Damages Development
Cases
O’Brien v. Mirror Group Newspapers Ltd.
[2000] IESC 70 (25th October, 2000)
THE SUPREME COURT
KEANE C.J.
DENHAM J.
MURPHY J.
GEOGHEGAN J.
O’HIGGINS J.
289/99
BETWEEN:
DENIS O’BRIEN
Plaintiff/Respondent
AND
MIRROR GROUP NEWSPAPERS LIMITED, PIERS MORGAN, NEIL LESLIE AND KARL BROPHY
Defendants/Appellants
[Judgments by Keane C.J., Denham J. and Geoghegan J.; Murphy J. and O’Higgins J. agreed with Keane C.J.]
JUDGMENT delivered the 25th day of October 2000 by Keane C.J.
INTRODUCTION
1. This is an action for libel. The plaintiff is a well known and successful businessman: he holds, among others, the positions of Chairman of Esat Digifone, Esat Telecom and 98 FM. The first named defendant is the publisher of a newspaper called the Irish Mirror, of which the second named defendant is the Editor in Chief. The third and fourth named defendants are respectively the editor of the Irish edition and a journalist employed by the newspaper who wrote the article which gave rise to the action.
________________________ page break ________________________
(2)
2. The article in question appeared in the issue of the newspaper of the 10th June 1998 under the heading
“BURKE IN NEW £30,000 PROBE EXCLUSIVE BY KARL BROPHY.”
3. It was on the front page and began as follows:
“Former Minister Ray Burke is to be investigated for a THIRD alleged payment of £30,000, the Mirror revealed today.”
“The Flood Tribunal is to probe an anonymous claim that Mr. Burke received the donation from top radio boss, Denis O’Brien in 1989. According to the confidential letter – seen by the Irish Mirror – the former Dublin North TD allegedly received a donation of £30,000 when he was Minister for Communications responsible for the allocation of radio licences in Ireland.”
“Mr. O’Brien’s application for a licence for a station, 98 FM, was one of the two successful tenders for the lucrative Dublin area at that time.”
“Mr. Burke performed the new station’s official opening in November 1989. No evidence has yet been uncovered to support the allegations made in the note.”
“This may be a totally malicious effort to smear either Mr. Burke or Mr. O’Brien but the letter contains detailed allegations, said a top political source last night.”
________________________ page break ________________________
(3)
4. The article went on to refer to a total of eleven questions which had been sent to the plaintiff’s office concerning the allegations. The plaintiff was not prepared to answer four of the questions. Of the remaining questions, four were of particular relevance to these proceedings: the questions and answers were as follows:-
“Have you, or a company in which you are involved, ever made a single donation of, or in excess of, £3,000 to Mr. Raphael Burke?
ANSWER: No.
7. Did Mr. Raphael Burke, or agents on behalf of him or his political party, ever request a donation from you or a company in which you are, or were, involved? If so, how much was requested and was this request made before or after the awarding of the local radio licence to 98 FM?
ANSWER: No.
8. Did you ever feel that Mr. Raphael Burke, or agents on behalf of him or his political party, ever insinuated that if he made a donation to either him or his political party, the application for a radio licence for 98 FM would be favourably considered?
ANSWER: No.”
5. The article went on to refer to the possible political implications of the allegation being made against the plaintiff and concluded:-
“Denis O’Brien, the man who is alleged to have made the latest £30,000 donation, is no stranger to political controversy. His hugely successful mobile phone company, Esat Digifone, beat off heavy international
________________________ page break ________________________
(4)
competition to win Ireland’s second mobile telephone operating licence which was awarded by disgraced former Minister Michael Lowry in 1996. “The decision on the granting of licences was taken despite the fact that no official memorandum was ever taken to the Cabinet Meeting that was chaired by then Taoiseach John Bruton.
“However, a number of investigations carried into the awarding of the licence uncovered no impropriety.”
6. The article also gave details of Mr. O’Brien’s career and stated that the awarding of the licence to Esat Digifone would be examined by the Tribunal of which the sole member is Moriarty J. and which is at present investigating certain payments to politicians. It concluded, however, that
“Mr. O’Brien is confident the decision will stand after four previous investigations failed to turn up wrong doing.”
7. The plaintiff thereupon instituted these proceedings claiming damages for libel and pleading that the words meant, and were understood to mean, that
“(a) the plaintiff had paid a sum of money, described as £30,000, to Mr. Raphael Burke when he, Mr. Burke was a member of the government,
(b) the plaintiff paid the said money by way of a bribe to the said Mr. Burke,
(c) the plaintiff paid the said money for the purpose of securing benefits for himself and his business enterprises,
________________________ page break ________________________
(5)
(d) the plaintiff paid the said money for the purpose of securing a licence to broadcast for a radio station known as 98 FM,
(e) the plaintiff obtained benefits, including the said licence to broadcast, by corrupt means,
(f) the said radio licence was awarded to the plaintiff and his company on foot of the said alleged payment to Mr. Burke,
(g) the plaintiff had engaged in corrupt behaviour which warranted investigation by the tribunal established by resolution of the Houses of the Oireachtas and of which the sole member is the Honorable Mr. Justice Fergus Flood of the High Court,
(h) the investigation referred to in the next preceding paragraph would result in the uncovering of corrupt practices by the plaintiff on his own behalf and on behalf of his commercial companies,
(i) the plaintiff secured, or was instrumental in securing, a licence for the company, Esat Digifone, in circumstances which gave rise to suspicion of corrupt practices,
(j) the plaintiff was and is guilty of criminal conduct,
(k) the plaintiff’s conduct and behaviour warrants investigation by the appropriate legal authorities,
(l) the plaintiff should be prosecuted, tried and convicted of corruption and should suffer the full penalty of the law,
(m) the plaintiff is not fit or worthy to hold his position in the business community or the companies of which he is chairman.”
________________________ page break ________________________
(6)
8. In their defence, the defendants denied that the words complained of bore or were understood to bear or capable of bearing these meanings. They pleaded that the words complained of meant or were understood to mean that an anonymous letter had been sent to the Flood Tribunal making the allegation in question, that the Flood Tribunal would investigate the allegation and that the award of a mobile telephone licence to Esat Digifone had previously been investigated without any impropriety being found. To that extent, they pleaded that the words complained of were true in substance and in fact.
9. The action came on for hearing before McGuinness J. and a jury in the High Court. The following questions were left to the jury:
“In its natural and ordinary meaning or by way of innuendo does the article mean
(1) that the plaintiff had paid £30,000 to Mr. Raphael Burke then a member of the Government by way of a bribe?
(2) that the plaintiff paid the said money for the purpose of securing a licence for the radio station 98 FM?
(3) that the licence for the radio station 98 FM was awarded to the plaintiff and its company on foot of the said alleged payment to Mr. Burke?
(4) that the plaintiff secured a licence for the company Esat Digifone in circumstances which give rise to a suspicion of bribery or corrupt practices?
________________________ page break ________________________
(7)
(5) that the plaintiff had engaged in corrupt practices which warranted investigation by the Flood Tribunal?
If the answer to any of the questions 1 -5 is yes, assess damages.”
10. The jury answered each of the questions 1 – 5 in the affirmative and assessed damages at £250,000. Judgment was accordingly entered for that sum and costs. The defendants have now applied to this court, by way of appeal, for an order setting aside so much of the verdict as assessed the damages at £250,000 and ordering a new trial of the action on this issue or, in the alternative, substituting a lower amount for the amount of £250,000.
11. The plaintiff has cross appealed against the refusal of the learned trial judge to leave the issues of aggravated, punitive and/or exemplary damages to the jury and has sought the assessment by this court of such damages or, in the alternative, in the event of an order directing a retrial, an order that these issues be also tried by the jury. He has also appealed against an order of the learned trial judge making no order as to the costs of a previous trial and seeks an order awarding him the costs of that trial.
12. The grounds set out in the defendant’s notice of appeal can be summarised as follows:-
(1) that the damages awarded were excessive;
(2) that the appropriate test for determining whether the assessment of damages by a jury should be set aside is whether the assessment was one
________________________ page break ________________________
(8)
which a reasonable jury would have thought necessary to compensate the plaintiff and re-establish his reputation;
(3) alternatively, that the size of the award was one which no reasonable jury could have made in the circumstances of the case and was so unreasonable as to be disproportionate to the injury done to the reputation of the plaintiff;
(4) that the learned trial judge misdirected the jury on the issue of damages in that counsel ought to have been permitted to refer and the judge ought to have referred
(a) to the purchasing power of any award which the jury might be minded to make and the income that it would produce;
(b) by way of comparison, to compensation scales in personal injury cases and previous libel awards made or approved by the Supreme Court;
(c) to the level of awards which counsel and the trial judge respectively considered to be appropriate;
(5) that the rules of law or practice restraining counsel and the trial judge in defamation trials from offering guidance of this nature are inconsistent with the provisions of the Constitution;
(6) that the size of the award was a violation of the legal and constitutional rights of the defendant and was an interference with the right of the defendant to freedom of expression in breach of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 40 of the Constitution.
________________________ page break ________________________
(9)
13. As was made clear in the written and oral submissions on behalf of the defendants, in relying on grounds (4) to (6) above the defendants were inviting this court to depart from its recent decision in De Rossa .v. Independent Newspapers Plc. Supreme Court, 30 July, 1999, unreported. In that case, to which it will be necessary to refer in considerably more detail at a later stage, a majority of the court (Hamilton C.J., Barrington J., Murphy J. and Lynch J.) declined to apply in this jurisdiction the decision of the English Court of Appeal in John .v. MGN Limited [1996] 2 All ER 35 in which it was held that guidance of this nature on the assessment of damages should be given by trial judges to juries. In a dissenting judgment, Denham J. concluded that guidance of this nature should be provided.
14. As to ground (4), it was conceded on behalf of the defendants that the learned trial judge had properly charged the jury in this case in accordance with the law as stated by this court and that no criticism could be made of the directions on law which she gave to the jury.
15. There are, accordingly, five possible issues which arise for consideration:
(1) Having regard to the jurisprudence of this court as to the extent to which it is free to depart from its previous decisions, it should reconsider its decision in De Rossa
(2) If the court does consider itself free to reconsider that decision, whether it should now treat it as wrong in law;
(3) whether, in any event, applying the principles stated in De Rossa and earlier decisions of this court, the jury’s assessment of damages should be set aside;
________________________ page break ________________________
(10)
(4) whether the trial judge was wrong in law in refusing to leave the issue of aggravated and for exemplary or punitive damages to the jury; and
(5) whether the plaintiff shall have been awarded the costs of the earlier trial.
16. Clearly, if the defendants’ appeal is successful in relation to both (1) and (2) above, that, of itself, will require the setting aside of the jury’s verdict.
Stare decisis in the Supreme Court
In Attorney General and Another .v. Ryan’s Car Hire Limited [1965] IR 642 at p. 654, Kingsmill Moore J. explained the new approach being adopted by the court to the rule of stare decisis as follows:-
“However desirable certainty, stability and predictability of law may be, they cannot in my view justify a court of ultimate resort in giving a judgment which they are convinced, for compelling reasons, is erroneous. Lord Halsbury himself [in London Street Tramways Company .v. London County Council [1898] AC 375] was forced to make some modification. Faced with the hypothesis that a case might have been decided in ignorance of the existence of some relevant statutory provision or in reliance on some statutory provision which was subsequently discovered to have been repealed, he suggested that it would not be a binding authority because it was founded on a mistake of fact. The same reasoning would be applicable if the decision were given in ignorance of an earlier authority of compelling validity. Where a point has been entirely overlooked or conceded without argument, the authority of a decision may be weakened to vanishing point.
________________________ page break ________________________
(11)
In my opinion, the rigid rule of stare decisis must in a court of ultimate resort give place to a more elastic formula. Where such a court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases. What are exceptional cases? I have already given some examples of cases which I would consider exceptional, but I do not suggest that these closed the category and I do not propose to attempt to make a complete enumeration.”
17. Further guidance on the topic is to be found in the judgment of Henchy J. in Mogul of Ireland .v. Tipperary (NR) County Council [1976] IR 260 at p. 272:-
“A decision of the full Supreme Court (be it the pre-1961 or the post-1961 (Court,), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice. However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least, be clearly of opinion that the earlier decision was erroneous. In Attorney General .v. Ryan’s Car Hire Ltd ., the judgment of the Court gave examples of what it called exceptional cases, the decision in which might be overruled if a later court thought them to be clearly wrong. While it was made clear that the examples given were not intended to close the category of exceptional cases, it is implicit from the use in that judgment of expressions
________________________ page break ________________________
(12)
such as ‘convinced’ and for compelling reasons’ and ‘clearly of opinion that the earlier decision was erroneous’ that the mere fact that a later Court, particularly a majority of the members of a later Court, might prefer a different conclusion is not in itself sufficient to justify overruling the earlier decision. Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies….
“We are concerned here with a pure question of statutory interpretation which was fully argued and answered in [ Smith .v. Cavan and Monaghan County Councils [1949] IR 322] after mature consideration. There are no new factors, no shift in the underlying considerations, no suggestion that the decision has produced untoward results not within the range of that court’s foresight. In short, all that has been suggested to justify a rejection of that decision is that it was wrong. Before such a volte-face could be justified it would first have to be shown that it was clearly wrong. Otherwise the decision to overrule it might itself become liable to be overruled. In my opinion, counsel for the applicants have, at most, established no more than that the interpretation for which they contend might possibly be preferred to that which commended itself to the court in Smith’s case. That is not enough. They should show that the decision in Smith’s case was clearly wrong and that justice requires that it should be overruled. They have not
________________________ page break ________________________
(13)
done so. I would therefore decline the invitation to overrule the decision in Smith’s case.”
18. The court is not in this case concerned with a pure question of statutory interpretation. However, I am satisfied that the observations of Henchy J. in that case should not be confined to cases in which the courts are concerned with the interpretation of a statute. It is, accordingly, necessary to consider the application of those principles, and the statement of the law by Kingsmill Moore J. in the earlier decision, to De Rossa .
Rossa .v. Independent Newspapers Plc.
19. The plaintiff in that case brought proceedings for libel arising out of an article published in the Sunday Independent which he said meant, and was understood to mean, that he was aware of criminal activities of a serious nature on the part of a political party of which he was the leader and had tolerated those activities. At the time the article was published, the plaintiff was engaged in negotiations with leaders of other political parties with a view to participating in a proposed coalition government, a fact which was referred to in the article itself. In their defence, the defendants admitted that the words complained of meant that the plaintiff was now the leader of a party which had previously received funds raised as a result of criminal activities, but, save to that extent, denied that words complained of bore, or were capable of bearing, the meanings assigned to them by the plaintiff.
________________________ page break ________________________
(14)
20. There were three trials of the action. The first lasted eight days, at which stage the jury were discharged because of the actions of the defendants. The second trial lasted fifteen days and resulted in a disagreement by the jury. The third trial lasted eleven days. During the course of each of the trials, the plaintiff was subjected to what were described in the judgment of Hamilton C.J. as
“immensely prolonged and hostile cross examinations”
by counsel for the defendants.
21. The following questions were submitted to the jury and answered by them as follows:-
“1. Do the words complained of mean –
(a) that the plaintiff was involved in or tolerated serious crime?
ANSWER: Yes
(b) that the plaintiff personally supported anti-semitism and violent communist oppression
ANSWER: Yes
2. If the answer to 1. or any part thereof is ‘yes’ assess damages
ANSWER: £300,000.”
22. The defendants appealed against the assessment of damages by the jury. On the hearing of the appeal, it was conceded on their behalf that the trial judge had directed the jury in accordance with the generally accepted practice, but it was submitted that this was a practice which was inconsistent with the provisions of the Constitution and of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was submitted that, in order to bring the law into conformity with the
________________________ page break ________________________
(15)
23. Constitution and the Convention, specific guidelines should be given by the trial judge and counsel to the jury in defamation actions and that they should include
(a) a reference to the purchasing power of any award which the jury might be minded to make and the income which the award would produce;
(b) a reference to what the trial judge and counsel considered to be the appropriate level of damages;
(c) a reference by way of comparison by counsel and the trial judge to awards made in respect of personal injuries and to awards made in previous libel cases.
24. The defendants relied in support of those submissions on the decision of the English Court of Appeal in John .v. MGN Ltd . and of the Court of Human Rights in Tolstoy Miloslavsky .v. The United Kingdom, [1995] 20 EHRR 442.
25. The arguments advanced in that case, on behalf of the defendants, were, accordingly, virtually identical with those advanced on behalf of the appellants in the present case. In a lengthy written judgment with which Barrington J., Murphy J. and Lynch J. agreed, Hamilton C.J., having cited in full the relevant provisions of the Constitution and the Convention and cited extensively passages from earlier judgments of this court, of the Court of Appeal and House of Lords in England and of the Court of Human Rights in Tolstoy, concluded that the existing practice was not inconsistent with the Constitution or the Convention and that the guidelines proposed by the English Court of Appeal should not be adopted in this jurisdiction. He went on to deal with the alternative argument on behalf of the appellants – that the award of damages was in any
________________________ page break ________________________
(16)
event excessive – and concluded that the damages, although substantial, were not disproportionate to the injury suffered by the plaintiff and that the award should not be set aside.
26. In a dissenting judgment, Denham J., who also reviewed at some length the relevant authorities in this and other jurisdictions, concluded that the guidelines recommended by the Court of Appeal in John should be adopted in this jurisdiction. She was also satisfied that, in any event, the award of damages in that case was excessive and, on principles of reasonableness and proportionality, would have reduced it to £150,000.
27. It was not suggested by counsel for the appellants in the present case that the majority decision in De Rossa was given in ignorance of an earlier authority of compelling validity or that a relevant point had been entirely overlooked or conceded without argument. The decision was, however, criticised on two grounds.
28. First, it was submitted that, although the decision of the European Court of Human Rights in Tolstoy Miloslavsky .v. United Kingdom , which had been strongly relied on on behalf of the defendants in that case, was discussed in the judgment of Hamilton C.J., the judgment had insufficient regard to some important features of the decision and in particular to paragraphs 46 to 51 inclusive of the judgment.
29. Secondly, it was submitted that, while the judgment also considered the decision of the Court of Appeal in John, it proceeded on what was said to be the erroneous basis
________________________ page break ________________________
(17)
that the criteria laid down by this court in Barrett .v. Independent Newspapers Limited [1986] IR 13, for determining whether an award of damages in a defamation action by a jury should be set aside on appeal were consistent with the requirements of Article 10 of the Convention and Article 40.6.1 of the Constitution.
30. In considering these criticisms, it is necessary to refer at the outset to Tolstoy. The plaintiff in the proceedings which gave rise to the case in the European Court, Lord Aldington, had been awarded damages for libel of £1,500,000 by a High Court jury. The defamatory statements appeared in a pamphlet written by the applicant and it was not in issue in that court that the defamation was of so serious a nature as to justify a very substantial award of damages.
31. The first ground of challenge to the award in the European Court was that the law in England as to the respective roles of the judge and jury in libel actions was such that it would have been impossible for his legal advisers to predict that an award of these dimensions would have been made and that, accordingly, the interference with the applicant’s right to freedom of expression which the award constituted was not “prescribed by law” within the meaning of Article 10(2) of the Convention. This argument was rejected by the court.
32. The second ground of challenge was that the interference with the plaintiff’s right to freedom of expression constituted by the award was not “necessary in a democratic society” within the meaning of Article 10.2, since the amount of the damages awarded was disproportionate to the legitimate aim of protecting Lord Aldington’s
________________________ page break ________________________
(18)
reputation or rights. The applicant relied on the fact that, since the award in the instant case had been made, the Court of Appeal itself had decided in Rantzen .v. Mirror Group Newspapers (1986) Ltd. [1993] 4 All ER 975, that the existing law allowed too great a latitude to the jury. The European Court upheld the applicant’s challenge on this ground.
33. In the course of the judgment, the court, having observed that the approach adopted in the different Contracting States in this area may differ greatly from one state to another and that the competent national authorities, being better placed than the European Court to assess the matter, should enjoy a wide margin of appreciation, summed up their conclusions as follows:-
“49. On the other hand, the fact that the applicant declined to accept Lord Aldington’s offer to settle for a lesser sum does not diminish the United Kingdom’s responsibility under the Convention in respect of the contested damages award.
“However, the Court takes note of the fact that the applicant himself and his counsel accept that if the jury were to find libel, it would have to make a very substantial award of damages. While this is an important element to be borne in mind it does not mean that the jury was free to make any award it sought if it since, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.
“The jury had been directed not to punish the applicant but only to award an amount that would compensate the non-pecuniary damage to Lord
________________________ page break ________________________
(19)
Aldington. The sum awarded was three times the size of the highest libel award previously made in England and no comparable award has been made since. An award of the present size must be particularly open to question where the substantive national law applicable at the time fails itself to provide a requirement of proportionality.
“50. In this regard it should be noted that, at the material time, the national law allowed a great latitude to the jury. The Court of Appeal could not set aside an award simply on the grounds that it was excessive but only if the award was so unreasonable that it could not have been made by sensible people and must have been arrived at capriciously, unconscionably or irrationally. In a more recent case, Rantzen . v. Mirror Group Newspapers Limited the Court of Appeal itself observed that to grant an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was ‘necessary in a democratic society’ for the purposes of Article 10 of the Convention. It noted that the common law – if properly understood -required the courts to subject large awards of damages to a more searching scrutiny than had been customary. As to what guidance the judge should give to the jury, the Court of Appeal stated that it was to be hoped that in the course of time a series of decisions of the Court of Appeal taken under s. 8 of the Courts and Legal Services Act, 1990 would establish some standards as to what would be ‘proper’ awards. In the meantime the jury should be invited to consider the purchasing power of any award which they might make and to ensure that any award they made was proportionate to the damage which the plaintiff had suffered and was a sum which was
________________________ page break ________________________
(20)
necessary to award him to provide adequate compensation and to re-establish his reputation.”
“The court cannot but endorse the above observations by the Court of Appeal to the effect that the scope of judicial control, and on appeal, at the time of the applicant’s case did not offer adequate and effective safeguards against a disproportionately large award.
“51. Accordingly, having regard to the size of the award in the applicant’s case and in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award, the Court finds that there has been a violation of the applicant’s rights under Article 10 of the Convention.”
34. In his judgment in De Rossa Hamilton C.J., having cited in full the passage I have just quoted from the judgment of the court in Tolstoy, summarises the effect of the passage as follows:
“It is clear from the foregoing that the primary reason for the court’s decision was the size of the award and the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. It recognised, however, that an award of damages must bear a reasonable relationship of proportionality to the injury to reputation suffered.”
“The court gave approval to the guidance to be given to a jury as laid down by the Court of Appeal in Rantzen’s case.”
________________________ page break ________________________
(21)
35. I find it difficult to understand, in the light of that passage, how it can seriously be suggested that the judgment of the learned Chief Justice in De Rossa rested on any misunderstanding whatever as to the nature of the decision in Tolstoy.
36. As to the second ground of criticism, it is certainly the case that, having set out in full the observations of Henchy J. in Barrett .v. Independent Newspapers Ltd. in which he made it clear that the test for determining whether an award should be set aside as being excessive was whether it was so disproportionately high that it should not be allowed to stand, Hamilton C.J. went on to say:
“The obligations arising from the provisions of the Constitution and the Conventions are met by the law of this State which provides that the award must always be reasonable and fair and bear a due correspondence with the injuries suffered and by the requirement that, if the award is disproportionately high, it would be set aside.”
37. It is clear that, in arriving at that view, the learned Chief Justice was influenced by the fact that, as is beyond argument, two factors determined the outcome of the decision in Tolstoy, i.e. the size of the award and the state of the law before Rantzen. If the award had been significantly lower and could be regarded as being proportionate to what was admitted to be a very serious libel indeed, the result might have been different.
