newspaper, and that letter was the subject matter of the libel complained of. The only issue before the jury (apart from damages) was whether the words complained of were defamatory of the plaintiff (all other issues having been abandoned at the trial). The jury found for the defendant. The plaintiff appealed to the Court of Appeal and having failed in that court further appealed to the House of Lords, alleging that no twelve reasonable men could fairly come to that conclusion, and on that ground sought to set the verdict aside. The House of Lords unanimously dismissed his appeal. In the course of his speech, Lord Buckmaster said:
A claim for defamation is essentially a matter upon which a jury’s verdict must be taken; if the words are plainly defamatory without innuendo, and the jury refuse so to decide the verdict is perverse; so also if the innuendo is so clear that there really is nothing for real consideration. If the words are not defamatory, the judge can so hold and withdraw the case from the jury …
It is, of course, not true to say that a jury’s verdict in these circumstances can never be assailed. A plain and obvious defamation incapable of any innocent explanation, if found by the jury to be non-libellous, would certainly be set aside, but such cases occur so rarely that within the last century there are only two to which our attention has been drawn in which this power has been exercised.
One of the two cases to which he referred was Parmiter v Coupland. He said that the judgment of Scrutton LJ in Broome v Agar contains a full, and in his opinion, a most accurate statement of the true position.
Lord Dunedin having stated that he regretted the result at which he and his colleagues had arrived, said:
I regret it because I think the letter in question was the mean letter of a coward who, shielding himself under anonymity, wished to wound while he was afraid to strike. That it was a libel has been the opinion of every judge who has had the case before him; but, of course, that is not the question. The question is whether it is a verdict at which twelve reasonable men could possibly have arrived (at p. 524).
Lord Phillimore said:
When an action for libel is brought to trial, the written or printed words may be so plainly and necessarily defamatory that the judge should instruct the jury that they are calculated to bring the plaintiff into hatred or contempt, and should forthwith proceed to direct their attention to the question of damages. This is well laid down in Odgers on Libel (5th edit., pp. 119 and 121), though the case which he relies upon as his principal authority is not a very satisfactory one.
Where a judge does so direct a jury, if the jury should find a verdict contrary to his direction, it may be deemed perverse, and may be set aside, and a new trial may be ordered . (The italics are mine) (at p. 524).
In my opinion, these cases demonstrate that through legislation and the practice of more than one hundred and fifty years the determination of the question of libel or no libel is one which is solely within the province of the jury. No case was cited in argument, nor have I been able to find any case, in which that issue was withdrawn from the jury, or in which it was decided on appeal that that issue should have been withdrawn from them. Nor have I ever known or *612 heard of a case in which that was done. The accepted rule in my view makes good sense. A finding of libel or no libel is to a considerable extent a matter of opinion as distinct from judgment as to actual fact, and this no doubt to a large extent accounts for what Lord Radcliffe in Dingle v Associated Newspapers [1962] 3 WLR 229 at p. 237 referred to as a peculiar historical sanctity which is accorded to the verdict of juries in libel actions, though (as he said) even that sanctity is not inexpugnable. And in this regard the position is put succinctly by Walsh J delivering the unanimous verdict of this Court in Quigley v Creation Ltd [1971] IR 269. There he said:
Basically, the question of libel or no libel is a matter of opinion and opinions may vary reasonably within very wide limits. When a jury has found that there has been a libel, this Court would be more slow to set aside such a verdict than in other types of actions and it would only do so if it was of opinion that the conclusion reached by the jury was one to which reasonable men could not or ought not have come …
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 libellous meaning to the words complained of (at p. 272).
Notwithstanding this long line of authority to the contrary, the defendants, in support of the ruling of the learned trial judge, relied in this Court on the first sentence in the judgment of Lord Phillimore in Lockhart v Harrison, and on the dissenting judgments of FitzGerald and McLoughlin JJ in Berry v Irish Times Ltd [1973] IR 368.
First, with regard to the statement of Lord Phillimore, the first sentence of the passage I have cited cannot be taken in isolation, but must be read in conjunction with the two sentences which follow, and in particular the one which I have italicised. The latter portion makes it quite clear that even if the judge were to direct the jury in the manner suggested by him the question must nevertheless be left to the jury for their decision. If the jury do not follow his direction the verdict may (not will ) be deemed perverse, may be set aside, and a new trial may be ordered. This quotation from Lord Phillimore is in my view not authority for the proposition proposed in this case.
In Berry v Irish Times Ltd the plaintiff, who was the Secretary of the Department of Justice, claimed that he was libelled by the publication in the defendant’s newspaper of a photograph of a street scene which showed a placard on which was written:
Peter Berry — 20th Century Felon Setter — Helped Jail Republicans in England.
The words were untrue. The jury held that the publication of those words was not defamatory of the plaintiff. The plaintiff appealed to this Court on the grounds that the finding that the plaintiff had not been defamed was perverse and that the trial was unsatisfactory. The appeal was dismissed. Three members of the court, forming the majority, held that the allegation contained in the poster did not constitute defamation in law. FitzGerald and McLoughlin JJ dissented. FitzGerald J stated that it appeared to him that the words complained *613 of were clearly a libel, and concluded his judgment as follows:
In my view, a gross injustice was done to the plaintiff and the action should be re-tried. The meaning of the words was plainly defamatory and the jury should be so directed and the case re-tried on the issue of damages only.
In his judgment, McLoughlin J also held that the words were defamatory and said:
For the reasons stated, I would not allow the jury’s answer to Question 2 [the finding that the words were not defamatory of the plaintiff] to stand, and I would direct a new trial on damages only.
Neither FitzGerald nor McLoughlin JJ cited any authority or gave any reason as to how or why they concluded that the re-trial should be on damages only. Having regard to the course of the trial and of the appeal their conclusion that a re-trial should be on damages only is somewhat surprising. At the trial, no application was made to the trial judge on behalf of the plaintiff to instruct the jury to find that the words complained of were defamatory of the plaintiff. On the appeal, what the appellant sought was a new trial before another jury. Most of the authorities to which I have referred in this judgment were referred to by counsel. As stated earlier, they establish that libel or no libel is for the jury, and that although the judge may give his opinion and even tell the jury that it was their duty to find that words are defamatory, he cannot withdraw the question from them or direct them to find that the words were defamatory. In my opinion, the view expressed by FitzGerald and McLoughlin JJ in their dissenting judgments that a re-trial should be confined to damages only is not in line with the authorities.
In the present case, the words which the jury would have had to consider, in the context of the disgraceful scenes at Leinster House, were that the plaintiff ‘pulled at my beard’, (not ‘pulled my beard’ as stated by the learned trial judge — see pp. 41, 43, 46 and 47 of the transcript). If the usual question, whether the words were defamatory of the plaintiff, had been left to them, the jury, in considering them, would be in the position of being the typical readers of reasonable intelligence. Counsel for the defendants submitted that ‘pulling at my beard’ is not the equivalent of ‘pulling my beard’, and that the word at must be given some force. I agree that this is so. The jury would have to consider whether, as typical readers being reasonable men of usual intelligence, they would construe the words ‘pulling at my beard’ as being a physical assault on the writer, or coupled with the words ‘you thought you’d dance on his grave’ or some similar words, they amounted to a derisory gesture. The jury might have taken the latter construction from the words used, and found that the words were not defamatory. If they had done so, even if I did not share their opinion, such a finding would not, in my opinion, be set aside in the circumstances of this case.
In respect of the damages of £65,000 in my opinion no reasonable proportion exists between that sum and the circumstances of the case. Nowadays the true measure of damages for libel is compensatory — to compensate for the injury to *614 the plaintiff’s reputation. The jury are entitled to take into account such matters as the position and the standing of the plaintiff in the community, the nature of the libel, the absence or refusal of any retraction or apology, any social disadvantages which may result or be thought likely to result from the wrong which has been done to the plaintiff, and the injury to his feelings — the natural distress he may have felt at having been spoken or written of in defamatory terms. They could consider the whole conduct of the defendants from the time of the publication down to the moment of their verdict. They may take into consideration the conduct of the defendants before proceedings were instituted, whilst the action was pending, and in court at the trial of the action. They may also take into consideration the conduct and attitude of the plaintiff himself. As counsel for the defendants submitted, the plaintiff when he first heard of the publication did not seem to regard it as a very serious matter. He wrote to the defendants a very moderate letter hoping that the defendants would publish his letter, and he did not even ask for an apology (Q. 71/72). He would have been quite satisfied if the editor had published the letter (Q. 73/74), and that was still his attitude at the time of the trial (Q. 76/77).
Approaching the award of the jury from the most favourable light in so far as the plaintiff is concerned, as this Court is obliged to do, in my opinion the amount awarded is out of all proportion to the circumstances of the case and should be set aside.
In the result, in my judgment:
1. The question as to whether the words complained of were defamatory of the plaintiff should have been left to the jury;
2. The damages awarded were excessive;
3. I would allow the appeal on both grounds and direct a re-trial.
HEDERMAN J:
This appeal by the defendants is against an award of £65,000 damages made against them for libel by a jury in the High Court. The appeal has been put forward on two grounds:
(1) that the trial judge erred in law in refusing the application of counsel for the defendants to leave it to the jury to find if the words complained of were defamatory, and (2) that in any event the sum awarded for damages is grossly excessive and should be set aside.
The words complained of and the circumstances to which they refer have been adequately dealt with in the judgments just read, so I need not recount them again.
As to the first ground of appeal, I am not aware of, nor have we been referred to, any case where the trial judge refused an application by the defence to leave it to the jury to decide whether the words complained of are defamatory. The general rule is stated as follows in McMahon and Binchy, Irish Law of Torts:
The division of function in the initial stages of the trial is not an unfamiliar division in the law of torts in Ireland. It is for the judge to say at the outset whether the words uttered are capable of a defamatory meaning in law. If the judge decides that the words are capable of such a defamatory meaning, then it is for the jury to decide whether the words in fact have a defamatory meaning in the present circumstances before the court (at p. 348).
Judicial statements to that effect are to be found in Pyke v Hibernian Bank [1950] IR 195 where O’Byrne J says:
In my opinion, it is for the judge to rule whether the words are reasonably capable of a defamatory meaning. If he is satisfied that they are, he is bound to leave the case to the jury to decide, as a matter of fact, whether the words were so understood on the occasion on which, and by the persons to whom, they were published (at p. 205).
The headnote of the case shows that a similar conclusion was reached by Black J.
The opinions of juries — and of judges — are notoriously subjective and unpredictable in deciding what is defamatory. In Fullam v Associated Newspapers Ltd [1955–56] Ir. Jur. 45 the Supreme Court upheld a jury verdict in favour of a celebrated professional soccer player for a libel which did no more than suggest that he was less than proficient in attempting to shoot at goal with his left foot.
As was stated by Walsh J giving the Judgment of the Court in Quigley v Creation Ltd [1971] IR 269:
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 libellous 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; and that necessarily involves a consideration of the standards of the community and the position of the plaintiff in that community (at p. 272).
The importance of leaving it to the jury as representing the community to say if the words are defamatory is probably best exemplified by the case of Berry v Irish Times Ltd [1973] IR 368 which quoted with approval the above extract from Quigley v Creation Ltd. The Irish Times had carried a photograph of a street scene showing a man carrying a placard bearing the words: ‘Peter Berry — 20th Century Felon Setter — Helped Jail Republicans in England’. These words referred to Mr Peter Berry, Secretary of the Department of Justice, and were untrue. The jury in the High Court held nevertheless that they were not defamatory. This Court (O Dálaigh CJ, Walsh and Budd JJ, FitzGerald and McLoughlin JJ dissenting) upheld the jury’s verdict. The majority decision, given by O Dálaigh CJ, had no difficulty in holding that, notwithstanding the untruth of the allegation, the jury were entitled to say the article was not defamatory.
It cannot be held as a matter of law that his right-thinking neighbour, or any other right-thinking people in the community in Ireland, must necessarily think less of him for taking such action if he had done so.
This means that the court was saying that as a matter of law it could not hold that a person who assists in bringing law-breakers to justice must necessarily hold up such persons to ridicule, scorn or contempt in the community where *616 there is no suggestion that his motives in so doing were base. On the other hand, the dissenting judgments of FitzGerald and McLoughlin JJ are expressed in language so firm and unequivocal that it is plain that they could not understand how ordinary right-thinking people could fail to hold that the words complained of were not defamatory. The crucial point, however, is that the question of defamation was left by the trial judge to the jury and the majority verdict of the Supreme Court meant that the community verdict — uncomprehensible as it may have been to some — prevailed.
In the exceptional circumstances to which the words complained of in this case relate, I consider that the jury’s verdict was vital to ascertain if the words complained of were defamatory. It is conceivable (but not necessarily the view I myself would have reached as a juror) that the jury may have thought that the allegation that the plaintiff pulled at Mr Feeney’s beard was but a false allegation of an impulsive and undamaging gesture and was therefore not defamatory. The peculiar function of the jury in an action such as this made it necessary to get their decision.
I would therefore uphold the first ground of appeal.
As to the second ground of appeal, that the damages were excessive, I have little to add to what has been stated in the judgments already delivered. The conduct alleged against the plaintiff, even if duly held by a jury to be defamatory, merits compensatory damages, and the sum awarded went far beyond what a reasonable jury could consider to be compensatory in the light of the evidence.
For this reason also I would allow the appeal and direct a new trial on all issues.
McCARTHY J:
1. Libel or no Libel
Article 40.3.2° of the Constitution provides that the State shall, in the case of injustice done, vindicate the good name of every citizen. In Berry v Irish Times Ltd [1973] IR 368, McLoughlin J, who adverted to this constitutional guarantee, and FitzGerald J held that the words complained of were plainly defamatory and that a new trial should be held on the issue of damages only. The other judgment; that of O’Dálaigh CJ with whom Walsh and Budd JJ agreed, held not that the words were not defamatory but that the jury which found no libel was entitled to do so but did not question that there may be cases where a jury should be directed to make a finding of libel. One may, properly, read the acceptance of such a principle into the observations as follows:
It is perhaps surprising that the Supreme Court should be asked to hold, as a matter of law, that it is necessarily defamatory to say of one of the citizens of this country that he assisted in the bringing to justice in another country of a fellow countryman who broke the laws of that country and who was tried and convicted for that offence in the ordinary course of the administration of criminal justice (at p. 375).
The report shows that reference was made, in course of argument, to Lockhart v Harrison (1928) 139 LT 521 in which Lord Phillimore said: *617
… the written or printed words may be so plainly and necessarily defamatory that the judge should instruct the jury that they are calculated to bring the plaintiff into hatred or contempt and should forthwith proceed to direct their attention to the question of damages. Where a judge does so direct a jury, if the jury should find a verdict contrary to his direction, it may be deemed perverse, and may be set aside, and a new trial ordered (at p. 521).
Whilst I do not find it necessary to look beyond the authority of Berry’s case, it seems to me that the words quoted from Lord Phillimore are ample support for the logic of the trial judge directing the jury to assess damages, where the written or printed words are plainly and necessarily defamatory. Indeed, at the close of the argument in the instant appeal, I did not understand counsel for the appellants to argue otherwise.
In the absence of special circumstances, words must be given their ordinary meaning; the ordinary meaning of the words complained of is and could only be that a member of the Dáil, in the precincts of Leinster House, assaulted the journalist author of the article in question. It may be that additional evidence of circumstance or other amplification could have left the words open to a non-libellous meaning; none were suggested much less proven. In my opinion, a finding by a jury that the words were not libellous would have been perverse; it follows that the learned trial judge was correct in the ruling which he made.
2. Damages
It is not suggested that the damages are to be other than compensatory, not alone for the original libel but insofar as the hurt is increased by subsequent conduct right up to the moment of assessment. The defendants’ conduct has been deplorable. The plaintiff made a most reasonable complaint to the editor of the newspaper concerned inviting reference to ‘a number of gardai and ushers present at the time’. The reply was to confirm the factual accuracy of the statement. Although the author of the report had died, there was nothing to prevent the defendants calling in aid any number of persons, gardai, ushers or otherwise, to substantiate the allegation made. They did not do so but never withdrew, formally or otherwise, the allegation in the letter, compounded, as it was by the plea in the formal defence that the words complained of in their ordinary and natural meaning were true in substance and in fact. Indeed, up to this moment, no apology has been forthcoming from the defendants. As I read the transcript, the approach of the defendants, through their legal advisors, at the trial was to seek to defuse the whole affair. The jury was not attracted by this exercise and, on any view, held that the libel, compounded by the defendants subsequent conduct, was a serious one.
If this action is retried, the unfavourable impact made on the jury by the defendants’ conduct throughout including during the trial will be very much watered-down; if, however, making all due allowance the amount of the award cannot be supported, such a circumstance affords no remedy to the respondent. The law reports abound with judicial tributes to the particular respect that must be accorded to the verdict of a jury in libel actions. See, for example, the observations of Walsh J in Quigley v Creation Ltd [1971] IR 269 at p. 272. These observations apply no less to the assessment of damages than they do to the issue *618 of libel or no libel. If I were to be given the unwelcome task of assessing an amount of damages appropriate to compensate the present plaintiff, I am confident it would be a figure far less than that assessed by the jury. I am reluctantly driven to the conclusion that the award so far exceeds an acceptable norm as to be unreasonable and perverse.
I would accordingly dismiss the appeal on liability and direct a new trial limited to damages.
Diop v Transdev Dublin Light Rail & anor
[2019] IEHC 849 (12 December 2019)
JUDGMENT of Mr. Justice Barr delivered on the 12th day of December, 2019Introduction1. The plaintiff was born in Dublin on 5th August, 1994. He grew up in Tallaght and afterfinishing school he obtained a degree in psychology from Maynooth University. He is currently employed in an educational establishment. The plaintiff is a colouredgentleman. This is relevant to the issues which fall to be determined in this case.2. On 8th June, 2016, at approximately 19:48 hours the plaintiff boarded a Luas tram atMiddle Abbey Street, going in the direction of Tallaght. The plaintiff’s left arm was in asling, as he had suffered a recent injury to his shoulder. The plaintiff was in the companyof his brother, who was then a student in Dublin City University.3. On the occasion in the question, the plaintiff had a valid ticket to make the journey on theLuas. His brother had a Leap Card, which he had tagged-on in the usual way at the stopat Middle Abbey Street. The plaintiff and his brother were sitting side by side on seatsthat were between the doors on the tram and as such they were facing in towards thebody of the carriage.4. It is common case that two security guards, Mr. Burke and Mr. Fay, who were employedby the second defendant to provide security services on the Luas on behalf of the firstdefendant, boarded the tram at the Blackhorse stop. It is the plaintiff’s case that uponentering the carriage, the two security guards came straight over to the plaintiff and hisbrother and demanded production of their tickets. The plaintiff states that as they wereproducing the tickets the plaintiff made the comment “this is slightly racially profiling”.After some very short conversation, one of the security guards, Mr. Burke, instructed theplaintiff and his brother to leave the tram. He said that a number of times. Theinstruction was accompanied by a hand gesture waving them towards the door. However,the other security guard, Mr. Fay, countermanded that instruction and permitted theplaintiff and his brother to remain on the train. The two security guards alighted from thetrain at the next stop and the plaintiff and his brother continued to the Red Cow stop,where the plaintiff attempted to lodge a complaint about the incident, but the office wasclosed.5. It is the plaintiff’s case that as a result of the immediate approach of the security guardsto him and his brother, their demand that they produce tickets, followed by the order toleave the train, accompanied by hand gestures, he was treated in a most unfair mannerand was defamed by that series of events, because other people in the carriage, whoeither overheard the exchange, or saw the gestures that accompanied the direction toPage 2 ⇓leave the carriage, would have come to the conclusion that either the plaintiff and hisbrother did not have valid tickets permitting them to be on the tram, or had otherwiseacted in such a way as to justify their removal. In these circumstances, the plaintiffseeks damages for defamation against the defendants.6. In their defence, the defendants have denied that they had engaged in any racial profilingas alleged by the plaintiff, but state that they had merely made a request for productionof their tickets, as they were entitled to do and that there then ensued a conversationbetween the security guards and the plaintiff, wherein they denied that they had engagedin any racial profiling. It was denied that the plaintiff and his brother had beenspecifically targeted by the security guards on entering the carriage. In particular, theyalleged that it was only because the plaintiff had made the statement “that is slightlyracially profiling” in relation to a coloured youth who had left the tram at the same timeas Mr. Burke had entered it, that he, Mr. Burke, had gone over to ask the plaintiff and hisbrother for production of their tickets.7. It was denied that the exchange which had taken place bore the alleged or anydefamatory meanings. Without prejudice to that defence, it was further pleaded that theoccasion was one which attracted the defence of qualified privilege.The Exchanges Between the Plaintiff and His Brother and the Security Guards8. The Court has been greatly assisted in the resolution of this case by having had theopportunity to view CCTV footage from a number of cameras within the carriage. TheCourt has also had the benefit of both seeing and hearing footage taken by the bodycamera worn by Mr. Burke, which was activated during a large portion of his exchangewith the plaintiff and his brother.9. It was accepted by all parties that the footage on the bodycam did not cover the initialportion of the exchange between the plaintiff and Mr. Burke. There is an importantconflict between them in relation to what happened and what was said prior to thebodycam being switched on.10. The evidence of the plaintiff, which was supported by that of his brother, was to the effectthat the two security guards had entered by separate doors facing the plaintiff and hisbrother and on either side of them. Mr. Burke entered from the door to the plaintiff’s left.When the door opened, a young coloured male, who was completely unknown to theplaintiff and his brother, left the tram by the same door through which Mr. Burke entered.The plaintiff stated that Mr. Burke came straight over to him and his brother and asked“do you have tickets?”, to which the plaintiff and his brother replied “yes”. The securityguard then repeated the word “tickets” and gestured with his hand that they be produced.The plaintiff states that it was at that point that he said “this is slightly racially profiling”.At the same time his brother produced his Leap Card and asked whether the securityguard was going to check his card, as the security guard did not appear to have thenecessary machine to check a Leap Card. It was at that point that the bodycam wasturned on. The plaintiff agrees that the transcript of the bodycam footage which wasPage 3 ⇓produced in Court, was an accurate representation of the conversation that then ensuedbetween the plaintiff and the security guards.11. Mr. Burke’s evidence, which was supported by the evidence of his colleague, Mr. Fay, wasto the effect that they had had trouble throughout the day with three coloured maleyouths, who were hopping on and off the tram without having valid tickets and weregenerally misbehaving while on the tram. Mr. Burke stated that as he entered the tramat the Blackhorse station, one of the youths stepped off when he said “get off” to him.Mr. Burke stated that it was in response to that command, that the plaintiff had made thestatement about racial profiling. Mr. Burke stated that upon hearing that comment beingmade, he then went over to the plaintiff and his brother to ask for production of theirtickets. He denied that the comment about racial profiling had been made by the plaintiffafter he had first requested production of the tickets. He stated that he switched on hisbodycam when the plaintiff’s brother asked whether he was being checked.12. There is clearly a dispute between the parties as to when the comment in relation toracial profiling was first made by the plaintiff. A finding in relation to this conflict will bemade later in the judgment. The remainder of the exchange between the parties wascaptured on the bodycam and was produced to the Court. Both sides accepted that it wasan accurate representation of the verbal exchange between the parties. The transcriptwas in the following terms:“Plaintiff’s brother: Are you checking me?Mr. Burke: YeahMr. Fay: I’ll tell you why we’ve checked you because the other three gentlemen weput off at three different stopsPlaintiff: Yeah just because we’re black lads doesn’t mean we’re with themMr. Fay: This is nothing to do with racial profilingPlaintiff: No, I’m pretty sure it isMr. Fay: Is it? You’re on camera mate you’re being recorded, it’s nothing to do withracial profiling, it’s a random spot check.Mr. Burke: Do you know what you’re saying to people nowPlaintiff: Ok, yeah, yeahMr. Burke: Here buddy now listen I don’t like your attitude just step off therepleasePlaintiff: Are you fucking joking meMr. Burke: Yeah now honestly now step off, please step offPage 4 ⇓Plaintiff: You see two black lads sitting down … (Mr. Burke speaks over him)Mr. Burke: That’s got nothing to do with it, just step off now your attitude isappaulng [sic]Mr. Fay: Well just leave it and you can stay but don’t say we’re racially profiling cus[sic] every single other one the staff …Plaintiff: OkayMr. Fay: Yeah go ahead driver it’s sortedMr. Fay: The other lads been put off the trams three times, that’s the only reasonyou were asked, cus [sic] you were in the same area. There were twelve otherblokes we’re after putting off five different trams all just around herePlaintiff: OkayMr. Fay: Turn the camera off”Conclusions13. The first issue for determination is the exact sequence in which the plaintiff came to makethe remark, “This is slightly racially profiling”. Having listened carefully to the evidence ofthe witnesses and having viewed both the CCTV footage and the bodycam footage anumber of times, the Court does not accept the evidence given by Mr. Burke and Mr. Fay,that Mr. Burke only asked for the tickets in response to the comment being made by theplaintiff that Mr. Burke’s conduct towards the other coloured youth had been “slightlyracially profiling”. The Court prefers the evidence of the plaintiff, which is supported bythe evidence of his brother, Mr. Adam Diop, that that comment was made after Mr. Burkehad asked them if they had tickets and had gestured that they should produce them. TheCourt reached this conclusion for the following reasons:(a) It is clear from the CCTV that the coloured youth in the blue parka jacket, whoexited the tram from the same doors that Mr. Burke entered, did not say anythingto Mr. Burke, nor did Mr. Burke say anything to him.(b) It is clear from the CCTV footage that the youth exiting the carriage and Mr. Burkedid not even look at each other. They merely passed by each other as one exitedand the other entered.