38. That is a view of the decision in Tolstoy, with which, of course, issue can legitimately be taken. But that is not what is urged upon us in this case. We are being
________________________ page break ________________________
(22)
asked to hold that not merely is the carefully considered and reasoned view of Hamilton C.J. wrong: we are being asked to hold that it is so “clearly wrong” that there are now “compelling reasons” why it should be overruled and that, indeed, justice requires that it be overruled.
39. The court, moreover, was invited to overrule the decision less than a year after it was pronounced. There is, of course, no guarantee whatever that, were it to be so overruled, within a relatively short period of time the court might not be persuaded that this decision in turn was “clearly wrong” and must itself be overruled. The stage would have been reached at which the doctrine of stare decisis in this court would have been seriously weakened and the certainty, stability and predictability of law on which it is grounded significantly eroded.
40. In addition, the court is urged to overrule the decision on the ground that, apart altogether from the two criticisms advanced of the reasoning in the majority judgment, the court should in any event have followed the decision of the Court of Appeal in John as to do otherwise would be to fail to give effect to the guarantees of freedom of expression contained in the Constitution and the Convention. The observations I have already made as to the two grounds of criticism apply with equal force to that submission. Having cited extensively from the judgments of the Court of Appeal in Rantzen and John, Hamilton C.J. said:-
“If the practice as outlined in Rantzen’s case and extended as outlined in John’s case were to be followed, the jury would be buried in figures, figures suggested by counsel for both parties as to the appropriate level of damages,
________________________ page break ________________________
(23)
a figure from the judge representing his opinion as to the appropriate level of damages, figures with regard to damages made or approved by the Court of Appeal in previous libel actions and figures with regard to damages in personal injuries actions and at the same time be subject to the direction of the trial judge that it is not bound by such figures and must make up its own mind as to the appropriate level of damages.”
“It is accepted by all that, even if the giving of such guidelines and figures were permissible, the jury would not be bound by such figures and was under an obligation to make up its own mind as to the appropriate level of damages.”
“I am satisfied that the giving of such figures, even though only by way of guideline, would constitute an unjustifiable invasion of the province or domain of the jury.”
“The assessment of damages in a defamation action instituted in the High Court was always a matter for the jury and that was not in any way altered by the provisions of the Courts Act, 1988, which provided that certain actions, including claims for damages for personal injuries, should not be tried by a jury.”
41. The learned Chief Justice went on to express his preference for the conclusion reached in Rantzen’s case to that reached in John’s case on the question as to whether or not references to awards in personal injuries actions should be permitted. The view in the former case had been that they should not be referred to and the learned Chief Justice pointed out that in Cassell and Co. Limited .v. Broome [1972] 1 All ER 801 at
________________________ page break ________________________
(24)
824, Lord Hailsham L.C. had made it clear that there were serious difficulties in comparing awards of damages for libel with damages for personal injuries.
42. Finally, the learned Chief Justice drew attention to what he considered an important feature of the decisions in Rantzen and John, i.e. that they followed the enactment in England and Wales of s. 8(2) of the Courts and Legal Services Act, 1990 and the introduction of RSC Order 59, r. 11(4) empowering the Court of Appeal for the first time to substitute for the sum awarded by the jury such sum as appeared to the court to be proper. In this jurisdiction, of course, the court has for some time now been prepared in actions for damages for personal injuries to substitute for the sum awarded by the High Court such sum as the court thinks appropriate. That power, however, has never been exercised by the court in cases of defamation.
43. Again, a different view could legitimately be taken from that expressed by Hamilton C.J. and assented to by the majority. However, for the reasons I have already given when considering the first ground of criticism, I have no doubt that that fact of itself could not justify this court in overruling the decision.
44. In my view, accordingly, the appeal in the present case should be dealt with on the basis that the law is as stated in the judgment of Hamilton C.J. in De Rossa . It follows, as was conceded on behalf of the defendants, that the award in this case cannot be set aside on the ground that the learned trial judge did not follow the guidelines laid down by the Court of Appeal in John and directed the jury as to the law in accordance
________________________ page break ________________________
(25)
with De Rossa . I am satisfied, accordingly, that the appellants cannot succeed in this appeal on the first two issues which I have identified.
Whether the award should be set aside as disproportionately high
45. The second issue is as to whether the award should in any event be set aside, applying the law as laid down in Barrett and De Rossa . In considering that issue, I think it is important to bear in mind that there is nothing in the judgments of Henchy J. in Barrett or Hamilton C.J. in De Rossa to indicate that this court is precluded, on the hearing of an appeal, from determining the appeal in the light of awards in other defamation cases which have been the subject of appeals to this court. No doubt a degree of caution is called for in making such comparisons, since in cases of defamation, more perhaps than in almost any other action in tort, the facts which have to be considered by the jury vary widely from case to case. Moreover, as Lord Hailsham pointed out in Cassell and Co. Limited .v. Broome , when drawing the distinction between damages in defamation cases and damages for personal injuries
“What is awarded is …a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.”
46. Provided those qualifications are borne in mind, some assistance may be obtained from the views expressed by this court as to the damages awarded in particular cases when those awards were either upheld or set aside.
________________________ page break ________________________
(26)
47. The general principle which must be applied is as stated by Henchy J. in Barrett in the following passage:-
“a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It was so disproportionately high that in my view it should not be allowed to stand.”
48. It is accepted that the award of damages in this case, if it is not set aside by this court, will be the second highest award of damages so upheld, the highest being the award in De Rossa . In my view, subject again to the qualifications, I have emphasised, it is legitimate to compare the award in this case with De Rossa for the purpose of determining whether it is so disproportionately high that it should not be allowed to stand.
49. The award can also, in my view, be legitimately compared with the award in McDonagh .v. Newsgroup Newspapers Limited Supreme Court, 23rd November, 1993, unreported, where the article complained of was found by the jury to mean inter alia that the plaintiff, who is a member of the Bar and who had attended an inquest (as an observer on behalf of the Irish government) into the deaths of three members of the Provisional IRA who had been shot by the British Army in Gibraltar, was a sympathiser with terrorist causes. They assessed damages at £90,000. An appeal having been brought to this court on the ground inter alia that the damages were so
________________________ page break ________________________
(27)
excessive as to require intervention, the court declined to set the award aside. Speaking for the court, Finlay C.J. said:-
“A statement [that the plaintiff was abusing the professional function entrusted to him by his client] and in addition makes the accusation of sympathy with terrorist causes would be extraordinarily damaging to any person, irrespective of their calling or profession. I, as I have indicated, take the view that the assessment of damages made by this jury, though undoubtedly high and at the top of the permissible range is not beyond that range in the sense that it is so incorrect in principle that having regard to the general approach of an appellate court to damages assessed by a jury for defamation it should be set aside.”
50. It should also be noted that, in declining to set aside the award in De Rossa Hamilton C.J. said that:
“The jury found that the words complained of by the Respondent meant that the Respondent was involved in or tolerated serious crime and personally supported anti-semitism and violent Communist oppression.”
“If these allegations were true, the Respondent was guilty of conduct, which was not only likely to bring him into disrepute with right-minded people but was such as to render him unsuitable for public office.”
“No more serious allegations could be made against a politician such as the Respondent herein.”
“Having regard to the serious nature of the said libel, its potential effect on the career of the Respondent, and the other considerations as outlined
________________________ page break ________________________
(28)
herein, it would appear to me that the jury would have been justified in going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.”
51. In the present case, the article complained of stated that the plaintiff had paid £30,000 to a Government Minister by way of a bribe for the purpose of securing a licence for a radio station and obtained the licence as a result of the bribe, that he had also secured a licence for ESAT Digifone in circumstances giving rise to a suspicion of bribery or corrupt practices and that the activities warranted investigation by the Flood Tribunal. These were undoubtedly seriously defamatory statements which justified the award of substantial damages. However, the case must be approached, in my view, on the basis that the damages awarded are in the highest bracket of damages appropriate in any libel case. They are comparable to the general damages awarded in the most serious cases of paraplegic or quadriplegic injuries and, relatively speaking, are in the same bracket as the damages awarded in De Rossa . The libel, however, although undoubtedly serious and justifying the award of substantial damages, cannot be regarded as coming within the category of the grossest and the most serious libels which have come before the courts.
52. In this context, a comparison with De Rossa is to some extent at least illuminating. In the latter case, the libel complained of could not have been of a more serious character, alleging, as it did, that the plaintiff supported some of the vilest activities of totalitarian regimes in the twentieth century and was personally involved in or condoned serious crime. On any view, that is a significantly more damaging and
________________________ page break ________________________
(29)
serious libel than the admittedly serious statements made concerning the plaintiff in the present case. It was moreover made in a newspaper with an estimated readership of over a million people: the Irish Mirror is read by approximately 130,000 people. The plaintiff in De Rossa was a prominent politician who was the subject of particular media attention at the time the libel was published, since the party he led was engaged in negotiations which they hoped would result in their participation in a coalition government. It is acknowledged that the plaintiff in these proceedings enjoys a considerable reputation as a businessman but he would not be as well known to the general public as the plaintiff in De Rossa who, in common with other leading politicians, was the subject of constant media attention. Finally, the plaintiff in De Rossa had to go through three protracted High Court actions in front of a jury before his reputation was finally vindicated by the jury and was subjected to prolonged and hostile cross-examination. In the present case, as in De Rossa a somewhat qualified plea of justification was advanced, but does not appear to have been seriously pursued: indeed, the cross-examination by counsel on behalf of the defendants as recorded in the transcript could hardly be regarded as being particularly prolonged or hostile.
53. A comparison with McDonagh – where, as already noted, the damages were described by Finlay C.J. as being “at the top of the permissible range” – is also of some assistance. The plaintiff in that case, although a member of the Bar in good standing, would, like many other barristers in a similar category, be almost wholly unknown outside the legal profession. In terms of his public reputation, the plaintiff in the present case would undoubtedly enjoy a more extensive reputation with the general public than the plaintiff in McDonagh, but, as I have already indicated, a significantly
________________________ page break ________________________
(30)
more confined reputation than the plaintiff in De Rossa . As against that, the allegation concerning the plaintiff in that case was at least as serious as, if not more serious than, the allegation concerning the plaintiff in the present case. It must also be borne in mind, of course, that the case was decided seven years ago and that one would have to take into account the effects of inflation since then.
54. Ultimately, however, this case has to be decided having regard to its own particular facts and circumstances. I am conscious of the care which must be exercised by an appellate court before it interferes with the assessment of damages by a jury in a case of defamation, but, having weighed up all the factors to which I have referred, I am satisfied that the award in this case was disproportionately high and should be set aside.
The cross appeal
55. It was submitted on behalf of the plaintiff that the learned trial judge was wrong in not leaving the issue of punitive or exemplary damages to the jury.
56. It is undoubtedly the case that exemplary damages, to use the description now generally in use, may be awarded by a court in an action for defamation. Lord Devlin in his celebrated and much criticised speech in Rookes .v. Barnard [1964] AC 1129, had said that exemplary damages could only be awarded in three limited categories, a view of the law assented to by the other law lords, but not followed in other common law jurisdictions, including Ireland. (See Conway .v. Irish National Teachers Organisation and Others, [1991] ILRM 497.) It has been held in those jurisdictions that the courts are not confined to those three categories.
________________________ page break ________________________
(31)
57. One of the categories referred to in Lord Devlin’s speech was:-
“Those in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff”.
58. As was made clear by the House of Lords subsequently in Cassell and Co. .v. Broome , a plaintiff in an action for defamation who established that the defendant had published the words complained of because of a calculation that the profits resulting from the publication would exceed any damages he might have to pay would be entitled to exemplary damages since the case would come within this category. Since, as held by this court in Conway .v. Irish National Teachers Organisation , the jurisdiction of the court to award exemplary damages is not confined to the three categories referred to by Lord Devlin, it would follow that there may be other cases in which such damages could be awarded, e.g. where there was an intention to publish defamatory matter which was intended to refer to the plaintiff and which was known to be false. In the case of such a calculated breach of the constitutional right of the plaintiff to his good name, it might well be that, in the light of Conway .v. Irish National Teachers Organisation , a plaintiff would be entitled to exemplary damages. In the present case, there is nothing to indicate that the defendants published the offending article intending to defame the plaintiff and in the knowledge that it was untrue. I am satisfied that the trial judge was, accordingly, correct in her decision not to leave the issue of exemplary damages to the jury.
________________________ page break ________________________
(32)
Costs of earlier trial
59. The plaintiff also cross appealed against the refusal of the learned trial judge to award him the costs of an earlier abortive trial before O’Sullivan J. and a jury. On the second day of the trial, the trial judge recalled that he had advised one of the companies with which the plaintiff was associated some years before when he was at the Bar. He so informed the parties and counsel for the plaintiff indicated that they had no objection to the trial proceeding. However, the defendants indicated that they were not happy with the trial proceeding before O’Sullivan J. and he discharged the jury. At the conclusion of the trial before McGuinness J. and a jury, counsel for the plaintiff applied for the costs of the abortive trial. The learned trial judge declined to award the plaintiff those costs. I am satisfied that she was in error in so doing. The collapse of the first trial was not in any way the responsibility of the plaintiff and he was in no different position than if the jury had disagreed in that trial. I am, accordingly, satisfied that the defendants must pay the costs of the first abortive trial.
Conclusion
60. I would allow the appeal and order a new trial on the issue of damages only. I would dismiss the cross appeal, save in relation to the costs of the trial before O’Sullivan J. and a jury. I would vary the order of the High Court and order that the defendants pay the costs of the trial before O’Sullivan J. and a jury.
________________________ page break ________________________
THE SUPREME COURT
KEANE C.J.
DENHAM J.
MURPHY J.
GEOGHEGAN J.
O’HIGGINS J.
289/99
BETWEEN:
DENIS O’BRIEN
Plaintiff/Respondent
AND
MIRROR GROUP NEWSPAPERS LIMITED, PIERS MORGAN, NEIL LESLIE AND KARL BROPHY
Defendants/Appellants
Judgment of The Hon. Mrs. Justice Denham delivered the 25th day of October, 2000.
1. Appeal
61. This is an appeal by Mirror Group Newspapers Limited, Piers Morgan, Neil Leslie and Karl Brophy, the defendants/appellants, hereinafter referred to as the defendants, from the order of the High Court made on 11th November, 1999 which assessed and awarded damages for libel payable to the plaintiff/respondent, hereinafter referred to as the plaintiff, at £250,000. Thus it is an appeal on quantum only.
________________________ page break ________________________
-2-
2. Jury determination on newspaper article
62. This case arose out of an article which appeared in the Irish Mirror on 10th June, 1998. The action was heard before a judge and jury. The jury determined that the article meant:
(a) That the plaintiff had paid £30,000 to Mr. Raphael Burke, then a member of the government, by way of a bribe;
(b) That the plaintiff paid the said money for the purpose of securing a licence for the radio station 98 FM;
(c) That the licence for the radio station 98 FM was awarded to the plaintiff and his company on foot of the said alleged payment to Mr. Burke;
(d) That the plaintiff secured a licence for the company ESAT Digifone in circumstances which give rise to a suspicion of bribery or corrupt practices;
(e) That the plaintiff had engaged in corrupt practices which warranted investigation by the Flood Tribunal.
63. The jury assessed damages for the plaintiff at £250,000 and judgment was entered for that amount and costs. From that assessment the defendants appealed.
3. Grounds of Appeal
64. The grounds of appeal of the defendants were:
(a) That the damages were excessive;
(b) That the correct test by which the Supreme Court should determine whether to interfere with the award of a jury in a defamation action is to assess whether the award was one which a reasonable jury could have thought necessary to compensate the respondent and to re-establish his reputation, and that by this test the damages were excessive;
(c) In the alternative, that the size of the award was one which no reasonable jury could have made in the circumstances of the case and was so unreasonable as to be disproportionate to the injury done to the reputation of the respondent and that the damages were excessive;
________________________ page break ________________________
-3-
(d) That the learned High Court Judge misdirected the jury on the issue of damages;
(e) That counsel ought to have been permitted to refer and that the judge ought to have referred, to the purchasing power of any award which the jury might be minded to make, and of the income that it would produce;
(f) That counsel ought to have been permitted to refer, and that the judge ought to have referred, by way of compensation to the conventional compensation scales and personal injury cases and to previous libel awards made or approved by the Supreme Court;
(g) That counsel ought to have been permitted to refer, and that the judge ought to have referred, to the level of award which they might respectively consider to be appropriate;
(h) That the supposed rule of law or practice restraining counsel and the judge in defamation trials from offering specific guidance as to the appropriate level of general damages is inconsistent with the provisions of the Constitution, and in particular Article 40.3 and/or Article 40.6.1(i) thereof and that accordingly it had not continued in force, as part of the law, by the provisions of Article 50 of the Constitution;
(i) That the limited scope of judicial control at the trial on the issue of damages was a violation of the legal and constitutional rights of the appellants;
(j) That the size of the award was a violation of the legal and constitutional rights of the appellants;
(k) That the verdict of the court constituted an interference with the right of the appellants to freedom of expression, to an extent greater than was necessary in a democratic society for the protection of the reputation of the respondent and was accordingly contrary to Article 10 of the European Convention of Human Rights and the law of Ireland.
4. Cross-Appeal
65. The plaintiff has cross-appealed seeking orders that the learned trial judge erred in refusing to allow the jury decide on the issues of aggravated or punitive or exemplary damages. Further, he has cross-appealed seeking an order for the costs of the previous trial.
________________________ page break ________________________
-4-
5. Defendants’ Submissions
66. The defendants acknowledged that many of the grounds raised in the Notice of Appeal were considered and rejected in a majority decision of the Supreme Court in De Rossa v. Independent Newspapers Plc. Supreme Court, 30th July 1999, unreported, hereinafter referred to as De Rossa . The defendants submitted that that decision was in part incorrect and ought to be revisited; that the award of £250,000 was made without adequate safeguards and that it constituted a breach of the defendants’ rights under Article 40.6.1 .i of the Constitution. Further, it was submitted that, while the European Convention on Human Rights is not part of domestic law, the rights protected by Article 10 of the European Convention are, for the most part, rights protected by Article 40.3.1 and 40.6.l.i of the Constitution. Also, that the limitations on exercise of those rights, the interest of the common good, correspond largely to the limitations expressly permitted by Article 10 of the Convention. Consequently, it was submitted, the starting point for a consideration of the appropriate balance between the quantum of damages for defamation and the right to freedom of expression is Tolstoy Miloslavsky v. U.K. [1995] 20 EHRR 442, hereinafter referred to as Tolstoy. The defendants submitted that the Supreme Court should reconsider its decision in De Rossa and they argued for a different conclusion in law. In the alternative or in addition, it was submitted that the award made by the jury was excessive. It was argued that the awards in De Rossa and this case are simply incompatible, unreconcilable and could not form part of any rational system of compensation as envisaged under the Constitution. To seek to reconcile such awards is to clothe the body of a series of random and arbitrary jury awards with the raiment of a rational scheme of compensation for libel.
________________________ page break ________________________
-5-
6. Plaintiff’s Submissions
67. The plaintiff submitted that the only real issue on the appeal is whether a reasonable jury could have awarded the sum of £250,000 to the plaintiff in the circumstances of the case. It was submitted that the size of the award in damages was in every way commensurate with the extreme seriousness of the particular libel and the major coverage which it was given. The libel went to the very essence of the plaintiffs worth both as an individual and as a businessman. It was submitted that the Irish law of libel represents a fair, logical and constitutional approach to the balancing of competing objectives, of the right of freedom of expression and of that of the individual citizen to his good name. In every respect the law is in accordance with Article 10 of the Convention of Human Rights and has not ever resulted in an award of damages of the size which has been suggested by the Court of Human Rights to represent an impermissible restriction on the right of freedom of expression. It was submitted that the libel in this case was of the highest category of prominence, seriousness and reckless irresponsibility having been published on no greater information that that contained in an anonymous letter and in face of unqualified denial by the plaintiff. It was submitted that whilst it is not in general a useful exercise to compare one libel with another this was one which had the capacity to create enormous damage on the plaintiff who was compensated no more than reasonably by the award of damages by the jury.
7. Following Precedent
68. Decisions of the Supreme Court are final: Article 34.4.6 of the Constitution of Ireland, 1937. The Supreme Court follows previous decisions of its court. This is a policy for the purpose of maintaining continuity and certainty in the law. However, there are exceptions to the rule. These were described in State (Quinn) v. Ryan [1965] IR 70 by
________________________ page break ________________________
-6-
Walsh J. at p. 127:
“That is not to say … that the court would depart from an earlier decision for any but the most compelling reasons. The advantages of stare decisis are many and obvious so long as it is remembered that it is a policy and not a binding, unalterable rule.”
69. The matter was further analysed in Attorney General v. Ryan’s Car Hire Ltd. [1965] IR 642. Kingsmill Moore J. stated at pp. 653-4:
“The law which we have taken over is based on the following of precedents and there can be no question of abandoning the principle of following precedent as the normal, indeed almost universal, procedure. To do so would be to introduce into our law an intolerable uncertainty. But where the Supreme Court is of the opinion that there is a compelling reason why it should not follow an earlier decision of its own, or of the courts of ultimate jurisdiction which preceded it, where it appears to be clearly wrong, is it to be bound to perpetuate the error?
In my opinion the rigid rule of stare decisis must in a Court of ultimate resort give place to a more elastic formula. Where such a Court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases.”
70. Thus, a previous decision of the Supreme Court may not be followed by the Supreme Court if it is determined that it was erroneous, if there is a compelling reason, or there are compelling reasons, not to follow the earlier decision. Precedent is followed save for exceptional cases. Thus, it is necessary to apply this test to the De Rossa case. It is necessary to determine if De Rossa should be followed or if exceptional circumstances exist so that the case should not be followed.
________________________ page break ________________________
-7-
8. Tolstoy
71. A fundamental plank of the De Rossa decision of the Supreme Court was the Tolstoy decision of the European Court of Human Rights. In the De Rossa judgment emphasis is laid on the Tolstoy judgment. The applicant in Tolstoy succeeded in his claim that the award of damages was contrary to Article 10. The Court held at paragraphs 46-51:
“C. Were the award and the injunction ‘necessary in a democratic society’?
1. The award.
46. The applicant and the Commission were of the view that the amount of damages awarded –1.5 million — was disproportionate to the legitimate aim of protecting Lord Aldington’s reputation or rights. The applicant pointed out that, at the relevant time, judicial control over the award of damages in defamation cases had been insufficient to ensure that such awards were proportionate.
47. The Government maintained that there was a reasonable relationship of proportionality between the amount of the award and the aim of compensating the damage done to Lord Aldington and restoring his reputation. They pointed out that Article 10 imposed ‘duties and responsibilities’. The applicant’s pamphlet had been false and unfair and had been expressly designed to provoke a libel action. Although no reasons had been given by the jury, it was, as noted by the Court of Appeal, obvious that the jury awarded so large a sum by way of damages because of the enormity of the libel. The Court of Appeal had been satisfied that the award of £1.5 million had been a rational response by the jury to the exceptional circumstances of the libel which they were considering. Otherwise, as amply demonstrated by its ruling in Sutcliffe v. Pressdram Ltd. the Court of Appeal would have been able to set the award aside and order a new trial.
The Government further submitted that in the Court of Appeal’s opinion the jury had received a very full direction from the trial judge. Moreover, as explained by the judge to the jury, it would have been inappropriate and unhelpful to the jury for him to refer to other cases, because the facts and circumstances were so different, or refer to specific sums of money, since the quantum of damages was exclusively a matter for the jury.
________________________ page break ________________________
-8-
In addition, before the High Court both counsel for the applicant and the applicant himself had acknowledged that if Lord Aldington won his appeal action, he must receive a very substantial sum. In the Court of Appeal the applicant had been unconcerned about the size of the damages award and he had earlier declined Lord Aldington’s offer to accept £300,000. The offer remained open and the applicant could at any time reduce his liability by £1.2 million if he really wished to do so.
48. The Court recalls at the outset that its review is confined to the award as it was assessed by the jury, in the circumstances of judicial control existing at the time, and does not extend to the jury’s finding of libel. It follows that its assessment of the facts is even more circumscribed than would have been the case had the complaint also concerned the latter.
In this connection, it should also be observed that perceptions as to what would be an appropriate response by society to speech which does not or is not claimed to enjoy the protection of Article 10 of the Convention may differ greatly from one Contracting State to another. The competent national authorities are better placed than the European Court to assess the matter and should therefore enjoy a wide margin of appreciation in this respect.
49. On the other hand, the fact that the applicant declined to accept Lord Aldington’s offer to settle for a lesser sum does not diminish the United Kingdom’s responsibility under the Convention in respect of the contested damages award.
However, the Court takes note of the fact that the applicant himself and his counsel accepted that if the jury were to find libel, it would have to made a very substantial award of damages. While this is an important element to be borne in mind it does not mean that the jury was free to make any award it saw fit since, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.
The jury had been directed not to punish the applicant but only to award an amount that would compensate the non-pecuniary damage to Lord Aldington. The sum awarded was three times the size of the highest level award previously made in England and no comparable award has been made since. An award of the present size must be particularly open to question where the substantial national law applicable at the time fails itself to provide a requirement of proportionality.
50. In this regard it should be noted that, at the material time, the national law allowed a great latitude to the jury. The Court of Appeal could not set aside an award simply on the grounds that it was excessive but only if the award was so unreasonable that it could not have been
________________________ page break ________________________
-9-
made by sensible people and must have been arrived at capriciously, unconscionably or irrationally. In a more recent case Rantzen v, Mirror Group Newspapers Ltd . the Court of Appeal itself observed that to grant an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was ‘necessary in a democratic society’ for the purposes of Article 10 of the Convention. It noted that the common law – if properly understood – required the courts to subject large awards of damages to a more searching scrutiny than had been customary. As to what guidance the judge could give to the jury, the Court of Appeal stated that it was to be hoped that in the course of time a series of decisions of the Court of Appeal, taken under section 8 of the Courts and Legal Services Act, 1990, would establish some standards as to what would be ‘proper’ awards. In the meantime the jury should be invited to consider the purchasing power of any award which they might make and to ensure that any award they made was proportionate to the damage which the plaintiff had suffered and was a sum which it was necessary to award him to provide adequate compensation and to re-establish his reputation.
The Court cannot but endorse the above observations by the Court of Appeal to the effect that the scope of judicial control, at the trial and on appeal, at the time of the applicant’s case did not offer adequate and effective safeguards against a disproportionately large award.
51. Accordingly, having regard to the size of the award in the applicant’s case in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. the Court finds that there has been a violation of the applicant’s rights under Article 10 of the Convention.
For these reasons THE COURT
1. Holds unanimously that the award was ‘prescribed by law’ within the meaning of Article 10 of the Convention.
2.. Holds unanimously that the award, having regard to its size taken in conjunction with the state of national law at the relevant time was not ‘necessary in a democratic society’ and thus constituted a violation of the applicant’s rights under Article 10.”
[emphasis added]
72. Thus, the court held that the award of damages was a breach of Article 10 of the European Convention on Human Rights. This decision was based on the size of the
________________________ page break ________________________
-10-
award and the lack of adequate and effective safeguards against disproportionality in the national law, that is the law of England and Wales, at the time.
9. Rantzen and John
73. At the relevant time in England and Wales the decision of Rantzen v. Mirror Group Newspapers (1986) Limited and Ors. [1993] 4 All ER 975 , hereinafter referred to as Rantzen had not been handed down. Nor had that of John v. M.G.N. Ltd. [1996] 2 All ER 35 , hereinafter referred to as John.
10. De Rossa
An issue in De Rossa was whether the court should give further guidelines to the jury as to the assessment of damages. This was decided in the negative. Hamilton C.J., referring to the Tolstoy decision, held:
“It is clear from the foregoing that the primary reason for the Court’s decision was the size of the award and the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. It recognised, however, that an award of damages must bear a reasonable relationship of proportionality to the injury to reputation suffered.”
74. He referred to the fact that the European Court had given approval to the guidance to be given to a jury as laid down by the Court of Appeal in Rantzen v. Mirror Group Newspapers (1986) Limited and Ors. [1993] 4 All ER 975 and as extended in John v. M.G.N. Ltd. [1996] 2 All ER 35. Of the changes introduced by these cases, he held at p.44:
“While the aforesaid changes of practice were therein described as ‘modest’ they are not only important but fundamental and radically altered the general practice with regard to the instructions or guidance to be given to a jury as to the manner in which they should approach the assessment of damages in a defamation action.”
________________________ page break ________________________
– 11 –
75. On the issue of guidelines on the award of damages to the jury he referred at p.47 to the concepts of balancing and proportionality required:
“The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name ( Hynes – O’Sullivan v. O’Driscoll [1988] IR 436 [1989] ILRM 349). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.”
76. Hamilton C.J. pointed out that the only remedy to a person whose good name had been damaged was an action for damages, reference was made to Barrett v. Independent Newspapers Ltd. [1986] IR 13, pp. 23 and 24. It was held that neither the Constitution nor the European Convention requires that guidelines be introduced, that the guidelines introduced in England and Wales were a development of common law. Hamilton C.J. held:
“If the practice as outlined in Rantzen’s case and extended as outlined in John’s case were to be followed, the jury would be buried in figures, figures suggested by counsel for both parties as to the appropriate level of damages, a figure from the judge representing his opinion as to the appropriate level of damages, figures with regard to damages made or approved by the Court of Appeal in previous libel actions and figures with regard to damages in personal injuries actions and at the same time be subject to the direction of the trial judge that it is not bound by such figures and must make up its own mind as to the appropriate level of damages….
It is accepted by all that, even if the giving of such guidelines and figures were permissible, the jury would not be bound by such figures and was under an obligation to make up its own mind as to the appropriate level of damages.
I am satisfied that the giving of such figures, even though only by way of guideline, would constitute an unjustifiable invasion of the province or domain of the jury.”
________________________ page break ________________________
– 12 –
77. In a dissenting judgment I expressed the view that juries should be given further guidelines, including information, for example, on previous libel awards confirmed or determined by the Supreme Court, on the level of damages in personal injury cases and on the level of award deemed appropriate by parties. This would aid a jury in arriving at a reasonable and proportionate decision on the assessment of damages. Guidelines would inform the jury. Further, guidelines would be a protection against disproportionate awards.
11. Compelling Reasons
78. The decision of the majority in De Rossa sets out the law. The defendants have asked the court not to follow the De Rossa decision. The first query is as to whether the decision was erroneous. As is clear from my dissenting judgment in De Rossa I held a view contrary to the majority of the court. However, that of itself is not sufficient to determine that De Rossa should not be followed. To disagree with a decision is not sufficient to invoke the exception to the policy of the court to follow precedent. It is necessary also to determine if there exists a compelling reason not to follow De Rossa .
79. The matters at issue are important in a democracy. The right to communicate, the right to information and the right to freedom of expression, guaranteed by Article 40.3.1 and 40.6.1(i) of the Constitution of Ireland, are similar to the right of freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. The rights guaranteed in the Irish Constitution are not absolute, neither are the rights of the European Convention. Both documents require that a balance be achieved and that balance going to matters of reputation, information, communication and the freedom of expression is a matter of importance in a democracy and is of public interest.
________________________ page break ________________________
– 13 –
80. The facts of this case raise different circumstances. While once again in this case a balance is sought to be achieved between the plaintiffs right to his good name, as protected in the law of defamation, and the right of freedom of expression, the circumstances are not the same. The issue is quantum. However, quantum can not be considered in a vacuum. The facts of the case are relevant. The facts of this case raise a different scenario.
81. There should be a rational relationship between schemes of awarding damages. To have payments for damage to reputation grossly in excess of payments for serious personal injury raises for consideration the rationale of both schemes for awarding damages. Indeed, if the amount awarded in damages in defamation cases exceeds greatly the amounts awarded in general damages for severe personal injuries it has the appearance of punitive damages. This fundamental issue – the rationale for the level of awards of damages – is important.
82. In the kernel of the De Rossa decision is an analysis of the European Convention and decisions referred thereto. The European Convention for the Protection of Human Rights and Fundamental Freedoms is not part of the domestic law of Ireland: In Re O’Laighléis [1960] IR 93. However, decisions of the European Court of Human Rights on the said European Convention may be persuasive authority in the analysis of similar constitutional rights, in the same way as decisions of other constitutional courts: Norris v. Attorney General [1984] IR 36, Henchy J. at p.69. It was determined in De Rossa that the existing practice in Ireland were not contrary to the Convention. The defendants submit that the decision was partially in error. The nub of the defendants’ submission is that the Irish practice rule violates Article 10 of the Convention. In light of the current practice whereby decisions of the European Court of Human Rights may have persuasive authority on issues where the Convention and Constitution are similar, in light of the fact that Ireland was one of
________________________ page break ________________________
-14-
the original states which ratified the Convention (with consequent effect on policy), and in light of the declared intention of the Irish Government to incorporate the Convention into the domestic law of Ireland, the law of the Convention has a persuasive relevance. Consequently, a cogent argument that there was error in part in its interpretation is significant and a compelling reason to reconsider the issue.
83. The defendants submitted that there should be a departure from the previous decision of the Supreme Court in De Rossa . It was argued that while in the De Rossa case there was reference to Rantzen that the court had not directed its mind to the relevant and necessary portion of Tolstoy especially the above quoted paragraphs 46-51. It was submitted that the court, while it adverted to Tolstoy, did not direct its mind to the essential elements of Tolstoy. In analysing Tolstoy it appears that the earlier common law of England and Wales was considered to be contrary to the European Convention. It appears to me that there is considerable similarity to Irish law now and the law of England and Wales prior to the decisions in Rantzen and John. Consequently there is a real issue as to whether the scope of judicial control at the trial and on appeal offers adequate and effective safeguards against disproportionately large awards of damages. It thus raises the issue as to whether there is a breach of the Convention. In all the circumstances it is appropriate that the matter be reopened, reanalysed and reassessed.
84. At the core of the issues in this case is a decision of a jury. A modern jury brings its own common knowledge to the decisions. It decides whether the statement is a libel. That is not in contest on this appeal. That is the most important decision of the jury -as to whether it is a libel or not – and that decision is solely for the jury. The jury decided also on the amount of damages. At issue is whether on this latter decision further information and guidance should be given to the jury. As with other aspects of juries, their decisions
________________________ page break ________________________
– 15 –
should be reviewed in a modern context. I am satisfied that it is wholly appropriate that the issue of information and guidelines to juries be reconsidered. This has implications more far reaching than trials on defamation. I am satisfied that this too is a compelling reason to reconsider the De Rossa decision.
85. The discretion of the jury is not limitless. There is the requirement of proportionality in this jurisdiction but it is not assisted by specific guidelines on the assessment of damages. The issue of damages, and rules related thereto, is a matter which may be addressed by the Oireachtas. In the absence of such legislation the court may use its common law jurisprudence to assist the jury and the trial.
86. In conclusion, I am satisfied that there are compelling reasons to reconsider the De Rossa decision. These reasons include: (a) the cogent arguments made by the defendants as to the interpretation and effect of the Tolstoy decision, the analysis in De Rossa the fact that the issue is one of importance in a democracy and is of public interest; (b) the issue of quantum cannot be considered in a vacuum and the facts of this case inform the analysis; (c) there should be a rational relationship between schemes of awarding damages which should be analysed in the context of the award; (d) the issue of principles and guidelines to juries, in the context of complex modern litigation; are all compelling reasons which taken together are sufficient to raise the exception to the precedent rule. For all these reasons I am satisfied that there are compelling reasons to reconsider De Rossa . Such a review after a relatively short time is not barred in the presence of compelling reasons to review the decision.
12. Persuasive Authority
87. There is no necessity to tie analysis to decisions of the Court of Appeal of England and Wales. Persuasive authority may be considered from our constitutional
________________________ page break ________________________
-16-
viewpoint and from other common law constitutional courts, some of which I referred to in De Rossa as well as decisions of the European Court of Human Rights on the European Convention of Human Rights. Thus, quite apart from Rantzen and John consideration may be given to cases from other common law jurisdictions. For example, in Carson v. John Fairfax (1992-93) 178 C.L.R. 44 Kirby P.’s ruling in the Court of Appeal that on comparison with serious personal injury cases the amount of damages given was excessive and smacked of the punitive was upheld by the High Court. In other words levels of awards in personal injury cases were held to be relevant.
13. Decision on Guidelines
88. As to the substantive issue, 1 remain of the view I expressed in De Rossa . I am satisfied that guidelines to a jury on the assessment of damages are appropriate. At the least, reference could be made to the level of damages in previous libel cases decided by the Supreme Court and to the level of awards in serious personal injury cases, as has been introduced in other common law countries. Such judicial guidelines may be a safeguard against a disproportionate award. In the absence of such guidelines, merely to require the award to be proportionate is an inadequate protection against a disproportionate award.
14. Was it an Excessive Award ?
89. In light of the decision of the majority of this court that it will not depart from the decision in De Rossa and consequently that De Rossa states the law, the next issue is whether the jury’s assessment of damages should be set aside as being excessive. In McDonagh v. News Group Newspapers Limited Supreme Court, 23rd November, 1993, unreported, Finlay C.J. said of an award of £90,000:
________________________ page break ________________________
-17-
“… it seems to me that though the figure is probably at the top of the appropriate range it is not so great that this court should interfere with it on appeal.”
90. This was a most serious libel, of a barrister, as stated by Finlay C.J.:
“Having come to the conclusion that I must reject the Defendant’s appeal against the answer by the jury to Question 2(d), namely the question as to whether the words were meant and were understood to mean that the Plaintiff was a sympathiser with terrorist causes, I am satisfied that there are not very many general classifications of defamatory accusation which at present in Ireland, in the minds of right-minded people, would be considered significantly more serious. To an extent the seriousness may be somewhat aggravated by the fact that it is an accusation which has been made against a person who has a role, by reason of his profession and by reason of his standing as a member of the Bar, in the administration of justice. With regard to the other meanings which have been accepted by the jury as flowing from the accusations made, they basically constitute in their combined effect an extremely grave accusation of professional misconduct by the Plaintiff. The essence of the function of a lawyer and a member of the Bar is carrying out a task such as that which was assigned by the State to the Plaintiff on this occasion of the inquest, was that he would be rigidly and uncompromisingly honest and independent in his assessment of the proceedings of which he was an observer and that the State could rely completely, as his client, upon what a lawyer must in his ethical code deliver, namely, an honest appraisal of the situation before him, both as a matter of law and as a matter of fact.
The combined accusations made against the Plaintiff are that he failed or was likely to fail completely to do that, and that instead as a piece of major professional misconduct he abused the function which had been entrusted to him by his client.
A statement which makes that accusation and in addition makes the accusation of sympathy with terrorist causes would be extraordinarily damaging to any person, irrespective of their calling or profession. I, as I have indicated, take the view that the assessment of damages made by this jury, though undoubtedly high and at the top of the permissible range, is not beyond that range in the sense that it is so incorrect in principle that having regard to the general approach of an appellate court to damages assessed by a jury for defamation it should be set aside.”
________________________ page break ________________________
– 18 –
In the De Rossa case I was of the view that £300,000 was excessive. McDonagh, de Rossa and this case have a similar factor – the applicant has a standing in the community as, respectively, a barrister, a politician and a businessman. All three cases involved very serious defamations.
The McDonagh award was held to be at the top of the permissible range. In De Rossa there were aggravating factors to be considered. Even allowing for the circumstances of this case, it is an award which in my view is beyond the range in that it is so incorrect in principle, it is so disproportionate, that it should be set aside. I leave for another case the matter as to whether it would be open to this court to substitute an award of damages. This is an important issue, especially when awards are held to be excessive and yet no guidelines, as submitted for, are given to the jury.
15. Aggravated, Exemplary and Punitive Damages
91. On the issues of aggravated, exemplary or punitive damages I agree with the Chief Justice. I would not allow the cross-appeal. The trial judge did not err in refusing to leave these matters to the jury.
16. Costs of Previous Trial
92. Costs follow the event. Consequently, if the respondent succeeds he is entitled to costs, including the costs of the first trial.
17. Conclusion
93. I am satisfied that the instructions to the jury on quantum should be altered so as to give a greater degree of guidance and assistance to the jury. Also, that there should be a
________________________ page break ________________________
-19-
more searching scrutiny, which would include consideration of such guidelines, on appeal to the Supreme Court to ensure that there is maintained the appropriate balance between the rights of the individual and of freedom of expression in a democratic society.
18. Orders
94. I would allow the appeal, determine that there are compelling reasons to reconsider the De Rossa decision, consider guidelines for the jury as to the assessment of damages, determine that the award was disproportionate and excessive and should be set aside, and reserve for another occasion the issue as to whether the Supreme Court could substitute an award of damages on appeal. On the matters raised in the cross-appeal I would dismiss the cross-appeal, except in relation to the costs of the first trial.
________________________ page break ________________________
THE SUPREME COURT
KEANE C.J.
DENHAM J.
MURPHY J.
GEOGHEGAN J.
O’HIGGINS J.
289/99
BETWEEN:
DENIS O’BRIEN
Plaintiff/Respondent
AND
MIRROR GROUP NEWSPAPERS LIMITED, PIERS MORGAN, NEIL LESLIE AND KARL BROPHY
Defendants/Appellants
JUDGMENT delivered the 25th day of October 2000 by Mr Justice Geoghegan
95. The Chief Justice in his judgment has set out in considerable detail both the background facts relating to this case and its procedural history. I adopt his account of these matters and therefore any repetition would be superfluous.
96. In a recent decision of this Court in De Rossa v Independent Newspapers Plc Supreme Court 30th July 1999, unreported, the Court in the form of a judgment per Hamilton C.J. with whom three other members of the Court agreed restated the traditional principles long followed by trial judges in libel actions as to how such a judge should address the jury in relation to the assessment of damages. Specifically the Court disapproved of the decision of the English Court of Appeal in John v MGN Limited [1996] 2 All E.R. 365 that thenceforth guidance should be given by the trial judge to the jury on the assessment of damages in the form of comparison with precedent awards in both personal injury and libel cases and to the purchasing power of a particular award and to the level of awards suggested
________________________ page break ________________________
(2)
by counsel and the judge himself or herself. In a minority judgment in De Rossa Denham J. expressed the view that such guidance should be given.
97. It has been argued in this appeal on behalf of the Appellant that De Rossa should be reconsidered and that on various grounds as set out in the Chief Justice’s judgment this Court should now depart from it. The Chief Justice has dealt with the submission at some length in his judgment and has formed the view that this Court should not now entertain arguments to the effect that De Rossa was wrongly decided. I am in complete agreement both with the conclusion of the Chief Justice in this regard and his reasons for arriving at such conclusion. There is nothing more which I can usefully add.
98. I therefore now turn to the question of whether the award should be set aside as being disproportionately high. I will start by making a simple comment. In my view this was an extremely serious libel. It is important to consider the context in which the offending article came to be written. First of all the Moriarty and Flood Tribunals were hitting the headlines. Payments to politicians were being investigated. It would be a gross understatement to say that in the mind of the public there was a sniff of corruption in the air. Indeed as McGuinness J. pointed out when conducting the trial and in reference to some discussion about a particular question that was being asked, even payments by companies to political parties were at that stage becoming tainted with corruption in the minds of the public. But the public for the most part would have no knowledge as to the character of Mr Denis O’Brien the Plaintiff/Respondent in this case. Yet at the same time he was well known as a new emerging and major figure in the business world having regard in particular to the considerable controversy surrounding the granting to companies promoted by the Plaintiff of relevant land line and mobile telephone licences placing him through his companies as effectively the only competition to the then Telecom Eireann. These licences were granted by the then Minister
________________________ page break ________________________
(3)
99. Mr Lowry although there were much larger international companies which had applied for the licences. No matter how many enquiries or investigations there may have been into the granting of these licences and upholding their propriety the Plaintiff who was a relatively “unknown quantity” in the eyes of the public was clearly vulnerable to attacks on his character.
100. Secondly the offending article was published at a stage when the Plaintiff was in the United States of America making exhaustive efforts with different financial institutions to raise the funds necessary for the appropriate investment in the telephonic enterprise. The Plaintiff explained in evidence (which I must assume was accepted by the jury) that he was extremely upset at hearing from Dublin about the questions he was being asked and the obvious intention to write an article and that this upset particularly related to the business sensitivity involved at that time when he was trying to raise money. It is true of course that the evidence established that his business was progressing successfully. But at Question 233 counsel for the Defendants/Appellants suggested to the Plaintiff “quite specifically” that the article had had no effect whatsoever on the growth of his projects and the expansion of his business. The Plaintiffs answer was as follows:
“You are incorrect in that assumption. I would never have had to go to the length of coming to the High Court in Dublin unless I felt that this was absolutely wrong.”
101. It was suggested to the Plaintiff that the Irish Mirror did not have a large circulation and that at any rate the type of person that he would be dealing with in business etc. would not be a reader of that paper. I do not find this argument very convincing though I do accept of course that circulation is a factor which may be relevant in the assessment of damages in a libel action. But as Mr Cooney pointed out in cross-examination and with which I agree the
________________________ page break ________________________
(4)
contents of a newspaper article may become known to large numbers of people beyond the actual buyers and readers of that paper. In modern times it is common practice for all the different newspapers to be on display usually on a low shelf in a shop. A person who has no intention whatsoever of buying the Irish Mirror may nevertheless look at the main front page headlines. Given the widespread public interest in the Tribunals and the allegations against Mr Ray Burke etc. a front page column that is headed by a photograph of Mr Burke with the words “donation: Ray Burke” written underneath and then a headline in bold type “Burke in new £30, 000 probe” was bound to attract the eye of many customers in shops buying newspapers but who had no intention of buying the Irish Mirror. Furthermore underneath the headline was the word “exclusive” picked out in red.
102. It is true that only part of the article is contained in that front page but if the natural temptation of the browser to say nothing of the buyer of the paper to turn to page 3 was succumbed to it is clear that there were references not merely to the radio licence but to what to my mind was a much more serious matter, the Esat Digifone competition. One of the questions which had been put to the jury by the trial judge was the following:
“In its natural and ordinary meaning or by way of innuendo does the article mean that the Plaintiff secured a licence for the company Esat Digifone in circumstances which gave rise to a suspicion of bribery or corrupt practices?”
103. The jury answered that question as it did to the other four in the affirmative. It is important at this stage again to recall that at the time the article was published the Plaintiff was engaged in the difficult round of negotiations with financial institutions with the crucial aim of raising the necessary investment. I suspect the jury took the view that such an allegation coming at
________________________ page break ________________________
(5)
such a time and in such sensitive circumstances was of the utmost seriousness and should attract high damages.
104. I have already referred in part to the wider circulation that such an article would have than merely the sales or readership figures of the Irish Mirror might suggest. The Plaintiff himself laid emphasis on the damage to his reputation among his workforce. But there is a still more important factor to which quite clearly from the transcript the Plaintiff attached very considerable significance. As he explained, if you are a “player” in the business or financial world and are trying to attract international investment what is said about you or your companies on the Internet obviously assumes considerable importance. He gave evidence to the effect that there were agencies which gathered newspaper clippings about business enterprises all round the world and that these can very easily find their way into the Internet so that they are read by any person looking into or investigating the enterprise concerned. Counsel for the Defendant/Appellant Mr MacMenamin put it to the Plaintiff that the article was “not even on the Internet” . The Plaintiff was unable specifically to answer the question but he pointed out that there are different data bases for different articles. The trial judge McGuinness J. intervened to ask Mr MacMenamin whether when Mr MacMenamin was suggesting that it was not on the Internet did he simply mean that it was not on the Mirror website. Mr MacMenamin confirmed that that was what he was suggesting namely that it was not on the Mirror website. The Plaintiff when he heard that went on to explain that he did not think the business community looked at the Daily Mirror but that there were newspaper clipping services that go through every newspaper and every article produced all over the world so that when a potential investor goes and looks up the word “Esat” as he put it “the Daily Mirror, the Guardian, the Irish Times, the New York Times all come together.”