(c) It is clear from the CCTV that the first time that Mr. Burke speaks on entering thecarriage is when he approaches the plaintiff and his brother to ask if they hadtickets. I regard the evidence given by Mr. Burke that he said “get off”, or words tothat effect to the youth as he exited the carriage and that it was that commentwhich prompted the plaintiff’s remark about racial profiling, as a lie told by Mr.Burke to justify his approach to the plaintiff and his brother seeking production oftheir tickets.Page 5 ⇓(d) I regard the evidence given by Mr. Fay to the effect that on entering a tram hewould always say “off” to youths leaving the tram, as being an untruth told in aneffort to bolster the evidence given by Mr. Burke. That evidence is simply notcredible.(e) I am satisfied that there was no reason why the plaintiff would have had anyreason for accusing Mr. Burke of engaging in racial profiling in connection with hisdealings with the coloured youth in the blue parka jacket, who left the tram as heentered it, because there was no interaction between them at that time.(f) I find the evidence given by Mr. Fay that he heard the comment about racialprofiling as he entered the carriage, as being explicable due to the fact that heentered the carriage some seconds after Mr. Burke, as he had been conversing withthe driver via walkie talkie prior to, or as he entered, the carriage.14. Accordingly, the Court prefers the evidence of the plaintiff and his brother, to the effectthat Mr. Burke entered the carriage and came straight over to them and asked “Do youhave tickets?”, to which they replied “Yes” and he then repeated the word “tickets” andgestured with his hand for them to be produced, to which the plaintiff said “This is slightlyracially profiling”. At the same time, the plaintiff’s brother was handing over his LeapCard and was asking “Are you checking me?”, at which time Mr. Burke’s bodycam wasswitched on. The Court is satisfied that the remainder of the exchange between theplaintiff and the security guards is as set out in the transcript.15. It should be noted that the repeated requests made by Mr. Burke of the plaintiff to stepoff the tram, which appear towards the end of the transcript, were accompanied by handgestures indicating that the plaintiff and his brother should move towards the doors.16. In her cross-examination of the plaintiff and his brother, Ms. Morgan S.C. on behalf of thedefendants, put forward the proposition that on the day in question the two securityguards had encountered three coloured male youths playing a game of “cat and mouse”with the security guards, by jumping on and off the tram and engaging in various formsof antisocial behaviour while on the tram. It was put to the witnesses that the securityguards knew that there were three male youths involved. One of the male youths got offat the Blackhorse stop. Counsel stated that, it was a well-known ploy for troublemakersto attempt to “hide in plain sight” by sitting quietly on a seat pretending to be ordinaryfare paying passengers. In these circumstances, it was put to the witnesses that it wasreasonable for Mr. Burke to approach the plaintiff and his brother and seek production oftheir tickets. Counsel stated that it was standard operating procedure for security guardsto demand production of tickets from people who they thought may have been engaged inantisocial behaviour, because such people rarely had valid tickets and could be lawfullyput off the tram.17. Counsel put it to the plaintiff and his brother that the security guards had gone over tothem seeking production of their tickets because they knew that there were two colouredmale youths left on the tram. It was not a case of general racial profiling, it was justPage 6 ⇓unfortunate that the miscreants on this occasion happened to be of the same colour, ageand sex as the plaintiff and his brother. The plaintiff did not accept that proposition. Hestated that he felt that he and his brother had been targeted because they were coloured.He pointed out that there was another young coloured man sitting nearby, who had notbeen asked for production of his ticket. The plaintiff stated that he believed that it was anexample of racial profiling of him and his brother.18. The proposition but forward by senior counsel for the defendants in cross-examinationwas unfortunately not backed up by the evidence given by Mr. Burke. Initially, he statedthat he had only approached the plaintiff and his brother seeking production of theirtickets when he had heard the comment about racial profiling being made by the plaintiff.However, in cross-examination he tweaked this somewhat, by stating that he hadapproached the plaintiff because he was in the same area as the other youths, who hadbeen causing trouble and because of his comment about racial profiling.19. The evidence of Mr. Burke was somewhat undermined by the evidence given by Mr. Fay,who stated that they had had trouble with three coloured male youths on the Luas thatparticular day. However, he denied that it was the activities of those youths that hadbeen behind the approach made to the plaintiff and his brother by Mr. Burke, due to thefact that they had put these youths off the train a number of times earlier in the day andtherefore they knew what they looked like. Accordingly, it does not appear plausible thatMr. Burke could have had any suspicion as indicated by him, or as had been postulated bysenior counsel, that the plaintiff and his brother might have been the remaining two ofthe three troublesome youths. Mr. Fay’s evidence in this regard is confirmed by hisstatement on the early part of the transcript that they had put the three youths off tramsat three different stops earlier in the day.20. The Court is of the view that Mr. Burke and Mr. Fay have deliberately put the making ofthe racial profiling comment by the plaintiff earlier in time, as a justification for theirapproach to the plaintiff and his brother on that occasion, so as to avoid an accusationthat they had in fact engaged in racial profiling.21. However, this is not a case about racial profiling. It is an action claiming damages fordefamation. In looking at the question whether a particular episode was defamatory of aplaintiff, I am satisfied that the Court must look at the entirety of the transaction orencounter between the parties. It is well established that where a plaintiff claims to havebeen defamed by words written in an article, the plaintiff cannot cherry pick parts of thearticle which suit his case, but must present the entirety of the article to the jury. InGriffin v. Sunday Newspapers [2011] IEHC 331, Kearns P. stated as follows at paragraph21:“Thus it follows that a plaintiff cannot select an isolated passage or sentence in anarticle and complain of that alone if other parts of the article throw a different lighton that passage. The real test is whether the result of the whole is calculated toinjure the plaintiff’s character.”Page 7 ⇓22. I am satisfied that that approach must be adopted in relation to this incident. The Courtmust look at the entirety of the exchange between the plaintiff and his brother and thesecurity guards. It should be noted that section 2 of the Defamation Act, 2009 providesthat a “statement” shall include gestures and any other method of signifying meaning.23. Leaving aside whatever the true motivation may have been for requesting the plaintiffand his brother to produce their tickets, I am satisfied that a request by a security guardfor production of tickets by a passenger, is not defamatory per se. Accordingly, I findthat it was not defamatory of Mr. Burke to request the plaintiff and his brother to producetheir tickets.24. The fact that there then ensued a disagreement between the parties as to whether thesecurity guards had engaged in racial profiling, thereby necessitating the security guardscontinuing to speak to the plaintiff and his brother after they had returned their tickets tothem, was not defamatory of the plaintiff. The security guards were entitled to refute theaccusation that had been made against them. Accordingly, I find that it was notdefamatory of the plaintiff for Mr. Burke and Mr. Fay to speak to him after they hadreturned their tickets to them.25. When one looks at the behaviour of the plaintiff in context, and in particular with thebenefit of the CCTV footage and the bodycam footage, it is clear that the plaintiff was notspeaking in a loud voice, he was at all times calm, he was seated at all times and was notaggressive. He was politely expressing an opinion which he held. In thesecircumstances, the Court is satisfied that the plaintiff had not acted in any way incontravention of the Light Railway (Regulation of Travel and Use) Bye-Laws 2015 and inparticular he had not acted in breach of Regulation 5 thereof. The Court is satisfied thatin expressing his opinion in the manner that he did, the plaintiff was not acting in amanner that was abusive, threatening or offensive to any person, as prohibited under theregulations. In these circumstances, the Court finds that Mr. Burke had no right to directthe plaintiff and his brother to leave the tram.26. Having purchased a valid ticket, the plaintiff had a contractual right to stay on the tramuntil he reached his destination, as long as he did not misbehave in such manner as tojustify his removal. In expressing an opinion as he did, the plaintiff was not acting in anoffensive manner, even though Mr. Burke and Mr. Fay may have been offended by hisopinion. For Mr. Burke to tell the plaintiff “Here buddy now listen I don’t like your attitudejust step off there please”, was a breach of contract on the part of the defendants, itsservants or agents. It was also defamatory of the plaintiff, because other passengers,who may have overheard the remark, or who may have seen the accompanying handgestures made by Mr. Burke, which made it clear that the plaintiff was being told to leavethe tram, would have reached the understandable conclusion that the plaintiff was beingput off the tram, either because he did not have a valid ticket, or because he hadotherwise misbehaved himself in such a way as to justify his removal. The Court issatisfied that Mr. Burke in telling the plaintiff to step of the tram on four occasions and bygiving the hand gestures that he did, defamed the plaintiff.Page 8 ⇓27. In their defence the defendants have relied on the defence of qualified privilege. Thisdefence is provided for under section 18 of the Defamation Act 2009. It preserves thedefence which had been recognised under common law prior to the enactment of the Actand made certain provisions in relation to persons making complaints to third partiesconcerning the conduct of another person.28. Broadly speaking the defence of qualified privileged most commonly arises in two types ofcases. Firstly, where a person makes an accusation regarding the plaintiff which turnsout to be wrong, which accusation is published to third parties in the vicinity. Casesunder this heading would include accusations of shoplifting, fare evasion and fraud. Thesecond general category includes cases where a person makes a complaint to a thirdparty concerning the conduct of a person, thinking that that person is the appropriateperson to whom such complains should be addressed. This would include complaintsmade to the Gardaí, Tusla and various professional bodies, concerning the conduct of theperson in a professional or other capacity. These are not the only categories in whichqualified privilege can arise, but they are the most common ones.29. The position at common law was expressly retained by section 18(1) of the DefamationAct 2009. The defence at common law provided that as long as the person making thefalse accusation had a duty or interest in so doing and the person to whom it was madehad a duty or interest in receiving the complaint or accusation, the maker of thestatement would be protected as long as they acted without malice. The law in relation toqualified privilege in Irish Law was examined in McCormack v. Olsthoorn [2004] IEHC 431and more recently in RP & JP v. BK [2018] IEHC 139 and Nolan v. Laurence Lounge[2018] IEHC 352.30. It is not necessary to go into this aspect of the defence in any further detail because theCourt is satisfied that in this case, while the initial interaction of the security guards withthe plaintiff was an occasion covered by qualified privilege, that ceased to be the caseonce it had been established that the plaintiff was in possession of a valid ticket.Thereafter, the interaction between Mr. Burke and the plaintiff ceased to be covered byqualified privilege because it had been established that the plaintiff had a contractual rightto be travelling on the tram and he was not otherwise misbehaving, or engaging inantisocial or offensive behaviour. Accordingly, the issue of qualified privilege does arise inrespect of the subsequent statements and communications made by Mr. Burke concerningthe plaintiff during the latter part of the conversation. Thus, his defamatory statementand gestures when indicating to the plaintiff that he should leave the tram, was notcovered by qualified privilege.31. In his evidence, Mr. Fay stated that he had only permitted the plaintiff and his brother toremain on the tram, because the plaintiff had agreed not to repeat his allegation that thesecurity guards had engaged in racial profiling. That evidence is not supported by thetranscript. It is clear therefrom that when Mr. Burke made his fourth direction to theplaintiff to step off the tram, Mr. Fay stepped in at that point and stated that the plaintiffPage 9 ⇓could stay on the tram, but he was not to repeat the accusation of racial profiling. It wasonly at that point that the plaintiff indicated his agreement by saying “okay”.32. Contrary to what was asserted in evidence by Mr. Fay, the Court is satisfied that theplaintiff was not permitted to remain on the tram because he had given any previousindication that he would desist from his accusation of racial profiling. It is clear that anysuch agreement, or assent on the part of the plaintiff only came after Mr. Fay had issuedhis countermanding order, permitting the plaintiff to remain on the tram. The court issatisfied that Mr. Fay issued his countermanding order, permitting the plaintiff and hisbrother to remain on the tram, because he could clearly see that Mr. Burke hadoverstepped the mark completely.33. As noted earlier, in looking at the overall effect of the encounter, the Court cannot losesight of the fact that the instruction to leave the tram was almost immediatelycountermanded by Mr. Fay. This happened so quickly that the plaintiff and his brotherhad not even stood up from their seats, when they were told that they could remain onthe tram. Thus, any person either within earshot, or who saw the hand gestures, wouldhave been almost immediately aware that the plaintiff and his brother were not in factgoing to be put off the tram. That was confirmed by the fact that they stayed seated intheir seats, while the security guards moved away and stood some feet away. Thesecurity guards alighted at the next stop and the plaintiff and his brother continued to theRed Cow stop. Thus, any passenger in the carriage could not have been under anymisapprehension that the plaintiff and his brother had been misbehaving, or had donesomething to warrant their being put off the tram.34. In these circumstances, the court finds that while there was a momentary breach ofcontract and defamation of the plaintiff, when instructed a number of times by Mr. Burketo leave the tram, which was accompanied by gestures, both were almost simultaneouslyexpunged by the countermanding instruction issued by Mr. Fay. Having regard to thematters that must be considered as set out in section 31 of the Defamation Act, 2009, theCourt is satisfied that it would be both unwarranted and unjust to make a substantialaward of damages for defamation in this case. Here there was but a momentarydefamation of the plaintiff, which was almost immediately corrected, such that thirdparties to whom it was published, could not reasonably have formed any lasting adverseopinion of the plaintiff. The court is satisfied that it has jurisdiction to award nominaldamages in this case. In “Defamation Law and Practice”, 1st edition, by Cox andMcCullough it is provided as follows at paragraph 11-07:“Nominal damages are awarded where a plaintiff has been defamed by apublication and where it is appropriate for him or her to take legal action in order tovindicate his or her reputation, but where there has been no actual damagesuffered and therefore no point would be served by making an award of damages.In this type of situation, the successful plaintiff is awarded a nominal sum but willalso be awarded his or her costs.”Page 10 ⇓35. In the course of argument, it was submitted by Ms. Morgan S.C. that if the court were tofind that any defamatory statement had been made by the defendants, their servants oragents, in assessing damages the Court should take account of the fact that subsequentto the incident, the plaintiff posted a detailed account on his Facebook page of theinteraction which he had had with the security guards on the tram. Counsel pointed outthat at the present time it appeared that the plaintiff had over 3000 followers onFacebook. In evidence, the plaintiff stated that while that was correct as of the date of thehearing, he thought that at the time of the incident he had somewhere in the region of1000 followers.36. In these circumstances, it was submitted by counsel that the award of damages, if any,should be reduced to zero due to the fact that, whereas the initial publication had been toan extremely limited number of people, who were present in the carriage at the time andwho did not know the plaintiff, by virtue of the plaintiff’s actions on his Facebook page, hehad republished the incident in great detail to a far wider audience. It was also relevant tonote that that posting had remained on his Facebook page up until the hearing of theaction.37. The Court is not persuaded by the argument made by counsel on behalf of thedefendants. There is a world of a difference between actions and words which carry ameaning that is defamatory of a person and a subsequent statement made by thatperson, whether on the Internet or otherwise, to the effect that they were defamed by aperson who made a particular false allegation against them. It is entirely reasonable thata person might say “Mr. A made a false allegation against me when he said such andsuch”. By making such a statement, the person against whom the allegation was initiallymade, is not merely repeating the allegation, but is emphasising their denial of it.38. Furthermore, in this case the primary thrust of the posting made by the plaintiff after theincident, was to the effect that he felt that he had been the subject of racialdiscrimination in the form of racial profiling carried out by the security guards on thetram. These were views which he strongly held. The Court is of the opinion that inexpressing these views, the plaintiff was not republishing the original allegation in such away as to warrant a diminution in any award of damages to which he may be entitled.39. Accordingly, while the Court has found that there was a fleeting defamation of theplaintiff, having regard to the fact that it was almost immediately expunged, the Courtcannot find that there was any lasting damage to the plaintiff’s good name or reputation;in such circumstances I award the plaintiff nominal damages of €500.00.40. In relation to the allegation that Mr. Burke called the plaintiff a “cunt” as he was leavingthe carriage, I am not satisfied that any such remark was made by Mr. Burke. The CCTVfootage is far from conclusive on this point. Even if such a comment was made, it is wellsettled that mere insulting language or abuse is not defamatory per se.41. Finally, it is not for this Court to say whether the actions of Mr. Burke in selecting theplaintiff and his brother for ticket inspection, when no other passengers in the carriage,Page 11 ⇓either white or coloured, were so asked, amounted to racial profiling or discriminatoryconduct of the type prohibited by the Equal Status Acts, 2000 – 2015. All the Court cansay is that the plaintiff and his brother were most impressive witnesses. They weretreated badly by a servant or agent of the defendants during this incident. However, thisCourt cannot award compensation for the fact that people may have been treated badlyor unfairly; this was purely a case about defamation.
Result: Plaintiff awarded nominal damages
Hickey v Sunday Newspapers Ltd
[2010] IEHC 349
JUDGMENT of Kearns P. delivered the 8th day of October, 2010
This is a case in which the first-named plaintiff seeks damages, including exemplary and punitive damages, against the defendant newspaper both on grounds of alleged breach of rights of privacy enjoyed by her and her son, the second-named plaintiff herein, and also in respect of alleged defamation of her character in articles published by the defendant’s newspaper, The Sunday World, on 14th May, 2006, and 27th August, 2006.
The first-named plaintiff, Ruth Hickey, was born on 19th April, 1974. Following completion of her secondary schooling, she studied music at Trinity College and at the College of Music in Dublin. For a number of years she worked as a classical musician and part-time teacher before switching careers to work as a full-time PR consultant with a training firm called The Communications Clinic.
On 15th February, 2006 she gave birth to a baby boy, Jesse Isaac, fathered by David Agnew, a professional musician, who at the time was married to the well-known entertainer, Adele King, more commonly known as ‘Twink’. The relationship between Mr. Agnew and the first-named plaintiff had commenced sometime prior to Mr. Agnew’s departure from the family home he shared with Ms. King in 2004. In 2004 Mr. Agnew moved into the first-named plaintiff’s home in Castleknock. These events attracted widespread publicity in the media and understandably caused great hurt and offence to Ms. King, who spoke publicly on more than one occasion about her sense of outrage, not least, it would appear, because Mr. Agnew had fathered another child by a different woman some years previously. It emerged in evidence that Ms. King’s annoyance included harassment of the first-named plaintiff which ultimately led to complaints being made by the plaintiff to the gardaí.
In August, 2005, the first-named plaintiff wrote an article for the magazine Social and Personal in relation to the spa resort at Powerscourt Springs which described a stay she had had there with “partner” David Agnew and in which they appeared photographed together. She became pregnant in 2005 and in September of that year gave details of the impending birth to a journalist, Mr. P.J. Gibbons, including the information that they expected the baby would be a boy, and the information thus imparted appeared in the Irish Examiner on 17th September, 2005. In the course of her evidence, the first-named plaintiff explained that, in discussion with Mr. Gibbons, she had decided to publicly release this information herself in an effort to control media speculation which had been ongoing since 2004.
Following the announcement by the first-named plaintiff and Mr. Agnew of the birth of their son on 15th February, 2006, a voicemail message containing a torrent of abuse from Ms. King against her husband and Ms. Hickey was left on Mr. Agnew’s telephone. Whether this message was left on a mobile phone owned by Mr. Agnew or on the landline in the first-named plaintiff’s home was not clarified in evidence. Nor was there evidence to clarify exactly when or in what circumstances this notoriously abusive voicemail message subsequently ended up on the internet. It was certainly there prior to the second publication complained of by the plaintiff because the article itself so states and this fact was not disputed at the trial. In evidence the first-named plaintiff stated that she had no knowledge as to how this had happened. In the course of the particular tirade delivered by Ms. King, the first-named plaintiff was referred to as a “whore” and her child as a “bastard”. The general tone of the message may be deduced from one of its milder passages in which Ms. King’s described Mr. Agnew as a “fat, bald, middle-aged dickhead”.
On 10th May, 2006, the first-named plaintiff and Mr. Agnew attended at the Registry of Births, Deaths and Marriages Office in Dublin’s Lombard Street. They were photographed emerging from the office by a photographer employed by the defendant. In the photograph the first-named plaintiff is seen carrying some baby clothes and Mr. Agnew is shown carrying baby Jesse in a carrycot. The baby’s features are not seen in the photograph.
According to the first-named plaintiff, a person present at the Registry Office pointed out the presence of the photographer to the couple. On being spotted the photographer rapidly drove off in a Nissan motor car and the first-named plaintiff was only able to secure a portion of the registration number. The plaintiff learned that the photographer in question was employed by the defendant and on 12th May, 2006 caused her solicitors to write a letter to the editor of The Sunday World protesting at the photographer’s behaviour. The letter alleged, although no evidence was given in court in support, that the first-named plaintiff was being “kept under surveillance” by the media. The letter made clear the first-named plaintiff’s view that this was a private occasion and that there was no legitimate public interest in the taking and/or publication of photographs or herself or her family engaged in private family activities.
On 14th May, 2006, under the byline “exclusive\Twink’s Ex Shows Off Love Child” the photograph in question was published with an accompanying article by Eugene Masterson in which he stated that the photograph illustrated “Twink’s estranged husband David Agnew and girlfriend Ruth Hickey making their first public appearance with their love child.”
The article went on to describe the circumstance in which Mr. Agnew had left his family home after the “Panto Queen” found out about his affair with the first-named plaintiff. It also referred to the fact that he had a daughter from “a previous fling” and the remainder of the article contained remarks allegedly made by Ms. King, including a reference to the first-named plaintiff as a “whore” in a scrapped TV interview with the late Gerry Ryan.
In the aftermath of this publication, the first-named plaintiff’s solicitors wrote a further letter to the editor of The Sunday World on 18th May, 2006, complaining both of the invasion of their client’s privacy and alleging that the article written by Mr. Masterson had defamed their client by describing her as a “whore”. The letter sought undertakings that the newspaper would:-
“(a) Cease surveillance of our client immediately
(b) Refrain from publishing photographs of our client and/or her child engaged in private activities and in particular family activities
(c) Refrain from defaming our client and in particular using the term “whore” in relation to her.”
By letter in reply dated 19th May, 2006, the defendant’s solicitors stated, one might say somewhat disingenuously, the following:-
“(1) There is no surveillance of your clients ongoing and our clients will not cause any surveillance to be carried out on your clients.
(2) Our clients will not publish photographs of your clients and/or your clients child engaged in any private activities including any family activities
(3) Our client does not accept that it has written anything defamatory of your client but nonetheless confirms it will not defame your client in any fashion.”
By further letter written on the first-named plaintiff’s behalf on 8th June, 2006, her solicitors wrote:-
“We await hearing from you with your clients’ proposals to provide an apology and compensation to our clients. Should we fail to receive a satisfactory response from you within ten days of the date of this letter proceedings will issue without further notice.”
This appears to be the first occasion upon which compensation of a monetary nature was sought by the plaintiff in respect of the matters complained of. On 27th August, 2006, the defendant published a further article under the byline “Exclusive\Cheated Star’s Rage Hits Net” which described in detail the “startling phone message” left by Ms. King for Mr. Agnew after she learned that the first-named plaintiff had given birth to a son. Accompanying the article was a further photograph which had also been taken on 10th May, 2006 of the first-named plaintiff and Mr. Agnew. This photograph was taken outside the precincts of the Registry Office as the couple prepared to enter a motor car. Again, Mr. Agnew is shown holding the carrycot containing the baby. None of the baby’s features are visible in the photograph.
By letter dated 1st September, 2006, the first-named plaintiff’s solicitors complained bitterly to the defendant that the breach of undertakings given on behalf of The Sunday World by their letter dated 19th May, 2006, had “devastating consequences for Ruth Hickey and her baby son this week and into the future. Legal obligations, moral standards and respect for human dignity have all been subverted by your clients in the apparent belief that any consequence which may arise will be outweighed by the profits of scandalous journalism.”
By letter dated 4th September, 2006, the defendant’s solicitors indicated that in their view there had been no breach of any undertakings and that they were prepared to accept service of any proceedings.
The evidence at the hearing at the trial consisted of that given by the first-named plaintiff. Mr Agnew did not either attend or give evidence and no evidence was called on behalf of the defendant. In evidence Ms. Hickey said she left the registration of her child until he was almost three months old as she did not wish to be sitting in a room full of people who might be curious or looking at her. Whilst in the Registry Office she observed another woman who had a mobile phone and who was looking at her and sending a text message. When they emerged from the Registry Office a man walking past on the street said that there was a photographer taking photographs. She looked across the road and saw a man sitting in a Nissan Primera motor car double-parked beside a row of parked cars with a long camera lens pointing in her direction. Her partner put the baby into the back of the car and when she looked over again the photographer was still taking photographs before driving off. She said she rang a friend who is a photographer and who was able to identify the driver of the Nissan Primera as a Sunday World employee. She then caused the letter dated 12th May, 2006, to be sent on her behalf.
She was very upset on reading the article in The Sunday World on 14th May, 2006. She did not regard herself as having made a public appearance and found the reference to her baby as a “love child” derogatory. A reference in the article that she was wearing “colour co-ordinated pink and white” conveyed to her that she had planned a wardrobe for the occasion, a suggestion she found absolutely ridiculous. She thought it was disgusting to read that she had been referred to as a “whore”. Her baby was planned and wanted and she found the newspaper piece both cheap and nasty and highly offensive. She said she had to visit her GP as a result and take some medication.
She said that all she wanted was for the media to stop taking photographs of her and to stop following her and that she could be left alone. She had believed the defendant’s letter of 19th May, 2006, containing undertakings not to publish photographs of her or her child would be honoured.
She was even more upset by the second article in those circumstances.
In cross-examination she accepted that Ms. King was enraged by her affair with her husband and that both Ms. King and Mr. Agnew were well known public figures. She was aware that Ms. King had spoken publicly about her hurt when Mr. Agnew moved in with her. She felt that Ms. King had every right to express her hurt but felt she had expressed it to an excessive level and that it did not need to be repeated in the newspapers for everyone to read.