________________________ page break ________________________
(6)
105. Finally towards the end of the cross-examination of the Plaintiff Mr MacMenamin put to him that so far as the level of investment and borrowings are concerned in his various enterprises, that continues unimpeded. The Plaintiff agreed with that. He was then asked whether he had no abnormal anxieties on that score. He answered that he had many anxieties but he was again asked whether he had any abnormal anxieties and his answer to that was as follows:-
“Well, I have an abnormal anxiety as to what people think of an article like this, because it is still an unanswered question.”
106. Given the context in which the libels were published and the contents of the libels the question arises is the award so high that it ought to be set aside? Various formulations of words have been used by appellate Courts in Ireland and England as to when an appellate Court in a libel action can interfere with a jury award. Although the language is sharper and stronger in some cases than in others I am not sure that there was ever any intended difference and I am inclined to think that the form of words adopted by Henchy J. in Barrett v Independent Newspapers Limited [1986] IR 13 is the most helpful. The learned judge stated as follows:
“Yet, a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.”
________________________ page break ________________________
(7)
107. One point of interest about this statement of principle is that it is not confined to damages for libel. It is intended as a principle to apply to compensatory damages in all cases. This might at first sight seem difficult to reconcile with the many judicial dicta to the effect that appellate courts will be extraordinarily reluctant to interfere with jury awards in libel actions. Indeed in the Barrett case Finlay C.J. said the following:
“With regard to the appeal against the amount of the damages, certain principles of law are applicable. Firstly, while the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, on the basis of excess or inadequacy.”
108. There is no dissent from this view in the judgment of Henchy J. and I doubt very much that the two judges were intending to say anything different. The true principle would seem to be that in all cases of compensatory damages whether in libel or in personal injuries or otherwise an appeal court will not interfere merely because its own judges thought the award too high. The court will only interfere if the award is so high that it is above any figure which a reasonable jury might have thought fit to award. But although that principle is the same in all cases of compensatory damages, the application of the principle will necessarily be different in the case of libel from the case of personal injuries. In the case of personal injuries an appeal court can determine with some confidence what would be the range of awards which a reasonable jury (or nowadays a reasonable judge) might make. This the appeal court can do because although every personal injury case is different from every other personal injury case there are also great similarities. A broken hip case relates to some
________________________ page break ________________________
(8)
extent at least to every other broken hip case. A loss of an eye case relates to some extent at least to every other case of loss of an eye etc. Members of the court from their experience at the Bar and experience as trial judges and indeed experience of previous similar appeals may with some confidence form a view as to what the legitimate spectrum of awards could be. In the case of a libel appeal however the appeal Court although it has to engage in the same exercise, it can only do so with diffidence rather than confidence. In this connection it is worth quoting again the passage from the speech of Lord Hailsham of St. Marylebone, L.C. in Cassell and Co Ltd v Broome [1972] AC 1027 already cited by the Chief Justice:
“What is awarded is…. a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.”
109. It is I think relevant also to cite the passage from the same speech referred to in the written submissions of Counsel for the Plaintiff and Respondent:
“It may very well be that, on the whole, judges and the legal profession in general, would be less generous than juries in the award of damages for defamation. But I know of no principle of reason which would entitle judges, whether of appeal or at first instance, to consider that their own sense of the proprieties is more reasonable than that of a jury, or which would entitle them to arrogate to themselves a constitutional status in this matter which Parliament has deliberately withheld from them, for aught we know, on the very ground that juries can be expected to be more generous on such matters than judges.”
________________________ page break ________________________
(9)
110. Unlike personal injury cases every libel action is completely different from every other libel action and therefore the guidelines available to an appeal court in settling the reasonable parameters of an award are much more limited.
111. As the Chief Justice has pointed out, one such guideline may well be previous awards approved of by the Supreme Court. But I think that there are problems about over reliance on that criterion. One of the arguments of Hamilton C.J. in his judgment in the De Rossa case against a practice of counsel and the trial judge analysing other comparative libel actions when comparing the awards in them was the sheer practical difficulty of comparison. Before one begins to consider De Rossa or any other comparison it is important in my view that the Supreme Court should thoroughly consider the case before it in isolation of comparisons. If for instance the De Rossa case had never occurred, the mind set of this Court might be very different in viewing the claim of the Plaintiff Mr O’Brien. I have already given reasons why in my view the libels in the offending article were extremely serious from the point of view of the Plaintiff I have little doubt that if it was not for De Rossa , I would have no hesitation about leaving the jury award stand even though it is more than I personally would have awarded. But having regard to the diffidence with which an appeal court should approach the possible setting aside of a jury award in a libel action, I could not have formed the view that the jury award was beyond reason. In addition to the points which I have already made I think it relevant also to observe that no apology was made at any stage and that the jury may well have taken the view and could legitimately have taken the view that the article was very carefully crafted both to hint at wrongdoing on the part of the Plaintiff and thereby titillate the public while at the same time engage in a damage limitation exercise with a view to avoiding libel. If the newspaper did adopt this exercise it was unsuccessful but it would have been
________________________ page break ________________________
(10)
open to the jury to take the view that they had done so. The award had to be of a level that the Plaintiff would feel reasonably compensated.
112. Interestingly in the course of the opening of the case by Mr Cooney Counsel for the Plaintiff, he referred to the fact that the readership of the Irish Mirror in June 1998 varied between 180,000 and 195,000 people. Exception was taken by Mr MacMenamin Counsel for the Defendants to these actual figures being given to the jury because as he put it “in my respectful submission, that is an attempt by the back door to place numbers into the minds of the jury as regards a level of damages, and I take great exception to that.” Mr Cooney in response commented as follows:
“I understand his apprehension. I think effectively what Mr MacMenamin is afraid of is that the jury would come back and award somewhere between £180,000 and £195, 000. That is a danger which may be there. It may be removed by what Mr MacMenamin would say to the jury in his closing and more particularly, what you would say was in order that is that the level of damages is a matter for the jury.”
113. It would be unfair to draw any inference from this little bit of unusual dialogue that Mr Cooney was conceding that figures in that order were excessive but even if such an inference could be drawn it would be irrelevant. For the very same reason that it is difficult for an appeal court to arrive at a correct level of damages for libel it is almost impossible for counsel for the Plaintiff to make any worthwhile prediction.
114. As I have already indicated, I have come to the conclusion that if I do not have to consider De Rossa I would not concur with this Court interfering with the award. However De Rossa undoubtedly presents problems. As the Chief Justice has pointed out, the £300,000 awarded in that case was the highest in this jurisdiction to be approved by the Supreme Court.
________________________ page break ________________________
(11)
115. He has also summarised in his judgment the extremely serious allegations which were made against the prominent politician Mr Proinsias De Rossa. The Chief Justice has clearly taken the view that the defamation in this case was much less serious and that the discrepancy is so great that if £300,000 was considered by the Supreme Court to be about the most that could have been allowed in De Rossa £250,000 cannot be allowed for Mr O’Brien.
116. I take a somewhat different view. It would seem to me that the two cases are so completely different that worthwhile comparisons are not achievable. It is impossible to know what were the aspects of each individual case to which the respective juries attached importance. I think that in comparing the two cases (if such comparison is relevant at all) one must take serious account of the fact that the allegations in the De Rossa case were essentially all past history. On the other hand the allegations in Mr O’Brien’s case related to his more or less current behaviour. Secondly Mr De Rossa was extremely well known to the public and even in the eyes of his political opponents he had a fine reputation as a parliamentarian. In one sense given his publicly established good reputation it could be argued that it was all the more serious that that should be dented by allegations relating to an alleged criminal and murky past. On the other hand it could also be argued that while the damage was serious and would have to be compensated on a serious basis there would be no substantial danger of permanent injury to his reputation it being so public and well established. Mr O’Brien by contrast was not well known to the public and yet was sufficiently well known as somebody involved in controversy. There would have been no knowledge at all virtually as to his good or bad character and he was at the time of the libels in the process of raising funds for the most important business venture that he had been engaged in. The innuendoes against his good character were liable to be published across the Internet. As a major new entrepreneur on the Irish scene his reputation in the eyes of both the business world and the public in
________________________ page break ________________________
(12)
general was of the utmost importance to him. I have come to the conclusion that the view I have taken independently of De Rossa ought not to be affected by De Rossa. Still less should it be affected by the award of £90,000 made to the barrister Mr Donagh McDonagh in McDonagh v Newsgroup Newspapers Limited Supreme Court 23rd November, 1993, unreported. Mr McDonagh did not have the public profile of Mr O’Brien and at any rate the award was made seven years ago. I think that when put in the context of the surrounding circumstances the libels in this case were far more serious than in the McDonagh case and I am particularly referring to the libel in relation to corrupt practices in obtaining the Esat Digifone licence. Comparisons in the area of libel are dangerous but if the De Rossa and the McDonagh case are to be referred to I agree with the view of counsel for the Plaintiff and Respondent in their written submissions that the judgment of Campbell-Sharpe v Independent Newspapers (Ireland) Supreme Court, 11th of February, 1998, unreported, should also be taken into account. As counsel points out for a libel to the effect that she had not paid a member of her staff but albeit one which the evidence indicated caused her great upset and for which there was no apology the jury awarded £70,000 and this award was upheld in a trenchant ex-tempore ruling by Hamilton C.J. with which Barrington J. and Lynch J. agreed. It is unfortunate that the transcript of the ex-tempore ruling remains unapproved and it would therefore not be appropriate to cite passages from it but it is quite clear that the three members of the Court unanimously considered that the award made by the jury was fair and reasonable having regard to the circumstances and was not excessive particularly having regard to the absence of an apology.
117. In all the circumstances therefore I would dismiss the appeal.
118. In relation to the cross-appeals I agree with the judgment of the Chief Justice that the cross-appeal in respect of the issue of punitive or exemplary damages should be dismissed for
________________________ page break ________________________
(13)
the reasons which he gives and I also agree that the cross-appeal relating to the refusal of the learned trial judge to award the Plaintiff the costs of an earlier abortive trial before O’Sullivan J. and a jury ought to be allowed.
© 2000 Irish Supreme Court
Leech v Independent Newspapers (Ireland) Ltd
[2014] IESC 79Judgment of Ms. Justice Dunne delivered on the 19th day of December, 2014
This is one of two appeals in respect of the litigation between the parties. Both appeals were heard on the same day. This appeal is brought on behalf of Independent Newspapers (Ireland) Limited (hereinafter referred to as the Newspaper) from the order of the High Court made herein on the 24th June, 2009 in which the plaintiff/respondent (hereinafter referred to as Ms. Leech) was awarded the sum of €1,872,000 by way of damages for libel together with an order for costs made herein on the 26th June, 2009.
Background
Ms. Leech in these proceedings sought damages for libel arising out of a series of articles in the Evening Herald newspaper owned and published by the Newspaper between the 30th November, 2004 and the 17th December, 2004. Ms. Leech instituted proceedings against the Newspaper on the basis that the articles in their natural and ordinary meaning meant that she was having an extramarital affair with Mr. Martin Cullen who was then the Minister for the Environment. Prior to the commencement of the proceedings, Ms. Leech worked as a Communications Consultant advising the Office of Public Works and subsequently, the Department of the Environment. Mr. Cullen was a junior minister in charge of the Office of Public Works and, subsequently, between 2002 and 2004 he was the Minister for the Environment.
The trial of the proceedings took place before a judge and jury over seven days and at the conclusion of the evidence the following questions were put to the jury:
“1. Did the articles mean that the plaintiff had an extramarital affair with Minister Martin Cullen?
2. Did the articles mean that the plaintiff had travelled to New York with Minister Martin Cullen for a United Nations Conference and failed ever to attend it?
If the answer to questions Nos. 1 and 2 is “No” proceed no further.
If the answer to questions Nos. 1 or 2 is “Yes” assess damages.”
The jury brought in a verdict having answered the questions as follows:
“Question 1: Yes.
Question 2: No.
Damages: €1,872,000.”
Accordingly, judgment was entered for that amount on the 26th July, 2009 and it was further ordered that a sum of €750,000 on account of the damages awarded and the sum of €100,000 on account of the costs awarded be paid forthwith and a stay was granted in respect of the order in the event of an appeal together with a stay on the payment of the sums of €750,000 and €100,000 until the 31st July, 2009 or until further order.
The appeal
The Newspaper has appealed from the judgment and order of the High Court made herein and the notice of appeal sought inter alia:
(1) An order directing a re-trial in the High Court on the issue of damages. The appeal in that respect was grounded on the following basis:
“The damages awarded against the defendant/appellant were of such a level that no reasonable jury could award and/or were disproportionate to the damage caused and/or constitute an unlawful interference with the defendant’s rights under the Constitution and/or under the European Convention on Human Rights.”
Complaint was also made as to the decision of the learned trial judge to direct the payment out of the sum of €750,000.
Scrutiny of the award of damages by a jury
This is a case which pre-dates the enactment of the Defamation Act 2009 which introduced new provisions, inter alia, in relation to damages particularly, in relation to the directions to be given to a jury by the trial judge in respect of a trial in the High Court and the matters to which regard shall be had in assessing damages. Prior to the 2009 Act, the trial judge was limited as to the directions that could be given to a jury on the subject of the quantum of damages. The assessment of damages was and remains a matter entirely for the jury but by virtue of the provisions of the 2009 Act it is now possible for the trial judge to give more detailed directions to a jury as to the assessment of damages. The position was different when these proceedings came to trial before the High Court. It is not suggested that there was any error on the part of the trial judge in his charge to the jury on the question of damages. Rather the complaint made is that the award of damages made herein is so disproportionately high that it ought to be set aside. However, it is important to point out that the fundamental task of this Court on an appeal from the verdict of a jury on the basis that the damages awarded were excessive, remains the same.
The parties in their respective submissions have both referred to a number of the same authorities in which the difficult question as to the assessment of damages in defamation actions has been considered. The first of those is the Supreme Court decision in the case of Barrett v. Independent Newspapers Limited [1986] I.R. 13. A passage from the judgment of Henchy J. in that case (at page 23) has subsequently found approval in a number of other decisions and for that reason it would be helpful to refer to the relevant passage in full. Henchy J. stated:
“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 excess 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 exaltation, the damages proper for an accusation of some heinous and premeditated criminal conduct would be astronomically high. Yet, a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.”
Subsequently in the case of de Rossa v. Independent Newspapers Plc [1999] 4 IR 432, Hamilton C.J. having quoted that passage commented:
“This passage emphasises:
(a) that it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution of his standing among right-thinking people as a result of the words complained of;
(b) that it is a fundamental principle of the law of compensatory damages that the award must always be reasonable and fair and bear a due correspondence with the injury suffered; and
(c) that if the award is disproportionately high, it will be set aside and not allowed to stand.
The obligations arising from the provisions of the Constitution and the Convention are met by the law of this State, which provides that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and by the requirement that if the award is disproportionately high, it will be set aside.”
One of the matters at issue in that case was the question of whether or not guidelines should be given to the jury as to the level of damages awarded in other libel cases and in relation to the level of damages in personal injuries cases but the Supreme Court in de Rossa rejected the suggestion. Counsel on behalf of Ms. Leech laid particular emphasis on a passage from the judgment of Hamilton C.J. (at page 462) where he stated:
“That does not mean that the discretion of the jury is limitless: the damages awarded by a jury must be fair and reasonable having regard to all the relevant circumstances and must not be disproportionate to the injury suffered by the injured party and the necessity to vindicate such party in the eyes of the public. Awards made by a jury are subject to a right of appeal and on the hearing of such appeal, the award made by a jury is scrutinised to ensure that the award complies with these principles.”
It was stated by Finlay C.J. in the course of his judgment in Barrett v. Independent Newspapers Limited [1986] I.R. 13 (at page 19) that:
“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.”
The “sanctity” of such awards is recognised in the passage from the judgment of the Court of Appeal in John v. MGN Limited [1997] QB 586 where it is stated at page 616 of the report as follows:
“The jury must, of course, make up their own mind and must be directed to do so. They will not be bound by the submission of counsel or the indication of the judge. If the jury make an award outside the upper or lower bounds of any bracket indicated and such award is the subject of appeal, real weight must be given to the possibility that their judgment is to be preferred to that of the judge.”
Both judgments recognise that the assessment of damages is a matter for the jury and that an appellate court must recognise and give real weight to the possibility that their judgment is to be preferred to that of the judge.
Consequently, an appellate court should only set aside an award made by a jury in a defamation action if the award made is one which no reasonable jury would have made in the circumstances of the case and is so unreasonable as to be disproportionate to the injury sustained.
It has been submitted on behalf of the defendant that larger awards should be subjected to a more searching scrutiny than has been customary in the past and that the test to be applied is:
“Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?”
If such were the test to be applied, it would remove from the jury award the “very unusual and emphatic sanctity” referred to by Finlay C.J. and the giving of “real weight” to the possibility that their judgment is to be preferred to that of the judge as stated by Sir Thomas Bingham M.R.
Consequently, while awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.
Thus it is clear that while the assessment by a jury of damages for defamation is not sacrosanct it does carry considerable weight such that appellate courts have been slow to interfere with the assessments by a jury and an appellate court should only set aside such an award if the appellate court is satisfied that the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made the award in all the circumstances of the case. Counsel on behalf of the Newspaper laid emphasis in his submissions on the requirement of proportionality. Reference was made to a further passage from the judgment of Hamilton C.J. in de Rossa at page 456 in the context of whether guidelines as to quantum by reference to figures should be given to a jury where Hamilton C.J. said:
“It is submitted on behalf of the defendant that the aforesaid guidelines should be given to the jury in a defamation action and that the giving of such guidelines are mandated by the Constitution and Article 10 of the Convention as being necessary to vindicate the defendant’s rights under the Constitution and the Convention.
By virtue of the provisions of Article 40.6.1 of the Constitution, the defendant is entitled, subject o the restrictions therein contained, to exercise the right to express freely its convictions and opinions.
The exercise of such right is subject however to the provisions of the Constitution as a whole and in particular the provisions of Article 40.3.1 and 40.3.2 which require the State by its laws to protect as best it may from unjust attack, and in the case of injustice done to vindicate the good name of every citizen.
Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.
The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name (Hynes-O’Sullivan. v. O’Driscoll [1988] I.R. 436). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.”
Counsel on behalf of the Newspaper also referred to the case of Independent News and Media & Independent Newspapers Ireland Limited v. Ireland (Application No. 55120/00, judgment 16th June, 2005) in which complaint was made by the Applicant against Ireland arising out of the decision in de Rossa. The complaint made was that the safeguards provided in Irish law against disproportionately high jury awards in libel cases were inadequate. The European Court of Human Rights in its judgment (at para. 110) commented as follows:
“110 The parties also agreed, and indeed it was made clear in the Tolstoy Miloslavsky judgment (at para. 49), that an award of damages following a finding of libel must be ‘necessary in a democratic society’ so that it must bear a reasonable relationship of proportionality to the injury to reputation suffered. The jurisprudence does not provide for a shifting protection of the rights involved once libel is established (as suggested by the Government at paragraph 90 above): rather the Court assesses whether the compensatory response to a libel was a proportionate one by finding where the appropriate balance lies between the conflicting Convention rights involved (Von Hannover v. Germany, no. 59320/00, para. 58, ECHR 2004 . . .).
111. However, the parties diverged on the question of whether the present award was proportionate. The applicants considered the award to be of such significance that the Court could not conclude as to its proportionality without examining the adequacy and effectiveness of the domestic safeguards against disproportionate awards and maintained that their application was indistinguishable from that of Tolstoy Miloslavsky. The Government were of the view that the issues raised were more complex than a mechanical application of that judgment and that, in any event, the present case was clearly distinguishable from the Tolstoy Miloslavsky case.”
The European Court of Human Rights concluded that it was not demonstrated, “that there were ineffective or inadequate safeguards against a disproportionate award of the jury in the present case”. Counsel on behalf of the Newspaper relied on those authorities and on the judgment of the European Court in the case of Scharsach v. Austria, Application No. 39394/98, judgment of 13th November, 2003, to argue that a disproportionately large award was an interference with the rights of the other party under Article 10 of the Convention which of course provides for the right to freedom of expression. This, of course, was recognised by Hamilton C. J. in the case of de Rossa where he acknowledged that the law must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name as referred to in the passage cited above.
Ultimately it was argued that having regard to the decision of the European Court of Human Rights particularly in the case of Independent News and Media Limited v. Ireland that there was limited room on appeal for any special deference towards jury awards of damages. Counsel on behalf of Ms. Leech took issue with that submission and argued that in the light of the decision of the Supreme Court in de Rossa and having regard to the decision of the European Court of Human Rights in Independent News and Media v. Ireland the position of the Supreme Court and indeed the European Court of Human Rights is that the Irish approach to scrutiny of the award of damages by a jury in cases such as this is compliant with the Irish Constitution and the Convention. It was further submitted that the decision of the European Court of Human Rights in Independent News and Media v. Ireland did not alter or reconfigure Irish law in respect of awards of damages in defamation actions. I agree with that submission. As is clear from the authorities referred to above the position in Irish law is that an appellate court will be slow to interfere with the verdict of a jury on the assessment of damages but nevertheless awards by juries are subject to scrutiny and if an award is so disproportionate in the circumstances of the case having regard to the respective rights of freedom of expression on the one hand and on the other hand the requirement under the Constitution to protect the good name of every citizen that no reasonable jury would have made such an award then the award will be set aside on appeal.
Factors to be taken into consideration
It is obvious that in subjecting an award of damages to scrutiny, it will be necessary for an appellate court to examine the facts and circumstances of any given case as it is only by doing so that one can determine whether the award is disproportionate to the wrong done. What factors can be taken into consideration in this regard?
The judgment of Hamilton C.J. in de Rossa is a useful starting point in considering this question. Both parties on this appeal have cited a passage from his judgment in which Hamilton C. J. quoted with approval a passage on this topic from the decision of the Court of Appeal in John v. MGN Limited [1997] QB 586, at page 463:
“The factors to be taken into account in determining the damages to be awarded are clearly set out in many cases and in particular in the judgment of the Court of Appeal in John v. MGN Ltd. [1997] QB 586 at page 607 of the report where it is stated as follows:
‘The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation, the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation; but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way’.”
Hamilton C.J. in the de Rossa case then proceeded to consider the damages awarded in that case under a number of specific headings, namely, the gravity of the libel, the effect on the plaintiff, the extent of the publication and the conduct of the defendant. I propose to consider these factors later in the course of this judgment but before doing so there are two other matters to which I wish to refer.
Compensatory damages
Counsel on behalf of the Newspaper have pointed out that the damages awarded in this case are “compensatory” damages. It was accepted that the role of compensatory damages in defamation cases is not on all fours with the role of compensatory general damages in personal injuries cases. There is a “vindicatory” element to damages in defamation cases which is not a factor in general damages in a personal injuries case. Nevertheless, it was argued that the core purpose of compensatory damages in libel cases is to compensate the plaintiff for the injury actually suffered such as injury to reputation, distress, hurt and humiliation. It was pointed out that there was no award of aggravated or exemplary/punitive damages made in this case. By contrast, counsel on behalf of Ms. Leech stated that compensatory damages embrace a variety of elements. It was submitted that one of those elements involved what could be described as aggravating factors, such as the conduct of a defendant even if that was not expressly provided for in the award of the jury. Reference was made to a passage from McMahon and Binchy, Law of Torts (4th ed.) in which the learned authors, speaking of the position that pertained prior to the coming into force of the Defamation Act 2009, made the following observation (at para. 34.366):
“Punitive damages were available in defamation claims though they were rarely awarded expressis verbis. Many very substantial jury awards over the years can be explained only in terms of their punitive purpose.”
Juries in defamation actions are sometimes asked to assess not just compensatory damages but also aggravated damages under separate headings and, in an appropriate case, exemplary/punitive damages. This is not a case in which the matter went to the jury on the basis that the jury was asked to assess damages under separate headings of general damages, aggravated damages and/or exemplary/punitive damages. To that extent this case has to be viewed on the basis that the award was designed to meet the factors encompassed by way of compensatory damages. It is not necessary to repeat again the passage quoted by Hamilton C.J. in de Rossa from the judgment of Sir Thomas Bingham M.R. in the case of John v. MGN which sets out in detail the nature of compensatory damages in defamation proceedings. As can be seen, a variety of factors require to be taken into consideration. Sir Thomas Bingham M.R. referred to the fact that compensatory damages could include an element to compensate for additional injury caused by the conduct of the defendant. To some extent there is an overlap with what is comprised in the category of aggravated damages. It is perhaps worth recalling the succinct description of damages given by Finlay C. J. in the case of Conway v. Irish National Teachers Organisation [1991[ 2 I.R. 305 in which he gave the following analysis of damages:
“In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my view, potentially relevant to any particular case. They are: –
1. Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.
2. Aggravated damages, being compensatory damages increased by reason of
(a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or
(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or
(c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.”
Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.
3. Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered.”
Thus, it can be seen that aggravated damages are an element of compensatory damages increased by reason of such matters as were spelt out by Finlay C.J. There is a degree of overlap between ordinary compensatory damages and aggravated damages in defamation actions. The fact that a separate question did not go to the jury herein asking them to assess aggravated damages does not mean that when the jury were assessing damages having regard to the circumstances of the case, they could not consider the conduct of the defendant both in relation to the publication at issues, the lack of an apology and the manner in which the case was defended. In other words, their award could properly encompass an element of damages designed to compensate for those matters which, in an appropriate case, could be dealt with by way of a separate heading of aggravated damages.
The learned trial judge herein in his charge to the jury explained the purpose of damages as having three functions, namely:
“Consolation for the distress caused by the defamatory statement; to repair the harm to his or her reputation, and that includes business reputation, . . . and a vindication of the person’s reputation.”
He went on to tell the jury that they could consider, inter alia, the conduct of the plaintiff, her position or standing in society in Waterford, in Dublin, in her business community. He told them that they could consider the nature of the libel which in this case contained the suggestion that “She was immoral, that she was unfaithful to her husband, that she was a person of – the phrase is ‘loose morals’, that she had betrayed her marriage, that she had betrayed her family”. He told them that they could consider the mode and extent of the publication. He also advised them that they were entitled to take into account the absence of an apology if the jury considered that to be appropriate. He pointed out that the jury would be entitled to take into consideration, if they took the view that this was a gross defamation, the fact that the Newspaper had maintained that defamation “right up to what would be the bitter end”. These are factors that the learned trial judge told the jury they were entitled to consider. There was no issue raised by the defendant in this appeal regarding the charge to the jury.
It is long established that the jury in assessing damages can take into account relevant aspects of the conduct of the defendant from the time of publication up to the conclusion of the case, including such matters as the nature of the defamation, the extent of the publication, the absence of an apology or persisting in a plea of justification which is not supported by the evidence. These factors can be considered under the heading of compensatory damages or in an appropriate case, aggravated damages. There is no basis in this case to support the contention that in assessing compensatory damages, the jury took into account matters which did not arise under the heading of compensatory damages or that the jury was restricted in making the award of compensatory damages by reason of the fact that there was no separate heading of aggravated damages on the issue paper that went to the jury.
Comparisons with other awards
It was urged on the Court on behalf of the Newspaper that in considering the issue of proportionality it was open to this Court to consider awards that had been set aside as being too high in other defamation cases. Reliance was placed on the judgment of Keane C.J. in the case of O’Brien v. Mirror Group Newspapers Limited [2001] 1 I.R. 1 where he said at page 18:
“. . . I think it is important to bear in mind that there is nothing in the judgments of Henchy J. in Barrett v. Independent Newspapers Ltd. or Hamilton C.J. in de Rossa v. Independent Newspapers plc. to indicate that this court is precluded, on the hearing of an appeal, from determining the appeal in the light of awards in other defamation cases which have been the subject of appeals to this court.”
Undoubtedly, some assistance may be derived from a comparison of other cases in which awards have been set aside. Nevertheless one has to be careful in taking that approach. As Keane C.J. went on to say (at page 18):
“No doubt a degree of caution is called for in making such comparisons, since in cases of defamation, more perhaps than in almost any other action in tort, the facts which have to be considered by the jury vary widely from case to case. Moreover, as Lord Hailsham pointed out in Broome v. Cassell and Co. [1972] AC 1027 at p. 1071, when drawing the distinction between damages in defamation cases and damages for personal injuries: –
‘What is awarded is . . . a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.’
Provided those qualifications are borne in mind, some assistance may be obtained from the views expressed by this court as to the damages awarded in particular cases when those awards were either upheld or set aside.”
The Court in that case proceeded to compare the damages awarded to the plaintiff in those proceedings as against the damages awarded in the de Rossa case. Keane C.J. went on to comment:
“In the present case, the article complained of stated that the plaintiff had paid £30,000 to a government minister by way of a bribe for the purpose of securing a licence for a radio station and obtained the licence as a result of the bribe, that he had also secured a licence for ESAT Digifone in circumstances giving rise to a suspicion of bribery or corrupt practices and that the activities warranted investigation by the Flood Tribunal. These were undoubtedly seriously defamatory statements which justified the award of substantial damages. However, the case must be approached, in my view, on the basis that the damages awarded are in the highest bracket of damages appropriate in any libel case. They are comparable to the general damages awarded in the most serious cases of paraplegic or quadriplegic injuries and, relatively speaking, are in the same bracket as the damages awarded in de Rossa v. Independent Newspapers plc. [1999] 4 IR 432. The libel, however, although undoubtedly serious and justifying the award of substantial damages, cannot be regarded as coming within the category of the grossest and the most serious libels which have come before the courts.”
In the O’Brien case, the jury had awarded the plaintiff £250,000 by way of damages. The verdict of the jury was set aside and a re-trial was ordered. Ironically, the re-trial resulted in a decree of €750,000, a sum considerably more than that previously found to be excessive. No doubt the passage of time between the date of the original libel trial and the date of the subsequent libel trial had some bearing on the difference in the sums awarded. The passage of time elapsed between awards in other cases together with the wide variations possible in the factual matrix necessitates that some degree of caution must be exercised in determining whether an award of a jury is disproportionate by comparison of that award with other awards set aside on the basis of being excessive. Nevertheless, comparisons with other cases may provide some assistance in assessing the gravity of the libel.
It was also urged on the Court by counsel on behalf of the Newspaper that in considering the level of damages to be awarded in defamation actions, the Court should have regard to the highest level of general damages that may be awarded in the most serious personal injuries cases. It was argued that such an approach would be of assistance in assessing the proportionality of the damages awarded. Reliance was placed on the Supreme Court decision in the case of M.N. v. S.M. [2005] 4 IR 461, a case involving a trial by judge and jury in which the sum of €600,000 was awarded to the plaintiff in respect of injuries suffered by her by reason of the sexual abuse of the defendant over a number of years culminating in rape. The Supreme Court in that case set aside the award of €600,000 and substituted a sum of €350,000 by way of general damages on the basis that the sum of €600,000 was so far in excess of a reasonable award of compensation that it was disproportionate and needed to be set aside. One of the factors of relevance in that case was noted by Denham J. at page 467 of her judgment:
“It appears that this is the first award of damages for sexual abuse by a civil jury. It is the first appeal before the Supreme Court from such an award which raises the issue of the sum to be awarded in general damages for sexual assault, sexual abuse and rape in a continuum, of a teenage girl. Consequently, there are no precedents to guide the court. However, there is information from other sources which may inform the court and which may be of assistance.”
Denham J. went on to comment in the course of her judgment at page 475 as follows:
“At issue on this appeal is the award of general damages by a jury. In assessing the level of general damages, there are a number of relevant factors to consider. Thus an award of damages must be proportionate. An award of damages must be fair to the plaintiff and must also be fair to the defendant. An award should be proportionate to social conditions, bearing in mind the common good. It should also be proportionate within the legal scheme of awards made for other personal injuries. Thus the three elements, fairness to the plaintiff, fairness to the defendant and proportionality to the general scheme of damages awarded by a court, fall to be balanced, weighed and determined.”
She went on to observe:
“Having considered the facts and all the circumstances of the case, including the nature of the injuries of the plaintiff, the law on general damages for personal injuries, noting (but not applying) the Residential Institutions Redress Act 2002 and making reference to the conduct of the defendant in admitting his guilt at an early stage of the criminal proceedings, I am satisfied that the sum of €600,000 awarded by the jury is so far in excess of a reasonable award of compensation that it is disproportionate and should be set aside.”
Accordingly she allowed the appeal on the question of damages. She also expressed the view that she was satisfied that there “should be a rational relationship between awards of damages in personal injuries cases”.
I think it is apparent that there is a close relationship between an action for personal injuries and an action for damages for assault arising out of sexual abuse such as that described in M. N. v. S. M. Both such actions are, in reality, a form of action for damages for personal injuries. There is an obvious correlation between the type of damages that can be awarded in a personal injuries case and in a sexual assault case. It is not so easy to see an obvious correlation between an award in a personal injuries action and an award in an action for defamation. McMahon and Binchy, Law of Torts, make the following observation as to the difficulty in making an analogy between the situation in personal injuries awards and those in defamation cases at paragraph 34.364:
“It seems probable that, over time, a rough judicial ‘tariff’ will emerge as the Supreme Court translates broad generic ascriptions, such as ‘very serious’ and ‘most serious’, into actual numbers of euros. In England the courts have applied what is ‘in effect a ceiling’ figure, now of the order of £275,000.
We suggest that the Supreme Court should hesitate before following that lead. The English courts have been affected by the analogy of damages awards in personal injuries claims, where a ‘cap’ for general damages applies, as it does in Ireland. But that cap is based on considerations of principles and policy relating to personal injuries which has no direct parallel with those relating to defamation, where the function of damages ranges beyond compensating the feelings of the plaintiff to vindicating his or her good name.”
The authors went on to refer to the provisions of s. 31(7) of the 2009 Act which permits the Court to award special damages for financial loss suffered by a plaintiff as a result of injury to his or her reputation and observed:
“It may be that compensation for future economic losses will be incorporated into a global award of general damages and in any event the boundaries between special and other compensatory damages are somewhat porous.”
One of the arguments made in the de Rossa case was that juries should be told about the level of awards in personal injuries cases. Hamilton C. J. stated as follows at p. 459:
“On the issue as to whether or not references to awards in personal injuries actions should be permitted, I prefer the conclusion reached by the Court of Appeal in Rantzen v. Mirror Group Newspapers Ltd. [1994] Q.B. 670 to that reached in John v. M.G.N. Ltd. [1997] QB 586 and accept the reasoning contained in the following passage from the judgment of Lord Hailsham L.C. in Broome v. Cassell & Co. [1972] AC 1027, where he stated at p. 1071:-
‘In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. As Windeyer J. well said in Uren v. John Fairfax & Sons Pty Ltd. (1966) 117 C.L.R. 118 at 150: ‘It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public, and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.’ This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’. In a sense, too, these damages are of their nature punitive or exemplary in the loose sense in which the terms were used before 1964, because they inflict an added burden on the defendant proportionate to his conduct, just as they can be reduced if the defendant has behaved well – as for instance by a handsome apology – or the plaintiff badly,…”
Hamilton C.J. was dealing with the question or whether or not the jury should be told about the type of awards that could be made in personal injuries cases but the reasoning contained in the passage set out above demonstrates why there is a problem in trying to make a comparison between the awards of damages in personal injuries cases with the awards of damages in defamation cases. I have come to the conclusion that the analogy of awards in personal injuries cases may be of some assistance in the area of injuries caused by reason of sexual abuse but is not so useful an analogy in the case of awards in respect of defamation actions for the reasons explained above.
The gravity of the libel
I now propose to examine the factors that should be taken into account when considering the proportionality of the award of damages in this case, starting with the gravity of the libel. The starting point for this consideration has to be the meanings ascribed to the words complained of by the jury. It is clear from the answer to the questions posed to the jury on the issue paper that the jury accepted the thrust of Ms. Leech’s case to the effect that the article meant that:
(a) she, a married woman with two children, had an affair with the Minister;
(b) that as a result of that affair, she got lucrative Government contracts;
(c) that she was someone who was prepared to have an adulterous affair to advance her business career;
(d) that she betrayed the trust of her husband and children.
Undoubtedly the articles complained of by Ms. Leech in these proceedings amounted to a serious and sustained attack on her business and personal integrity. I think one could fairly compare the libel in this case with that in the O’Brien case which contained an allegation that the plaintiff had paid a £30,000 bribe to a Government Minister to procure a lucrative radio licence. In effect Ms. Leech was accused of engaging in an adulterous relationship for the sake of obtaining lucrative contracts. Such a defamation would undoubtedly have a serious effect on an individual’s business and personal reputation. I accept that the defamation in this case could not be described in the same terms as that in the de Rossa case which was described as coming within the category of “the gravest and most serious libels which have come before the courts” but it is nonetheless a very serious libel. Given the allegations of adultery made in respect of Ms. Leech, this must have been a source of real hurt and distress to Ms. Leech.
The extent of the Publication
The articles complained of in this case were published in the Evening Herald newspaper between the 30th November, 2004 and the 17th December, 2004. In all, the plaintiff sued in relation to eleven articles in nine editions of the Evening Herald newspaper over that period of time. This was described by Ms. Leech’s lawyers as a “deliberate press campaign”. A reference to a number of the headlines over some of the articles complained of give a flavour of the nature of the publications complained of. On the 30th November, 2004, the headline stated: “Minister’s P.R. friend on €1,200 every day”; on the 1st December, 2004, the headline read: “Cullen gave pal a SECOND top job”; also on the 1st December, 2004, the headline over an article was as follows: “Insiders reveal the luxury lifestyle of €1,200 a day political guru”. Over the following days headlines included the following: “Minister to face Fine Gael grilling over Leech controversy”; and “Cullen faces music over crony claim” and “Heat on Minister as Leech job offer is probed”; “Why inquiry must get to the bottom of Monicagate” and “Cullen paid Monica an extra €43,000”. A number of other articles focused on the role of the Minister. It can be seen that there was a sustained campaign over a number of days. The Evening Herald newspaper is a newspaper that circulates widely within the State having a circulation of approximately 90,000 newspapers sold per day. Further, the readership of the newspaper would be in excess of that number. This was not a one-off publication in a newspaper but rather was part of a sustained campaign building up over a period of just over two weeks. At the end of that period, Ms. Leech had gone from a person who would not have been known to the general public at all to someone who was notorious. The proportionality of the damages therefore has to be considered on the basis that the publication of the defamation in this particular case was particularly extensive and widespread.
The conduct of the defendant
The Newspaper in this case in the course of its defence pleaded a number of defences including justification (although it has to be said that the Newspaper did not seek to justify the meanings contended for by Ms. Leech but approached the matter by seeking to justify the articles on different meanings), fair comment, and what is now known as “Reynolds” privilege. The defence of Reynolds privilege was dropped during the course of the trial. This is a case which went to the jury on the basis of the two questions set out above. Insofar as the question of justification is concerned it is clear that the jury did not accept the arguments put forward on behalf of the defendant and accepted the meanings contended for by the plaintiff as set out in the first question put to the jury. To run a defence of justification on any basis and to fail is a matter which can be taken into account by the jury in the assessment of damages. It is, as was described in the course of submissions on behalf of Ms. Leech, a high risk strategy for a defendant.
That this is so can be seen from the judgment of Hardiman J. in the case of Bradley v. Independent Star Newspapers [2011] 3 IR 96 at page 122 where Hardiman J. stated:
“In my view, a defendant who wishes to plead justification must realise that he must justify the article actually published. In some cases there may be some genuine doubt as to its meaning: there is none here.
Odd forms of pleading such as this may arise in circumstances where the defendant realises that he cannot justify what he actually printed but believes he may be able to justify something not dissimilar. Accordingly, he pleads that the article means something other than what the plaintiff alleges and that, in this sense, it is true.
A plaintiff confronted with such a plea, in order to ensure an efficient and relatively brief hearing, which is no more expensive than it needs to be, should in my view consider bringing an application to the court by way of motion to decide whether or not the plea is a good one, and to resolve any genuine issues of meaning.”
Such a course did not occur in these proceedings. However, the point is that the Newspaper pleaded justification albeit not of the meanings contended for by Ms. Leech. This is, as was pointed out, a risky strategy and one which did not succeed, clearly.
It was also pointed out on behalf of Ms. Leech that no apology was offered by the defendant at any stage. Reference was made to the remarks of Geoghegan J. in the course of the decision in O’Brien which he said at page 43 of the judgment:
“In addition to the points which I have already made I think it relevant also to observe that no apology was made at any stage and that the jury may well have taken the view and could legitimately have taken the view that the article was very carefully crafted both to hint at wrongdoing on the part of the plaintiff and thereby titillate the public while at the same time engage in a damage limitation exercise with a view to avoiding libel. If the newspaper did adopt this exercise it was unsuccessful but it would have been open to the jury to take the view that they had done so. The award had to be of a level that the plaintiff would feel reasonably compensated.”
Thus, obviously, one of the factors that can be and may well have been taken into consideration by the jury in this case was that at no stage was there any offer of an apology to Ms. Leech by the Newspaper.
A newspaper that published no photographs would be a very dull newspaper, indeed. It is often the case that newspaper articles are accompanied by photographs which illustrates the article in which they appear. A further aspect of the conduct of the defendant complained of in these proceedings relates to the manipulation of the photographs which accompanied the newspaper articles at issue in these proceedings. One of the photographs was originally a photograph with four people in it including Ms. Leech and the Minister. It was cropped to show just the Minister and Ms. Leech and she complained that it was cropped in such a way as to give the impression that she and the Minister were “holding hands”. (See Day 4, page 103 of the transcript). She made this complaint about the photograph accompanying the article set out in Schedule 5 and again at Schedule 7 of the series of articles. She also complained of a photograph that showed her with a backdrop of New York. In that case there was a photograph of Ms. Leech the original of which was at a function in Waterford. It would perhaps be helpful to quote directly from the transcript of her evidence in this connection which is at page 103 of the transcript on Day 4, commencing at line 13:
“Then if you go all the way to this photograph, I was wearing this dress at a private function in Waterford, whereas behind me is the New York skyline. That takes an awful lot of effort, an awful lot of skill and a huge amount of intent on the part of the Herald to portray me in New York in a dress with the Minister. This time the Minister has been removed and a new version of him in a lounge suit is put in to make it look again as if I actually cavort during the day on government business in a dress like this. Then that brings me to the dress. Again, the photograph has been with great intent, with great skill has been manipulated to make my hand, which is down by my side, appear like my thigh. The dress has been manipulated, the photograph has been manipulated to now give me a dress that is slit to the waist, something I would never wear. Certainly this is not a way I ever appeared on government business.”
There is no doubt that the photographs used in the various articles were taken from real photographs of Ms. Leech with the Minister albeit in company with others. Equally there is no doubt that the photographs were cropped and manipulated. The photograph of Ms. Leech displayed against the background of New York certainly gave the impression that the type of dress being worn by Ms. Leech was one slit to the thigh. The fact that the photographs were manipulated and altered or cropped in the way described is something that the jury were asked to take into consideration in their deliberations on behalf of Ms. Leech and it was contended to the jury that the purpose of doing this was to suggest that Ms. Leech and the Minister were having an affair. It seems to me that the jury were entitled to take that aspect of the matter into account in the course of their deliberations. It was open to the jury to consider that the manner in which the photographs were manipulated was designed to lend force to the implication contained in the articles to the effect that Ms. Leech got her contracts by virtue of the fact that she was having an affair with the Minister. Therefore, this was an aspect of the conduct of the Newspaper that could be taken into consideration by the jury and, if considered by them to be appropriate, to mark it in their assessment of the damages.
The impact of the defamation
Defamation can impact on an individual in a number of ways. The defamation can impugn someone’s moral character. It can also impugn a person’s business, trade or professional standing. It can impact on other aspects of their status as a person, calling into question personal qualities such as honesty, loyalty, honour, thus impugning an individual’s personal integrity.
The defamation in this case was far reaching in the sense that it attacked Ms. Leech in respect of her personal and professional life. She was a married woman with two children. The implication of the articles was that she was unfaithful to her husband and that she had a part to play in the break-up of the marriage of Mr. Cullen and his wife.
The defamation attacked her professional integrity in that it conveyed to the world at large the impression that she was prepared to engage in an adulterous relationship in order to advance her professional standing and career. Running through the case was a question mark over the capability of Ms. Leech for the tasks for which she was engaged. Thus, the articles attacked not just her moral character but also her professional reputation.
Immediately prior to the appearance of this sequence of articles Ms. Leech had set up a consultancy business with another individual. That business was launched at the annual dinner of the Waterford Chamber of Commerce in November 2004. Following the publication of the articles, the individual with whom she had set up the business consultancy pulled out of the partnership with Ms. Leech. The business she had hoped to establish at that stage simply never got off the ground. In addition, at the conclusion of the contract with the Department of the Environment, her contract was not renewed.
Ms. Leech in the course of her evidence also described her own personal hurt and distress over the series of articles that appeared. She described not only her stress but also the effect that the articles had on her sons and on her husband. One of her sons had to change school during his Leaving Certificate year because of the articles. I think it is undoubtedly the case that the articles caused a great deal of stress to Ms. Leech and her family. In addition, she described how she was personally abused in Waterford as a result of the articles. Overall, it would be no exaggeration to say that the series of articles published by the Newspaper in respect of Ms. Leech had a profound effect on her in every aspect of her family and professional life. This is also a factor that can be taken into consideration by a jury.
Freedom of expression
The point was made on behalf of the Newspaper that the Court in considering the question of damages should have regard to the freedom of expression of the Newspaper. The argument was that extremely large awards of damages in cases such as this have a chilling effect on the freedom of the press and therefore should be subject to careful scrutiny. In this context, reliance was placed on the decision of the Supreme Court in the case of Dawson v. Irish Brokers Association, the Supreme Court, Unreported, 27th February, 1997, in which O’Flaherty J. observed at page 25 of the judgment:
“There may be cases where the circumstances of the case will call for the consideration of an award of aggravated or exemplary damages. But this was not such a case. The damages, as far as this case is concerned, could be compensatory only. The jury were entitled to award damages for loss of reputation, as well as for the hurt, anxiety, trouble and bother to which the plaintiffs had been put. However, the defendants in defamation cases should never be regarded as the custodians of bottomless wells which are incapable of ever running dry. The opposite has proved true in the publishing sphere in this and other countries – with sad consequences for those who lost employment as a result of untoward awards. Further unjustifiably large awards, as well as the cost attendant on long trials deals a blow to the freedom of expression entitlement that is enshrined in the Constitution.”
It is the case that an award of damages must be fair to the plaintiff and to the defendant. That cannot be gainsaid. However, freedom of expression is not an entirely unrestricted freedom. In the context of defamation proceedings it must be balanced by the provisions of Article 40.3.2 of the Constitution which provides that the State “shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen”. The matter was expressed trenchantly by Hamilton C.J. in the de Rossa case when he said at page 456:
“Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.”
Nevertheless it was accepted by Hamilton C.J. in that case in a passage referred to previously in the course of this judgment that the existence of the right of freedom of expression and the obligation on the State by its laws to protect as best it may from unjust attack and in the case of injustice done to vindicate the good name of every citizen necessarily involves what Hamilton C.J. described as “a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name”. It is from that balancing exercise that he identified the concept of proportionality. Accordingly, I am satisfied that an award of damages cannot be so disproportionate as to have the effect of not just vindicating the good name of the citizen but of restricting the freedom of expression of a newspaper.