She agreed that in August, 2005 she had posed for photographs in an article she wrote for Social and Personal which referred to various treatments which her partner, Mr. Agnew had received in Powerscourt Springs. She accepted she spoke with Mr. P.J. Gibbons prior to the publication of an article by him in the Irish Examiner in September, 2005, and that she had told Mr. Gibbons that she was expecting a baby boy. He had convinced her that it would be good to confirm that she was pregnant so as to control the information on the topic. She hoped by doing so that she would not be subjected to further articles similar to those which had already been published and which speculated as to whether or not she was pregnant. She accepted that the photographs which appeared in the two Sunday World articles did not show her son’s face and that he was unidentifiable. She accepted she had written letters to other newspapers complaining about surveillance, but the Sunday World was the only newspaper which published photographs of her and her son. She said she had no idea how Ms. King’s voicemail message got into the public domain but accepted that it could be fairly described as a “tirade of abuse”.
SUBMISSIONS
On behalf of the plaintiffs, it was submitted that although the photographs of the plaintiffs were taken in a public place, the context in which they were used and linked to the articles amounted to an unacceptable intrusion into their private lives. That the right to privacy is an unenumerated constitutional right had been made clear in a number of Irish cases, originating in Kennedy v. Ireland [1987] 1 I.R. 587 and continuing through Norris v. The Attorney General [1984] IR 36 and, more recently, Herrity v. Associated Newspapers (Ireland) Ltd [2009] 1 IR 316.
The right to privacy is, it was submitted, a right to be left alone and derives in large measure from the commitment contained in the preamble to the Constitution which sets out a clear commitment to maintaining the dignity of the citizen. It was submitted that nothing could have been more intrusive and damaging to the first-named plaintiff’s dignity than the “merciless contempt” manifested towards her by the two publications in question. As regards the test to be applied to determine if information is or is not private, Counsel for the plaintiffs adopted the test from the decision of the House of Lords in Campbell v. MGN Limited [2004] 2 AC 457, which is to ask whether a reasonable person of ordinary sensibility, if placed in the same situation as the subject of the disclosure, rather than its recipient, would find the disclosure offensive. In that case the plaintiff had been photographed in a public place but was nonetheless awarded damages by way of compensation. Similarly, in Von Hannover v. Germany [2004] ECHR 294 publication of photographs of Princess Caroline of Monaco carrying out mundane activities in public such as horseback riding, shopping, dining at a restaurant and cycling were considered to be intrusions upon her privacy.
Insofar as the allegation of defamation was concerned, it was submitted that to ascribe the word “whore” to any woman is certainly capable of being defamatory and should be seen by the Court as such, not least as meaning, as pleaded in the statement of claim, that the first-named plaintiff engaged in sexual acts other than in furtherance of a loving relationship. It was submitted that that was the particular meaning that any ordinary woman or reader would take from the use of the word in the context in which it was to be found in the publications. The defence which had been offered that it was no more than vulgar abuse was a defence more appropriate to a case of slander than to a newspaper article which is published and printed after careful consideration.
In response, counsel on behalf of the defendant accepted that the right to privacy is one of the unenumerated rights recognised under Article 40.3 of the Constitution. However, the submissions on the part of the plaintiffs altogether failed to recognise that freedom of expression was also afforded recognition in the Constitution under Article 40.3.1 and Article 40.6.1. It was recognised by the Supreme Court in Mahon v. Post Publications [2007] 3 IR 338 that a balancing exercise must be carried out by any court between these rights, similar to the balancing exercise which is required under Articles 8 and 10 of the European Convention on Human Rights. The right of freedom of expression does not require justification by reference to public interest in any given case. It is its own public interest.
That privacy rights will outweigh freedom of expression in rare cases only was made clear by Dunne J. in Herrity v. Associated Newspapers (Ireland) Ltd. [2009] 1 IR 316. In that case the learned trial judge had instanced cases where the right to privacy might prevail over the right of freedom of expression, offering by way of example, proposed publication of details of a diagnosis of serious illness in respect of an individual, bearing in mind the nature of the confidential doctor patient relationship or, as in the case before Dunne J., a case in which private telephone conversations had been accessed unlawfully.
It was submitted that this was manifestly not a case where the defendant had “gone through the plaintiff’s front door”. The plaintiffs were attending a public office in a public place and performing a public function. The cases of Campbell v. MGN Limited [2004] 2 AC 457 and Von Hannover v. Germany [2004] ECHR 294 were clearly distinguishable and had their own special features. Were the Court in the instant case to hold against the defendant, it would have the extraordinary consequence that no public figure could be photographed, for example, attending a funeral or performing any other function in a public place.
The defence relied in particular on a decision of the Court of Appeal in New Zealand in Hosking v. Runting [2005] 1 N.Z.L.R 1, the facts of which were remarkably similar to the facts of the present case. Furthermore, the plaintiffs did not establish in evidence that there had been any ongoing surveillance of the plaintiffs or either of them. There was no evidence of any other photographs being taken or published by the defendant and no evidence of the plaintiffs being followed or bothered by any photographer employed by the defendant. Furthermore the photographs did not disclose anything that could not have been seen by any other person who turned up at the same time. The existence of the second-named plaintiff, his age and identity of his parents were already a matter of public record and the first-named plaintiff accepted that she had spoken to a journalist with the specific intention of publicity being accorded to the very matters in respect of which she now sought privacy. Nothing in the photographs published identified the second-named plaintiff or exposed that child to risk or danger of any sort whatsoever.
In relation to the alleged defamation, the context and circumstances of publication of the words complained of had to be taken into account. Words which on their face appear innocent can be defamatory when placed in context and the converse is also true. In this case the article itself made the context clear. It was not direct speech but rather reported speech on the part of Ms. King. It was plain from the article that Ms. King was extremely upset by the affair between her husband and the first-named plaintiff. No ordinary reasonable reader could believe, on reading Ms. King’s tirade, that it was being seriously suggested that the first-named plaintiff was a prostitute. Ms. King was clearly expressing her anger in strong, perhaps offensive language, about what had occurred between her husband and the first-named plaintiff.
DECISION
It is readily to be understood that in an increasingly technological age people generally are more and more concerned about unwanted surveillance from external sources, be it government agencies, the media, corporate or private interests. That a right to privacy exists in Irish law, the breach of which entitles an injured party to damages, is indisputable. Such was the case in Kennedy v. Ireland [1987] I.R. 587. There, however, the situation was simple and straightforward, because the unlawful surveillance of telephone communication in that case did not have to be placed in the balance with the right of freedom of expression.
The jurisprudence of this jurisdiction as to where the line is to drawn between these two competing rights is an evolving process and judges must be careful to note where their powers begin and end in this respect. As stated by Fennelly J. in Mahon v. Post Publications Ltd. [2007] 3 IR 338 at pp. 374-375:-
“The courts do not pass judgment on whether any particular exercise of the right of freedom of expression is in the public interest. The media are not required to justify publication by reference to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public interest.
The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle.”
Fennelly J. referred to R. v. Central Independent Television Plc. [1994] Fam. 192 in which Hoffmann L.J. said that:-
“Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”
Similarly, Lord Woolf C.J. said in A. v. B. plc [2003] QB 195 at p. 205 that:-
“Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it has to be justified.”
Thus while it is clear that newspapers are free to publish all sorts of matters regardless of public interest, the right to freedom of expression, like the right to privacy itself, is not an unqualified right. Restricting freedom of expression for privacy considerations requires circumstances which can be very clearly identified. This was emphasised by O’Hanlon J. in M. v. Drury [1994] 2 I.R. 8. That was a case in which the court was asked to restrain the publication of allegations by a father that his marriage had broken down by reason of the adulterous relationship of his wife with a priest. Having set out the passage from R. v. Central Independent Television Plc. that is cited above, O’Hanlon J. continued at pp. 16-17:-
“While we are undoubtedly administering a different legal system in this jurisdiction, underpinned by the constitutional guarantees, I am of opinion that the general approach supported by the judgment of Hoffman L.J. is to be recommended in cases where the freedom of the press is sought to be circumscribed on the basis that publication may be a source of distress to persons named or even to their children who are totally innocent of blame in matters alleged against one or both of their parents.
There are extreme cases where the right to privacy (which is recognised as one of the personal rights, though unspecified, guaranteed protection by the Constitution…) may demand the intervention of the courts. An example might be the circumstances illustrated in Argyle v. Argyle [1967] Ch. 302 where confidential communications between husband and wife during their married life together, were protected against disclosure. Generally speaking, however, it seems desirable that it should be left to the legislature, and not to the courts to “stake out the exceptions to freedom of speech” (in the words of Lord Denning).
In the present case the court is asked to intervene to restrain the publication of material, the truth of which has not as yet been disputed, in order to save from the distress that such publication is sure to cause, the children of the marriage who are all minors. This would represent a new departure in our law, for which, in my opinion, no precedent has been shown, and for which I can find no basis in the Irish Constitution, having regard, in particular, to the strongly-expressed guarantees in favour of freedom of expression in that document”.
In Herrity v. Associated Newspapers (Ireland) Ltd. [2009] 1 IR 316 Dunne J. carefully examined the circumstances in which a claim based on privacy will overcome a claim based on freedom of expression. She also considered the nature of matters which might warrant the description of being ‘private’. Having found in that case that the right to privacy outweighed freedom of expression, essentially because the case concerned the publication of telephone messages which had been obtained in breach of the express prohibition imposed by s. 98 of the Postal and Telecommunications Services Act 1983, she noted at p. 340 that:-
“One must bear in mind that the provisions of s. 98 of the Act of 1983 are there to protect the privacy of an individual’s telephone conversations. No one expects to see their private telephone conversations printed in a newspaper to excite the prurient curiosity or to provide amusement for the paper’s readers.
There may be other circumstances where the right to privacy prevails. For example, could a newspaper be entitled to publish details of a diagnosis of serious illness in respect of an individual bearing in mind the nature of the confidential doctor patient relationship? What if the individual was a well known public figure? Would it make a difference if the individual was a celebrity or, say, a senior politician? I would have thought that the circumstances which could justify a publication of such private information would seldom arise and only if there was some clear, demonstrable public interest”.
It is thus far from easy to determine to determine where the parameters to the right of privacy may lie when placed in balance with the right of freedom of expression. One intuitively feels that a right of privacy is less easily established in public places where a person, in the words of T.S. Eliot, has had time “to prepare a face to meet the faces that you meet”. That is particularly the case when one is performing a function of a public nature which I am satisfied the plaintiff and Mr Agnew were performing on this occasion. This was not a private celebration or event in the plaintiff’s own home or at some other location to which a legitimate expectancy of privacy attached. That is not to say, however, that there will never be occasions where a person photographed in a public place can successfully invoke privacy rights.
In this context I am satisfied, however, that the two cases upon which the plaintiffs place much reliance are of no great assistance to their case. In Von Hannover v. Germany [2004] ECHR 294 the European Court of Human Rights did of course state that the publication of photographs taken in public places could in certain circumstances constitute a breach of privacy rights under Article 8 of the Convention. However, as appears from paragraph 68 of the court’s judgment, the court was particularly impressed in that case by the fact that the photographs in question were part of a campaign of harassment of a public figure and by the fact that a number of the photographs of the applicant were taken from a public place while she was in a club to which access by journalists and photographers was strictly regulated. The case is not an authority for the proposition that every occasion on which an unwanted photograph is taken or published of a private person in a public place constitutes a breach of privacy. As the European Court has repeatedly emphasised, all the circumstances of the individual case have to be taken into account.
Similarly, the facts of Campbell v. MGN Ltd. [2004] 2 AC 457 make that case clearly distinguishable from the present case. In Campbell, the House of Lords found that the publication of photographs of the plaintiff leaving a meeting of Narcotics Anonymous was in the particular circumstances a breach of privacy although they were taken in a public place. It determined that the publication of information relating to the plaintiff’s treatment was a breach of privacy because an assurance of privacy, confidentiality and anonymity was essential to the type of treatment that the plaintiff was undergoing, such that a person in her position would find disclosure highly offensive and might also be deterred from continuing with the therapy, thereby causing a set-back to recovery. In that case Baroness Hale stated at p. 501:-
“Publishing the photographs contributed both to the revelation and to the harm that it might do. By themselves, they are not objectionable. Unlike France and Quebec, in this country we do not recognise a right to one’s own image: cf Aubry v Éditions Vice-Versa Inc [1998] 1 SCR 591. We have not so far held that the mere fact of covert photography is sufficient to make the information contained in the photograph confidential. The activity photographed must be private. If this had been, and had been presented as, a picture of Naomi Campbell going about her business in a public street, there could have been no complaint. She makes a substantial part of her living out of being photographed looking stunning in designer clothing. Readers will obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk. There is nothing essentially private about that information nor can it be expected to damage her private life. It may not be a high order of freedom of speech but there is nothing to justify interfering with it. (This was the view of Randerson J in Hosking v Runting [2003] 3 NZLR 385, which concerned a similarly innocuous outing; see now the decision of the Court of Appeal [2004] NZCA 34.).”
I accept in this case the submission of counsel for the defendant that the most relevant decision for this Court to consider with regard to the publication of the photographs is that of the Court of Appeal in New Zealand in Hosking v. Runting [2005] 1 N.Z.L.R. 1. In that case the plaintiffs had infant twin daughters. One of the plaintiffs was a presenter on national television and was widely known in the community. Their daughters were photographed by the first defendant on a public footpath. Several days later the plaintiffs were informed that the photographs had been taken and that they had been commissioned by the second defendant, a magazine publisher, with a view to publication in one of its magazines. The plaintiffs made it clear to the publisher that they strongly opposed the publication of the photographs and expressed their concern about the risk to the children’s safety should the photographs be published. The plaintiffs issued proceedings alleging that the taking of the photographs and/or the publication without consent amounted to a breach of their children’s right to privacy.
It is important to note that the legal background in New Zealand is not dissimilar to that applying in this jurisdiction. In fact, the Court of Appeal expressly recognised that Article 17 of the New Zealand Bill of Rights was couched in similar terms to Article 8 of the European Convention of Human Rights. In delivering the leading judgment of the court, Gault P. said at paras. 125-127:-
By living in communities individuals necessarily give up seclusion and expectations of complete privacy. The concern of the law, so far as we are presently concerned, is with widespread publicity of very personal and private matters. Publication in the technical sense, for example as applies in defamation, is not in issue.
Similarly publicity, even extensive publicity, of matters which, although private, are not really sensitive should not give rise to legal liability. The concern is with publicity that is truly humiliating and distressful or otherwise harmful to the individual concerned. The right of action, therefore, should be only in respect of publicity determined objectively, by reference to its extent and nature, to be offensive by causing real hurt or harm. In the Restatement the requirement is “highly offensive” to a reasonable person’; the formulation expressed in Australia by Gleeson CJ (drawn from the United States cases) and referred to by the English Court of Appeal in Campbell imbues the reasonable person with “ordinary sensibilities”. In similar vein the Privacy Act, in s 66 defining interference with the privacy of an individual, requires “significant” humiliation, loss of dignity or injury to feelings.
We consider that the test of highly offensive to the reasonable person is appropriate. It relates, of course, to the publicity and is not part of the test of whether the information is private.
The court went on to point out that, even where material fell within this definition of private information, publication could be justified by a test of legitimate public concern. Then, dealing with the facts of the case in terms that have a resonance in the instant case, Gault P. stated at paras. 161-165:-
“The real concern of the appellants as parents relates not to the publication of photographs of their two children in the street, but to publication of the photographs along with identification and the association of them with a “celebrity” parent. We accept the sincerity of their anxiety for the wellbeing of the children and their concern at the prospect of recurring unwanted media attention. They wish to protect the freedom of the children to live normal lives without constant fear of media intrusion. They feel that if publication of the present photographs is prevented there will be no incentive for those who, in the future, might pursue the children in order to capture marketable images…
We are not persuaded that a case is made out for an injunction to protect the children from a real risk of physical harm. We do not see any substantial likelihood of anyone with ill intent seeking to identify the children from magazine photographs. We cannot see the intended publication increasing any risk that might exist because of the public prominence of their father.
The inclusion of the photographs of Ruby and Bella in an article in New Idea! would not publicise any fact in respect of which there could be a reasonable expectation of privacy. The photographs taken by the first respondent do not disclose anything more than could have been observed by any member of the public in Newmarket on that particular day. They do not show where the children live, or disclose any information that might be useful to someone with ill intent. The existence of the twins, their age and the fact that their parents are separated are already matters of public record. There is a considerable line of cases in the United States establishing that generally there is no right to privacy when a person is photographed on a public street. Cases such as Peck and perhaps Campbell qualify this to some extent, so that in exceptional cases a person might be entitled to restrain additional publicity being given to the fact that they were present on the street in particular circumstances. That is not, however, this case.
We are not convinced a person of ordinary sensibilities would find the publication of these photographs highly offensive or objectionable even bearing in mind that young children are involved. One of the photographs depicts a relatively detailed image of the twins’ faces. However, it is not sufficient that the circumstances of the photography were considered intrusive by the subject (even if that were the case, which it is not here because Mrs Hosking was not even aware the photographs had been taken). The real issue is whether publicising the content of the photographs (or the “fact” that is being given publicity) would be offensive to the ordinary person. We cannot see any real harm in it.”
The court thus concluded that the intended publication of the photographs was not even prima facie a breach of privacy.
Overall, therefore, I am not satisfied that the publication of these photographs amount to breaches of privacy and central to my conclusion are the following considerations:-
(a) The photographs were taken when both the photographer and the plaintiffs were in a public place and performing a routine public function;
(b) The photographs do not disclose anything that could not have been seen by anyone else who turned up at the Registry Office at the relevant time;
(c) The existence of the second-named plaintiff, his age and the identity of his parents are already matters of public record. The defendant could have gone into the Registry Office, found the information, and published it;
(d) Nothing in the publication exposes the plaintiffs or either of them to any risk of physical harm from any person with ill–intent;
(e) No evidence was adduced to establish the contention that a campaign of surveillance had been carried out on the first-named plaintiff, her partner or child;
(f) The features of the second-named plaintiff were not recognisable from the photograph. Furthermore, the child himself could not have suffered any hurt or humiliation from any aspect of the two publications having regard to his age at the relevant time;
(g) The plaintiffs were at the relevant time performing, in my view, a public function which they were required to fulfil. No evidence was placed before the Court to suggest that is was necessary to bring the child to the Registry Office on the occasion in question;
(h) The first-named plaintiff and her partner themselves elected to bring the child to the Registry Office. Furthermore the first-named plaintiff had spoken to a journalist with the specific intention of publicity being accorded to the very matters in respect of which she now seeks to claim privacy.
(i) The voicemail message reproduced in the defendant’s newspaper was already posted on the internet and was in the public domain.
The consideration mentioned at (h) above is important because the most significant element of hurt and distress may readily be understood as deriving from the juxtaposition of the photographs with the accompanying text which is undoubtedly offensive to a high degree, notwithstanding that it consists of a repetition of abusive utterances from an angry Ms. King. It is thus particularly relevant to inquire if the plaintiff had herself sought or contributed to any publicity in respect of the matters complained of. In Woodward v. Hutchins [1977] 1 W.L.R. 760 the Court of Appeal discharged an injunction that had been granted to a well known group of singers against their former press officer to restrain him from publishing articles which dealt with aspects of their private life. Lord Denning noted (at pp. 763-764) that the singers had actively sought publicity:-
“If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or agent of theirs afterwards discloses the truth about them.”
Similarly in Lennon v. News GroupNewspapers Ltd. [1978] F.S.R. 573, the fact that both the claimant and the second defendant had discussed their relationship in public was held by the Court of Appeal to mean that the relationship had ceased to be their own private affair. The fact that the material in question was different from that which the couple themselves had revealed was not regarded as significant.
I am thus satisfied that the first-named plaintiff has herself actively sought publicity from the press and media concerning her partnership with Mr. Agnew and the birth of their child. She has herself made public statements concerning her family life and taken part in photo shoots and interviews for public consumption. Their relationship had by the time of the relevant publications become well known to the Irish public. In evidence the first-named plaintiff accepted that Ms. King was entitled to speak publicly about the hurt and distress that she felt as a consequence of her affair with Mr. Agnew, which is a feature of this case which places it in a somewhat different context from other cases on this topic. I would have taken a different view of this case had the plaintiff herself maintained her silence and if the disclosure of the voicemail message had emanated in the first instance from the defendant newspaper. As it was, the voicemail message was already in the public domain via the internet, a fact which highlights the very dangers and concerns to which modern technology gives rise and to which I referred at the outset of my judgment. As Fennelly J made clear in Mahon, there is an inherent illogicality in asserting rights of privacy over material which is already in public circulation and which was, I would add in this case, notoriously so.
I cannot therefore see anything in this case which has been placed in the balance by or on behalf of the first-named plaintiff to outweigh the right of freedom of expression to which the defendant is entitled.
Were I to hold otherwise, it would represent a radical ratcheting up of the right to privacy at the expense of the right of freedom of expression to a degree which, in my view, should more properly be the subject matter of legislation. A finding in favour of the plaintiffs would also give rise to a situation where a newspaper might feel itself inhibited from publishing a photograph of any public person attending, for example a funeral, or leaving or entering a court building or polling station. In any of these situations it is not difficult to imagine circumstances where a claimant could invoke some consideration of privacy.
Insofar as the allegation of defamation is concerned, I find the following passage from “Gatley on Libel and Slander” to be particularly helpful:-
“The same principles (referring to context and circumstances of spoken words) would apply to vulgar abuse, the question being whether the circumstances in which the words were used would convey a defamatory implicated to those who use them. Insults or abuse are not actionable as defamation though they may be subject to some criminal sanction as tending to a breach of the peace or public order. In some cases the words may so clearly be insults or abuse that there are probably no circumstances in which they could be understood to be defamatory, in other cases it will be a question whether the circumstances make it plain to the hearers that no defamatory implication was intended.”
The plaintiff in this case makes a claim to damages in defamation arising out of the article of 14th May, 2006, in which she maintains that the use of the word “whore” means and was understood to mean:-
(a) That the first-named plaintiff was a prostitute;
(b) That the first-named plaintiff engaged in sexual acts for financial rewards;
(c) That the first-named plaintiff engaged in sexual acts other than in furtherance of a loving relationship.
However, as Gatley (11th Ed) states at par. 3.29:-
“It is necessary to take into consideration not only the actual words used but the context of the words.”
In this particular case the article itself makes the context clear. It is the reported speech on the part of Ms. King who is plainly extremely angry at the affair between her husband and the first-named plaintiff. While the repetition of something said by another person affords no defence to a newspaper who publishes a defamation, and while the word in question is clearly capable of being defamatory, I am quite satisfied that any ordinary or reasonable reader, on reading Ms. King’s comment, would simply see it as vulgar abuse expressed in strong and offensive terms. Indeed during the course of the hearing, the first-named plaintiff’s counsel effectively confined themselves to contending that the expression complained of in reality meant that the first named plaintiff engaged in sexual acts other than in furtherance of a loving relationship.
I am satisfied, therefore, that while in other circumstances the deployment of such an expression could constitute a serious defamation it does not do so in the context in which it appeared in this case.
Finally, I have given serious consideration as to whether the “undertakings” contained in the defendant’s letter dated 19th May, 2006, created some form of contractual obligation the breach of which per se would entitle the plaintiffs to damages. A close reading of those supposed “undertakings” persuades me, however, that they were of little real value or benefit to the plaintiffs. They appear to me, notwithstanding the comfort apparently derived from them by the first-named plaintiff, to have been formulated with the assistance of legal advice to leave the defendant at large to the greatest degree possible.
There are many strange and unexplained aspects of this case which I have found disquieting, but on my interpretation of the applicable legal principles the defendant is entitled to a dismiss of the plaintiffs’ claims. In making such an order, and prior to hearing any application which may follow in respect of costs, I feel compelled to state that the exercise in which the defendant newspaper engaged in respect of these two publications represented the lowest standards of journalism imaginable. It is a regrettable fact of life that such material sells newspapers.
McAauley v Power
[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:-
“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.”
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.
Hickey v Sunday Newspapers Ltd
[2011] 1 I.R. 228
JUDGMENT of Kearns P. delivered the 8th day of October, 2010
This is a case in which the first-named plaintiff seeks damages, including exemplary and punitive damages, against the defendant newspaper both on grounds of alleged breach of rights of privacy enjoyed by her and her son, the second-named plaintiff herein, and also in respect of alleged defamation of her character in articles published by the defendant’s newspaper, The Sunday World, on 14th May, 2006, and 27th August, 2006.
The first-named plaintiff, Ruth Hickey, was born on 19th April, 1974. Following completion of her secondary schooling, she studied music at Trinity College and at the College of Music in Dublin. For a number of years she worked as a classical musician and part-time teacher before switching careers to work as a full-time PR consultant with a training firm called The Communications Clinic.
On 15th February, 2006 she gave birth to a baby boy, Jesse Isaac, fathered by David Agnew, a professional musician, who at the time was married to the well-known entertainer, Adele King, more commonly known as ‘Twink’. The relationship between Mr. Agnew and the first-named plaintiff had commenced sometime prior to Mr. Agnew’s departure from the family home he shared with Ms. King in 2004. In 2004 Mr. Agnew moved into the first-named plaintiff’s home in Castleknock. These events attracted widespread publicity in the media and understandably caused great hurt and offence to Ms. King, who spoke publicly on more than one occasion about her sense of outrage, not least, it would appear, because Mr. Agnew had fathered another child by a different woman some years previously. It emerged in evidence that Ms. King’s annoyance included harassment of the first-named plaintiff which ultimately led to complaints being made by the plaintiff to the gardaí.
In August, 2005, the first-named plaintiff wrote an article for the magazine Social and Personal in relation to the spa resort at Powerscourt Springs which described a stay she had had there with “partner” David Agnew and in which they appeared photographed together. She became pregnant in 2005 and in September of that year gave details of the impending birth to a journalist, Mr. P.J. Gibbons, including the information that they expected the baby would be a boy, and the information thus imparted appeared in the Irish Examiner on 17th September, 2005. In the course of her evidence, the first-named plaintiff explained that, in discussion with Mr. Gibbons, she had decided to publicly release this information herself in an effort to control media speculation which had been ongoing since 2004.
Following the announcement by the first-named plaintiff and Mr. Agnew of the birth of their son on 15th February, 2006, a voicemail message containing a torrent of abuse from Ms. King against her husband and Ms. Hickey was left on Mr. Agnew’s telephone. Whether this message was left on a mobile phone owned by Mr. Agnew or on the landline in the first-named plaintiff’s home was not clarified in evidence. Nor was there evidence to clarify exactly when or in what circumstances this notoriously abusive voicemail message subsequently ended up on the internet. It was certainly there prior to the second publication complained of by the plaintiff because the article itself so states and this fact was not disputed at the trial. In evidence the first-named plaintiff stated that she had no knowledge as to how this had happened. In the course of the particular tirade delivered by Ms. King, the first-named plaintiff was referred to as a “whore” and her child as a “bastard”. The general tone of the message may be deduced from one of its milder passages in which Ms. King’s described Mr. Agnew as a “fat, bald, middle-aged dickhead”.
On 10th May, 2006, the first-named plaintiff and Mr. Agnew attended at the Registry of Births, Deaths and Marriages Office in Dublin’s Lombard Street. They were photographed emerging from the office by a photographer employed by the defendant. In the photograph the first-named plaintiff is seen carrying some baby clothes and Mr. Agnew is shown carrying baby Jesse in a carrycot. The baby’s features are not seen in the photograph.
According to the first-named plaintiff, a person present at the Registry Office pointed out the presence of the photographer to the couple. On being spotted the photographer rapidly drove off in a Nissan motor car and the first-named plaintiff was only able to secure a portion of the registration number. The plaintiff learned that the photographer in question was employed by the defendant and on 12th May, 2006 caused her solicitors to write a letter to the editor of The Sunday World protesting at the photographer’s behaviour. The letter alleged, although no evidence was given in court in support, that the first-named plaintiff was being “kept under surveillance” by the media. The letter made clear the first-named plaintiff’s view that this was a private occasion and that there was no legitimate public interest in the taking and/or publication of photographs or herself or her family engaged in private family activities.
On 14th May, 2006, under the byline “exclusive\Twink’s Ex Shows Off Love Child” the photograph in question was published with an accompanying article by Eugene Masterson in which he stated that the photograph illustrated “Twink’s estranged husband David Agnew and girlfriend Ruth Hickey making their first public appearance with their love child.”
The article went on to describe the circumstance in which Mr. Agnew had left his family home after the “Panto Queen” found out about his affair with the first-named plaintiff. It also referred to the fact that he had a daughter from “a previous fling” and the remainder of the article contained remarks allegedly made by Ms. King, including a reference to the first-named plaintiff as a “whore” in a scrapped TV interview with the late Gerry Ryan.
In the aftermath of this publication, the first-named plaintiff’s solicitors wrote a further letter to the editor of The Sunday World on 18th May, 2006, complaining both of the invasion of their client’s privacy and alleging that the article written by Mr. Masterson had defamed their client by describing her as a “whore”. The letter sought undertakings that the newspaper would:-
“(a) Cease surveillance of our client immediately
(b) Refrain from publishing photographs of our client and/or her child engaged in private activities and in particular family activities
(c) Refrain from defaming our client and in particular using the term “whore” in relation to her.”
By letter in reply dated 19th May, 2006, the defendant’s solicitors stated, one might say somewhat disingenuously, the following:-
“(1) There is no surveillance of your clients ongoing and our clients will not cause any surveillance to be carried out on your clients.
(2) Our clients will not publish photographs of your clients and/or your clients child engaged in any private activities including any family activities
(3) Our client does not accept that it has written anything defamatory of your client but nonetheless confirms it will not defame your client in any fashion.”
By further letter written on the first-named plaintiff’s behalf on 8th June, 2006, her solicitors wrote:-
“We await hearing from you with your clients’ proposals to provide an apology and compensation to our clients. Should we fail to receive a satisfactory response from you within ten days of the date of this letter proceedings will issue without further notice.”
This appears to be the first occasion upon which compensation of a monetary nature was sought by the plaintiff in respect of the matters complained of. On 27th August, 2006, the defendant published a further article under the byline “Exclusive\Cheated Star’s Rage Hits Net” which described in detail the “startling phone message” left by Ms. King for Mr. Agnew after she learned that the first-named plaintiff had given birth to a son. Accompanying the article was a further photograph which had also been taken on 10th May, 2006 of the first-named plaintiff and Mr. Agnew. This photograph was taken outside the precincts of the Registry Office as the couple prepared to enter a motor car. Again, Mr. Agnew is shown holding the carrycot containing the baby. None of the baby’s features are visible in the photograph.
By letter dated 1st September, 2006, the first-named plaintiff’s solicitors complained bitterly to the defendant that the breach of undertakings given on behalf of The Sunday World by their letter dated 19th May, 2006, had “devastating consequences for Ruth Hickey and her baby son this week and into the future. Legal obligations, moral standards and respect for human dignity have all been subverted by your clients in the apparent belief that any consequence which may arise will be outweighed by the profits of scandalous journalism.”
By letter dated 4th September, 2006, the defendant’s solicitors indicated that in their view there had been no breach of any undertakings and that they were prepared to accept service of any proceedings.
The evidence at the hearing at the trial consisted of that given by the first-named plaintiff. Mr Agnew did not either attend or give evidence and no evidence was called on behalf of the defendant. In evidence Ms. Hickey said she left the registration of her child until he was almost three months old as she did not wish to be sitting in a room full of people who might be curious or looking at her. Whilst in the Registry Office she observed another woman who had a mobile phone and who was looking at her and sending a text message. When they emerged from the Registry Office a man walking past on the street said that there was a photographer taking photographs. She looked across the road and saw a man sitting in a Nissan Primera motor car double-parked beside a row of parked cars with a long camera lens pointing in her direction. Her partner put the baby into the back of the car and when she looked over again the photographer was still taking photographs before driving off. She said she rang a friend who is a photographer and who was able to identify the driver of the Nissan Primera as a Sunday World employee. She then caused the letter dated 12th May, 2006, to be sent on her behalf.
She was very upset on reading the article in The Sunday World on 14th May, 2006. She did not regard herself as having made a public appearance and found the reference to her baby as a “love child” derogatory. A reference in the article that she was wearing “colour co-ordinated pink and white” conveyed to her that she had planned a wardrobe for the occasion, a suggestion she found absolutely ridiculous. She thought it was disgusting to read that she had been referred to as a “whore”. Her baby was planned and wanted and she found the newspaper piece both cheap and nasty and highly offensive. She said she had to visit her GP as a result and take some medication.
She said that all she wanted was for the media to stop taking photographs of her and to stop following her and that she could be left alone. She had believed the defendant’s letter of 19th May, 2006, containing undertakings not to publish photographs of her or her child would be honoured.
She was even more upset by the second article in those circumstances.
In cross-examination she accepted that Ms. King was enraged by her affair with her husband and that both Ms. King and Mr. Agnew were well known public figures. She was aware that Ms. King had spoken publicly about her hurt when Mr. Agnew moved in with her. She felt that Ms. King had every right to express her hurt but felt she had expressed it to an excessive level and that it did not need to be repeated in the newspapers for everyone to read.
She agreed that in August, 2005 she had posed for photographs in an article she wrote for Social and Personal which referred to various treatments which her partner, Mr. Agnew had received in Powerscourt Springs. She accepted she spoke with Mr. P.J. Gibbons prior to the publication of an article by him in the Irish Examiner in September, 2005, and that she had told Mr. Gibbons that she was expecting a baby boy. He had convinced her that it would be good to confirm that she was pregnant so as to control the information on the topic. She hoped by doing so that she would not be subjected to further articles similar to those which had already been published and which speculated as to whether or not she was pregnant. She accepted that the photographs which appeared in the two Sunday World articles did not show her son’s face and that he was unidentifiable. She accepted she had written letters to other newspapers complaining about surveillance, but the Sunday World was the only newspaper which published photographs of her and her son. She said she had no idea how Ms. King’s voicemail message got into the public domain but accepted that it could be fairly described as a “tirade of abuse”.
SUBMISSIONS
On behalf of the plaintiffs, it was submitted that although the photographs of the plaintiffs were taken in a public place, the context in which they were used and linked to the articles amounted to an unacceptable intrusion into their private lives. That the right to privacy is an unenumerated constitutional right had been made clear in a number of Irish cases, originating in Kennedy v. Ireland [1987] 1 I.R. 587 and continuing through Norris v. The Attorney General [1984] IR 36 and, more recently, Herrity v. Associated Newspapers (Ireland) Ltd [2009] 1 IR 316.
The right to privacy is, it was submitted, a right to be left alone and derives in large measure from the commitment contained in the preamble to the Constitution which sets out a clear commitment to maintaining the dignity of the citizen. It was submitted that nothing could have been more intrusive and damaging to the first-named plaintiff’s dignity than the “merciless contempt” manifested towards her by the two publications in question. As regards the test to be applied to determine if information is or is not private, Counsel for the plaintiffs adopted the test from the decision of the House of Lords in Campbell v. MGN Limited [2004] 2 AC 457, which is to ask whether a reasonable person of ordinary sensibility, if placed in the same situation as the subject of the disclosure, rather than its recipient, would find the disclosure offensive. In that case the plaintiff had been photographed in a public place but was nonetheless awarded damages by way of compensation. Similarly, in Von Hannover v. Germany [2004] ECHR 294 publication of photographs of Princess Caroline of Monaco carrying out mundane activities in public such as horseback riding, shopping, dining at a restaurant and cycling were considered to be intrusions upon her privacy.
Insofar as the allegation of defamation was concerned, it was submitted that to ascribe the word “whore” to any woman is certainly capable of being defamatory and should be seen by the Court as such, not least as meaning, as pleaded in the statement of claim, that the first-named plaintiff engaged in sexual acts other than in furtherance of a loving relationship. It was submitted that that was the particular meaning that any ordinary woman or reader would take from the use of the word in the context in which it was to be found in the publications. The defence which had been offered that it was no more than vulgar abuse was a defence more appropriate to a case of slander than to a newspaper article which is published and printed after careful consideration.
In response, counsel on behalf of the defendant accepted that the right to privacy is one of the unenumerated rights recognised under Article 40.3 of the Constitution. However, the submissions on the part of the plaintiffs altogether failed to recognise that freedom of expression was also afforded recognition in the Constitution under Article 40.3.1 and Article 40.6.1. It was recognised by the Supreme Court in Mahon v. Post Publications [2007] 3 IR 338 that a balancing exercise must be carried out by any court between these rights, similar to the balancing exercise which is required under Articles 8 and 10 of the European Convention on Human Rights. The right of freedom of expression does not require justification by reference to public interest in any given case. It is its own public interest.
That privacy rights will outweigh freedom of expression in rare cases only was made clear by Dunne J. in Herrity v. Associated Newspapers (Ireland) Ltd. [2009] 1 IR 316. In that case the learned trial judge had instanced cases where the right to privacy might prevail over the right of freedom of expression, offering by way of example, proposed publication of details of a diagnosis of serious illness in respect of an individual, bearing in mind the nature of the confidential doctor patient relationship or, as in the case before Dunne J., a case in which private telephone conversations had been accessed unlawfully.
It was submitted that this was manifestly not a case where the defendant had “gone through the plaintiff’s front door”. The plaintiffs were attending a public office in a public place and performing a public function. The cases of Campbell v. MGN Limited [2004] 2 AC 457 and Von Hannover v. Germany [2004] ECHR 294 were clearly distinguishable and had their own special features. Were the Court in the instant case to hold against the defendant, it would have the extraordinary consequence that no public figure could be photographed, for example, attending a funeral or performing any other function in a public place.
The defence relied in particular on a decision of the Court of Appeal in New Zealand in Hosking v. Runting [2005] 1 N.Z.L.R 1, the facts of which were remarkably similar to the facts of the present case. Furthermore, the plaintiffs did not establish in evidence that there had been any ongoing surveillance of the plaintiffs or either of them. There was no evidence of any other photographs being taken or published by the defendant and no evidence of the plaintiffs being followed or bothered by any photographer employed by the defendant. Furthermore the photographs did not disclose anything that could not have been seen by any other person who turned up at the same time. The existence of the second-named plaintiff, his age and identity of his parents were already a matter of public record and the first-named plaintiff accepted that she had spoken to a journalist with the specific intention of publicity being accorded to the very matters in respect of which she now sought privacy. Nothing in the photographs published identified the second-named plaintiff or exposed that child to risk or danger of any sort whatsoever.
In relation to the alleged defamation, the context and circumstances of publication of the words complained of had to be taken into account. Words which on their face appear innocent can be defamatory when placed in context and the converse is also true. In this case the article itself made the context clear. It was not direct speech but rather reported speech on the part of Ms. King. It was plain from the article that Ms. King was extremely upset by the affair between her husband and the first-named plaintiff. No ordinary reasonable reader could believe, on reading Ms. King’s tirade, that it was being seriously suggested that the first-named plaintiff was a prostitute. Ms. King was clearly expressing her anger in strong, perhaps offensive language, about what had occurred between her husband and the first-named plaintiff.
DECISION
It is readily to be understood that in an increasingly technological age people generally are more and more concerned about unwanted surveillance from external sources, be it government agencies, the media, corporate or private interests. That a right to privacy exists in Irish law, the breach of which entitles an injured party to damages, is indisputable. Such was the case in Kennedy v. Ireland [1987] I.R. 587. There, however, the situation was simple and straightforward, because the unlawful surveillance of telephone communication in that case did not have to be placed in the balance with the right of freedom of expression.
The jurisprudence of this jurisdiction as to where the line is to drawn between these two competing rights is an evolving process and judges must be careful to note where their powers begin and end in this respect. As stated by Fennelly J. in Mahon v. Post Publications Ltd. [2007] 3 IR 338 at pp. 374-375:-
“The courts do not pass judgment on whether any particular exercise of the right of freedom of expression is in the public interest. The media are not required to justify publication by reference to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public interest.
The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle.”
Fennelly J. referred to R. v. Central Independent Television Plc. [1994] Fam. 192 in which Hoffmann L.J. said that:-
“Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”
Similarly, Lord Woolf C.J. said in A. v. B. plc [2003] QB 195 at p. 205 that:-
“Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it has to be justified.”
Thus while it is clear that newspapers are free to publish all sorts of matters regardless of public interest, the right to freedom of expression, like the right to privacy itself, is not an unqualified right. Restricting freedom of expression for privacy considerations requires circumstances which can be very clearly identified. This was emphasised by O’Hanlon J. in M. v. Drury [1994] 2 I.R. 8. That was a case in which the court was asked to restrain the publication of allegations by a father that his marriage had broken down by reason of the adulterous relationship of his wife with a priest. Having set out the passage from R. v. Central Independent Television Plc. that is cited above, O’Hanlon J. continued at pp. 16-17:-
“While we are undoubtedly administering a different legal system in this jurisdiction, underpinned by the constitutional guarantees, I am of opinion that the general approach supported by the judgment of Hoffman L.J. is to be recommended in cases where the freedom of the press is sought to be circumscribed on the basis that publication may be a source of distress to persons named or even to their children who are totally innocent of blame in matters alleged against one or both of their parents.
There are extreme cases where the right to privacy (which is recognised as one of the personal rights, though unspecified, guaranteed protection by the Constitution…) may demand the intervention of the courts. An example might be the circumstances illustrated in Argyle v. Argyle [1967] Ch. 302 where confidential communications between husband and wife during their married life together, were protected against disclosure. Generally speaking, however, it seems desirable that it should be left to the legislature, and not to the courts to “stake out the exceptions to freedom of speech” (in the words of Lord Denning).
In the present case the court is asked to intervene to restrain the publication of material, the truth of which has not as yet been disputed, in order to save from the distress that such publication is sure to cause, the children of the marriage who are all minors. This would represent a new departure in our law, for which, in my opinion, no precedent has been shown, and for which I can find no basis in the Irish Constitution, having regard, in particular, to the strongly-expressed guarantees in favour of freedom of expression in that document”.
In Herrity v. Associated Newspapers (Ireland) Ltd. [2009] 1 IR 316 Dunne J. carefully examined the circumstances in which a claim based on privacy will overcome a claim based on freedom of expression. She also considered the nature of matters which might warrant the description of being ‘private’. Having found in that case that the right to privacy outweighed freedom of expression, essentially because the case concerned the publication of telephone messages which had been obtained in breach of the express prohibition imposed by s. 98 of the Postal and Telecommunications Services Act 1983, she noted at p. 340 that:-
“One must bear in mind that the provisions of s. 98 of the Act of 1983 are there to protect the privacy of an individual’s telephone conversations. No one expects to see their private telephone conversations printed in a newspaper to excite the prurient curiosity or to provide amusement for the paper’s readers.
There may be other circumstances where the right to privacy prevails. For example, could a newspaper be entitled to publish details of a diagnosis of serious illness in respect of an individual bearing in mind the nature of the confidential doctor patient relationship? What if the individual was a well known public figure? Would it make a difference if the individual was a celebrity or, say, a senior politician? I would have thought that the circumstances which could justify a publication of such private information would seldom arise and only if there was some clear, demonstrable public interest”.
It is thus far from easy to determine to determine where the parameters to the right of privacy may lie when placed in balance with the right of freedom of expression. One intuitively feels that a right of privacy is less easily established in public places where a person, in the words of T.S. Eliot, has had time “to prepare a face to meet the faces that you meet”. That is particularly the case when one is performing a function of a public nature which I am satisfied the plaintiff and Mr Agnew were performing on this occasion. This was not a private celebration or event in the plaintiff’s own home or at some other location to which a legitimate expectancy of privacy attached. That is not to say, however, that there will never be occasions where a person photographed in a public place can successfully invoke privacy rights.
In this context I am satisfied, however, that the two cases upon which the plaintiffs place much reliance are of no great assistance to their case. In Von Hannover v. Germany [2004] ECHR 294 the European Court of Human Rights did of course state that the publication of photographs taken in public places could in certain circumstances constitute a breach of privacy rights under Article 8 of the Convention. However, as appears from paragraph 68 of the court’s judgment, the court was particularly impressed in that case by the fact that the photographs in question were part of a campaign of harassment of a public figure and by the fact that a number of the photographs of the applicant were taken from a public place while she was in a club to which access by journalists and photographers was strictly regulated. The case is not an authority for the proposition that every occasion on which an unwanted photograph is taken or published of a private person in a public place constitutes a breach of privacy. As the European Court has repeatedly emphasised, all the circumstances of the individual case have to be taken into account.
Similarly, the facts of Campbell v. MGN Ltd. [2004] 2 AC 457 make that case clearly distinguishable from the present case. In Campbell, the House of Lords found that the publication of photographs of the plaintiff leaving a meeting of Narcotics Anonymous was in the particular circumstances a breach of privacy although they were taken in a public place. It determined that the publication of information relating to the plaintiff’s treatment was a breach of privacy because an assurance of privacy, confidentiality and anonymity was essential to the type of treatment that the plaintiff was undergoing, such that a person in her position would find disclosure highly offensive and might also be deterred from continuing with the therapy, thereby causing a set-back to recovery. In that case Baroness Hale stated at p. 501:-
“Publishing the photographs contributed both to the revelation and to the harm that it might do. By themselves, they are not objectionable. Unlike France and Quebec, in this country we do not recognise a right to one’s own image: cf Aubry v Éditions Vice-Versa Inc [1998] 1 SCR 591. We have not so far held that the mere fact of covert photography is sufficient to make the information contained in the photograph confidential. The activity photographed must be private. If this had been, and had been presented as, a picture of Naomi Campbell going about her business in a public street, there could have been no complaint. She makes a substantial part of her living out of being photographed looking stunning in designer clothing. Readers will obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk. There is nothing essentially private about that information nor can it be expected to damage her private life. It may not be a high order of freedom of speech but there is nothing to justify interfering with it. (This was the view of Randerson J in Hosking v Runting [2003] 3 NZLR 385, which concerned a similarly innocuous outing; see now the decision of the Court of Appeal [2004] NZCA 34.).”
I accept in this case the submission of counsel for the defendant that the most relevant decision for this Court to consider with regard to the publication of the photographs is that of the Court of Appeal in New Zealand in Hosking v. Runting [2005] 1 N.Z.L.R. 1. In that case the plaintiffs had infant twin daughters. One of the plaintiffs was a presenter on national television and was widely known in the community. Their daughters were photographed by the first defendant on a public footpath. Several days later the plaintiffs were informed that the photographs had been taken and that they had been commissioned by the second defendant, a magazine publisher, with a view to publication in one of its magazines. The plaintiffs made it clear to the publisher that they strongly opposed the publication of the photographs and expressed their concern about the risk to the children’s safety should the photographs be published. The plaintiffs issued proceedings alleging that the taking of the photographs and/or the publication without consent amounted to a breach of their children’s right to privacy.
It is important to note that the legal background in New Zealand is not dissimilar to that applying in this jurisdiction. In fact, the Court of Appeal expressly recognised that Article 17 of the New Zealand Bill of Rights was couched in similar terms to Article 8 of the European Convention of Human Rights. In delivering the leading judgment of the court, Gault P. said at paras. 125-127:-
By living in communities individuals necessarily give up seclusion and expectations of complete privacy. The concern of the law, so far as we are presently concerned, is with widespread publicity of very personal and private matters. Publication in the technical sense, for example as applies in defamation, is not in issue.
Similarly publicity, even extensive publicity, of matters which, although private, are not really sensitive should not give rise to legal liability. The concern is with publicity that is truly humiliating and distressful or otherwise harmful to the individual concerned. The right of action, therefore, should be only in respect of publicity determined objectively, by reference to its extent and nature, to be offensive by causing real hurt or harm. In the Restatement the requirement is “highly offensive” to a reasonable person’; the formulation expressed in Australia by Gleeson CJ (drawn from the United States cases) and referred to by the English Court of Appeal in Campbell imbues the reasonable person with “ordinary sensibilities”. In similar vein the Privacy Act, in s 66 defining interference with the privacy of an individual, requires “significant” humiliation, loss of dignity or injury to feelings.
We consider that the test of highly offensive to the reasonable person is appropriate. It relates, of course, to the publicity and is not part of the test of whether the information is private.
The court went on to point out that, even where material fell within this definition of private information, publication could be justified by a test of legitimate public concern. Then, dealing with the facts of the case in terms that have a resonance in the instant case, Gault P. stated at paras. 161-165:-
“The real concern of the appellants as parents relates not to the publication of photographs of their two children in the street, but to publication of the photographs along with identification and the association of them with a “celebrity” parent. We accept the sincerity of their anxiety for the wellbeing of the children and their concern at the prospect of recurring unwanted media attention. They wish to protect the freedom of the children to live normal lives without constant fear of media intrusion. They feel that if publication of the present photographs is prevented there will be no incentive for those who, in the future, might pursue the children in order to capture marketable images…
We are not persuaded that a case is made out for an injunction to protect the children from a real risk of physical harm. We do not see any substantial likelihood of anyone with ill intent seeking to identify the children from magazine photographs. We cannot see the intended publication increasing any risk that might exist because of the public prominence of their father.
The inclusion of the photographs of Ruby and Bella in an article in New Idea! would not publicise any fact in respect of which there could be a reasonable expectation of privacy. The photographs taken by the first respondent do not disclose anything more than could have been observed by any member of the public in Newmarket on that particular day. They do not show where the children live, or disclose any information that might be useful to someone with ill intent. The existence of the twins, their age and the fact that their parents are separated are already matters of public record. There is a considerable line of cases in the United States establishing that generally there is no right to privacy when a person is photographed on a public street. Cases such as Peck and perhaps Campbell qualify this to some extent, so that in exceptional cases a person might be entitled to restrain additional publicity being given to the fact that they were present on the street in particular circumstances. That is not, however, this case.
We are not convinced a person of ordinary sensibilities would find the publication of these photographs highly offensive or objectionable even bearing in mind that young children are involved. One of the photographs depicts a relatively detailed image of the twins’ faces. However, it is not sufficient that the circumstances of the photography were considered intrusive by the subject (even if that were the case, which it is not here because Mrs Hosking was not even aware the photographs had been taken). The real issue is whether publicising the content of the photographs (or the “fact” that is being given publicity) would be offensive to the ordinary person. We cannot see any real harm in it.”
The court thus concluded that the intended publication of the photographs was not even prima facie a breach of privacy.
Overall, therefore, I am not satisfied that the publication of these photographs amount to breaches of privacy and central to my conclusion are the following considerations:-
(a) The photographs were taken when both the photographer and the plaintiffs were in a public place and performing a routine public function;
(b) The photographs do not disclose anything that could not have been seen by anyone else who turned up at the Registry Office at the relevant time;
(c) The existence of the second-named plaintiff, his age and the identity of his parents are already matters of public record. The defendant could have gone into the Registry Office, found the information, and published it;
(d) Nothing in the publication exposes the plaintiffs or either of them to any risk of physical harm from any person with ill–intent;
(e) No evidence was adduced to establish the contention that a campaign of surveillance had been carried out on the first-named plaintiff, her partner or child;
(f) The features of the second-named plaintiff were not recognisable from the photograph. Furthermore, the child himself could not have suffered any hurt or humiliation from any aspect of the two publications having regard to his age at the relevant time;
(g) The plaintiffs were at the relevant time performing, in my view, a public function which they were required to fulfil. No evidence was placed before the Court to suggest that is was necessary to bring the child to the Registry Office on the occasion in question;
(h) The first-named plaintiff and her partner themselves elected to bring the child to the Registry Office. Furthermore the first-named plaintiff had spoken to a journalist with the specific intention of publicity being accorded to the very matters in respect of which she now seeks to claim privacy.
(i) The voicemail message reproduced in the defendant’s newspaper was already posted on the internet and was in the public domain.