Damages
The award of damages in this case in the sum of €1, 872,000 is a very large award by any standard. The defamation in this case consisted of a series of articles over a period of two and a half weeks which impugned the character of Ms. Leech in every aspect of her life. It is clear that the effect of the defamation in this case was considerable. It appears to have had a real and long lasting impact on her professional life. Her contracts were not renewed and the business which she had just set up with another individual collapsed almost as soon as it had begun. The defamation also impacted on the life of her family to an extent that must have increased the stress and personal hurt felt by Ms. Leech. The extent of the loss in terms of her business life was never quantified and there was no claim in respect of special damages but, of course, it would be open to a jury to include in an award of general damages an element of damages in respect of loss of business opportunity. Overall, I am satisfied that the defamation in this case was a very serious defamation. Undoubtedly, if one was to place the defamation in this case on a scale of seriousness, it would certainly be towards the higher end of the scale. A somewhat unusual feature of this case was the sustained campaign in the Evening Herald in respect of Ms. Leech The consequences of it affected her in her day to day life, personally and in her business life. Her newly launched business was destroyed before it could become established. I have no doubt that from her point of view it was a very serious matter. Nevertheless, I do not think it could be classed as one of the most serious libels to come before the Courts, such as that in the de Rossa case. That said, the award made to Ms. Leech in this case was one of the highest ever awards made in a case of this kind in this country. Even accepting that this case is one that comes towards the higher end of the scale, I am satisfied that the award made by the jury in this case was excessive and must be set aside.
I am conscious of the firm instructions of Ms. Leech to her legal representatives that in the event that this Court came to the conclusion that the amount of the award was excessive that the Court should in those circumstances remit the matter to the High Court for assessment by a jury again. Whilst I understand those to be her instructions I am satisfied that in the context of this case it would be desirable for all parties to bring an end to the litigation between the parties and in those circumstances it seems to me that the approach to be taken by the Court should be to set aside the verdict of the jury on damages and to substitute a sum in the figure of €1,250,000 for damages.
In the circumstances it is not necessary to address the argument made on behalf of the Newspaper as to the correctness or otherwise of the order made by the learned trial judge directing the payment out of the sum of €750,000 by way of damages and the sum of €100,000 by way of costs on an interim basis pending the appeal.
Accordingly, I would allow the appeal of the Newspaper and would substitute the sum of €1,250,000 by way of damages for the sum awarded by the jury in this case.
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 19th day of December, 2014 (No 1)
Introduction:
1. The plaintiff is a married woman with two children, and, for several years leading up to the events next described, had been working as a communications consultant in the private sector in this country. The defendant is the proprietor and publisher of numerous publications, including the “Evening Herald”, which is a daily publication with a substantial and nationwide circulation. The third person who features in this case is Mr. Martin Cullen, who at all material times was a senior Minister in the Irish Government.
2. Within quite an acute timeframe, that is between the 30th November, 2004, and the 15th December, 2004, the defendant published a series of articles of and concerning the plaintiff, on the following occasions and under the following headlines:-
“1. 30th November, 2004 (page 2): “Minister’s PR friend on
€1,200.00 every day”
2. 1st December, 2004 (page 2): “Cullen gave pal a SECOND
top job”
3. 1st December, 2004 (page 3): “Insiders reveal the luxury
lifestyle of €1,200 a day political guru”
4. 2nd December, 2004 (page 4): “New Santa leaves no Claus for
concern”
5. 2nd December, 2004 (page 19): “RUMOURS: Minister says
mystery local out to blacken his name”
“Cullen’s fury over smear campaign”
6. 3rd December, 2004 (pages 24 & 25): “THE CULLEN FALLOUT”
“Taoiseach’s Teflon rubs off on Cullen”
“Minister to face Fine Gael grilling over Leech controversy”
7. 6th December, 2004 (page 6): “Cullen faces music over crony
claim”
8. (i)13th December, 2004 (front page): “CULLEN: I STAND OVER
MONICA’S 8 JUNKETS”
(ii) 13th December, 2004 (page 2): “Cullen defends 8 junkets”.
9. 15th December, 2004 “THE MINISTER, MONICA
(pages 1, 3, 4, 5 & 14): AND THE MYSTERY MEETING”
3. As part of the material so published, the defendant, in its edition of the 2nd December, 2004, included what was alleged to be a misleading and misrepresentative cropped picture purporting to depict Minister Cullen and the plaintiff together as a couple in formal evening wear, whereas the original photograph as actually taken was that of four people. In its edition of the 6th December, 2004, a similar photograph, cropped in the same way and to the same effect, was also published. Further, on the 15th December, 2004, the defendant published a piece accompanied by a misleading composite image showing Minister Cullen wearing a business suit, together with the plaintiff wearing a red cocktail dress, portrayed in such a way as to give the impression of there being a high, long and revealing slit in the dress, up to the hip, all of which in turn was superimposed upon an image of the New York skyline. Such images, it was claimed, were falsely and maliciously published so as to portray the plaintiff and the Minister together as a couple, on occasions dressed in formal evening wear, and, in the last depiction, as a couple together in New York
4. The plaintiff, believing that she had been seriously defamed by these publications, not only when viewed separately but also when taken as a part of a continuum, instituted a Plenary Summons on the 21st December, 2004, seeking appropriate redress in respect thereof.
5. In these proceedings she alleged that the material published, in its natural and ordinary meaning, meant and was understood to mean:-
“(a)That the plaintiff had travelled to, but had improperly and unprofessionally failed to attend, a UN Conference on Sustainable Development in New York, at taxpayers’ expense;
(b) That the plaintiff had deceived the Department of the Environment and Local Government into recording that she had attended, when she had not, a UN Conference on Sustainable Development in New York, the cost of which had been met by the taxpayer;
(c) That there was no good reason for the plaintiff’s participation in foreign business trips with Minister Martin Cullen;
(d) That the plaintiff, a married woman, had purported to travel abroad with Minister Martin Cullen on business but had in fact travelled abroad with Minister Martin Cullen for an improper and unprofessional purpose unconnected with Department business;
(e) That the plaintiff’s charges to the Department of the Environment and Local Government were €1,200.00 per day, and double that of the other tenders for her work;
(f) That the plaintiff’s charges to the Department of the Environment and Local Government, being €1,200 per day and double that of the other tenders for her work, were unjustifiable and out of keeping with charges ordinarily made for such work;
(g) That the plaintiff did not do any work during the course of business trips upon which she had travelled at taxpayer’s expenses;
(h) That the plaintiff had no relevant experience prior to her engagement as a communications consultant by the Department of the Environment and Local Government;
(i) That the plaintiff, a married woman, had had an improper sexual relationship with Minister Martin Cullen;
(j) That the plaintiff, a married woman, had had an extra-marital affair with Minister Martin Cullen;
(k) That the plaintiff had been unfaithful to her husband and had betrayed his trust and the trust of their children;
(l) That the plaintiff had enjoyed the benefit of foreign breaks, on the pretence of her purported participation in Department business, because she had been having an improper sexual relationship with Minister Martin Cullen.”
These alleged defamatory imputations related to one article only, namely that published on the 15th December, 2004, but in general can be taken as being representative of her overall complaints.
6. The pleadings went on to assert that by reason of such publications, the plaintiff had been devastated, shunned and avoided, had been exposed to public scandal and contempt, had suffered acute embarrassment and hurt to her feelings and overall had been gravely damaged in her character and reputation. She sought damages, including aggravated and/or exemplary damages, for these wrongs and for the general loss of business which resulted.
7. The defendant company admitted publication of both the articles and the images in question, but in a series of pleas otherwise effectively denied each and every essential element of the plaintiff’s claim. It asserted, at para. 10 of its defence, that the material was true in substance and in fact in its natural and ordinary meanings but not in the meanings contended for by the plaintiff. Such alternative meanings were then described by reference to each separate article so published. Finally, it denied that she was entitled to any damages at any level of the compensation chain.
The Verdict:
8. The case came on for hearing in due course before a jury presided over by de Valera J.; after a seven day trial two questions were left for its consideration on the 24th June, 2009, namely:
“(a)Did the articles mean that the plaintiff had an extra marital affair with Minister Martin Cullen?
(b) Did the articles mean that the plaintiff had travelled to New York with Minister Martin Cullen for a United Nations Conference and failed ever to attend?”
The issue paper went on to state that if the jury should answer “yes” to either or both of these questions, then they should continue and assess damages. By a majority the jury answered “yes” to question (a), and unanimously answered “no” to question (b). It then considered the question of damages and awarded the plaintiff the sum of €1,872,000.00. Judgment was duly entered for that amount. This judgment is concerned with the appeal from the jury’s verdict and the resulting order.
The Notice of Appeal:
9. The Notice of Appeal as filed challenged a ruling made by the trial judge which prohibited those jury members who were in the minority on question (a) from participating in any discussion on the damages issue. That challenge is not now being pursued. Therefore, this appeal now relates to a single issue, namely that of damages. It is grounded upon a generalised submission that the award was one which no reasonable jury could make, that it was disproportionate to the injury suffered by the plaintiff and that it was in breach of the defendant’s constitutional rights, as well as its rights under the European Convention on Human Rights (“the Convention”).
The Issues:
10. In broad terms I propose to consider the issues arising on this appeal under the following headings:-
(a) The test for assessing compensation in defamation actions having regard to the various interests involved;
(b) The function of an appellate court on a review by a dissatisfied defendant;
(c) The role of the jury in assessing such damages;
(d) The compensatory factors;
(e) Whether the award in the instant case is susceptible to successful challenge; if so,
(f) Whether there should be a retrial; if not,
(g) What should the appropriate award be; and, finally,
(h) How this Court should approach that task.
The Legal Regime Pertaining:
11. Between the trial of the instant action and the hearing of this appeal the Oireachtas has enacted the Defamation Act 2009, which repeals, in its entirety, the Defamation Act 1961. The 2009 Act includes s. 13, dealing with powers of an appellate court, s. 31, dealing with general damages, and s. 32, which relates to aggravated and punitive damages: what exact effect these measures will have, inter alia on the judge’s direction to the jury, remains to be seen. However, as the 2009 Act and therefore these sections have no impact on this case by virtue of s. 3 of the Act, it would of course be quite wrong for me to alter my views on the principles by which the instant appeal must be decided simply because of legislative changes subsequently introduced. Consequently, the statutory provisions must be disregarded.
The Assessment Test: The Review Test:
12. The general approach to the assessment of damages in this type of action, and for appellate review, is essentially not in controversy, and in the main derives in recent times from cases such as Barrett v. Independent Newspapers Limited [1986] I.R. 13 (“Barrett”) and de Rossa v. Independent Newspapers Plc [1999] 4 IR 432 (“de Rossa”); sometimes O’Brien v. Mirror Group Limited [2001] 1 I.R. 1 (“O’Brien”) is also mentioned in this context. These decisions, obviously, are on the domestic front. There is also case law from the European Court of Human Rights, which has considered, for Convention purposes, the appropriateness of national tests at both levels of judicial engagement: cases such as Scharsach v. Austria (Application No. 39394/98, 13th November, 2003), Tosltoy-Miloslavsky v. United Kingdom (Application No. 18139/91; (1995) 20 EHRR 442; 13th July, 1995) and Independent News & Media & Anor v. Ireland (Application No. 55120/00; (2006) 42 EHRR 46; 16th June, 2005) (“Independent News & Media v. Ireland”) become relevant in this regard. The Constitution also has significance as a number of rights affected in this case are to be found within its provisions (Article 40.3.1°, Article 40.3.2° and Article 40.6.1°); however, it has not otherwise featured prominently in any more specific way.
13. The acknowledged test, which was stated by Henchy J. in Barrett, remains to the forefront of the general principles in this area of law. That learned judge said:-
(i) “In a case such as this … 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 amongst right-thinking people as a result of the words complained of.” (p. 23)
And further on he continued:-
(ii) “[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 … it should not be allowed to stand.” (p. 24)
The first passage was a direction to the trial judge when addressing a jury; the second a direction intended for the review court. Both, in essence, have been endorsed in several subsequent cases, such as in de Rossa by Hamilton C.J. (at pp. 457-458 of the report) and in O’Brien by Keane C.J. (at p. 19 of the report). These statements of principle by the learned judge were made in the context of general damages only.
14. In certain other cases, however, consideration may also have to be given to aggravated damages, regarded by many (Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305; McIntyre v. Lewis [1991] 1 IR 121 at 140 (O’Flaherty J.)), but not by all (see, for example, McMahon and Binchy, Law of Torts, 4th Ed. (Dublin, 2013) at para. 44.77-44.98), as a species of compensatory damages, as well as to exemplary damages, if the circumstances so require. However, in general the main focus of this aspect of any defamation claim will almost always be on general damages, albeit with some exceptions, such as Crofter Properties Ltd. v. Genport Ltd. (No. 2) [2005] 4 I.R. 28 (“Crofter v. Genport (No. 2)”). In fact exemplary damages, even less so than aggravated damages, will rarely be the headline figure in any type of action; again, with the occasional exception such as the notorious case of Shortt v. Commissioner of An Garda Síochána & Ors [2007] 4 IR 587. In the instant case, however, one is concerned only with identifying the level of damages which is necessary so as to “compensate” Mrs. Leech for the grave harm which she has had to endure by reason of the appellant’s wrongdoing, there being no issue in this Court on exemplary or punitive damages.
15. With great respect to both its importance and authority, I do not consider that the above observations of Henchy J. in Barrett are remarkable in any true legal sense. Inherent in compensatory damages are the features of fairness and reasonableness: no one would conceivably suggest that such damages should be otherwise, much less the converse. The reference to “due correspondence”, however, requires some consideration, as, in effect, this has become the “proportionality” element of the test, on which a jury must be addressed, and which, if breached, permits a review on appeal. The importance of this requirement is evident not only from many decisions in this jurisdiction but also from even a cursory examination of what the European Court of Human Rights (“the E.Ct.H.R.”) has frequently said in its judgments, a topic to which I will return in a moment. First, however, a word about what “proportionality” means in this context.
16. This concept of proportionality is not confined to damages in defamation cases; in fact it is very reminiscent of the wider general principles applicable to many types of actions where compensatory damages are claimed. It was discussed authoritatively as far back as 1876, when the court was identifying a standard by which it might set aside a damages award made by the tribunal of fact (McGrath v. Bourne (1876) I.R. 10 C.L. 160). In the following passage the question being addressed was when, relative to the amount, should such intervention take place, on which issue Palles C.B. had this to say:-
“This amount is variously described in different cases. In some cases the epithet applied to it is ‘scandalous,’ in some ‘outrageous,’ in others ‘grossly extravagant.’ None of these expressions convey any very accurate idea to the mind … A more clear, legal and accurate definition was given by my brother Fitzgerald during the argument, when he stated that the amount should be such that no reasonable proportion existed between it and the circumstances of the case … [whilst] we should not on light grounds review the decision …arrived at [by the jury], [nonetheless] if, on the various views of the facts which are capable of being taken by reasonable men, we adopt that which is most favourable to the Plaintiff, and if, adopting this view, we arrive at the conclusion that no reasonable proportion exists between the damages which we should be inclined to give and the amount awarded by the jury, then the verdict ought not to stand.” (Emphasis added)
Hence, even then a ‘due correspondence’ was required between the award and the compensatable injury if the verdict was to successfully resist appellate scrutiny.
17. Very much the same point was made by Lavery J. in Foley v. Thermocement Products Limited (1954) 90 ILTR 92 and by other judges in numerous subsequent cases since then, including O’Sullivan v. Mellerick [1970] 104 ILTR 8, where O’Dalaigh C.J. at 10 said that:-
“In holding an award of damages to be excessive the criterion to be applied is, in part, subjective. The basic factor is one’s own estimate of the damages; and, then, comparing this estimate with the jury’s assessment, one has to say whether the jury’s figure is so disproportionate to the circumstances of the case as to admit of no other view than that the damages are excessive.” (Emphasis added)
Subject only to one qualification, this approach in general continues to prevail so that an award of damages from both judge and jury is examined by the Supreme Court in the same way. The caveat is this: in a judge only verdict the Court no longer takes the evidential view most favourable to the plaintiff; instead its analysis is based on the entire findings of the High Court judge, which, unlike a jury award, should be self-evident from his or her judgment (Dunne v. Honeywell Controls Ltd (Unreported, Supreme Court, 1st July, 1993, per Blayney J.).
18. Consequently, this notion of an “objective relationship” between award and injury is deeply embedded in the tortious law of damages and in such context should be so understood as having the meaning described. However, its application in defamation cases may well be different than in other cases, given the distinctive nature of that particular cause of action and the essential role which the jury plays in that specific process (see O’Brien, judgment of Geoghegan J. at p. 42 of the report).
19. That this is the true meaning of the proportionality requirement in the assessment of damages is immediately obvious from the majority decision in de Rossa, as set out in the judgment of Hamilton C.J.: in fact, although dissenting on other grounds, I do not believe that Denham J. in any way differed on this point. The following are representative extracts of what the learned Chief Justice said in the context of discussing the State’s obligations under the Convention:-
(i) “The obligation placed on the State is to ensure that the substantive law applicable in the State is designed to ensure a requirement of proportionality and that any award of damages made was proportionate to the damage which the plaintiff had suffered and was a sum which was necessary to provide adequate compensation and to re-establish his reputation.” (p. 457 of report)
(ii) “That does not mean that the discretion of the jury is limitless: the damages awarded by a jury must be fair and reasonable having regard to all the relevant circumstances and must not be disproportionate to the injury suffered by the injured party and the necessity to vindicate such party in the eyes of the public. Awards made by a jury are subject to a right of appeal and on the hearing of such an appeal, the award made by a jury is scrutinised to ensure that the award complies with these principles.” (p. 462 of report)
(iii)“Consequently, an appellate court should only set aside an award made by a jury in a defamation action if the award made is one which no reasonable jury would have made in the circumstances of the case and is so unreasonable as to be disproportionate to the injury sustained.” (p. 463 of report)
Accordingly, the award must be proportionate to what the law recognises as being the compensatable remit of damage and injury which has flowed for that plaintiff from that particular defamatory publication. This applies no less at first instance than it does at appellate level.
20. If this understanding is correct, as I believe it to be, then it is not a straightforward exercise, though perhaps not impossible, to run a damages award through the full architecture of a “Heaney” type proportionality test, which at first glance might be the impression one gets from the decision of the E.Ct.H.R. in Independent News & Media v. Ireland ((2006) 42 EHRR 46). At paras. 41-70 of that judgment, and indeed beyond, the Court sets out what it considers to be the relevant Irish law for the purposes of its decision. It refers to Heaney v. Ireland [1994] 3 I.R. 593 (“Heaney”) and to Murphy v. The Independent Radio and Television Commission [1999] 1 IR 12 (“Murphy”); in both cases the constitutionality of certain statutory provisions was evaluated by the use of the “proportionality test” which had been articulated by the Canadian Supreme Court in R. v. Chaulk [1990] 3 S.C.R. 1303 and which was first authoritatively introduced into Irish jurisprudence by Costello J. in his High Court judgment in Heaney.
21. Having referred to the test as containing the notions of ‘minimal restraint on the exercise of protected rights’ and of the ‘exigencies of the common good in a democratic society’, the learned judge further explained that:-
“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:—
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible, and
(c) be such that their effects on rights are proportional to the objective.”
22. From a fairly modest welcome, this approach quickly gathered pace and for several years past its three-limb test has been widely used for determining not only the validity of legislative restrictions on fundamental and other rights, but also for scrutinising the legality of executive decisions which also affect such rights. This remains its essential and principle use, certainly where the breadth of its entire remit is being applied. Whilst undoubtedly the requirement of there being a rational relationship between certain impugned conduct or action of a specific type and the adverse consequences for those affected thereby has surfaced in several other and different areas of the law, both civil and criminal, such cannot be described accurately as a Heaney type test. In many of these situations the word “appropriate” might convey the same meaning. In any event, given my understanding of what “proportionality” means in the context of damages, it is not, as I have said, immediately apparent why the European Court of Human Rights felt it necessary to refer to either Heaney or Murphy in the context of examining the jury’s award in de Rossa.
23. Notwithstanding the manner of such reference, however, and whatever the reasons therefor might have been, it seems to me that on closer examination, the Court’s appreciation of what might be termed “proportionality” was in terms far closer to “due correspondence” than to a “Heaney” type evaluation. For example, at para. 113 it said:-
“Accordingly, the essential question to be answered in the present case is whether, having regard to the size of the present award, there were adequate and effective domestic safeguards, at first instance and on appeal, against disproportionate awards which assured a reasonable relationship of proportionality between the award and the injury to reputation.”
Again, at para. 122 it stated:-
“It is also true that Irish law required damages to be fair and reasonable in the circumstances and not to be disproportionate to the injury to reputation suffered.”
And, finally, at para. 126 it adopted the meaning of “proportionality” as set out by Hamilton C.J. in de Rossa.
24. Accordingly, whilst if it became necessary to try and navigate the award in this case through each and every limb of the test identified in Heaney, I would attempt to do so, nonetheless, in my view this is not required as neither Irish law nor that pronounced by the E.Ct.H.R. for Convention purposes demands such rigid scrutiny. The end result therefore is that in the present context, for both trial and appellate court, the correct meaning of “proportionality”, which is synonymous with the concept of “due correspondence”, is that as outlined above. Finally, may I add that all would benefit greatly from a little more contextual precision when referring to this concept.
De Rossa: Current Law and Practice:
25. This Court was invited in de Rossa to stand down and erase from the law books some deep rooted traditional principles, established over centuries, and in their place to create a “fundamental and radically” altered regime for charging juries on the issue of damages. Amongst those were the matters referred to at paras. 52 and 53 of this judgment; in addition, the court was asked to endorse the following new practices, all of which were derived from English authorities:-
(i) That both counsel and judge could give to the jury an indication, perhaps more precise than general, of what compensation, in their respective views, the case at hearing should attract;
(ii) That the jury should be appraised of any awards made or upheld by the appellate court in previous defamation actions, obviously to create a scale impression in their minds for the purposes of the case at hand; and, thirdly
(iii)That the jury, for exactly the same reasons, should also be informed of the then prevailing upper limits of awards either made or approved by the courts in personal injury actions.
Subject to Denham J. dissenting on some of these issues, the remaining members of the court unanimously agreed to reject each of these submissions. Its decision was delivered on the 30th July, 1999.
De Rossa: Challenged in O’Brien:
26. At the O’Brien hearing, less than twelve months later, this Court was invited, strenuously it would appear, to conclude that de Rossa, in the above and in other key areas, was wrongly decided. That might be regarded as rather surprising, even daring given the timeline involved; nonetheless, the submission was made and was entertained by this Court in accordance with its established jurisprudence, such as that set out in Attorney General v. Ryan’s Car Hire Ltd [1965] I.R. 642 and Mogul v. Tipperary (North Riding) County Council [1976] I.R. 260 and which was recently discussed in my own decision in D.P.P. v. J.C. [2015] IESC 31 (15th April, 2015). In a majority judgment, delivered by Keane C.J., this invitation was rejected but only on the basis that it could not be said that the views of Hamilton C.J. were “clearly wrong”; therefore the test laid down in the decisions as cited had not been met. Accordingly, the award in O’Brien was then considered in the context of the legal principles above outlined, being those applicable in this jurisdiction uninfluenced by the jurisprudence from the courts of England and Wales. However, as the judgment of Keane C.J. might possibly give the impression that but for the principle of stare decisis, some members of the Court might have differed from the majority in de Rossa, I would like to make some brief observations on a number of these key issues.
27. Before dealing with such matters, being those referred to at para. 25 supra, it should also be noted that, in the opinion of Keane C.J., there was nothing said in de Rossa which prevented the Supreme Court, as part of its review jurisdiction, from referring to previous awards made in other defamation cases, adding as the only caveat that:-
“… [n]o doubt a degree of caution is called for … since in cases of defamation, more perhaps than in almost any action in tort, the facts which have to be considered by the jury very widely from case to case.” (p. 18 of the report)
A passing reference was also made by the Chief Justice to awards in serious cases of paraplegic or quadriplegic injuries (p. 20). However, Geoghegan J. in his dissenting judgment was strongly of opinion that very little value could be obtained by such an exercise, even one confined to defamation cases, a view with which, for the reasons I am about to outline, I fully agree.