The consideration mentioned at (h) above is important because the most significant element of hurt and distress may readily be understood as deriving from the juxtaposition of the photographs with the accompanying text which is undoubtedly offensive to a high degree, notwithstanding that it consists of a repetition of abusive utterances from an angry Ms. King. It is thus particularly relevant to inquire if the plaintiff had herself sought or contributed to any publicity in respect of the matters complained of. In Woodward v. Hutchins [1977] 1 W.L.R. 760 the Court of Appeal discharged an injunction that had been granted to a well known group of singers against their former press officer to restrain him from publishing articles which dealt with aspects of their private life. Lord Denning noted (at pp. 763-764) that the singers had actively sought publicity:-
“If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or agent of theirs afterwards discloses the truth about them.”
Similarly in Lennon v. News GroupNewspapers Ltd. [1978] F.S.R. 573, the fact that both the claimant and the second defendant had discussed their relationship in public was held by the Court of Appeal to mean that the relationship had ceased to be their own private affair. The fact that the material in question was different from that which the couple themselves had revealed was not regarded as significant.
I am thus satisfied that the first-named plaintiff has herself actively sought publicity from the press and media concerning her partnership with Mr. Agnew and the birth of their child. She has herself made public statements concerning her family life and taken part in photo shoots and interviews for public consumption. Their relationship had by the time of the relevant publications become well known to the Irish public. In evidence the first-named plaintiff accepted that Ms. King was entitled to speak publicly about the hurt and distress that she felt as a consequence of her affair with Mr. Agnew, which is a feature of this case which places it in a somewhat different context from other cases on this topic. I would have taken a different view of this case had the plaintiff herself maintained her silence and if the disclosure of the voicemail message had emanated in the first instance from the defendant newspaper. As it was, the voicemail message was already in the public domain via the internet, a fact which highlights the very dangers and concerns to which modern technology gives rise and to which I referred at the outset of my judgment. As Fennelly J made clear in Mahon, there is an inherent illogicality in asserting rights of privacy over material which is already in public circulation and which was, I would add in this case, notoriously so.
I cannot therefore see anything in this case which has been placed in the balance by or on behalf of the first-named plaintiff to outweigh the right of freedom of expression to which the defendant is entitled.
Were I to hold otherwise, it would represent a radical ratcheting up of the right to privacy at the expense of the right of freedom of expression to a degree which, in my view, should more properly be the subject matter of legislation. A finding in favour of the plaintiffs would also give rise to a situation where a newspaper might feel itself inhibited from publishing a photograph of any public person attending, for example a funeral, or leaving or entering a court building or polling station. In any of these situations it is not difficult to imagine circumstances where a claimant could invoke some consideration of privacy.
Insofar as the allegation of defamation is concerned, I find the following passage from “Gatley on Libel and Slander” to be particularly helpful:-
“The same principles (referring to context and circumstances of spoken words) would apply to vulgar abuse, the question being whether the circumstances in which the words were used would convey a defamatory implicated to those who use them. Insults or abuse are not actionable as defamation though they may be subject to some criminal sanction as tending to a breach of the peace or public order. In some cases the words may so clearly be insults or abuse that there are probably no circumstances in which they could be understood to be defamatory, in other cases it will be a question whether the circumstances make it plain to the hearers that no defamatory implication was intended.”
The plaintiff in this case makes a claim to damages in defamation arising out of the article of 14th May, 2006, in which she maintains that the use of the word “whore” means and was understood to mean:-
(a) That the first-named plaintiff was a prostitute;
(b) That the first-named plaintiff engaged in sexual acts for financial rewards;
(c) That the first-named plaintiff engaged in sexual acts other than in furtherance of a loving relationship.
However, as Gatley (11th Ed) states at par. 3.29:-
“It is necessary to take into consideration not only the actual words used but the context of the words.”
In this particular case the article itself makes the context clear. It is the reported speech on the part of Ms. King who is plainly extremely angry at the affair between her husband and the first-named plaintiff. While the repetition of something said by another person affords no defence to a newspaper who publishes a defamation, and while the word in question is clearly capable of being defamatory, I am quite satisfied that any ordinary or reasonable reader, on reading Ms. King’s comment, would simply see it as vulgar abuse expressed in strong and offensive terms. Indeed during the course of the hearing, the first-named plaintiff’s counsel effectively confined themselves to contending that the expression complained of in reality meant that the first named plaintiff engaged in sexual acts other than in furtherance of a loving relationship.
I am satisfied, therefore, that while in other circumstances the deployment of such an expression could constitute a serious defamation it does not do so in the context in which it appeared in this case.
Finally, I have given serious consideration as to whether the “undertakings” contained in the defendant’s letter dated 19th May, 2006, created some form of contractual obligation the breach of which per se would entitle the plaintiffs to damages. A close reading of those supposed “undertakings” persuades me, however, that they were of little real value or benefit to the plaintiffs. They appear to me, notwithstanding the comfort apparently derived from them by the first-named plaintiff, to have been formulated with the assistance of legal advice to leave the defendant at large to the greatest degree possible.
There are many strange and unexplained aspects of this case which I have found disquieting, but on my interpretation of the applicable legal principles the defendant is entitled to a dismiss of the plaintiffs’ claims. In making such an order, and prior to hearing any application which may follow in respect of costs, I feel compelled to state that the exercise in which the defendant newspaper engaged in respect of these two publications represented the lowest standards of journalism imaginable. It is a regrettable fact of life that such material sells newspapers.
Talbot v Hermitage Golf Club
[2012] IEHC 372,
JUDGMENT of Mr. Justice Herbert delivered the 27th day of July 2012
The plaintiff was, up to his retirement, an insurance official. He became a member of The Hermitage Golf Club, (the Club) on the 11th February, 1962. During the course of his long membership of the Club, he has been its honorary secretary, 1981 – 1982 and, has served on its handicap sub-committee, 1979 – 1980. The Club is an unincorporated association. Rule 11 of its rules provides that the Club shall consist of its several categories of members. Rule 9 provides for the appointment of sub-committees of the executive committee of the Club: in particular the handicap sub-committee. Of importance in the instant case is rule 9.5 which requires that minutes be kept in proper books of all resolutions and proceedings of sub-committees which, when signed by the chairperson, shall be conclusive evidence without further proof of the facts stated therein. For the years ending December 2002, and December 2003, the third defendant was chairman of the handicap sub-committee of the Club.
On the 8th December, 2011, during the course of this action, a handicap record sheet for the plaintiff was printed by a member of the handicap sub-committee using the Genesys Convenor computerised handicap record system. This printout covers the period from the 22nd June, 2001, to the 29th December, 2010. It shows that on the 18th March, 2001, the plaintiff had a playing handicap of 15. Between the 6th April, 2002, and the 30th November, 2002, inclusive the plaintiff submitted a total of 22 score cards to the handicap sub-committee. On the 30th November, 2002, his playing handicap had been adjusted to 13. Between the 30th April, 2003 and 4th October, 2003, the plaintiff submitted a total of 55 score cards to the handicap sub-committee. On the 4th October, 2003, his adjusted playing handicap was 13. During the period from the 30th June, 2002 to the 28th August, 2003 inclusive, the plaintiff’s playing handicap was adjusted 9 times by the handicap sub-committee as follows:-
30th June, 2002 – 16, 30th September, 2002 – 17, 7th October, 2002 – 16, 24th October, 2002 – 15, 30th November, 2002, – 13, 30th April, 2003 – 14, 9th July, 2003 – 13, 30th July, 2003 – 13 and 28th August, 2003 – 13.
I find on the evidence that the return of this number of score cards by the plaintiff and the making of this number of adjustments in his playing handicap by the handicap sub-committee were both quite out of the ordinary.
By a letter dated the 24th October, 2003, to the then honorary secretary of the Club written, I infer, in compliance with the provisions of rule 23 of the Club rules which provide that all complaints be made in writing to the honorary secretary of the Club, the plaintiff expressed dissatisfaction with these many adjustments to his playing handicap. Following the further reduction of his handicap on the 30th November, 2002, the plaintiff complained by telephone and by a letter dated the 27th March, 2003, to each individual member of the handicap sub-committee at his residence and at his place of employment. Grave exception was taken to the language of this letter and to the nature of these contacts. The executive committee of the Club, by letter dated the 11th April, 2003, demanded a withdrawal of this letter and a written apology to the members of the handicap sub-committee. This was done by letter dated the 23rd April, 2003.
The plaintiff continued to challenge the cuts to his playing handicap. Letters in this regard dated the 10th May, 2003, 20th May, 2003, 26th May, 2003, 3rd June, 2003, 25th June, 2003, 5th July, 2003, 15th July, 2003, 17th July, 2003, 22nd July, 2003, 23rd July, 2003, and 27th July, 2003, were exchanged between the plaintiff and Mr. Paddy McDermott the then honorary secretary of the Club.
A minute of a meeting of the handicap sub-committee held on the 30th July, 2003, was proved in evidence. At Item 1, under the heading, “Matters Discussed” the following is noted, –
“1. Thirteen further cards received from Tom Talbot – clearly for handicap building purposes. It was agreed that these would be placed through his handicap details and then cut back to thirteen. This was done and a note left for him to play off thirteen. A printout of his handicap details was also made available for Mr. Talbot.”
The third defendant gave evidence that he believed that this minute was typed by Mr. Dick Clery who was a member of the handicap sub-committee at that time. This membership is borne out by the other minutes of the sub-committee. The minute of the meeting held on the 30th July, 2003, records that Mr. Clery was not present at that meeting and sent his apologies for his inability to be present. The fact that Mr. Clery was not at the meeting does not mean that the recollection of the third defendant that Mr. Clery typed the minute stands discredited. It does mean that if he prepared the typed minute he must have worked from a note taken by some other member of the sub-committee who was present at the meeting. The plaintiff had himself in the past been a member of this sub-committee and he did not put it to the third defendant or to Mr. Eoin Buckley who also gave evidence and, who is recorded in the minute as having been present at the meeting, that such note would have been taken and/or the typed version of the minute prepared by a stenographer or a secretary. In these circumstances, I am prepared to accept the recollection of the third defendant with regard to this matter as true and accurate.
The third defendant and Mr. Eoin Buckley both gave evidence, which was not challenged by the plaintiff, that the minutes of the meetings of the Club handicap sub-committee are kept in folders in a drawer, which is located in a desk in the men’s competition room. They told me, and were again not challenged by the plaintiff on this, that the men’s competition room is generally kept locked and that only members of the Club handicap sub-committee have access to these minutes.
The plaintiff gave evidence, which I accept, that on or about the 30th August, 2003, he received a handicap certificate signed by the third defendant and dated the 30th July, 2003. The plaintiff, – though he was not prepared to be emphatic on this point, – felt that he had received this document by ordinary prepaid post in a sealed envelope addressed to him. It was the recollection of the third defendant, – and he also was not prepared to be categoric on the point, – that he had left this document in a sealed envelope addressed to the plaintiff in a slot on the notice board in the men’s locker room of the Club. Having regard to the terms of the minute dated the 30th July, 2003, to which I have adverted, the recollection of the third defendant is more probably correct.
The third defendant accepted that all the writing on this certificate was done by him and he acknowledged his signature on the document. This documents states as follows:-
“This is to certify that,
Talbot, Tom
Is a playing member of
Hermitage Golf Club
With a current handicap of
13 (13.0)
Signed
(Signature)
Eddie Murphy.
Date: 30th July, 2003.”
Under this date the third defendant accepts that he wrote the following:-
“General Play (Handicap Building).”
The plaintiff claims that these words are false and, are defamatory of him as imputing that he cheated at golf.
The third defendant gave evidence that he did not intend to suggest by the words “Handicap Building” that the plaintiff was cheating at golf. What he intended and what he claimed these words conveyed was that the plaintiff’s handicap had automatically built up because of the large number of score cards submitted by him prior to the 30th July, 2003, and, in the opinion of the handicap sub-committee. did not therefore reflect his true playing ability. The third defendant was here referring to the provisions of the Standard Scratch Score and Handicapping Scheme effective from the 1st January, 2001, to the 31st January, 2004, when it was replaced.
Clause 16.3 of this scheme provided that if a player returned a score with a net differential above his Buffer Zone or, recorded a “no return”, his exact handicap was increased by 0.1 of a stroke. A “playing handicap” is this “exact handicap” calculated to the nearest whole number. On the evidence the plaintiff’s Buffer Zone was 0 to plus 3. “Net differential” was defined as the difference between the net score returned by a player in a Qualifying Competition and the Competition Scratch Score.
Clause 19.1 of this scheme provided that whenever the handicap committee of a player’s Home Club considered that his Exact Handicap was too high and did not reflect his current playing ability the handicap committee must (this emphasis is mine), reduce his Exact Handicap to the figure it considered appropriate. In Ireland fractional reductions of less than one whole stroke are permitted. Clause 19.4 of the scheme provided that in effecting such an adjustment the handicap committee, “shall” consider all available information regarding the player’s golfing ability and in particular, the frequency of Qualifying Scores recently returned by the player to or below his Playing Handicap and his achievements in various types of Non-Qualifying Competitions. Clause 19.9 of the scheme provided that decisions made by the handicap committee under Clause 19, “shall be final”.
At Appendix K5(f) of this Scheme it was stated that Clause 17( suspension and loss of handicap) and Clause 19 (alteration of handicap relating to general play), gave the Clubs a discretion to deal with players who persistently submitted incomplete cards or made “no returns”, if they considered that these members were attempting to “build a handicap”. I am satisfied on the evidence and I find that neither of these circumstances applied to this plaintiff. “Building a handicap” is not otherwise defined or considered in this Scheme.
This Scheme was replaced as and from the 1st February, 2004, by the C.O.N.G.U. Unified Handicapping System, which was itself replaced as and from the 1st February, 2008, by a new C.O.N.G.U. Unified Handicapping System.
In considering whether the words “Handicap Building” were defamatory of the plaintiff the task of the Court is to determine the sense in which they would reasonably be understood by a hypothetical reasonable member of the class of persons interested in the playing of the game of Golf. The intention of the third defendant or of the other members of the handicap sub-committee in writing these words on the handicap certificate or in recording these words in the minute of the 30th July, 2003, is not relevant to that consideration. In this context, for the same reason, the presence, – direct or indirect – or the absence of a definition of “Handicap Building” in the Standard Scratch Score and Handicapping Scheme effective between the 1st January, 2001 and the 31st January, 2003, both inclusive, is also irrelevant.
In this case no innuendo meaning supported by extrinsic facts is relied upon by the plaintiff. He claims that the defamatory meaning, that he cheated at golf, arises by inference from the words “Handicap Building”, without the need for any added facts to render them defamatory, – that the words were defamatory in their natural and ordinary meaning. As was pointed out in Lewis v. Daily Telegraph Limited [1964] A.C. 234, cited by Kearns P. in Griffin v. Sunday Newspapers Limited [2012] 1 I.L.R.M. 260 at 267, this involves two elements: the words themselves and, the meaning which the hypothetical ordinary, reasonable and well informed person, without any special knowledge, would reasonably draw from these words.
In McGrath v. Independent Newspapers (Ireland) Limited [2004] 2 IR 425, Gilligan J. held as follows:-
“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 a 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.”
I am satisfied that the words “Handicap Building” are fairly capable of a construction which would render them defamatory. I find as a fact that this construction ought to be attributed to them in the circumstances of this case. I am satisfied that any hypothetical, ordinary, reasonable and well informed member of the class of persons interested in the playing of the game Golf would reasonably and fairly conclude from these words that the addressee was being accused of consciously and deliberately inflating his playing handicap so as to give himself an unfair and improper advantage against other players by misrepresenting his true playing ability. I find that the words “Handicap Building”, written by the third defendant and recorded in the minute of the meeting of the handicap sub-committee of the 30th July, 2003, in their natural and ordinary meaning meant that the plaintiff was cheating at golf. I do not accept the construction contended for by the first and third defendants that the words meant only that the plaintiff’s playing handicap had automatically built up by reason of the operation of Clause 16.3 of the Scheme on the large number of score cards he had returned and consequently needed to be adjusted downwards under the provisions of Clause 19.1 to reflect his current playing ability. I do not accept that a hypothetical reasonable member of the class of persons interested in the playing of the game of golf would reasonably put such a construction on these words.
An accusation of cheating in amateur sport and games has for over 150 years been held to be seriously defamatory of the person accused of such behaviour. I find that this is especially likely to be so in the case of the game of Golf which the evidence established depends in a most particular way on the personal trustworthiness of the players: several witnesses described the game of Golf as an “honesty game”. Such a person, to a high degree of probability, will be shunned, socially excluded and, held in contempt by reasonable and right thinking persons. This scarcely requires any further explanation or amplification.
The fact that the words, “Handicap Building” were defamatory of the plaintiff does not however mean that he has been defamed by the defendants or any of them. Without the publication of those words to some third party or parties there can be no libel. The plaintiff must prove such publication in order to succeed in his action. Publication to himself will not suffice. However, publication to one other person is all that requires to be shown, (see Capital and Counties Bank v. Henty [1882] 7 A.C. 741 at 765 per. Lord Penzance). I am satisfied on the evidence to which I have already adverted that the handicap certificate dated the 30th July, 2003, on which the third defendant had written the words, “General Play (Handicap Building)” was not published by the third defendant to anyone other than to the plaintiff himself.
Discovery of Documents was sought in writing by the plaintiff in this action. However when this was opposed by the Solicitors for the first and third defendants, the plaintiff did not persevere in seeking discovery. I am satisfied on the evidence that the plaintiff was very anxious to obtain the minutes of the handicap sub-committee of the Club. However, being a litigant in person the plaintiff confused a Notice to Admit Documents with an application for Discovery of Documents on Oath and did not therefore continue to seek the latter.
The computer generated handicap record sheet printed on the 8th December, 2011, to which I have already adverted, contains the following notation:-
“28/08/2003 28/08/2003 G.P. Handicap Building GPA 13.0 13”
I am quite satisfied on the evidence, that such a printout will be made available to the subject member on request but is otherwise only available to members of the handicap sub-committee of the Club in the performance of their delegated handicapping function. I therefore find that such communication of the words, “Handicap Building” as is evidenced by this computer printout was only published to whoever programmed the software database from which it is derived.
The minutes of the handicap sub-committee dated the 31st July, 2002, and 25th August, 2002, under the heading, “NEW HANDICAP SYSTEM” record that the handicap sub-committee were then obtaining demonstrations of two different computer software handicapping systems to be used on the Club P.C. The first reference to the Genesys Convenor system is in the minute of the 30th September, 2002. The minute of the meeting of the handicap sub-committee on the 23rd October, 2002, contains the following record:-
“The Committee agreed to make contact with Genesys for them to install their handicap system in Hermitage and to handle the conversion of our existing data.”
Following from this, the minute of the 28th November, 2002, records the following:-
“Eddie Murphy, Dick Clery and Gerry Hogan met Mike from Genesys on the 18th November, in Hermitage. The new handicap system was installed on the P.C. and set up in the competitions and handicap room. The terminal in the men’s locker room was also changed to accommodate the new system. The members’ handicap details were converted from the (former) system to Genesys.
Arrangements were made for Eddie Murphy and Dick Clery to input the member’s individual numbers in Genesys and to verify that each member’s handicap was correctly converted before downloading the entire file to GUI.”
Finally, in the minute of the 2nd April, 2003, it is recorded that, “a representative from Genesys recently provided training on the handicap system to committee members”. Eddie Murphy, the third defendant was chairman of the handicap sub-committee in the year 2002 and in the year 2003 and Dick Clery was a member of the sub-committee in both years. The third defendant gave evidence that since in or about 2001 it was a requirement of the second defendant that complete details of the handicap of each member of the Club be entered on the computer record. The plaintiff does not have to prove that the defamatory words were actually seen and read by a particular third party. If, on the evidence adduced, it is a reasonable inference that this occurred, a prima facie case of publication will be established. From these minutes of the 23rd October, 2002, and 28th November, 2002, I am satisfied that it is reasonable to infer that the defamatory words were published to an employee or agent, employees or agents of Genesys and, though it is unnecessary to go this far, also to some member or agent of the second defendant, by the members of the handicap sub-committee of the Club including the third defendant.
Counsel for the first defendant and third defendant objected that this database had not been specifically identified by the plaintiff as a document in which he claimed to have been defamed, nor had he identified these third parties as persons to whose attention the defamatory words had come. By order of the Supreme Court made on the 29th February, 2008, following a judgment of that Court given on the same date, the plaintiff was ordered to list each and every document in which he claimed he had been defamed and state to whose attention each such document had come. In the first Schedule annexed to the Order of McMahon J. made on the 3rd November, 2010, the plaintiff identified six documents as follows; Handicap Certificate dated the 30th July, 2003, letter 16th December, 2004, Mr. Gerry O’Donnell to third defendant, letter 18th December, 2004, Mr. Seán Óg O’Ceallacaháin to third defendant, letter 11th January, 2005, Mr. David Cullen to third defendant, letter/notice 26th August, 2003, Mr. John Ferriter to third defendant and, letter/notice 10th June, 2004, Mr. John Ferriter to Captain of the Club. In the second Schedule annexed to the Order of McMahon J. the plaintiff identified the following persons as those to whose attention the defamatory words had come, – the Committee and Staff of the Club, all members of the Club who received a circular letter and a Report dated respectively 14th May, 2007 and 26th November, 2007 from Mr. John Corcoran, then Honorary Secretary of the Club, all members of the public to whom such members, “disseminated gossip” about this matter, a “Golfing Union of Ireland man in Cavan”, the plaintiff’s brother to whom this man spoke and, three other members of the plaintiff’s family with whom his brother discussed the matter.
Throughout the hearing of this case many pleading issues arose in which Counsel for the first defendant and third defendant objected that matters were being canvassed by the plaintiff and evidence was being led by him which fell outside the parameters of the pleadings in the case and especially outside these schedules. However, conscious of the fact that the plaintiff is a litigant in person and drew his own pleadings, and, mindful of the reproach of Lord Diplock in Boston v. Bagshaw [1966] 1W.L.R. 1126 at 1135 that:-
“Lawyers should be ashamed that they have allowed the law of defamation to have become bogged down in such a mass of technicalities…”
I determined, in the interests of justice, to permit very considerable latitude to the plaintiff in making his case. I allowed this latitude to the plaintiff provided he did not depart altogether from what he had pleaded and so long as I was fully satisfied that the defendants were not thereby prejudiced in dealing with the evidence or in making their defence.
Even where a plaintiff proves that defamatory words have been written and published of and concerning him, there are occasions, in the public interest where the Law relieves a defendant from what would otherwise be the consequences of that publication. Such and occasion, to borrow the well know definition of Lord Atkinson in Adam v. Ward, [1917] A.C. 309 at 334, arises where the person who makes the communication has an interest, or duty, legal, social or moral to make it to the person to whom it is made and that person has a reciprocal interest or duty to receive it. The reason why such qualified privilege is allowed is explained in the following equally well-known passage from the judgment of Willes J., in Henwood v. Harrison [1872] L.R.7. C.P. 606 at 622:-
“The principle on which these cases are founded is a universal one, that the public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice, notwithstanding that they involve relevant comments condemnatory of individuals.”
The third defendant and the other members of the handicap sub-committee of the Club clearly had no moral, social or legally enforceable duty to make this communication to any employee or agent of Genesys. This leaves the issue of whether he or they had an interest to make the communication and whether Genesys had a reciprocal interest to receive it.
The evidence established that there are over one thousand members in the Club and that the handicap sub-committee was solely responsible for ensuring that the playing handicap of each such member was constantly reviewed and validated in accordance with the requirements of the Standard Scratch Score and Handicapping System then in force. The work of the sub-committee was subject to random audit by the second defendant. In the performance of this exacting and onerous task, the handicap sub-committee needed to constantly refer to the individual records of each playing member of the Club. The evidence established that a failure on the part of the handicap sub-committee to carry out their task efficiently and accurately could result in serious consequences for the Club, including the suspension or loss of handicaps so that members could no longer participate in the game of golf within the CONGU system.
In these circumstances I find that the third defendant and the other members of the handicap sub-committee had a reasonable and a genuine interest in seeking out the computer software system which they considered was best suited to assist them in their task. For this purpose, the third defendant and the other members of the handicap sub-committee of the Club had an interest in communicating with Genesys and, having chosen that particular system, he and they had an interest in ensuring that a complete and accurate database was set up. This, as the minute’s record, necessarily involved transferring all existing handicap details of members, including the details relating to the plaintiff, to this new system.
I am satisfied that the correct inference to be drawn from the minutes of the meetings of the handicap sub-committee held on 30th September, 2002, 28th November, 2002 and 2nd April, 2003, there being no evidence whatsoever to the contrary, is that this information was made available by the third defendant and the other members of the handicap sub-committee of the Club to employees or agents, employee or agent, of Genesys who then effected the transfer of information to the new database. I am satisfied that each and every such person to whom these communications, including the defamatory words of and concerning the plaintiff, were made, had a reciprocal interest in receiving those communications. I find that the inclusion in the communicated material of the defamatory words, – “G.P. Handicap Building.”, – was part of and, was not, “obviously and wholly unconnected with and extraneous to”, the material needed to be communicated to the employees or agents, employee or agent, of Genesys.
I therefore find that the publication of the defamatory words by the third defendant and the other members of the handicap sub-committee of the Club to this third party or these third parties was on an occasion of qualified privilege. This, “rebuts the inference of [malice] prima facie arising from a statement prejudicial to the character of the plaintiff and puts it upon him to prove that there was malice in fact, that the defendant was actuated by motives of personal spite or ill will, independent of the occasion on which the communication was made.” (per Parke B. in Wright v. Woodgate [1835] 2 C.M.R. 573 at 577 followed in Harris v. Arnott (No. 2 [1890] 26 L.R.Ir. 75).
Throughout the hearing of this action the plaintiff attributed the many reductions in his playing handicap between the 30th June, 2002 and the 28th August, 2003, inclusive and, the publication of the words, “General Play (Handicap Building)” to dislike, vindictiveness, ill will and spite on the part of the third defendant towards him. The Law presumes that the third defendant and the other members of the handicap sub-committee honestly believed the truth of the words published, that the plaintiff was “Handicap Building”. The onus is therefore on the plaintiff to show that the third defendant and the other members of the handicap sub-committee did not honestly believe the truth of what was written and recorded or were indifferent to its truth or falsity, (Horrocks v. Lowe [1975] A.C. 135 at 149-151, Lord Diplock). In this regard no Reply was delivered by the plaintiff to para. 4(e) of the Defence of the first defendant and third defendant that, –
“… if the said term was published, such publication occurred only on an occasion of qualified privilege and without malice”.
During the hearing of this action the plaintiff did not seek to demonstrate that the third defendant and the other members of the handicap sub-committee of the Club did not honestly believe in the truth of the words. His position was that whatever their belief the sole purpose of the third defendant and the other members of the handicap sub-committee in publishing the words was, to borrow the words of Lord Diplock in Horrocks v. Lowe, (above cited) at page 150, “to give vent to personal spite and ill will towards him”. The plaintiff contended that the other members of the handicap sub-committee of the club acted under the influence of the third defendant who in 2002 and 2003 was Chairman of that committee. The following is a summary of the evidence offered by the plaintiff which he claimed indicated actual malice or improper motive on the part of the third defendant and the other members of the handicap sub-committee of the club in communicating the defamatory words to the employee or agent, employees or agents, of Genesys. There was no evidence before the court from which I could be satisfied or from which I could draw a proper inference that the same material was downloaded to the second defendant.
His playing handicap had been reduced by the handicap sub-committee six times in a two year period, – 2002 and 2003. No other member of the Club had suffered a similar handicap reduction in the period 1962 to 2006.
In the same period no other member of the Club had been accused of a “handicap building” by the handicap sub-committee of the club and, so far as he was aware, this had never happened either before or since.
At their meeting on the 30th July, 2003 the handicap sub-committee, under the chairmanship of the third defendant, concluded that the number of cards returned by him was, “clearly for handicap building purposes”. This conclusion was entirely unreasonable because of the failure of the handicap sub-committee to make any enquiries from him, a long time member and a past officer of the Club.
Some of his score cards where sent by the handicap sub-committee to Mr. Paddy Maguire, who was the then General Manager of the Club, “to decide as to what action to take”. Mr. Maguire had no function whatsoever in the operation of the handicapping system which was solely the function of the handicap sub-committee.
The third defendant accepted that the plaintiff was consistently scrupulous in returning score cards and had never returned an “incomplete card” or made a “no return”.
There had been only two audits of the Club by the second defendant in the period 2002 to 2009 inclusive; one in 2003 in respect of the 2002 playing year and, the other in 2004, in respect of the 2003 playing year. The 2002 audit was carried out by an officer of the Leinster Branch of the second defendant who was and remains a member of the Club, was a former office holder and president of the Club and, is the father of a member of the handicap sub-committee of the Club in 2002 and 2003. In 2003, the third defendant had discussed the plaintiff’s score card returns and handicap with this officer of the Leinster Branch of the second defendant. The plaintiff contended that these audits were arranged by the third defendant to, “whitewash”, his victimisation of the plaintiff through the use of Clause 19.1 of the Standard Scratch Score and Handicapping Scheme 2001 and 2003 inclusive.
By a letter dated 26th August, 2003, the second defendant through Mr. John Ferriter wrote to the third defendant stating, inter alia, with regard to the 2002 Audit carried out in 2003 that, “the Handicap Scheme is being fairly applied and records kept by the handicap committee”. A similar letter was received from Mr. Ferriter by the Captain of the Club with respect to the 2003 Audit carried out in 2004 by a different officer of the Leinster Branch of the second defendant, but one who was also a member of the Club.
The plaintiff’s handicap had been suspended. A letter of apology addressed to the plaintiff was left in a slot on the notice board in the men’s locker room explaining that someone in error had ticked an incorrect box in the computer system which had resulted in this suspension. The plaintiff contended that if this explanation and apology was genuine it would have been communicated to him in the most expeditious manner possible which was not done.
The plaintiff contended that the origin of the personal spite and ill will directed against him by the third defendant lay in the fact that for some time, culminating in the exchanges at the Annual General Meeting of the Club in December 2003, and on the 10th December, 2004, he had been challenging the officer board of the Club, including the third defendant, on a number of issues including, expenditure which he regarded as wasteful, withdrawal of age and long-membership concessions, the necessity for external auditors, the treatment of entrance fees in the accounts, the movement of funds between the current trading account, the capital account and the trust account, the condition of the playing facilities and, the levies paid to the second defendant.
Commencing with the letter dated 27th October, 2002, the plaintiff challenged the reductions by the handicap sub-committee of the Club in his playing handicap. He contended that he was selected for these reductions by the third defendant because of this opposition to the decisions of the officer board of the Club.
On the 8th November, 2004, in the Club car park, the plaintiff was explaining to a fellow member the difficulties he was experiencing with the handicap sub-committee. The third defendant passed by. The plaintiff admits that he said, “its all his f__________ fault” but claims that this was provoked by the victimisation he was experiencing from the third defendant and the handicap sub-committee. The third defendant lodged a complaint with the executive committee of the Club and the plaintiff’s membership was suspended for the months of February, March and April 2005. On only two other occasions since 1962, had the use of club facilities been temporarily withdrawn from a Club member: where a Club member had caused damage to Club property and, where a Club member had sung inappropriate songs in the Club lounge in mixed company.
The plaintiff contended that following the Annual General Meeting of the Club on 10th December, 2004, the third defendant had persuaded three fellow members of the Club to write letters, (16th December, 2004, 18th December 2004, and 1st January, 2005), to the Executive Committee of the Club through him in accordance with Club Rule 23, claiming that the conduct of the plaintiff at this meeting had been totally unacceptable and suggesting that he be severely punished. The plaintiff contended that the third defendant had done this with the intent of having him dismissed from the Club, although in fact he had only received a warning.
When the letters of complaint were received by the third defendant in breach of Club Rule 23 the third defendant did not seek to remove the cause of the complaint as required by the rule but, immediately, put those letters of complaint before the Executive Committee of the Club.
Neither the third defendant nor Mr. Eoin Buckley, both members of the handicap sub-committee of the Club in 2003, nor Mr. Paul Harmey, who was captain of the Club in 2003, could offer the court any explanation as to why the handicap sub-committee sent some of the plaintiff’s score cards to the General Manager of the Club, Mr. Paddy Maguire, “to decide on what action to take”. The third defendant accepted that he had spoken informally in 2003, to Mr. Fintan Buckley in his capacity as a council member of Leinster Branch of the second defendant, about the problems the handicap sub-committee were having with regard to the plaintiff’s playing handicap. In my judgment these matters together with the minutes of the meetings of the handicap sub-committee in 2002 and 2003 and the correspondence with the plaintiff from 27th October, 2002 to 9th July, 2003, demonstrate that the members of the handicap sub-committee, including the third defendant were genuinely endeavouring to confront and were becoming somewhat desperate in seeking to resolve the divisive issue of the plaintiff’s playing handicap. I do not accept that by involving the General Manager of the Club and Mr. Fintan Buckley in the matter the members of the handicap sub-committee showed themselves to be actuated by malice towards the plaintiff so that it may be inferred that they published the defamatory words to the employee or agent, employees or agents of Genesys for the purpose of injuring the plaintiff. In my judgment this evidence demonstrates that the third defendant and the other members of the handicap sub-committee were seeking a solution to an escalating and intractable problem.
I am satisfied on the evidence and, I so find, that the third defendant had no involvement whatsoever in the decision of the Leinster Branch of the second defendant to carry out an Audit of the Club in 2003 in respect of the 2002 playing season and, in 2004 in respect of the 2003 playing season. I accept the evidence of Mr. John J. Ferriter, corroborated by that of Mr. Seamus Smith, General Secretary of the second defendant in 2002 and 2003, Mr. Oliver Finn now General Secretary of the second defendant and Assistant General Secretary of the defendant in 2002 and 2003 and, Mr. Fintan Buckley, a council member of the Leinster Branch of the second defendant, that the decision to carry out these audits of the Club was taken solely by Mr. John Ferriter as Handicap Convenor of the second defendant for the Leinster Area. I am satisfied on the evidence that a golf Club cannot invite such an audit. In reaching a decision as to which clubs to audit in a particular year Mr. Ferriter told me in evidence that he employed four criteria:-
“(a) The level of success which a Club enjoyed in inter-club competitions in the previous year.
(b) The number of members of a club who had success in non-qualifying competitions in the previous year.
(c) The number of scratch players in a club playing away who had not returned score cards.
(d) The fact that a club had been recently set up.”
Mr. Ferriter told the court that Mr. Fintan Buckley was designated by him alone to carry out the audit of the first defendant and four other golf clubs in the Leinster area in 2003. Mr. John Joe Maher, a council member of the Leinster Branch of the second defendant, was designated by him alone to carry out the audit of the first defendant and a number of other clubs in the Leinster area in 2004. In the interests of consistency every audit is carried out by the audit officer working through set lists of questions in a questionnaire formulated by Mr. Ferriter in 1998 or earlier. A copy of such a questionnaire was produced in evidence by Mr. Ferriter. None of the questions raised in this questionnaire would give rise to a consideration of the plaintiff’s handicap issues with the handicap sub-committee of the Club. I am satisfied on the evidence of Mr. Ferriter and Mr. Smith that it is not all unusual for a member of a club who is also a council member of the Leinster Branch of the second defendant to carry out the audit of his own club. This is done in order to save time and travel expenses because the persons carrying out these audits receive no remuneration whatsoever. Mr. Ferriter told the court that if a problem in a club is disclosed by the return made to the questionnaire and the Club does not correct that problem within the time allowed by the second defendant, the Club is disaffiliated and all playing members in that club lose their handicaps.
I accept the evidence of Mr. Eoin Buckley, a member of the handicap sub-committee of the Club in 2002 and 2003, that the suspension of the plaintiff’s handicap occurred in error. Perhaps it would have been better had the explanation and apology been sent by post or, if the option presented, by email to the plaintiff. However, I am quite unable to find any evidence of malice or improper motive in the decision of the handicap sub-committee to leave the explanation and apology in a sealed envelope addressed to the plaintiff in a slot on the notice board in the men’s locker room in the reasonable expectation that the plaintiff would call into the Club in the very immediate future.
I am satisfied that the proper inference to be drawn from the minutes of the meeting of the handicap sub-committee dated 28th November, 2002 and 2nd April, 2003 is that the Genesys database had been established by the latter date, at the very latest and that therefore the defamatory words had been published to the employee or agent, employees or agents of Genesys prior to that to date. I find that the events which occurred in the Club car park on 8th November, 2004, and the events which followed the Annual General Meeting of the Club on 10th December, 2004, could not in any way have influenced the decision of the third defendant and the other members of the handicap sub-committee of the Club to publish the defamatory words to the employee or agent, employees or agents of Genesys.
In my judgment it was legitimately opened to the third defendant if, as he stated in evidence, he felt abused, insulted and threatened by the words and actions of the plaintiff on the 8th November, 2004, to make a complaint to the executive committee of the Club. This is essentially a subjective decision for the third defendant himself. I find on the evidence that the third defendant did nothing whatever on that occasion to provoke the plaintiff. His decision to complain cannot be judged by the objective standard of what a hypothetical reasonable man might reasonably have done in the situation. The third defendant accepted that he had subsequently spoken to Mr. Peter Casey, the other member of the Club present on the occasion, who had agreed to and did write a letter, (dated 17th November, 2004) to the executive committee of the Club setting out his recollection of the events. The executive committee of the Club by its decision in the matter communicated to the plaintiff by letter dated 1st February, 2005, considered that the complaint of the third defendant was both justified and serious and found that the plaintiff had been seriously abusive towards the third defendant on the occasion and that his conduct amount to serious misconduct without justification. In such circumstances it could not reasonable be contended that the decision of the third defendant to complain to the executive committee was evidence of spite and ill will towards the plaintiff and of an intention to cause him prejudice.
I am satisfied on the evidence and I find that the third defendant did not invite or induce any of the three members of the Club, Mr. Gerard A. O’Donnell, Mr. Seán Óg O’Ceallacaháin and Mr. David Cullen to write their respective letters of complaint dated 16th December, 2004, 18th December, 2004, and 11th January, 2005. Of these three gentlemen only Mr. O’Donnell gave evidence at the hearing of the action. Mr. O’Ceallacaháin was unable to attend court for reasons certified on affidavit, made on 13th January, 2012, by his attending general medical practitioner. The court indicated a willingness to have the evidence of Mr. O’Ceallacaháin taken on commission but the plaintiff indicated that he did not wish to pursue that course. Mr. David Cullen no longer resides in this jurisdiction.
Mr. O’Donnell told me, and I accept his evidence, that he was not asked to write his letter dated 16th December, 2004, by anyone. He told me that he had written this letter independently and entirely on his own initiative because of his concern regarding the manner in which he considered the plaintiff had “hogged the floor and turned the meeting into a shambles” and, because of the plaintiff’s “cutting and inappropriate remarks to the officers of the Club, in particular the outgoing and incoming captains”. He said that he had written the letter not to discredit the plaintiff but solely because he wished to prevent a recurrence of such behaviour at any future meetings of the Club. He did not, he said, write this letter out of any ill will towards the plaintiff. It was significant that during the examination by the plaintiff of this witness, the plaintiff chose to comment to him that he regarded his letter as the least damaging of the three adding, “it was like being attacked by a dead sheep as was said at Westminster”. Other than pointing to the fact that all three letters were addressed to the third defendant as Honorary Secretary of the Club, the plaintiff led no evidence in support of his contention that the third defendant had procured these letters to be written out of “dislike and jealousy” in order to injure him by having him expelled from the Club. Rule 23 of the Rules of the Club provides that, –
“All complaints shall be made in writing to the Honorary Secretary who, if unable to remove the cause shall submit same to the Committee”.
Given the nature of these complaints and the fact that they are really addressed to the executive committee of the Club and were calling upon that committee to take a particular action, I accept the evidence of the third defendant that there was no “cause” which he could have removed and he had no option but to place these three letters before the executive committee of the Club.
I am satisfied that the plaintiff has not discharged the burden which falls on him of proving that the third defendant and the other members of the handicap sub-committee of the Club were actuated by motives of spite and ill will towards him or, by some other improper motive. Accordingly, the occasion of publication in this case, untainted by malice, remains a privileged occasion. Throughout the hearing of this action the plaintiff constantly made reference to “malicious prosecution” on the part of the first defendant and third defendant. However, no legal proceedings of any kind, – civil or criminal, – were instituted, continued or carried on by the first defendant or by the third defendant against the plaintiff.
For completeness, though the issue was not raised by the plaintiff in his pleadings, I am satisfied on the evidence that the third defendant and the other members of the handicap committee of the Club did not publish the defamatory matter entered in the Genesys database recklessly without caring whether it was true or not. I am satisfied on the evidence, to which I have already adverted, that the third defendant and the other members of the handicap sub-committee applied themselves most conscientiously to the task and went to very considerable lengths to insure that correct adjustments were made in the plaintiff’s playing handicap in accordance with the provisions of Clause 19.1 of the then applicable Standard Scratch Score and Handicapping Scheme. There can be no doubt from the evidence that the plaintiff regarded this clause as unjust, unreasonable and irrational because it applied an entirely subjective test to the determination of whether a player’s existing handicap was too high and did not reflect his or her then current playing ability. Perhaps he was correct in this view and, indeed this clause was modified in the 2004 CONGU Unified Handicapping System and replaced entirely in the CONGU Unified Handicapping System 2008 – 2011, which provided for an annual review for all handicaps with power to the handicap committee of each Club to make adjustments between annual reviews, but only in case of exceptional circumstances as defined. However, in 2002 and in 2003, Clause 19.1, whatever its shortcomings, was binding on the plaintiff and on the handicap sub-committee of the Club who were obliged to apply it. Even if the third defendant and the other members of the handicap sub-committee of the Club acted hastily or impulsively or even foolishly in concluding that the plaintiff was “Handicap Building”, this does not show recklessness as to the truth or falsity of that conclusion. I am satisfied that the plaintiff has not discharged the burden, which lies on him, of showing that the third defendant and the other members of the handicap sub-committee of the Club were indifferent to the truth or falsity of these words which they published of and concerning him.
In compliance with the judgment and order of the Supreme Court of the 29th February, 2008, to list each and every document in which he claimed he was defamed and to identify those to whose attention each such document was brought by any of the defendants, the plaintiff identified these three letters to the third defendant to which I have already referred, viz, 16th December, 2004, Gerry O’Donnell, 18th December, 2004, Seán Óg O’Ceallacaháin and 11th January, 2005, David Cullen. At the hearing of the action, the plaintiff contended that these letters were libellous of him because they stated that he was mentally ill and were published to the third defendant and to the members of the executive committee of the Club.
In the letter dated the 18th December, 2004, from Mr. Seán Óg O’Ceallacaháin the plaintiff identified the words “on the grounds of ill health” as being defamatory of him. At the hearing of this action the plaintiff failed to identify any part of the letter dated the 11th January, 2005, from Mr. David Cullen to the third defendant or any part of the letter dated the 16th December, 2004, from Mr. Gerry O’Donnell to the third defendant as stating that he was ill nor was this put to Mr. O’Donnell when giving evidence. During the course of the evidence, reference was made to a statement by Mr. Cullen with regard to the events which he witnessed at the Annual General Meeting of the Club on the 10th December, 2004, furnished to a disciplinary committee established by the executive committee of the Club to investigate his complaint of the three members, which contained the suggestion that the plaintiff, “might not be a well man”. The plaintiff contended that this was libellous of him. The plaintiff contended that as his physical health was obviously not in any manner impaired on the 10th December, 2004, and as this must have been obvious to every member of the Club who attended the meeting, the proper inference to be drawn from this expression in the letter of Mr. Seán Óg O’Ceallacaháin and in the statement of Mr. David Cullen was that he was mentally ill.
I do not accept that any hypothetical reasonable, intelligent and fair minded man could reasonably construe that the words complained of, – “on the grounds of ill health” and, “might not be a well man” – as imputing in their natural and ordinary meaning that the plaintiff was mentally ill. The plaintiff did not rely on legal innuendo in this action. In addition, it is not open to the plaintiff to separate these words from their context. It is therefore essential that I set out the text of the letter from Mr. Seán Óg O’Ceallacaháin to the third defendant in full:-
“Re. Tom Talbot
May I add my voice to those with similar views in condemning the disgraceful behaviour of Tom Talbot at last Friday’s (Dec. 17th) AGM. I do so in case there is any softening of committee attitude towards member Talbot on grounds of ill health. I have not witnessed a worse display of ignorance and bad manners in my 51 years membership of the Club. His insulting behaviour towards outgoing captain Tony Hatton and incoming captain Andy Brennan during the course of the meeting was not alone inexcusable but totally unacceptable for a club of Hermitage’s stature.
There is no case here for leniency of any kind in dealing officially with Tom Talbot over his conduct last Friday night. His comments regarding the club auditors were disgraceful, but to apply them also to the Hon treasurer Fergus Malone was beneath contempt. Tom Talbot’s track record at Hermitage, either at an AGM of EGM levels in recent years, and again last Friday, cannot be allowed to go unpunished. I would point out that member Talbot is already under a cloud over two recent incidents involving the club Hon. Secretary and a prominent member of the Leinster Branch of the GUI, serious matters in themselves. How many more incidents has the Club to endure before positive action has to be taken.
Can I conclude by stating, if Tom Talbot is not seriously and severely dealt with under the present rules on Discipline and Behaviour or other relevant rules, he will only be encourages [sic] to mount similar attacks in the future, thus setting a dangerous precedent. I will be satisfied to accept any punishment imposed by your committee.”
When these words, “on the grounds of ill health” are considered in their context, the only natural and ordinary meaning to be placed upon them is that the Executive Committee of the Club should not deal leniently with the plaintiff even if he should make the case that he was suffering from some health problem on the 10th December, 2004. Conversely, Mr. Cullen seems to be considering that the plaintiff’s conduct at that Annual General Meeting on the 10th December, 2004, was so extraordinary that he may have been suffering from some health problem. I find that these words were not defamatory of the plaintiff. Even if they were, I am satisfied on the evidence, that each of these three members of the Club had a separate interest in making their complaint and the third defendant had a reciprocal interest in receiving that complaint so that occasion of publication was one of qualified privilege. I find that the plaintiff adduced no evidence of any malice on the part of any of these three members towards him other than to suggest that they wrote the letters at the instigation of the third defendant, with a view to having him expelled from the Club. I have already found that this did not occur. Further, I find that there was no unconnected or extraneous material in any of these complaints such was would negative the privilege. In addition, Mr. O’Donnell, Mr. O’Ceallacaháin and, Mr. Cullen were not joined as defendants in this action. I am satisfied on the evidence and I so find, that none of these three letters nor the statement of Mr. David Cullen was libellous of the plaintiff.
The plaintiff claims that the two letters/notices from the second defendant, one sent to the third defendant and the other sent to the then Captain of the Club following the audits of the Club carried out in 2003 and 2004, confirming the cooperation of and, assistance received from the third defendant and the Club on the occasion of the visits of the audit officers and expressing approval of the records maintained by the Club and their operation of the Handicapping Scheme were defamatory of him. The text of each of these two letters is as follows:-
“26th August, 2003,
Dear Mr. Murphy,
The handicap records of your Club, were examined on the 4th February, 2003, in accordance with THE STANDARD SCRATCH SCORE AND HANDICAP SCHEME 1983 – Amended Edition 2001.
In our opinion the records give a true and fair view of the Club’s application of the above HANDICAPPING SCHEME at 4th February, 2003.
Having obtained all the information and explanations requested for the purposes of our examination we are of the opinion that the “HANDICAPPING SCHEME” is being fairly applied and records of the “HANDICAPPING SCHEME” as required, have been kept by the Handicapping Committee.
May I take this opportunity to thank you sincerely for your cooperation and assistance on the occasion of the review.
Yours sincerely,
John Ferriter
Handicap Convenor Leinster Branch”
That letter carried a heading, – “HANDICAP RECORDS REVIEW – TO THE MEMBERS OF HERMITAGE GOLF CLUB”. The second letter dated the 10th June, 2004, is headed Re: HANDICAP REVIEW 2004 and is addressed to the Captain of Hermitage Men’s Golf Club. Apart from the difference in dates and the reference to, “The CONGU Unified Handicapping System Effective 1st February, 2004”, the text of both letters/notices are identical.
As already indicated the plaintiff claims that these Audits and therefore these letters/notices were solicited by the third defendant and were knowingly furnished by the second defendant in order to “whitewash” the victimisation of the plaintiff by the third defendant out of dislike and jealousy, by availing of Clause 19.1 of the Scheme to repeatedly reduced his playing handicap. I have already found that this did not occur. These letters do not in any way refer to the plaintiff. Legal innuendo is not pleaded by the plaintiff in this case. Even if it were, in my judgment it would be impossible to impute any meaning defamatory of the plaintiff to any of the words used in either of these letters. Significantly, Mr. Ferriter who, as an agent of the second defendant, published these two letters is not joined as a defendant in these proceedings. During the course of the hearing of this action, the plaintiff contended that the second defendant facilitated the libel of him by the first defendant and the third defendant by creating Clause 19.1 of the Standard Scratch Score and Handicapping Scheme effective from the 1st January, 2001, which he claimed was “unjust, stupid and provocative” and by permitting it to remain operative and unchanged until a new System was adopted on the 1st February, 2004. This argument is based upon an entirely false premise. This Scheme was created by The Council of National Golf Unions and, was only administered in Ireland by the second defendant. In addition, Clause 19.1 only relates to the adjustment of exact handicaps. It does not and could not in any way “facilitate” the publication of the defamatory words nor even their composition.
In addition, I find that these letters/notices were published by Mr. John Ferriter on what was clearly an occasion of qualified privilege and, I find that the plaintiff has failed to prove that either Mr. Ferriter or the second defendant was motivated by malice in publishing either of these letters/notices.
On the 14th May, 2007, Mr. John Corcoran, the then Honorary Secretary of the Club, sent a circular letter in the following terms to all members of the Club:-
“Dear Member,
Members should be aware of a High Court action being taken by a member of the Club, Mr. Tom Talbot alleging defamation and other “torts” against Hermitage Golf Club, the Golfing Union of Ireland and Eddie Murphy. The Club is defending the action and lodged a defence on its own behalf and on behalf of Eddie Murphy on the 30th March last. In addition, the Club has appealed, to the Supreme Court a decision of a High Court judge not to oblige the plaintiff to reply to a request for particulars in relation to the claim. Members will be kept informed of developments.”
In his “Secretary’s Report” to the Club members, dated the 26th November, 2007, Mr. John Corcoran included the following paragraph:-
“In my letter of 14th May, 2007, I drew the attention of members to the High Court action being taken by Mr. Tom Talbot alleging defamation and other Torts against Hermitage Golf Cub, the Golfing Union of Ireland and Eddie Murphy. As indicated the Club lodged its defence to the action on the 30th March. The case continues and I will keep members informed of developments.”
The plaintiff claims that the publication of these two documents, not marked “private” or “confidential” had the effect of, “affording disseminating gossip with third parties by the members circularised”. The plaintiff claims that the reference to “Defamation and other Torts” would inevitably give rise to enquiries about the defamation alleged and the type of torts claimed. He produced in evidence a letter from his brother, which included the following paragraph:-
“Recently I spoke to a friend of mine in Cavan who is involved in the Golfing Union of Ireland and he asked me had I a relative named Tom who played golf in Hermitage. When I said I did he told me that you were taking legal action against Hermitage and the G.U.I. over your handicap. Is this true?
I mentioned all the above to (other named family members) and they were very surprised and concerned, as am I. . . .”