Auction Advocacy: What is the Case Worth?
28. I do not accept for a moment the proposition that counsel should be able to suggest to the jury what, in his or her view, the case before them is worth. It would be auctioneering advocacy at its worst. The suggestion in John v. MGN [1997] QB 586 (“John v MGN”) (pp. 615-616) that counsel will exercise self-restraint so as to avoid the appearance of greed, on the one hand, or parsimony, on the other, is much too reliant on the objective detachment of counsel, and in any event overlooks the pressures on – and indeed the responsibility of – legal practitioners to obtain the best achievable outcome for their client. Therefore, in my view such a suggestion lacks widespread utility and offers scant comfort in this regard.
29. Moreover, in such circumstances the judge quite evidently would also have to address that issue. What is he to say with two responsible counsel before him? Comment or not on the figures given, or ignore them, or simply give his own view? Even with the great trust which I have in juries, confusion and uncertainty would surely follow. One must add that such a state of unease would inevitably be compounded by a judge’s direction, which all agree must also be given, that the jury can disregard all such figures if they so wish. The resulting scene in this scenario is not difficult to conceptualise. I would not therefore entertain such a practice.
30. If counsel should not embark on such a course, it would follow that a judge likewise should not do so: he/she should not in my view offer any opinion on the value of the action which is at hearing before him or her. Consequently, I see no merit in this proposal.
Comparison Awards: Re: Personal Injuries:
31. The suggestion that juries could be referenced to awards made in personal injury actions is one which I entirely reject and in that regard I would endorse the views expressed on this point by Hamilton C.J. in de Rossa. I would go further, however, and seriously question the utility of such an exercise even by an appellate court which is being asked to say whether an award is too high or too low, as the case may be. There are many reasons at the level of principle why I think this is so, as well as the enormous practical difficulty in making any workable comparison between the two, even where all permissible adjustments have been made.
32. In the first instance a small point is that notwithstanding the abolition of juries for all remaining civil actions, save for some exceptions not relevant (s. 1 of the Courts Act 1988), the Oireachtas has seen fit to retain the traditional role of juries in defamation cases.
33. This role, relative to damages, has been highlighted in judgments for so many years that the citations given (paras. 49-59 infra) represent but a small fraction of the entirety. Quite evidently the legislature had been fully aware of the procedure by which such cases are conducted, including the practice of what a jury may and may not be addressed on, by either counsel or judge, on such an issue. Likewise it must be taken to have envisaged the resulting changes which the 1988 Act was likely to bring about in the approach to damages assessment in personal injury actions. Judges are trained lawyers whose armoury very much includes precedent, comparisons, ranges, scales, adjustments and so forth: they give reasons which can be understood and if necessary can be analytically surveyed. Jury awards are self-evidently so different. No legislative intervention is applicable to this case. Consequently, though the point may be small, nonetheless, in my view, it is a significant one for all pre-2010 cases.
34. The second point relates to the underlying basis upon which damages are assessed in defamation cases, which is quite distinct to that which drives awards in personal injury actions. In addition to special damages being ever present in such actions, indeed in serious cases frequently outstripping all other elements of compensation, where aggravation is rarely if ever seen, general damages are heavily influenced by policy considerations, injected from varying sources, which is not the case, at any level, with the instant type of action.
35. In Uren v. John Fairfax & Sons Pty. Ltd. 117 C.L.R. 118, 150, Windeyer J. pointed out, rightly in my view, that the defamed person obtains compensation “because of” and not “for” the reputational damages suffered by him. The learned judge continued:
“For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”
36. Having quoted with approval this particular passage, Lord Hailsham LC, in Broome v. Cassell & Co. Ltd. [1972] AC 1027 (“Broome v Cassell & Co.”), stated at p. 1071:-
“This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter… What is awarded is thus a figure which cannot be arrived at by any purely objective computation.”
37. Lord Donaldson, in Sutcliffe v. Pressdram Limited [1991] 1 Q.B. 153, having given two reasons why the scales of damages in both actions are “quite different”, stated:-
“Accordingly, it is to be expected that awards in personal injury cases will be in no way comparable with awards in libel cases. In considering any appeal of this nature, an appellate court is bound to disregard its experience of the assessment of damages in personal injury cases…” (p. 176).
I agree with both the reasons stated and the conclusion reached in these decisions.
38. In paragraphs 63 and 64 of this judgment I have attempted to list, under the heading of “What Damage is Cognisable”, a variety of factors which, depending on circumstances, may fall to be assessed in a defamation action; no doubt several others may also arise from case to case. From even a casual glance at such matters, it is readily apparent that virtually not a single such reference would feature in personal injury awards. It is thus difficult to see how one cause of action can usefully be equated with the other in the context of the point at issue.
39. In any discussion on this topic it is only the general damages element of a personal injury award which is compared with the entirety of a defamation award. But as stated, general damages are but one aspect of an injured party’s overall package in cases such as, for example, a negligence action against a driver of a motor vehicle, or against a defaulting employer, or against a hospital/doctor who has conceded liability in a catastrophic brain injury case. Frequently, certainly in the most serious type of case, such will be but a small proportion of the total amount: this will be the case even when taking €250,000 – €400,000 as part of an award of some €5 million, €7 million, or even perhaps €12 or €13 million. Even with non-serious injuries the plaintiff may have pecuniary losses, past and future, which greatly exceed his claim for pain and suffering, loss of amenity etc. In all such cases, however, it is of course the total sum which represents his compensation and not simply one single aspect of it. On the other hand, judicial experience tells us that it is notoriously difficult for a plaintiff to verify special damages in a defamation action. In this regard, therefore, there is a striking difference not only between the component elements of each case, but also between the final awards which may ultimately result.
40. I have not yet made any detailed reference to the policy influences which encroach upon the principles of assessment in personal injury awards. I will shortly refer to some of these, but only briefly. Before doing so, however, a key and a most unique component of defamation awards is deserving of separation from the main factors listed elsewhere in this judgment. I am referring to the necessity to publicly vindicate the reputation of the defamed: this is not simply a reference to the outrage which the publication has directly caused him to suffer, or to suffer because of his family, friends, and colleagues’ knowledge of it, but is also a reference to circumstances where any random member of the public, casually met, indiscriminately blurts out to the world at large that “there is no smoke without fire”, or words to that effect. He must be able to demonstrate, there and then, that there was nothing in the publication: that it was baseless and that it should never have seen the print of paper. He must be able to instantly dispel the underlying odium which is inherent in the stranger’s utterance and immediately reassert his self-esteem and dignity. “There is my award: it speaks for itself”. Such a chance encounter may occur the following day, the next month, or years hence; whenever it does happen, the defamed must constantly be vigilant and if and when the occasion should arise, he must decisively respond. Nothing remotely like this is contemplatable in a personal injury award.
41. This lifelong concern, even if mostly subdued, will forever smoulder; its importance as a compensatable element is readily acknowledged in defamation restitution, as many cases show. One such case was again the judgment of Lord Hailsham L.C. in Broome v Cassell & Co, where it was stated:-
“In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position that he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.” (p. 1071).
I respectfully agree.
42. The policy considerations to which I refer and which very much inform personal injury awards have been touched upon, to varying degrees of depth, in a number of decisions both here and in the United Kingdom. These influences, which have no affinity with defamation cases, make any comparison between the two a topic of much unease even for those who favour a closer alignment. In The Gleaner Co Ltd & anor v Abrahams [2004] 1 AC 628 at 645, Lord Hoffman discusses some of these factors and considers whether there is any functional similarity between both causes of action. Having examined these issues, and having acknowledged what is undoubtedly true, namely that different opinions exist on this point (McCarey v. Associated Newspapers Ltd & Ors [1965] 2 Q.B. 86 and John v. MGN), Lord Hoffman continues:-
“Few of these considerations of equity and policy apply to awards in defamation cases. On the other hand, defamation cases have important features not shared by personal injury claims. The damages often serve not only as compensation but also as an effective and necessary deterrent. The deterrent is effective because the damages are paid either by the defendant himself or under a policy of insurance which is likely to be sensitive to the incidence of such claims … Awards in an adequate amount may also be necessary to deter the media from riding roughshod over the rights of other citizens. In Kiam’s case Sedley LJ said, at p 304, para 75:
‘in a great many cases proof of a cold-blooded cost-benefit calculation that it was worth publishing a known libel is not there, and the ineffectiveness of a moderate award in deterring future libels is painfully apparent … Judges, juries and the public face the conundrum that compensation proportioned to personal injury damages is insufficient to deter, and that deterrent awards make a mockery of the principle of compensation.’” (Emphasis added) (p. 646).
I fully agree with the entirety of this passage of the judgment, as I do with the added observation that whether personal injury awards should be referenced to defamation decrees is a question of policy and not of legal principle. On that basis the Privy Council held that the Court of Appeal in Jamaica, which had made the reference, did not err in law in its refusal to alter the existing practice in that country, which was not to make any reference to personal injury awards before the jury.
43. Against this background I must say that I have never understood, certainly not in any legal sense which I can ascribe to, why such efforts, constrained and artificial as most are, have been continuously made to align personal injury awards with defamation actions. From insult to vindication, both are vitally different: on every aspect of the liability side, likewise on the injury side, and most definitely on the damages side. Why not say so and acknowledge the obvious? Simply put, they are indeed incomparable. Personally, therefore, I derive no benefit from cases such as Yang Yun v. MIBI [2009] IEHC 318 (a personal injury action) or M.N v. S.M. [2005] 4 IR 461 (a sexual abuse case) in my assessment of the instant appeal. Finally, I agree with Dunne J. in her judgment in this case that the latter type of action is clearly akin to a personal injury claim, as I evidently and clearly do that such claims have no comparative utility with defamation actions (see paras. 38-41 of the judgment of Dunne J.).
44. Of course, this does not mean that the amount of damages in defamation can be endless: far from it. But the parameters within which the acknowledged test must be applied, and the underlying reasons therefor satisfied, should be developed within the jurisprudential area of this particular type of action, even if touched, as they might well be, by overarching concerns of a general nature: subject to that, however, awards should not otherwise be influenced by personal injury actions. I thus fully agree with de Rossa in this respect.
Comparison Awards: Re: Defamation Cases:
45. The reason why I doubt the wisdom of comparing awards in previous defamation cases is not based on any principle or the like, but is one firmly grounded in practical utility, a view also espoused by Geoghegan J. in O’Brien, where the learned judge referred to “the sheer practical difficulty of comparison” (p. 43 of the report). How can one compare the T.D. Mr. Barrett with Mr. Denis O’Brien, or with Mr. McDonagh S.C., as he then was (McDonagh v. News Group Newspapers Ltd (Unreported, Supreme Court, 23rd November, 1993)? How can Mrs. Leech in any way be positioned amongst or within this group? What does ‘tweaking a beard’ have in common with a politician in active public life who is accused of having been involved in serious crime and of supporting anti-Semitism and violent communist oppression? How can one compare any of the above with a married woman who has a consultancy business in the private sector and who is accused of having an extra-martial affair with a senior government Minister? Reference could be made to multiple other examples from real life cases which in every aspect of their legal characteristics are entirely dissimilar from any of the situations as mentioned.
46. In addition, within this very narrow group of cases some simple adjustment, on either side, can change the entire focus of the damages direction. Let’s suppose that Mr. de Rossa was not at the time actively engaged in trying to form a government; or that Mr. Denis O’Brien was not simply a “new and emerging major figure in the business world” (Geoghegan J. at p. 39 of the report), but rather had by then achieved the public standing which arguably he has later acquired; or that Minister Cullen had simply been a low ranking official in a local authority; or that Mr. McDonagh S.C. had already been appointed to a senior judicial post? A variation in any of the following factors would likewise have a similar effect, namely the nature of the publication, the depth of both personal and professional intrusion which the publication caused, and the conduct of the defendant, to identify but some. In every case virtually all of the critical components will be separate and distinct, one from the other. Therefore, in my view, even with the greatest feasible care, I find it difficult to see how, if one remains true to the obligation of compensating that particular plaintiff, in respect of that particular publication, for that particular injury, this can be achieved or even influenced by the cross referencing as has been suggested.
47. If there is to be any real value in this exercise, the analysis must be “factor comparative” and “factor weighted”, otherwise the entire exercise is apt to mislead. It is entirely uninformative simply to say that having considered ‘this case’ or ‘that case’ the award under review is too large (Crofter v. Genport Limited (No.2)). The allegation in that case, which the corporate counter claimant sought compensation for, arose out of false information conveyed on behalf of the plaintiff to the police authorities in the United Kingdom that the effective owner of Genport and his brother, a Chief Superintendent in An Garda Síochána at the time, were actively assisting the IRA in laundering drug money. This was but one of several actions between the parties, all bitterly contested over several years against the background of a landlord and tenant relationship in respect of a well known hotel in the City of Dublin. The appeal under review, from an award made by a judge sitting alone, was allowed in that the exemplary damages aspect of it was set aside as being excessive. How the reference to Barrett, McDonagh or de Rossa could have helped in determining that issue remains unclear (p. 37 of the report).
48. Despite these misgivings, however, I will have a look at some of the relevant case law a little later in the judgment, not for any specific guidance on how this appeal should be determined, but rather at a general level so as to highlight certain aspects of those decisions.
The Jury: The Review Test
49. The jury has a twin function in defamation cases. Firstly, it decides on each contested element regarding liability, subject only to the judge being satisfied that the words uttered are capable in law of having a defamatory meaning: (Duffy v. News Group Newspapers Ltd [1994] 1 I.L.R.M. 364). Secondly, it assesses damages in the event of liability being established. Traditionally the law has given the jury wide scope on the damages front. The reason for this is that “defamation is rooted in community values”. In effect, the jury, when acting as such, is “representative of the community” (McMahon and Binchy, Law of Torts, 4th Ed. (Dublin, 2013) at para 34.329). This perspective, in my opinion, holds good not only for the issue of “libel/no libel”, but also for the quantification of damages. Accordingly, whilst not “at large” on such issue (a phrase in any event frequently misunderstood), a jury’s award nonetheless has an eminence and distinction of significantly higher value than that attaching to other awards, even those made by juries in non-defamation cases.
50. On the liability side, Walsh J. said of the jury’s role in Quigley v. Creation Limited [1971] I.R. 269 at 272:-
“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.”
McCarthy J., in Barrett (p. 35), was quite satisfied that such observations apply equally to the question of damages; with the learned judge stating:-
“The law reports abound with judicial tributes to the particular respect that must be accorded to the verdict of a jury in libel actions. [Walsh J’s observations in Quigley v. Creation Limited [1971] I.R. 269 at 272] apply no less to the assessment of damages than they do to the issue of libel or no libel.”
51. Further support for this view can also be found in the judgments of other members of the court in Barrett, including Finlay C.J., who, in the course of his judgment, at p. 19 stated:-
“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.” (Emphasis added)
See also McDonagh v. News Group Newspapers Ltd (Unreported, Supreme Court, 23rd November, 1993).
52. The particular status of the jury was again referred to in de Rossa, where Hamilton C.J., who refused to depart from the traditional guidelines given to juries, and having endorsed the above passage of Finlay C.J. in Barrett, continued:-
“The “sanctity” of such awards is recognised in the passage from the judgment of the [Master of the Rolls] in John v. MGN Ltd [1997] QB 586 where it is stated at p. 616 of the report as follows:-
‘The jury must, of course, make up their own mind and must be directed to do so. They will not be bound by the submission of counsel or the indication of the judge. If the jury makes an award outside the upper or lower bounds of any bracket indicated and such award is the subject of an appeal, real weight must be given to the possibility that their judgment is to be preferred to that of the judge.’ (Emphasis added by Hamilton C.J. in de Rossa)
Both judgments [Barrett and John v. MGN Ltd ] recognise that the assessment of damages is a matter for the jury and that an appellate court must recognise and give real weight to the possibility that their judgment is to be preferred to that of the judge.” (p. 462 of the report)
53. Finally, Hamilton C.J., in rejecting the suggestion that larger awards should be subjected to a more searching type of scrutiny than in the past and in refusing to adopt a new appellate test, namely “could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation” (Rantzen v. Mirror Group Newspapers (1986) Ltd. and Others [1994] Q.B. 670), offered the following justification:-
“If such were the test to be applied, it would remove from the jury ‘the very unusual and emphatic sanctity’ referred to by Finlay C.J. and the giving of ‘real weight’ to the possibility that their judgment is to be preferred to that of the judge as stated by Sir Thomas Bingham M.R.
Consequently, while awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that Court is only entitled to set aside an award if it is satisfied that in all of the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.” (p. 463 of the report)
See also p. 446 of the judgment where it was said that the “assessment of damages was peculiarly the province of the jury in an action for libel.”
54. These clear and decisive observations regarding the respect which attaches to a jury’s award must not be lost sight of; such an award cannot be disturbed on appeal simply because the Supreme Court might think that the award is too high or too low, as the case may be. Again, see the judgment of Geoghegan J. in O’Brien at p. 42. Appeal judges, when conducting such a review, are not the jury and cannot assume the jury’s role. Intervention will be justified only where the award obviously falls outside permitted parameters which, in determining, the court must have due regard, inter alia, to the uniqueness of the jury’s representative function in this particular judicial process. Just as libel/no libel is a matter of opinion which may vary widely but reasonably (Walsh J. in Quigley), so too may the jury’s appraisal of what sum is necessary to reflect the injury suffered. Therefore, an award will not be disturbed easily or second guessed purely to fine tune it. As put as far back as 1879, by Cockburn CJ., “… a Court ought not, unless under very exceptional circumstances, to disturb their verdict” (Phillips v. South Western Railway Co. (1879) 4 Q.B.D. 406 at 408).
55. In addition, it is obvious to say, but nonetheless needs to be said, that damages cannot be assessed by some mathematical formula or statistical model absorbing the multiple variations which arise and which, having duly assessed and weighted each factor of relevance, arrives at an award immune from appellate scrutiny. There is no series of preset rules which provide a just answer in all cases. Given the diversity of each case, all that can be said is that once the decision maker has had due regard to all material facts and in its award reflects what is a fair, reasonable and proportionate response to the wrong caused and the harm done, both on the personal and the public side, the ultimate figure will not be considered or set aside as being disproportionately high.
56. Could I add that whilst there is undoubtedly an element of subjectivity involved, such element is conditioned on the one hand by the requirement to reflect in the award and on review each of the component parts of the wrongdoing, as well as the wrongdoing as a whole, and on the other hand is constrained by the necessity of fairness and proportionality. Once the resulting award is within the permissible range it will not be refined at the margins. There is scope for a difference of views within that range, which means that unless the amount falls outside it, the same will be regarded as justified.
57. On establishing liability, therefore, a person is entitled, under the heading of general damages, to receive such sum as will appropriately compensate him for the wrong done, the harm inflicted and damage suffered. This level of restitution, at least to my mind, is conceptually entirely separate from any claim for aggravated damages and evidently is also different from both exemplary damages and special damages. However, in practical terms, as the case law shows, factors which aggravate are indifferent to boundaries: they run right into the slipstream of their compensatory brothers and are indistinguishable from them on occasions. It has therefore become the practice to take all such matters together and to award a single sum to collectively represent their impact.
58. In conducting this exercise, a principle of high importance which permeates the assessment process at every level is that whilst the law, at both constitutional and Convention level, declares that every person has the right to his good name, on the one hand, and also guarantees liberty for the citizen to freely express their convictions and opinions, on the other, neither is absolute and neither one at the level of principle takes precedence over the other. In certain situations each must accustom itself to its neighbour and adjust accordingly. Even with such accommodation, however, one thing is clear: no one has the right to defame another. No law gives that right and no man has that right.
59. However, notwithstanding the status of its damages award, there is no doubt but that in an appropriate case a jury’s verdict can be set aside as being unresponsive to the test above outlined. If judged as unfair or as lacking the appropriate balance between the wrong and the causative effects, it will not be allowed to stand. All awards are to be evaluated in the same manner: no greater scrutiny should be given to one appeal over another, no matter what amount is involved. A relatively minor sum may confer on some people the required level of vindication, but for others a much larger amount may be necessary. Principles of law, rooted in constitutional values for both publisher and defamed alike, are not two-tier in structure: they travel not on the highway for one and the boreen for the other. Equality prevails and the same assessment criteria must apply. There is but one approach in all cases.
The Convention:
60. It is of interest to note that the national practice on the assessment of damages was examined in Independent News and Media v. Ireland (16th June, 2005), where the E.Ct.H.R. was satisfied that the Irish test, including the specific requirement that the award must bear a reasonable relationship with the injury suffered (paras. 20-24 supra), met with the conditions laid down in the Convention and with the Court’s jurisprudence in that regard. Such jurisprudence has been developed in a series of cases where the Court has been called upon to review the compatibility of domestic measures, regarding the right to protect one’s good name and, if defamed, to obtain compensation therefor, on the one side, and the right to freedom of expression on the other. Having conducted an extensive analysis the E.Ct.H.R. concluded, in the case cited, that there were adequate safeguards in existence to achieve an appropriate balance between the conflicting rights given in Article 8 and Article 10 of the Convention. There was therefore no necessity to adjust Irish law in this regard.
61. That decision can be contrasted with the judgment given in Tolstoy Miloslavsky v. UK (13th July, 1995). In that case the plaintiff had been awarded £1.5m in respect of an allegation that he had been responsible for handing over Cossack and Yugoslav prisoners of war to communist forces in the knowledge that they would be murdered. The sum, at the time, was three times higher than any previous defamation award made in the English Courts. On review the European Court of Human Rights held that given the amount involved it was of striking significance to note the absence of any adequate or effective safeguards in domestic law against a disproportionately high award. Essentially on that basis there had been a violation of the defendant/applicant’s rights under Article 10 of the Convention.
62. The Tolstoy Miloslavsky decision was given at a time when the relevant review test in England was that intervention was permitted only where the award was “so unreasonable that it could not have been made by sensible people and must have been arrived at capriciously, unconscionably or irrationally.” The essential reason for the different conclusion reached by the Court in Independent News and Media compared with Tolstoy Miloslavsky related to the review test in this jurisdiction, which included the a concept of proportionality.
What Damage is Cognisable?
63. As stated, compensation in a case such as this has the capacity of embracing multiple and diverse elements. It can, as the authorities show, include certain factors which perhaps are more frequently dealt with separately as aggravation, such as the defendant’s response to the claim as asserted. Whilst it is not possible to identify all such matters which potentially might come within the remit of general damages, as so understood, it can however confidently be said that its parameters in defamation suits are not as tightly drawn as in other proceedings.
64. The following are some of the factors which will require consideration in any assessment of damages in this type of case, to be viewed in the context in which such matters have arisen:-
(a) The extent of the wrong, of the harm inflicted and of the injury done;
(b) The damage to one’s reputation and standing in the eyes of reasonably minded members of the community;
(c) The restoration of that reputation and standing to a degree that will withstand any future challenge by any random member of the public who suspects that there is “no smoke without fire”;
(d) The degree of hurt, distress and humiliation suffered and any other aspect of one’s feelings that has been affected;
(e) The extent of the intrusion into one’s personal, business, professional or social life, or any combination thereof, to include the invasion of one’s privacy;
(f) Any other harmful effect, causatively resulting from the wrongdoing, not above mentioned;
(g) The gravity of the libel;
(h) The extent of the circulated publication;
(i) The response and reaction to the allegations as made; retraction and apology; re-affirmation of truth and justification – even with different meanings to those as pleaded;
(j) The overall conduct of the defendant, including those examples identified in Conway as constituting aggravation ([1991] 2 I.R. 305 at 317), and even extending to matters of exemplary condemnation on occasions; and
(k) Any other factor specific to the individual case which falls within the parameters of the principles as outlined.
Additional Comments on Four Factors:
65.