Mr. John Corcoran is not a defendant in this action. There is no repetition or republication of the alleged libels or any part of them in either of these documents, nor, did Mr. Corcoran make any comment whatsoever with respect to them. These documents published by Mr. Corcoran impute nothing more to the plaintiff than that he has taken a High Court action against the first defendant, the second defendant and, the third defendant for Defamation and other Torts. In my judgment, it is not defamatory of the plaintiff to publish that he has taken such action and, that it is being defended, where there is no reference whatsoever, either directly or indirectly to the basis of the claim. I am also satisfied that the publication of these documents does not amount to a republication of the original defamatory words by reference. In my judgment Mr. Corcoran, as Honorary Secretary of the Club had an interest in communicating this information, and perhaps even a duty to communicate it, to the members of the Club. They as members of this incorporated association which might have to indemnify the third defendant in respect of any award of damages made to the plaintiff against him or, might themselves have to meet that claim should the assets of the Club prove insufficient for the purpose, had a reciprocal interest to receive that information. No evidence whatsoever to establish malice on the part of Mr. Corcoran was offered by the plaintiff during the course of this action. The fact that these documents probably led to a certain amount of speculation by members of the Club as to the nature of the plaintiff’s claim does not amount to the publication of a libel which is the essence of the actionable wrong.
Even if I had come to the conclusion that the protection of qualified privilege which I found attached to the publication of the defamatory words in this case had been negatived by proof of malice, the plaintiff could still not succeed in this action against the first defendant. It has long been decided that an action will not lie against an unincorporated association in its collective name for libel because it has no capacity to publish a libel or to authorise it to be published, (see: Mercantile Marine Service Association v. Toms [1916] 2 K.B. 243). Of the handicap sub-committee of the Club the plaintiff has opted to name only the third defendant as a defendant in this action.
The plaintiff’s claim based on libel against all three defendants fails and is dismissed.
The plaintiff claims that there was a conspiracy between unidentified officers of the Club and members of the handicap sub-committee of the Club spearheaded by the third defendant and unidentified members of the second defendant, but including Mr. John Ferriter, Mr. Fintan Buckley and Mr. John Joe Maher to cause him injury or damage. The plaintiff never established the nature of the alleged conspiracy either in pleadings or in the course of his evidence during the hearing of this action. On some occasions he appeared to contend that the conspiracy was to have him expelled from the Club by the executive committee as a result of frequent complaints being made against him. At other times the alleged conspiracy appeared to be to so harass and victimise him by repeatedly reducing his playing handicap as to coerce him into resigning from the Club. On yet other occasions the alleged conspiracy appeared to be to, “give him, an evil reputation as regards handicaps”, so that no other Club member would play golf with him and he would choose to leave the Club.
In compliance with the judgment and order of the Supreme Court directing him to state precisely the overt acts which he alleges had been done by the alleged conspirators in pursuance to the alleged conspiracy, the plaintiff pleaded as follows:-
“I hereby present in written form the identifiable indications of conspiracy.
(i) Aforementioned G.U.I. notices confirming audit meeting cooperation and assistance on the occasion of reviews authorised by G.U.I. handicap convenor.
(ii) The aforesaid three letters [from Messrs O’Donnell, O’Ceallacaháin, and Cullen], that came about design to collude in injuring me.
(iii) The collusion in both John Ferriter, G.U.I. 5th June, 2005, and Ian O’Herlihy, member of and Solicitor to Hermitage and Murphy 3rd June, 2004, coming to exactly the same conclusion and explanation.”
I have already set out in full the text of the two letters/notices from Mr. Ferriter on behalf of the second defendant and I have also set out in its entirety the letter dated the 18th December, 2004, from Mr. Seán Óg O’Ceallacaháin to the third defendant. The full text of the letter from Mr. Gerry O’Donnell to the third defendant dated the 16th December, 2004, is as follows:-
“Re: Hermitage Golf Club
ANNUAL GENERAL MEETING
10th December, 2004.
Dear Mr. Murphy,
I am writing to protest in the strongest possible manner about the behaviour of our member, Mr. Tom Talbot at last week’s A.G.M. of the Club. The non stop barrage of abuse, discourtesy, incoherence etc, was totally unacceptable and most insulting, not alone to the Officers and to the various committee members but also the general body of members. The outgoing and incoming Captains showed enormous patience and forbearance in their efforts to facilitate free-speech but Mr. Talbot crossed the line to such an extent, on this occasion that I feel the time has come when serious consideration will have be given to preventing any recurrence in future. Several members mentioned to me that they had points to raise, as would be normal at any A.G.M. but were so disgusted at Mr. Talbot’s performance that they refrained from saying anything at all. This is not good for our Club and I earnestly request that the new officer board and/or Executive Committee will give this letter appropriate attention in due course.”
The full text of the letter dated the 11th January, 2005, from Mr. David Cullen to the third defendant is as follows:-
“Dear Eddie,
I have just received my annual subscription request from the Club and as usual, all is in order.
As a result of Tom Talbot’s contributions at our Annual General Meeting I was moved to check the amount of the GUI levy. At €15 or a little over 1% of my total bill, it is insignificant and indeed represents, contrary to Tom Talbot’s tirade, excellent value, given the amount of work that the GUI undertakes to administer the game at all levels.
In addition, Tom Talbot’s request to re-write minutes, failure to heed the Chairman’s requests for quite, general truculence and indeed his criticism of member accountants and lawyers were all unbecoming. I feel compelled to let you know my views, and would wholeheartedly support the Committee in any actions it deems necessary to take, to curb this behaviour and ensure the proper conduct at future meetings.
While, this is not the only recent instance of former Officers acting in an aggressive manner at meetings (I refer in particular to the Information Meeting held on 23rd November), to have the AGM “hijacked” by someone who sadly has some form of agenda, ruined the event for others.”
The letter dated the 17th June, 2004, from Arthur O’Hagan, Solicitors for the first defendant, under the signature of Mr. Ian O’Herlihy, partner in that firm, to Neil M. Blayney and Company, then Solicitors for the plaintiff and, the letter dated the 5th June, 2005, from Mr. John Ferriter on behalf of the second defendant, (Leinster Branch) to the plaintiff, undoubtedly make a number of similar points. Both letters state that handicap adjustments are a matter for the home club handicap committee. Both letters note that the handicap adjustments of which the plaintiff complains were affected by the handicap committee of the Club pursuant to the provisions of Clause 19.1 of what the Arthur O’Hagan letter incorrectly describes as the, “Handicapping Scheme of the Golfing Union of Ireland” and Mr. Ferriter equally incorrectly describes as “the CONGU Unified Handicapping System”. The correct title is, “the Standard Scratch Score and Handicapping Scheme of the Council of National Golf Unions, administered in Ireland by the Golfing Union of Ireland”. Both letters set out the provisions of Clause 19.1. The Arthur O’Hagan letter sets out correctly and in full the text of Clause 19.1 of the relevant Scheme effective from the 1st January, 2001, while Mr. Ferriter cites the relevant part of Clause 19.1 of the CONGU Unified Handicapping System effective from the 1st February, 2004, which, while it is in all material respects the same as the previous Clause 19.1 yet post-dated the events at issue in this case. Mr. Ferriter in his letter refers to the provisions of Clause 19.9, (of the 1st February, 2004, System) which is in the same terms as Clause 19.9 of the 1st February, 2001, Scheme, while the Arthur O’Hagan letter does not. Clause 19.9 provides that:-
“Decisions made by a Handicap Committee, Union or Area Authority under this clause shall be final.”
There are further paragraphs in both letters which have nothing in common with each other.
I have already found that the Audits of the Club in 2003 and 2004, were decided upon, initiated and completed by the second defendant acting through Mr. John Ferriter, Mr. Fintan Buckely and Mr. John Joe Maher without any involvement whatsoever of the third defendant or any other member of the first defendant, that is, apart from agreeing a date and time and cooperating fully with the audit officers in carrying out of the audits. Mr. Ferriter gave evidence, which I accept, that he was entirely unaware of the plaintiff’s handicap disputes with the handicap sub-committee of the Club until the plaintiff himself telephoned him in connection with those disputes during 2004. He told the court in the course of his evidence that he knew nothing about a specific member of Hermitage Golf Club called Tom Talbot when he wrote the letters/notices dated the 26th August, 2003, and 10th June 2004, certifying the results of the audits as fully satisfactory and thanking the Club for its cooperation and assistance during the reviews. I am satisfied on the evidence that there was no conspiracy of any sort to injure the plaintiff between the third defendant and any other member of the first defendant and the second defendant or any council member, officer of agent of the second defendant including Mr. Ferriter, Mr. Fintan Buckley and Mr. John Joe Maher.
I have further found that Mr. O’Donnell, Mr. O’Ceallacaháin and Mr. Cullen wrote their letters, dated respectively the 16th December, 2004, 18th December, 2004, and 11th January, 2005, spontaneously and entirely of their own volition. I am satisfied that the author of each of these letters was solely motivated by his own sense of outrage at what he perceived to be the unacceptable and disruptive behaviour of the plaintiff at the Annual General Meeting of the Club on the 10th December, 2004 and his concern that this should not be permitted to become a feature of future meetings of the Club. From the opening sentence of Mr. O’Ceallacaháin’s letter it would appear that he was aware that other members of the Club were making or intending to make similar complaints. The evidence established that Mr. O’Ceallacaháin during the course of the Annual General Meeting on the 10th December, 2004, voiced strong exception to the plaintiff’s conduct and that many other members expressed similar disapproval by expressions of censure and other forms of interjection. I am satisfied that it is reasonable to infer from this that other members of the Club during or after the meeting had indicated an intention of making written complaints to the Executive Committee of the Club to or in the hearing of Mr. O’Ceallacaháin.
I have no reason to doubt the evidence of Mr. John Ferriter that he knew nothing of what the plaintiff had said at the Annual General Meeting of the Club on the 10th December, 2004. He gave evidence that he did not know that the plaintiff had been complaining at Club meetings that the second defendant was “ripping off club members” to pay for over expenditure on the Cartan project despite the sale of the premises on Eglinton Road for €4 million. Mr. Fintan Buckley, who carried out the 2003 audit, told the court that he had attended the Annual General Meeting of the Club on the 10th December, 2004, as an ordinary member of the Club. At that date both audits had been completed and the results notified to the Club by Mr. Ferriter. Mr. Fintan Buckley told me in evidence that he had heard about the three letters of complaint concerning the plaintiff following the Annual General Meeting of the Club on the 10th December, 2004. He stated that he did not know what was in these letters but the fact that they had been sent was the talk of Club. I am quite satisfied and I find that there was no conspiracy between the third defendant and/or any other member of the Club and/or any member, officer or agent of the second defendant to send these three letters of complaint to the executive committee of the Club. In the events which occurred, the only action taken by the disciplinary committee established by the executive committee of the Club to investigate these complaints was to issue a warning to the plaintiff.
I have already found that the complaint made by the third defendant to the executive committee of the Club following upon the incident in the car park of the Club on the 8th December, 2004, was not actuated by malice. Despite the particulars given as ordered by the Supreme Court of the overt acts done by each of the alleged conspirators in pursuance of the alleged conspiracy, during the course of the action the plaintiff contended that this complaint was also part of a conspiracy to injure or damage him by having him expelled from the Club. The evidence established that at the meeting of the disciplinary committee on the 12th January, 2005, the plaintiff sought to justify this incident by alleging that his handicap had been mishandled and he had been subjected to a campaign of harassment and victimisation. I am satisfied that the sole and predominant purpose of the third defendant in making this complaint was not to injure the plaintiff. As honorary secretary of the Club and as a fellow member of the Club, he was fully entitled to complain about this breach of the Club rules and about the serious abuse of himself by the plaintiff even if this resulted, as it did, in some detriment to the plaintiff. No nexus has been shown between this event and the second defendant. I find that the plaintiff has not adduced any evidence to support a finding of conspiracy between the third defendant and any other person or persons whatsoever in relation to the making of this complaint. I am satisfied that this was the sole decision and act of the third defendant.
In my judgment, there is nothing in the fact of, or in the text of the letters dated the 17th June, 2004, from Arthur O’Hagan, Solicitors for the first defendant to the plaintiff’s then solicitors and the letter dated the 5th June, 2005, from Mr. John Ferriter to the plaintiff indicative of any collusion or conspiracy between Mr. Ferriter and Mr. O’Herlihy or between their respective principals, the first defendant and the second defendant. In each case the letter was a reply to a communication received from the plaintiff and from his then Solicitors. As I have demonstrated, the texts of the letters are only superficially similar. It is scarcely surprising that the authors of these letters made similar points and came to exactly the same conclusions and explanations. The issue in both cases was the plaintiff’s expressed very great dissatisfaction with the many adjustments downwards of his playing handicap. In each case the only possible reasonable and rational reply was that this had been effected by the handicap sub-committee of the Club pursuant to Clause 19.1 of the Scheme and, that under the Scheme the determination of the handicap sub-committee of the Club was final. It would have been highly irresponsible in Mr. Ferriter to have made any response other than that which he did make and, it would have been almost incredible if Mr. Ian O’Herlihy of Arthur O’Hagan Solicitors had replied in terms different from those in which he did reply.
I am therefore satisfied that the plaintiff has failed to prove conspiracy on the part of the defendants or any of them, their members, officers or agents and I dismiss this claim also.
Browne v Minister for Justice, Equality and Law Reform
[2012] IEHC 526
JUDGMENT of Mr. Justice Cross delivered on the 4th day of December, 2012
1. Introduction
1.1 The plaintiff in this case was born on 1st June, 1957 and was attested as a member of An Garda Síochána on 25th February, 1978 and remained a member in good standing until his retirement in December 2011.
1.2 The plaintiff is claiming damages for a personal injuries loss and damage as a result of the alleged negligence breach of contract, conspiracy and breach of duty on the part of the defendants in allegedly permitting the plaintiff to be subjected to a campaign of bullying and harassment by his superiors and failing to take any proper steps to investigate his complaints.
1.3 The plaintiff is also claiming other ancillary reliefs.
1.4 Counsel on behalf of the plaintiff summarised the plaintiff’s complaints under twelve different headings. These complaints will be dealt with in turn subsequently.
2. Bullying and Harassment
2.1 As this Court has emphasised in Kelly v. Bon Secours Health System Limited [2012] IEHC 21 and Nyhan v. Commissioner of An Garda Síochána & Anor [2012] IEHC 329, there is no separate or distinct tort of bullying and harassment. The defendant owes a duty of care not to expose a worker to injury. In this regard, the plaintiff though a Garda Síochána is in no different position than any employee. One of the sub-aspects of this duty is the issue of bullying and harassment in the workplace.
2.2 The plaintiff’s case is that the bullying and harassment came not merely from fellow employees but were in fact orchestrated or directed from senior members of An Garda Síochána or what is sometimes known as corporate bullying.
2.3 In cases where the bullying emanates from fellow workers, issues such as foreseeability and the knowledge of employers are always relevant.
2.4 Clearly if the bullying is found to have emanated from management then no issue of vicarious liability would apply.
2.5 In Quigley v. Complex Tooling and Moulding Limited [2009] I.R. 349 at para. 13, Fennelly J. adopted the definition of “workplace bullying” at para. 5 of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 as being an accurate statement of the employers obligations as follows:-
“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
Fennelly J. went on to state:-
“Counsel for the defendant submitted, and I would accept, that bullying must be:-
• repeated;
• inappropriate;
• undermining of the dignity of the employee at work.”
2.6 The court accepted that definition in Kelly and Nyhan (above) and does so now.
2.7 If this plaintiff proves a campaign by management against him then unlike most plaintiffs in bullying case, he does not have to establish that the activities above complained of were known by the first named defendant or the second named defendant as he is alleging that senior management was deliberately orchestrating and organising the bullying.
2.8 As I stated in Kelly and Nyhan, in my view, the best summary of the questions to be addressed in a case such as this was set out by Clarke J. in Maher v. Jabil Services Limited [2005] 16 ELR 233 as follows:-
“(a) had the plaintiff suffered an injury to their health as opposed to ordinary occupational stress;
(b) if so, was that injury attributable to the workplace and;
(c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances.”
2.9 As stated by this Court in Nyhan, these three questions are, of course, subject to the pre-existing requirement that the plaintiff establish an actionable wrong in the form of negligence, breach of duty, breach of contract or conspiracy. Whether or not any injury results from an actionable wrong is, of course, measured by the standard of reasonableness.
2.10 As this Court has also pointed the individual who believes that he or she has been subject to bullying and harassment frequently interprets every or most actions of their employers in an unfavourable light as if they are part of a campaign. Frequently, innocuous acts perpetrated without malice may come to be regarded as part of a harassment campaign.
2.11 Similarly, however, it must also be pointed out that for somebody who is sensitive and who believes themselves to have been bullied, actions that an ordinary robust employee would be regarded as a matter of nothing may further undermine confidence and may in fact be bullying by either fellow employees or management. This is, of course, especially the case if those fellow employees or management are aware of the stress that the employee or worker is labouring under.
2.12 In this matter I was assisted greatly by counsel on behalf of the plaintiff and on behalf of the defendants, I was furnished with written submissions from both sides and had the opportunity of observing the witnesses giving their evidence. It ought to be said that even where the court does not accept the testimony of one or other witness, the court does not believe that the witnesses were doing anything other than attempting to give the truthful evidence from their memory as best the could.
3 The Twelve Allegations
(A) The Canal Murders
3.1 The plaintiff was seconded at the express request of Detective Inspector O’S to assist in a murder investigation in Naas known as “the Canal Murders”. The plaintiff was chosen as the victims (and it seems the suspects) came from in or around Kilmainham and the plaintiff was known to the family of at least one of the victims.
3.2 Whilst on duty in Naas the plaintiff made claims for payment of subsistence allowance in accordance with An Garda Síochána finance code. Claims for the months of January and February 2000 were disallowed by Superintendent M. The plaintiff believes that these claims were legitimate and the court accepts that that is the case. The plaintiff claims that his superior, Superintendent M. was unhappy that the plaintiff had been posted to Naas away from his station and that he could ill afford to lose the services of an experienced detective. The court accepts that Superintendent M. was not happy to lose one of his detectives and made a number of inquiries on the plaintiff as to when he would be returning to Kilmainham.
3.3 The court accepts the evidence of the plaintiff that his initial claim was denied in its entirety and that he was required to submit a reduced claim for only those hours which he was actually at meetings or conducting inquiries in Naas which was eventually paid.
3.4 The plaintiff perceived the initial refusal to be unfair and submitted a letter of complaint through his solicitor.
3.5 It is the plaintiff’s belief that it was this complaint through his solicitor that annoyed his superiors against him and that in any event that the latter claim for subsistence was never paid. It is not clear whether the plaintiff dealt with the queries from Superintendent M. as to these claims or not. The court accepts that the plaintiff would have been entitled to the full claim and that he has not been paid in their entirety but that is not the same as to suggest that the refusal of the defendants through Superintendent M. to pay the assistance amounted to bullying and harassment of the plaintiff.
3.6 There was a dispute as to the quantum of the claim and the court readily accepts that Superintendent M. may well have been annoyed about the manner in which the plaintiff was pursuing this claim and also readily accepts that this dispute and the legalistic manner which he adopted in dealing with his claim may have formed the basis of a soaring of further relations between the plaintiff and some of his superiors but the court does not accept that this incident of itself amounted to bullying and harassment. Superintendent M. was entitled to strictly scrutinised expenses claims. The fact that legitimate claims were not paid does not amount necessarily to bullying.
3.7 Though various declaratory reliefs are also claimed in relation to this sum, in view of subsequent findings, the court will not make an order in respect of this claim.
(B) The theft of an unmarked garda vehicle from Kilmainham Station
3.8 The plaintiff was required in September to travel to Naas to collect an official unmarked vehicle to which he had been assigned while working in Naas in order to return the vehicle to Dublin. He also had duties to perform in Naas and did not return the vehicle that evening to Garda Headquarters, Phoenix Park. The plaintiff said that the reasons he did not return it to headquarters in Phoenix Park is that there would not have been a garda there to sign in the vehicle at night time and that he attempted to park the vehicle in Kilmainham Garda Station but the car park was full and he parked it on the street outside the station.
3.9 On the night of 19th September, 2000, the car was stolen from outside the station.
3.10 Forensic evidence established that the vehicles lock had been forced and fingerprints had been found indicating that the vehicle had been forcibly started.
3.11 An individual subsequently pleaded guilty to stealing the vehicle from outside the garda station although in earlier statements that individual had contended that he had taken the vehicle from elsewhere and that it was unlocked.
3.12 The court rejects any suggestion that the vehicle was either unlocked or left in an alterative location and indeed given the conviction of the individual for stealing the vehicle from outside Kilmainham Station, the court cannot understand how it was suggested to the plaintiff in cross examination that he may have left the vehicle unlocked and elsewhere.
3.13 Following the criminal conviction of the thief, Chief Superintendent D. revoked the plaintiff’s permission to drive the vehicle citing ultimately para. 22.2(1)(a) of the code (having previously cited a different section). This revocation was not ultimately set aside for approximately eight and a half years.
3.14 It is contended by the plaintiff that the removal of permission by the Chief Superintendent was invalid as para. 22.2(1)(a) refers to competency to drive and by letter from Superintendent M. stamped 8th February, 2001, it is clear that the withdrawal of authorisation was “as a result of (the plaintiff’s) negligence and carelessness in ensuring the safe custody of an official vehicle entrusted to him resulting in the vehicle being the subject of unauthorised taking”. Subsequently, a memo of 9th February, 2001, Chief Superintendent D. stated there was a “degree of negligence” displayed by the plaintiff in parking the vehicle outside Kilmainham Garda Station without “securing” it.
3.15 The authority of the plaintiff’s superiors to withdraw his permission to drive a garda motor vehicle is not in issue in these proceedings in the sense of a judicial review decision that is being impugned.
3.16 The court accepts that the plaintiff could have and should have left the vehicle in Phoenix Park despite the fact that the office was closed as there was a member on duty to whom the keys could have been left. The court accepts that while the vehicle was locked and was stolen when locked, that leaving a car on the street which ought to have been in at least placed in the car park of Kilmainham Garda Station amounts to it being “unsecured” at least to a degree.
3.17 For the purposes of this judgment, the court will accept the provisions of para. 22.2(1)(a) which referred to certificates of competency to drive do probably allow the plaintiff’s superiors to withdraw the permission to drive because of perceived negligence in the manner that it was left by the plaintiff on the street.
3.18 Accordingly, somewhat reluctantly, the court is of the view that the removal of the plaintiff’s permission to drive, the vehicle does not of itself amount to bullying or harassment or indeed is any legal wrong. The strength of the submissions on behalf of the plaintiff that the decision by Chief Superintendent D. to revoke permission to drive were based upon misapprehension that in fact the vehicle had been unlocked on the street in Kilmainham, is noted but the court feels that “unsecured” can conceivably cover a situation where the vehicle was left on the street though locked.
3.19 This, however, is not the end to the allegations of bullying and harassment in relation to the revocation of the authority to drive for a period in excess of eight and half years.
3.20 Superintendent M. and Chief Superintendent D. denied that the revocation of the permission to drive was a punishment. The court is of the view that the initial revocation was indeed a punishment but does not come to the conclusion that this punishment has been established as being bullying and harassment. What the court does find is that the explanations by the defence witnesses as to the reason that the revocation was continued (with clear implications as to the career and effectiveness of the plaintiff as a detective) is unreasonable excessive and without justification and amounted to an irregular attempt by the defendants to control the plaintiff.
3.21 The contention by the defendant’s witnesses that the plaintiff would have been given back his vehicle, after approximately twelve months, had he only applied for it, was made for the first time in evidence in this court and in the view of the court merely adds to the plaintiff’s grievances in this regard.
3.22 As was pointed out by submissions on behalf of the plaintiff, the plaintiff was never informed that the defendants would have returned the entitlement to drive a garda vehicle to the plaintiff after twelve months had he merely asked them to do so. He was given no documents advising him that he could make an application or that he would have looked upon favourably. It was not pleaded in the defence that the plaintiff could have adopted this course and Mr. T.L. of the Garda Representative Association specifically wrote by correspondence October 2005 requesting that the decision be reversed indicating that it marginalised the plaintiff’s position and sidelined him and this request received no response.
3.23 Furthermore, the ultimate decision to return the plaintiff permission to drive was made in 2009 without any further formal request to the defendants.
3.24 The court holds that the continuing deprivation of the plaintiff’s use of the car by the defendants after the period of one year up to 2009 was an attempt by the defendants to control and punish the plaintiff who was regarded as a source of trouble who had involved his solicitor in the expense issue discussed above, and that it was entirely unfair and an example of bullying and harassment by the defendants at a high level of management.
(C) The Rowntree Site
3.25 The plaintiff lived adjacent to the former factories of Nestle/Rowntree in Kilmainham. There was local opposition to this development and the plaintiff attended a protest meeting.
3.26 The plaintiff claims he was approached while at or after that meeting by a superior suggesting that they were undesirable characters of a subversive nature taking control of the meeting and of the protest campaign. A leaflet was being handed out at that meeting advertising a further meeting in March about the issue.
3.27 One day before the proposed a further meeting a copy of the leaflet advising of the protest was passed under the door of Inspector M. at Kilmainham station. This leaflet had a photocopy of the plaintiff’s signature, rank, number and station appended to its end.
3.28 It has been subsequently accepted by the defendants that this signature is identical to and in fact was “lifted” from a letter the plaintiff wrote on 20th September, 2000, by way of explanation in relation to the taking of the garda vehicle to the sergeant in charge in Kilmainham.
3.29 This letter of September 2000 would have had a very limited circulation among fairly senior gardaí but clearly the plaintiff’s signature was taken from that letter and photocopied at the foot of the notice in relation to the protest meeting.
3.30 In the letter of 20th September, the plaintiff’s signature was appended and underneath the signature, his name and number and station are typed. However, the typist of that letter forgot to put an “e” at the end of Browne. This same transcription occurs at the foot of the notice that was put under Inspector M’s door and as stated, it is accepted by the defendants that this signature and identification was then affixed to the notice of the protest meeting suggesting that the plaintiff was supporting and involved with this protest in his official capacity as a garda.
3.31 It is clearly inappropriate for a member of An Garda Síochána to be involved in any protest in being orchestrated by any political party or indeed by any extremists or subversives.
3.32 The court is of the view that there was clearly an attempt by some relatively senior members of An Garda Síochána who had a copy of the letter of 20th September to implicate the plaintiff with a political protest being organised or orchestrated by extremists or subversives.
3.33 The court is also of the view that this is defamatory of the plaintiff.
3.34 The matter was published to Inspector M. The inspector made inquiries about the matter and advised Detective Garda T. who was a friend of the plaintiff and he chose not to advise the inspector that it was indeed the plaintiff’s signature.
3.35 The court is of the view that the publication by Inspector M. to Garda T. would have been covered by qualified privilege.
3.36 The court holds, however, that the publication of the leaflet to Inspector M. was a Libel on the plaintiff and that it was also part of a bullying and harassment campaign against the plaintiff seeking to undermine him in his position as a Detective Garda.
(D) The Failure to Attend the Trial in April
3.37 The plaintiff was advised by Superintendent M. that he was going to hold a sworn inquiry into the plaintiff’s non-attendance at a court case on 11th April, 2001. The plaintiff advised Superintendent M. that he had not received any notification of that court case.
3.38 Superintendent M. had been informed by the plaintiff’s Sergeant, Sergeant C., that a notification had been sent.
3.39 The plaintiff’s explanation was supported by Detective Sergeant K.W. who advised management that no notification was received by him for transmission to Detective Garda B. and no entry relevant to the same was entered in the correspondence register.
3.40 This view of Sergeant W. was disputed by Sergeant C. and a letter was written on behalf of Superintendent M. dated stamped 11th April, 2001, indicating that the issue could only be dealt with “by way of disciplinary proceedings”.
3.41 The explanation given by the plaintiff and supported by Sergeant W. was indeed reasonable and was ultimately accepted by management, but the court is not of the view that the threat that disciplinary proceedings would be undertaken was unreasonable or, indeed, was a matter of bullying or harassment.
3.42 Ultimately, and very sensibly, no disciplinary proceedings ensued. The non-attendance of a garda at a hearing which resulted in the proceedings being struck out is, of course, a serious matter and, if wilful, would have warranted disciplinary proceedings. In the circumstances, the court does not hold that the matter amounts to an example of bullying and harassment of the plaintiff.
(E) The Criminal Investigation into Alleged Fraudulent Claims for Alleged Overtime
3.43 At a meeting with Superintendent M. concerning the alleged failure to attend the April trial, Superintendent M. apparently produced the plaintiff’s overtime and expenses claim form and alleged that the plaintiff had altered this document in a fraudulent manner.
3.44 It transpired that the plaintiff was required at Cloverhill Court on the day in question and attended at short notice. He had previously submitted his application for overtime and expenses and he subsequently added the claim in respect of Cloverhill.
3.45 Superintendent M., however, believed that there was fraud involved in a claim for £7.95 and made a complaint which led to a criminal investigation by Inspector Q.
3.46 The court was not satisfied with Superintendent M’s explanation as to why a criminal investigation for fraud was initiated over a claim for £7.98 and, in particular finds that Superintendent M’s explanation that his difficulty centred upon the fact that the certificate of a court attendance was not signed by the appropriate officer was not correct.
3.47 The court is not of the view that there was any basis for a criminal investigation in relation to the overtime and believes that, as a matter of probability, this investigation or threat of same was prompted by animus against the plaintiff by his superiors and part of the campaign to control him. The court holds that this also was an example of bullying and harassment.
(F) The Altercation at the Locker
3.48 In July, 2001 the plaintiff was asked by retired Detective Sergeant W., an old friend of the plaintiff, to assist his son B. to remove personal items from his locker.
3.49 The Station Sergeant, Sergeant C. who was in the detective office at the time, was concerned that the plaintiff and Sergeant W’s son were acting in contravention of the Garda Regulations by removing official property and files from the station.
3.50 There was a clear altercation in the station which also clearly became heated. Sergeant C. insisted that the plaintiff was aggressive to him and the plaintiff said that he was trying to “hold the ring” between Sergeant C. and the young Mr. W., Mr. W. did not give evidence.
3.51 In any event after the altercations, the plaintiff was the subject of a complaint from Sergeant C. which led to an investigation under the An Garda Síochána Disciplinary Code and a sworn inquiry into alleged insubordination on four counts. This inquiry which was held on 12th March, 2002, convicted the plaintiff on one count and acquitted him on the others.
3.52 The plaintiff appealed this conviction and on 10th March, 2003, the conviction was overturned.
3.53 The plaintiff complained that he was subject to false allegations and perjury by Sergeant C. and he, in turn, made a formal complaint against Sergeant C. which did not result in any further disciplinary proceedings.
3.54 It is submitted on behalf of the plaintiff that the disciplinary proceedings against him were inappropriate and excessive given the fact that three of the four charges were initially dismissed and the fourth one ultimately dismissed on appeal.
3.55 The court is not of the view that this incident is an example of bullying or harassment. Sergeant C. who had clear differences with the plaintiff by this time was very annoyed as, indeed, was the plaintiff at what occurred in the station. It is clear that there was an altercation and heated exchanges ensued.
3.56 An officer such as Sergeant C. may honestly believe that a junior officer was insubordinate to him and make a complaint about the alleged insubordination. The fact that an Inquiry finds there is no basis for such complaint is not, in the view of the court, evidence that the complaints were entirely unreasonable or, more importantly, that they were motivated by any malicious campaign or conspiracy against the plaintiff or amounted to bullying and harassment against him.
3.57 Once the complaint was made by Sergeant C. and a prima facie case was found, it was not unreasonable that a formal inquiry under the An Garda Síochána Disciplinary Regulations was held and, indeed, were the authorities not to hold such inquiry they might themselves be criticised.
3.58 The plaintiff’s allegations under this heading are not upheld.
(G) Improper Dress
3.59 The Book of Evidence in the Canal Murders trial had apparently been stolen from court in North Brunswick Street on 7th September, 2001. This is clearly a very serious matter and on 8th September, 2001, the plaintiff met with an informant to recover this Book of Evidence. Ultimately, the book was recovered as a result of information received.
3.60 After his meeting with the informant, the plaintiff arrived at Kilmainham Station at 7.30pm on 8th September somewhat late and was summoned Superintendent M. who the plaintiff alleges censored him for being improperly dressed and for not having logged into the computer. He was subsequently told to get home and dress appropriately and log himself into the computer.
3.61 It is not the view of the court that Superintend M’s reaction to the plaintiff appearing late in the station and not appropriately dressed was unreasonable.
3.62 Subsequently, when it transpired what the plaintiff was doing and the good work he had achieved nothing further came of it and the court does not hold that it was an example of bullying or harassment for the Superintendent to take the attitude that he did.
(H) The Witness Order on the Plaintiff
3.63 In October, 2001 Sergeant C. served a witness order on the plaintiff requiring him to attend a murder trial. The plaintiff had previously served summonses on witnesses some of whom it was feared might not attend. The plaintiff explained that he would be on holiday on the date and applied for seven days leave but was advised he could not because he was required in trial.
3.64 The plaintiff believes that Sergeant C. had told members in the station that the plaintiff had tried to “con” Sergeant McC into signing his leave form and an altercation occurred between the plaintiff and Sergeant C. resulting in a complaint by Sergeant C. of alleged insubordination.
3.65 The accused in the trial changed his plea and the plaintiff’s attendance was not required. He was able to take his annual leave and ultimately nothing occurred further on the matter.
3.66 The court is not of the view that this incident amounts to bullying or harassment. Clearly, the plaintiff was going to be required to attend at a murder trial and his refusal to do so would be a very serious matter. However, the fact that the incident, which the court believes was minor, possibly could have led to more serious disciplinary affairs indicates the tense state of personal relations at the time in the station.
(I) The Missing Statements in the Rape Case
3.67 In September or October, 2003 original statements in respect of a rape allegation were locked in the plaintiff’s cabinet together with an exhibit. These statements and the exhibit were missing from the plaintiff’s locker when the plaintiff opened it.
3.68 The plaintiff reported this fact to his superiors and the fact that be believed the statements were deliberately taken from his locker. The plaintiff made a complaint that this taking of files and exhibits was part of the campaign of bullying against him and notwithstanding the fact that Detective Inspector O’G. recorded that the plaintiff made this allegation in December, 2003 it was wrongly suggested to the plaintiff by the defence that his first reference to this claim did not arise until February, 2005.
3.69 It was decided not to conduct any criminal investigation into this matter and the plaintiff complains about this. The plaintiff was the subject of a complaint by the victim of the crime as to the missing evidence which investigation exonerated the plaintiff.
3.70 The court is of the view that it was not unreasonable of the plaintiff’s superiors to take a decision not to make a criminal investigation of the theft of the evidence and the files from the plaintiff’s locker. The court is also of the view, however, that the actual stealing of these documents from the plaintiff’s locker, which the court accepts occurred, is evidence of a campaign by members of An Garda Síochána against the plaintiff in order to discredit him in the eyes of his superiors. These items could only have been stolen by a member of An Garda Síochána as there is no suggestion of any “break-in” to the station. It is not clear who was responsible for this incident and it probably was some junior members of the force and the court does not accept that this campaign was necessarily orchestrated by the senior officers. However, the stealing of these items was clearly aimed at undermining and demonising the plaintiff in the eyes of his superiors and was an example of bullying against him within the definitions outlined above. It would have been clearly foreseeable that this action would have undermined the plaintiff’s dignity and caused him distress and injury in his career as a garda.
(J) The Removal of the Plaintiff’s Firearm
3.71 In October 2004, the plaintiff was rostered by Sergeant C. in a manner which the plaintiff considers was excessive and unfair.
3.72 The court does not accept that the rostering by Sergeant C. was in fact unfairly directed against the plaintiff in that the resources in the area were stretched at the time and though the plaintiff was rostered more frequently than others, there was an explanation given for this in court which explanation the court accepts. The court does, however, accept that the plaintiff who had shown stress previously and who had been given a sick certificate for a week due to his stress genuinely believed that this rostering was part of his superior’s campaign against him.
3.73 The court does also accept that the action by the plaintiff in “going sick” was as a result of genuine stress or anxiety. Indeed, though the plaintiff was questioned on this point in court and though witnesses from the garda authorities from time to time seemed to suggest that the plaintiff’s refusal to obey his instructions was something other than as a result of sickness, the plaintiff’s employers did accept that he was absent for a week due to anxiety or stress and accordingly cannot now in the view of the court suggest that there was anything bogus about the plaintiff’s reaction to him being rostered. He was medically certified as unfit for one week.
3.74 While the plaintiff was out sick, he was required to return to Kilmainham Garda Station on 8th October, 2004 and Superintendent Q. decided that his firearm ought to be removed given that the plaintiff was suffering from anxiety. Chief Superintendent D. agreed with this decision of Superintendent Q. On 9th October, 2009, Chief Superintendent D. reported that two days previously the plaintiff had let be known to his immediate supervisor, Sergeant C. that he would not perform his duty and reported sick suffering from stress and that he had submitted a medical certificate stating that he suffered from “anxiety”.
3.75 Chief Superintendent D. stated that:-
“I am concerned at the member’s attitude in refusing to carry out the duty he had been detailed to.
I respectively ask that [the plaintiff] be examined by a psychiatrist through the [CMO] to determine his continued suitability as a member of the detective branch police…”
3.76 At the handing over of the firearm, Superintendent Q. stated in evidence that he offered a transfer to the plaintiff to Kevin Street Garda Station (with which evidence the plaintiff agrees) but the plaintiff declined to accept this offer. The plaintiff says he refused the transfer as he would have had to continue to work under Chief Superintendent D. and indeed because Sergeant C. would have continued to be in a position to roster him in a manner that the plaintiff considered to be excessive.
3.77 Evidence was given on behalf of the defendants that had the plaintiff accepted a transfer out of Kilmainham that consideration would have been given for a return of his firearm. The plaintiff was not advised of that potential benefit to him when offered the transfer initially or indeed at any time thereafter.
3.78 After examining the plaintiff, the Chief Medical Officer and an independent psychiatrist both found that the plaintiff was fit for duty and to carry the firearm. They also accepted the fact that he had been suffering from anxiety due to work related difficulties.
3.79 On 14th February, 2005, Superintendent Q., Detective Inspector O’G. and Superintendents B., C. and D. and Sergeant C. made a decision not to return the plaintiff his firearm having been advised that in a letter from Assistant Commissioner R. dated 3rd February, 2005, that the Chief Medical Officer “advised the member fit for duty including firearms duties”. None of the decision makers at this meeting were apparently in possession of any of the medical reports or the opinions directly from the Chief Medical Officer or the psychiatrist and neither did they chose to request copies of any medical reports before they made their decision.
3.80 Chief Superintendent D. in a letter dated 15th February, 2005, outlined the reasons for the “unanimous agreement” that the firearm should not be returned to the plaintiff as follows:-
“[The plaintiff] was sick leave twice with anxiety and stress in July 2001 and October 2004.
[The plaintiff] has a personal grudge against DS C. his immediate supervisor in Kilmainham Station.
[The plaintiff] will not accept DS C., Kilmainham Station, as his supervisor.
[The plaintiff] refused to work on an armed protection post in Inchicore on 7th October, 2004, having been detailed to do so, on a duty roster drawn up by DS C. It is alleged that the [the plaintiff] wrote the word ‘unavailable’ on the duty roster for 7th October, 2004 and told DS C. he was going sick. [The plaintiff] then reported sick with stress and furnished a doctor’s medical certificate certifying him unfit for duty with anxiety.
The divisional officer – Chief Superintendent D, Pearse Street Station, who is an employer under the Safety, Health and Welfare at Work Act 1989, and in such capacity has a public and statutory duty and in particular a duty of care for the protection and safety of his employees and members of the public and as such has deemed [the plaintiff] not to be a fit person to have possession of a firearm. The divisional officer based his grounds which are outlined above for arriving at this decision following the meeting in Kevin Street Garda Station earlier on the evening on 14th February, 2005, with DS C., Kilmainham Station, DI O’G., Kevin Street Station, DS B., Pearse Street Station and S Q. Kevin Street Station, together with his own responsibilities as an employer under the Safety, Health and Welfare at Work Act 1989.”
3.81 In response to a question from the court, Detective Sergeant C. specifically indicated that he was not in fear of the plaintiff using the gun on him.
3.82 It should be noted that almost all of the above reasons are in fact disciplinary reasons. In evidence, Chief Superintendent D. did indicate that he was fearful, in effect, that the gun might be used by the plaintiff, who had suffered from stress or anxiety, on Sergeant C. The court does not accept that to be an accurate description of Superintendent D’s state of mind at the time as had the plaintiff agreed to a transfer from Kilmainham, it is clear that his gun would have been returned.
3.83 The court does not accept that the issue of the plaintiff potentially abusing his firearm as a result of his past stress was in the circumstances a valid evidence based medical reason as the decision makers ignored and had not read the medical reports which the management had secured.
3.84 Other than the supposed issue of stress, all of the matters that were taken into consideration at the meeting in February 2005, were disciplinary matters. It seems clear that the plaintiff’s supervisors did not really accept that the plaintiff’s absence from work after the rostering issue was a genuine illness related one. The court has already indicated that it cannot accept there to be any doubt other than the plaintiff was genuinely suffering from anxiety for approximately one week after the incident and this fact was fully accepted by his employers at the time.
3.85 It was submitted by the plaintiffs that as the reason for the depriving of the plaintiff of his gun in February 2005, were in essence disciplinary reasons and that had disciplinary proceedings been initiated, the plaintiff would have had an opportunity of being heard that therefore the decision was invalid. It is again important to make clear that this case is not proceeding on the basis of any judicial review type of inquiry to adjudicate on the rationality of decisions being made by the plaintiff’s employers. The decisions will only fall to be analysed in terms of whether or not they may amount to bullying or harassment or any actionable wrong.
3.86 The court accepts that the decision in relation to firearms is a matter for the plaintiff’s superiors. The court also accepts that the initial decision to remove the plaintiff’s firearm in October 2004, at a time the plaintiff was suffering from stress or anxiety was a reasonable decision to make.
3.87 The court is not of the view, however, that the continuation of the refusal to allow the plaintiff to have a firearm after it was clearly indicated by the Chief Medical Officer and the independent psychiatrist that the plaintiff was fit medically for the carrying of a firearm was a fair decision.
3.88 The court does not accept the rational of the decision as outlined by the defence witnesses.
3.89 The court has come to the conclusion that had the plaintiff accepted a transfer out of Kilmainham, he would have been readily given his gun back certainly by the meeting of February 2005 and that the refusal to return his gun to him was part of an informal disciplinary decision to punish the plaintiff as a result of his alleged grudge against Sergeant C. and his alleged refusal to accept Sergeant C. as his supervisor.
3.90 If the plaintiff could have been given back his gun after a transfer out of Kilmainham (even to a station in the same district) it is clear that public safety or health issues were not involved and the court rejects the explanation given by the defence witnesses in this regard.
3.91 The court fully accepts that being a detective without his firearm (and also for a time without the ability to drive a car) was a serious impairment to the plaintiff’s ability to function fully. The court finds that it is only when the medical experts indicated forcefully that the plaintiff was fit medically to have a firearm and repeated this when, in effect, asked for a second opinion by the plaintiff’s superiors, that it was decided as a method of punishment or control of the plaintiff to continue his depravation of a firearm. The court believes that the plaintiff’s superiors were unfairly using the firearm to control the plaintiff and if possible to remove him from Kilmainham where they perceive him as a troublemaker.
3.92 The court does not accept the evidence of the plaintiff’s superiors to the effect that they were concerned after the Abbeylara incident and Inquiry, that the plaintiff would or might use his firearm on other members. The court believes that this is an explanation that was come to when it was clear there was no medical basis of depriving the plaintiff of his firearm. It is the view of the court that the continuing deprivation of the plaintiff of his firearm after February 2005 can only be regarded as an example of bullying and harassment on the plaintiff.
3.93 The seriousness of the plaintiff’s position, as a detective garda without a car or firearm, is indeed evidenced by letter of 4th October, 2006, from Chief Superintendent M. giving the plaintiff fourteen days to explain why he should not be returned to uniform duties as he had been allegedly rendered incapable of performing his duties by reason of his absence of a firearm and authority to drive a vehicle. The fact that nothing came of this letter does not alter the fact that it clearly is evidence of the seriously debilitating situation the plaintiff was working under as a detective garda.
(K) The Poster Campaign in Kilmainham Garda Station
3.94 Various posters were placed in locations in Kilmainham Garda Station around February 2010, the plaintiff alleges to be examples of bullying and harassment. These posters or “flyers” contains such statements as “Free Willy” and “D. Garda Willy Browne – Fighting to clear his name since 2001” and “D. Garda Willy Browne is an innocent man” etc.
3.95 The court accepts that these posters were unfortunate and indeed could be regarded as degrading. The court thinks, however, that the posters represented a misconceived attempt at humour or “ragging” rather than bullying or harassment.
3.96 It is, of course, the case that “ragging” can be very insidious and can in certain circumstances amount to an example of bullying and harassment, however, in this case the plaintiff did not make anything about these posters and the court will not regard them as being an example of bullying or harassment.
(L) The Failure of the Defendant to Carry Out an Inquiry
3.97 The plaintiff alleges that the defendants failed to investigate his legitimate complaints of bullying and harassment.
3.98 The plaintiff requested the Garda Representative Association to intervene at local level and in 2004, the plaintiff requested Mr. T.L. of the Garda Representative Association to intervene at a higher level.
3.99 It was submitted by the plaintiff that the actions of the Garda Representative Association were a de facto invocation of grievance and harassment procedures to which no objection was made in respect of formality until 2011. The court accepts that Mr. T.L. made repeated efforts to bring the plaintiff’s grievances to the attention of the authorities.
3.100 The court accepts that the plaintiff’s concerns were treated in a manner that indicated that the defendants did not really take his complaints of bullying and harassment seriously.
3.101 The court has already found that there were a number of examples of bullying and harassment both by more junior members of the staff and also by more senior management.
3.102 The court accepts that these actions and the combination therefore represent an example of the definition of bullying adopted by Fennelly J. in Quigley (above) have been actions “which could reasonably be regarded as undermining the individual’s right to dignity at work”.
3.103 The court is not of the view that the actions of the defendants in failing to properly investigate the plaintiff’s complaints or in failing to evoke disciplinary proceedings or in failing to deal with the various representations made on behalf of the plaintiff by the Garda Representative Association, while highly regrettable amounts to an example of bullying and harassment.
4 Conspiracy
4.1 Given the findings already made, the court does not feel it necessary to make any further findings under the additional claims for damages under the headings of conspiracy.
5 Injury
5.1 The next issue is whether as a result of the above actions the plaintiff has suffered what. Clarke J. in Maher v. Jabil Services Limited (above) defined as an injury to health as opposed to ordinary occupational stress attributable to the workplace which was reasonably foreseeable.
5.2 The court is of the view that both the actions of senior management and of the more junior gardaí were reasonably foreseeable to undermine and cause injury to the plaintiff. The fixing of the plaintiff’s name and signature to a political leaflet advertising a meeting associated with undesirable political elements can only be designed to undermine the plaintiff as indeed can the removal or theft from his locker of exhibits. The continued removal of the plaintiff’s right to drive a garda vehicle, the threatening of a criminal fraud investigation to a disputed trivial claim for overtime and the continuing removal of the plaintiff’s right to carry a firearm also as found were attempts to punish the plaintiff and were clearly constituted to undermine the plaintiff in his role as a garda and it was reasonably foreseeable that injury would result.
6 Quantum
6.1 The court was treated to an extensive analysis from both sets of witnesses to the plaintiff’s actual earnings and the notes that the plaintiff did earn less than some of his peers for a period. The plaintiff, however, has not established on the balance of probabilities the extensive claim for loss of earnings that he has made out and the court will award the plaintiff under the head a small sum of €5,000 for loss of earnings.
6.2 The plaintiff has made out a proper claim that some of his substance monies in relation to the Canal Murders etc. was not fully paid to him but rather than make any of the declaratory orders sought under this heading, the court includes any sums due under the above heading in the sum of €5,000 already awarded.
7 General Damages
7.1 The court believes the plaintiff suffered a significant stress reaction. The plaintiff was only out of work for two weeks as a result of anxiety or stress. The plaintiff’s injury, however, is not limited to that two week period. The court heard the evidence from Dr. Geraghty, the plaintiff’s general practitioner, with the effect that the plaintiff’s personality has changed dramatically since 2000. He is not good humoured, is stressed, tired without physical cause, has suffered from personality change and anxiety, matrimonial dysfunction caused by psychological rather than physical factors and had suffered a reactive depression of moderate to severe nature which is ongoing for twelve years.
7.2 The court also heard from Dr. David Shanley, retired consultant psychiatrist who recounted that the plaintiff suffered from sleep difficulties, tiredness, and no libido which has a marked effect on his relationship with his wife (this was also confirmed by the plaintiff’s wife). Dr. Shanley diagnosed an adjustment disorder which is of moderate severity which he indicated was similar to Dr. Geragthy’s diagnosis and his depression was a reactive type and that there are ongoing psychological consequences. Since the plaintiff’s retirement in December 2011 from An Garda Síochána, he has being feeling better. The court also heard from Dr. Jean Lynch, Psychologist, from the Bullying Centre.
7.3 The defendant’s medical expert was Prof. Casey. As was stated by counsel for the defendants, Prof. Casey’s evidence was contingent upon what the plaintiff was saying is correct. Assuming that to be the case, Prof. Casey stated that in her belief, the plaintiff suffered “a mild adverse reaction”. In effect, she did not seriously differ from Dr. Shanley indicating that the plaintiff recorded a major improvement since his retirement. Prof. Casey agrees that in September 2012, she diagnosed him from suffering from the mild adjustment disorder and referred to his stress as being moderate.
7.4 The court accepts that the plaintiff suffered a significant though moderate psychiatric injury. In particular, the court accepts Dr. Shanley’s evidence of a reactive type depression which thankfully is easing after the plaintiff’s retirement. The plaintiff’s situation has not, however, fully returned to pre-2000 levels and in particular the plaintiff is suffering from ongoing matrimonial dysfunction. The court hopes and expects that this will not be an ongoing problem.
7.5 The defendants submit that the plaintiff merely suffered from an anxiety which resulted in a total of two weeks absence from work. The court does not believe it is fair to categorise the plaintiff as merely suffering from anxiety resulting in a two week absence from work. The reactive depression though only moderate was an ongoing continuous matter for approximately ten years until his retirement. The court does accept that apart from the two week absence, the plaintiff was able to do his work though clearly his enjoyment of his work was less than it would otherwise be as his function as a detective was curtailed especially by the loss of his firearm and of his permission to drive a garda vehicle.
7.6 The court believes that the appropriate sum for the damages for his personal injury due to his depression and stress as a result of the bullying as so found is a sum of €55,000 being damages both to the present and representing a small sum into the future.
8 Defamation
8.1 The court has held that there was defamation and libel of the plaintiff. The court holds, however, that the plaintiff has only established a very limited publication of the libel which was made to Inspector M. This libel was potentially extremely serious and indeed motivated by malice. However, Inspector M. readily accepted the plaintiff’s explanation that the plaintiff’s signature was forged and no serious damage ensued to the plaintiff’s reputation. The court does, however, take into account the nasty and indeed malicious nature of the action and in those circumstances and in view of the other findings of the court in relation to the plaintiff’s being bullied and harassed and in order to avoid any suggestion of double counting the court will award the plaintiff the sum of €25,000 under the heading of defamation.
9 Conclusion
9.1 Totalling the sum of €5,000 for special damages; €55,000 for damages for bullying and harassment and €25,000 for defamation, comes to the sum of €85,000 damages in total which I will award to the plaintiff.