(i) It has been said that the most important matter in the assessment of damages is the gravity of the libel (Hamilton C.J. in de Rossa applying John v. MGN [1997] QB 586 at 607). Whilst undoubtedly true at one level, the severity of reputational damage, the loss of standing in the eyes of the public and the resulting personal, business and social effects on the injured party are no less grave than the intensity of the libel itself.
(ii) The assessment of gravity, whilst hugely significant at a public or general level, is equally significant at the personal level. As again stated in John v. MGN, “the more closely [the libel] touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be” (p. 607). I entirely agree with the insightfulness of those comments but would add a context, not applicable in England and Wales, which is that all or almost all of the rights likely to be affected are to be found in this jurisdiction within a constitutional setting also, thereby increasing their seriousness if and when causatively established.
(iii)The extent of the publication is also highly relevant. The wider the circulation and the greater the geographical area covered, the more damage is likely to have been caused; such a conclusion can pre-emptively be assumed. Further, a defendant whose form of publication is or is likely to be electronically transmitted or re-transmitted, even by others, must bear the consequences of his choice.
(iv)The response and conduct of the defendant, on complaint being made, will be a material matter. Such conduct is likely to be viewed differently depending on the reaction. Defending a publication to finality may be a right but if unsuccessful the relentless pursuit of the published insult may have serious financial consequences for the pursuer. On the other hand, an immediate withdrawal of the offending material, coupled with the implementation of appropriate measures to correct the falsity and repair the damage, will significantly differentiate one type of response from the other.
The Instant Case:
66. The appellant submits that in reviewing the jury’s verdict, this Court should have due regard to awards made in other similar actions, as well as those on the personal injuries side. It is said that such an approach at both levels was endorsed by Keane C.J. in O’Brien (at p. 20 of the report). With regard to previous libel actions, it is claimed that these can at least offer guidance, if not act as a benchmark for the appropriateness of the award in the instant case. In particular, the appellant draws attention to the fact that in 2001 the Supreme Court set aside an award of IR£250,000.00 in the O’Brien case as being excessive. Furthermore, it is pointed out that at present there is a cap of €450,000.00 for general damages even in the most serious quadriplegia/paraplegia type cases. (Magi Yang Yun v. MIBI [2009] IEHC 318). Therefore these figures must be relevant to the instant case.
67. Relying on the reference to the cap on personal injury awards, but more particularly so on the de Rossa and O’Brien decisions, whereby this Court described the libel in each case as being of the “grossest and most serious type”, it is submitted that even if the award to Mr. de Rossa of IR£300,000.00 in 1999 was not disturbed, nevertheless by any comparative process the amount in the instant case must be regarded as excessive.
68. The respondent for her part claims that any reference to awards in other defamation actions needs to be treated with great caution, and even more so when a cross reference to awards in personal injury cases is suggested. The observations of Hamilton C.J. in de Rossa at p. 459/460 are relied upon, as is the conclusion of the Court of Appeal in Rantzen v. Mirror Group Newspapers (1986) Ltd [1994] Q.B. 670 (“Rantzen”), which the learned Chief Justice referred to, with approval, at p. 454 of the report. Finally, she also relies upon Lord Hoffman’s analysis on the same point in Gleaner Company Limited & Anor v. Abrahams [2004] 1 AC 628.
69. The role of the jury in a case such as this is also emphasised by Mrs. Leech, who makes the point that even outside the ambit of defamation actions, compensatory damages can include an element of aggravated damages. She refers to a comment by Hardiman J. in Shortt v. Commissioner of An Garda Síochána [2007] 4 IR 587 at 661 where the learned judge said:-
“Aggravated damages, on the other hand, are compensatory damages increased by reason of the factors that are set out in the judgment of Finlay C.J. in Conway v. Irish National Teachers Association [1991] 2 I.R. 305.”
It is submitted on her behalf that the libel in the instant case is an extremely grave one, given the series of articles which were published and the sustained and deliberate campaign conducted against her, over the timescale above set out. Moreover, the appellant showed no remorse whatsoever: rather, it elected to maintain a plea of justification in face of the indefensible, given the plain and ordinary meaning of the material, which it undoubtedly had.
70. It is further said that the words published imputed on her chastity and suggested adultery by her as a married woman; they were also calculated to disparage her in her office, profession, calling, trade or business (ss. 16 and 19 of the Defamation Act 1961 (“the 1961 Act”)). Therefore her personal character, as well as her reputational integrity as a business person, was severely impaired. In the overall context, it is claimed that the material published suggested that the alleged affair was engaged in so as to advance her business career and that without such a relationship she would not have been capable of meaningfully acting as a communications consultant. For a professional and business lady, such is grossly degrading.
71. For the reasons above given (paras. 31-44 supra) and hereinafter added to, I do not accept the existence of any comparative role relative to personal injuries and though not rejecting the invitation to consider other defamation cases, which I will in a moment, I also have strong reservations in that regard (paras. 45-48 supra; paras 75-82 infra).
Additional Comments / Personal Injury Awards:
72. Whatever can be said in favour of referring to other libel actions, much less in my view can be offered in support of any serious attempt to compare personal injury awards (paras. 31-44 supra). Whether the passing reference to what damages can be obtained in a paraplegic or quadriplegic case, made by Keane C.J. in O’Brien (p. 20), can be taken as an endorsement of such an approach in general is open to serious doubt, particularly in light of de Rossa, where the court preferred the reasoning of Rantzen to that reached in John v. MGN. This view had the effect of endorsing what Lord Hailsham pointed out in Broome v. Cassel & Company [1972] AC 1027 at 1071, when drawing the distinction between damages in both types of action:-
“What is awarded is … a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are said to be at large.”
73. Moreover, de Rossa, on this topic, also referred to the following passage from Rantzen:-
“We have come to the conclusion, however, that there is no satisfactory way in which the conventional awards in actions for damages for personal injuries can be used to provide guidance for an award in an action of defamation … it seems to us that damages for defamation are intended at least in part as a vindication of the plaintiff to the public … We therefore feel bound to reject the proposal that the jury should be referred to awards made in actions involving serious personal injuries.” (p. 454 of the report)
74. There are several good reasons for this, which are referred to at paras. 31-44 supra. In addition, although it can be said at one level that every personal injury action is different, nonetheless it is also true to say that the variables in most cases can be readily identified and adjustments can be made so that the vast majority of awards can be rationally associated, one with each other. This is not so with libel actions, as in every sense of the term each is different from the other. Secondly, in addition to compensating a plaintiff for injured feelings, the purpose of restitutio in integrum as applied to libel actions is much more embracing. It has the added significant requirement of vindicating a person’s good name in the eyes of the public. In other words, if ever challenged as to the validity or truth of the libel, a plaintiff can point to the award as demonstrating the falsity of the publication. No such aspect exists in personal injury actions. Thirdly, there is also, as previously stated, a subjective element in assessing what is appropriate for a libelled plaintiff, whereas such is not the case with personal injury actions. In this regard I endorse the view of Geoghegan J. in O’Brien at pp. 42 and 43. Consequently, in my view, I am most reluctant to be influenced by awards in this area of the law.
Additional Comments / Defamation Cases:
75. What then can be deduced from previous defamation decisions on reviewing the jury’s award in this case?
76. Barrett was a case where the plaintiff, a sitting Fianna Fáil TD, grounded his defamation action on what the Evening Herald printed in its edition of the 8th February, 1983, with the relevant part appearing 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 immediate background to this piece was a meeting of the Fianna Fáil Parliamentary Party the previous evening, where a resolution to remove Mr. Charles Haughey T.D. from the leadership of the party had been defeated. The plaintiff, Mr. Barrett, received damages of IR£65,000.00 from the jury but the award was set aside on appeal. In his judgment, Henchy J. said that:-
“A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of, namely, that in an excess of triumphalism at his leader’s success the plaintiff attempted to tweak the beard of an unfriendly journalist. The jury might then have been asked to fit that allegation into an appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected.” (pp. 23-24 of the report)
The learned judge continued:-
“To put it in another way, if £65,000 were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exaltation, the damages proper for an accusation of some heinous or premeditated criminal conduct would be astronomically high.” (p 24 of the report)
77. The reference to reducing the libel to the ‘actuality of the circumstances’ is intended to help reduce the risk of an excessive award. The reference to ‘appropriately positioning’ what was said on the occasion in question relative to what might otherwise have been said is simply another way of expressing a view as to where the publication should be placed on the ‘seriousness scale’ relative to that particular type of libel.
78. The published material in de Rossa was described by Hamilton C.J. at p. 464 of the report as follows:-
“To publish of any person words meaning that he or she was involved in or tolerated serious crime and personally supported anti-Semitism and violent communist oppression would, if untrue, constitute the gravest and most serious libel: it is hard to imagine a more serious one.
To publish such words in relation to the plaintiff, a politician dependent on the support of his constituents and his colleagues and at a time when he was engaged in negotiations, as was well known to the defendant at the time of publication, which might lead to his participation in government, renders such publication more serious and grave, particularly when they might have interfered with his chances of participation in such government.”
Much emphasis therefore seems to have been placed on Mr. de Rossa’s occupation as a politician and on the political activities which he was engaged in at the time of the libellous publication, namely negotiating to enter government. Furthermore, the classification of the libel by the learned Chief Justice was once more his descriptive way of saying how serious it was. Quite evidently, in view of the rest of his judgment, this reference could not have been for any comparative purpose.
79. Much the same emerges from McDonagh v. News Independent Group Limited, wherein, upholding an award of £90,000 to the plaintiff, who was a practising barrister at the time, Finlay C.J., having specifically highlighted the plaintiff’s occupation, said:-
“…I am satisfied that there are not very many general classifications of defamatory accusation which at present in Ireland, in the minds of right minded people, would be considered significantly more serious.”
80. In O’Brien, Keane C.J., in a case where the allegation was that the plaintiff had paid a Government Minister €30,000 by way of a bribe for obtaining a radio license, said:-
“The libel complained of [in de Rossa] could not have been of a more serious character, alleging, as it did, that the plaintiff supported some of the vilest activities of totalitarian regimes of the twentieth century and was personally involved in and condoned serious crime. On any view, that is a significantly more damaging and serious libel than the admittedly serious statements made concerning the plaintiff in the present case.” (p. 21 of the report)
81. It is undoubtedly clear from this and other extracts of the judgment that this was a comparative analysis between both de Rossa and O’Brien. Even then, however, the learned Chief Justice called for caution when applying any such approach, “since in cases of defamation, more perhaps than in any other action in tort, the facts which have to be considered by the jury vary widely from case to case” (p. 18 of the report). As evidently follows from views previously expressed, I respectfully agree with the urging of caution in this regard: indeed, I do so much more strongly than perhaps what emerges at first sight from the passage as quoted.
82. It is also of interest to note how this particular point was addressed in the majority judgment in this case. Having referred to the relevant case law, including de Rossa and O’Brien, Dunne J., at para. 35, concluded “nevertheless, comparisons with other cases may provide some assistance in assessing the gravity of the libel.” (Emphasis added). If this could be seen as a type of endorsement of Keane C.J. in O’Brien, it must be regarded as heavily qualified and highly tentative.
83. From an overall consideration of these cases what comes through, at best, is that in some very general way the courts have in mind some type of loose cross-referencing regarding the gravity of defamatory statements, but at the same time have left quite untrammelled the jury’s entitlement to assess case-specific issues and to evaluate particular effects individual to each such case. It is also of interest to note that the Court in both McDonagh and de Rossa emphasised the occupation of each plaintiff, presumably so that the defamatory effect of the material published would be evidently visible on the professional side of the claim; naturally a heavy concentration is usually focused on the personal side. Apart from this extrapolation, however, I do not read the cited cases as requiring any greater degree of ranking than which I have just described.
The Libel of Mrs. Leech:
84.
(1) The jury found, as above stated, that the materials published meant that the plaintiff had an extra-marital affair with Minister Cullen. At the time she was married with two children and was also a self-employed communications consultant. He was also married.
(2) Every society has its own set of legal, social, moral and religious values, in many instances developed over a long period of time but in almost all cases being subject to at least some degree of change as society evolves. Therefore, to say of an unmarried person that she had an affair would mean perhaps something less condemnatory today than it would have forty years ago. However, the situation with a married person has arguably not changed so dramatically in this way.
(3) The ethos of family life in this country is one based on marriage: I say this simply because there is no other type of family recognised in the Constitution, a point reaffirmed by the Supreme Court as recently as 2009 (J. McD. v. P.L. & Ors [2009] I.E.S.C. 81). Accordingly, marriage is the legal foundation for this fundamental unit of society, being, as it is described, a moral institution possessing major constitutional rights. It is therefore at the highest level of our legal, social and moral order.
(4) The effect of the material as published is to suggest that the respondent had been unfaithful to her husband, and that her relationship with Minister Cullen had affected his own marriage.
(5) This material was not confined to conduct which could be described only as immoral or as involving infidelity: it directly and in a most profound way attacked the professional and business reputation of Mrs. Leech by making the clear suggestion that she could not have been successful in her chosen business career without having had an affair with an individual who was then an influential politician. In effect, she had such a relationship for commercial gain. This suggestion caused great offence, inflicted considerable business harm and evidently was professionally grossly demeaning for her.
(6) This inextricable link is likely to have added greatly to the deep sense of public outrage which the articles provoked. It is not possible to isolate the allegation that the respondent was having an affair from the manner in which she was depicted to have obtained business. The jury was perfectly entitled to have regard to the harm inflicted on her profession, as such is also part of her general reputation.
(7) It is true to say that unlike de Rossa and O’Brien, the plaintiff was not a significant public figure before the publication of the material in question: such publication, however, in a most dramatic and instantaneous way, entirely changed her profile into one which was not only recognised but actively sought out at a public level.
(8) The conduct of the applicant is also relevant in the assessment of damages. In its defence, unsustainable pleas of justification and responsible journalism were maintained: even from a cursory examination of the transcript, one can evidently see that the line of defence argument involved repeated and continuous imputations of cronyism.
(9) In three of the articles published, various depictions of Mrs. Leech and Minister Cullen were included. In particular, in its edition of the 15th December, 2004, the false and composite image shown was particularly offensive as on any objective interpretation thereof, one could not help but think that the red cocktail dress which Mrs. Leech was wearing had a long, high and revealing slit, extending almost to hip level. This was entirely misleading and was clearly designed to enhance the underlying impression that she and Minister Cullen were having an affair.
Is the Award Sustainable?
85. As the case law shows, many judges have graphically referred to the different libels before them as being at the grossest and most severe level of the defamation chain, whereas others, a typical example of which is Barrett, position the libel at a much more modest level. Whilst I can understand this type of descriptive process, I remain, however, entirely unconvinced of its comparative utility: this for the very simple reason that without significant qualification, I doubt its value. Context in such circumstances is everything. Mrs. Leech is not a political figure like Mr. Barrett or Mr. de Rossa were; she never had, at least before these articles, the national profile of Mr. O’Brien and neither has she ever had his international prominence. The type of slur involved in de Rossa is totally different from that levelled against the plaintiff; neither can bribery be related to adultery and, in particular, adultery for commercial and business gain. Accordingly, I am not at all sure that it is in any way meaningful to say of a libel that it is “grave” or “gross” or even of more telling effect, with the intention of associating the awarded damages with a libel of a totally different notion but classified to the same effect. Provided that this caveat is understood, I am prepared to accept, even if reluctantly, that perhaps some benefit may be obtained from such an exercise but only if applied vertically and then within the same or a similar class of defamatory imputations.
86. Of all the authorities which have been opened to us, none have involved a series of sequential and repeated publications, each by title, content and context adding to the other. In all, over a two week period, the appellant published eleven articles in nine editions of the Evening Herald, which has a daily circulation of about 90,000. The first fed the second, the second fed the third, and so forth: a deliberate press campaign to incite momentum, thereby further undermining the respondent, and building a hue and cry that was to culminate in the public discrediting of her and the destruction of her reputation. The sensationalism of the material in the manner in which it was done could only in fact have resulted in that end. Mrs. Leech, during her trial, gave unchallenged evidence, vividly illustrating the public moral opprobrium which existed at the time: she and her family suffered verbal and physical assaults directly because of these publications. Such matters and the artificially created media frenzy are strikingly absent from Barrett, de Rossa, O’Brien, and indeed from any other case which featured in the instant appeal. Therefore this case is one to be considered essentially in its own right (see para. 105 infra).
87. There is no doubt but that the suggested relationship between Mrs. Leech and Minister Cullen was, as the jury found, baseless, as inevitably also was the added suggestion that the same was only engaged in to further her career. If such allegations had been confined to a single publication, then matters may not have been as confrontational for the plaintiff as they turned out to be. Unfortunately, however, no doubt by way of a strategic policy decision, deliberately and tactically executed, the appellant in a cold and calculating manner decided to attack the reputation of the respondent, and did so in a targeted and sequential way; all inevitably resulting in a crescendo which occurred when public scorn and contempt was at its highest.
88. An exercise of interest would be to document the content of each of these articles; this would readily inform the reader as to how day in, day out, the intensity of the reputational assault accelerated. Perhaps the respondent could have been forgiven for thinking that after one, two or three editions the story might abate, even end, but that was not to be. In all, as I have said, eleven articles were published in nine editions. This entire scenario had what Mrs. Leech described in evidence as a devastating effect on her. In any language, therefore, these events must attract very significant damages.
89. However egregious this defamation was, the damages must however reflect the well established principles above outlined. They must be fair and reasonable having regard to the various interests involved. They must, as the law says, be proportionate. “Proportionality” in this sense is not the concept used to test the constitutionality of a statute or the validity of an administrative decision. It has a meaning more akin to a “rational, objective relationship”, or, for short, “appropriateness”, rather than any other. In reality, such requirement underpins the need for due correspondence and lays down a yardstick of some objectivity, even if in part intuitive, by which one can judge whether the impugned sum is or is not within accepted parameters.
90. In this case, even acknowledging at the highest level of concern, as I do, the damage which these articles have caused to Mrs. Leech, I cannot conclude that the jury’s award could be viewed as fair and reasonable and, in particular, that it can be characterised as proportionate, in the sense above given, to the consequences which these publications had for her, no matter how described. The sum so given in my view fails to reflect the necessary objective relationship between wrongdoing and harm. I must therefore conclude that the award should be set outside as falling outside the appropriate parameters which the principles above described demand, even having made all due allowance for jury sanctity. The verdict as to damages therefore cannot stand.
What Now Follows:
91. This conclusion raises the immediate question as to what further order should be made so as to address the setting aside of the jury’s verdict on the question of damages. There are only two possible options: either to order a retrial and return the assessment of damages to a freshly constituted jury or for this Court, of itself, to undertake that task. Mrs. Leech strongly supported the former; the appellant strongly urged the latter. My conclusion on this issue and the reasons therefor are as follows.
92. Prior to the enactment of the Supreme Court of Judicature (Ireland) Act 1877, the historical position in the common law courts was that virtually all civil actions were heard with a jury: defamation was undoubtedly one such action. (Bradley v. Maher [2009] IEHC 389). Section 48 of that Act specifically preserved the antecedent situation by providing that nothing in the Act should prejudice such a right in respect of actions where, prior to its enactment, it existed. Whilst s. 94 of the Courts of Justice Act 1924 (“the 1924 Act”), abolished that right for liquidated sums, breach of contract and recovery of land, nevertheless the section, otherwise in language quite similar to that of its predecessor, both acknowledged and declared the continuing existence of such right. That remains the situation to this day.
93. In the intervening years it is undoubtedly true that there has been much legislative agitation in this general area. Section 6 of the Courts Act 1971 abolished jury trials in all Circuit Court actions; the follow-up intervention took place in 1988 when, save for a limited number of exceptions not relevant, such mode of trial was likewise abolished in the High Court (s. 1 of the Courts Act 1988). Despite these interventions, however, there has been no change in the historical position relative to defamation actions initiated in the High Court. This preserve, quite evidently, was not per chance: its retention therefore must be considered deliberate and necessarily of value. Whilst its relevance can evidently be seen more in a trial court than at appellate level, nonetheless it would be to miss its significance entirely if this Court did not consider it as a serious factor when deciding as between a retrial and self-assessment by judge only.
94. The Oireachtas also intervened with the appellate jurisdiction of this Court when it re-enacted s. 96 of the 1924 Act (s. 48 of the Courts (Supplemental Provisions) Act 1961). Having provided that an appeal shall be moved by way of motion seeking a new trial, the section goes on to state that:-
“…in any appeal to which this section applies the appellate tribunal may, in lieu of ordering a new trial, set aside the verdict, findings, and judgment appealed against and enter judgment as the court considers proper.”
95. This section was considered in some depth by the Supreme Court in Holohan v. Donohoe & Anor [1986] I.R. 45, which incidentally was not a defamation action, but rather a personal injury appeal. In the three judgments delivered, (Finlay C.J., Henchy J. and McCarthy J.), many diverse views were expressed on a range of issues, such as whether the power to reassess damages, having set aside the verdict of the jury or the judgment of the High Court, was based on this provision, as Gahan v. Engineering Products Ltd [1971] I.R. 30 concluded, or whether that power had a constitutional origin. Indeed, McCarthy J. concluded that where the finding of the trial court is set aside on the issue of damages, then a retrial should be ordered, as in his opinion the Supreme Court had no jurisdiction on either basis to reassess the damages in its own right.
96. The variety of views so expressed are matters which I need not address, as I refer to Holohan only to indicate that in the thirty years since that decision, whilst the Supreme Court has itself re-assessed damages on multiple occasions, it has almost always done so in personal injury cases only, with its practice in the defamation area being strikingly different. In fact, it is I think accurate to say that the Court has shown a marked reluctance to utilise the section in such cases.
97. In Barrett a new trial was ordered, as it was in de Rossa, subject to Denham J. substituting an award of £150,000 for that given by the jury. In O’Brien the Court likewise ordered a retrial, with Denham J. on this occasion “reserving for another [time] the issue as to whether the Supreme Court can substitute an award of damages on appeal.” In that case, the order was otherwise made without debate and in a manner very suggestive of that being the only appropriate course to adopt, with Keane C.J. simply stating “I would allow the appeal and order a new trial of the issue of damages only”. In AE Dawson v Irish Brokers Association (Unreported, Supreme Court, 27th February, 1997, per O’Flaherty J.), again a retrial was ordered without discussion. In Crofter, the Court acted differently: Denham J., with whom the other two members agreed, substituted her own view for that of the trial court in relation to the exemplary damages element of the award. This, however, is entirely distinguishable from the other cases as cited and is explicable by virtue of the fact that the award was made by judge only. It therefore cannot be regarded as in any way a precedent for jury awards.
98. In none of these cases, however, or indeed in any of the other authorities as mentioned, is there any discussion on the reasons why, even if technically available, the option of appellate reassessment should not be entertained. In effect, in all of these cases, once the award had been set aside, it followed almost as a matter of custom and practice that a retrial would be ordered. This is clearly illustrated by the above passage from the judgment of Keane C.J. in O’Brien. The logical reason for this approach seems to be that given the sui generis nature of such proceedings, and the unique role of jury participation, such a course of action, save for some extraordinary reason, is inappropriate.
99. The respondent in this case very much favoured a retrial if the event of the award being set aside should come to pass, as it has. That viewpoint, whilst not decisive, must be accorded serious weight. It is entitled to much greater respect than that of the wrongdoer. Even within the lengthy timeline of this case, and quite patently having considered the trauma, distress, anxiety, uncertainty and obviously the publicity which a retrial would generate, nonetheless such is by far her preferred option.
100. It may be trite to say but it is essential to repeat the obvious, which is that this Court, if it should decide to reassess damages itself, will lack the obvious advantages of the tribunal of fact in observing the witnesses and in assessing and evaluating their evidence. The resulting disadvantage is not however evenly spread across all types of action; indeed even within the same family of proceedings it may vary considerably. In some cases facts may be seriously in dispute; in others the issue may turn on documentary material; and in further cases still the dispute may relate solely to a question of law. Whilst there are some tools available to address this imbalance, including Hay v. O’Grady [1992] 1 I.R. 210, these may not be adequate to satisfactorily overcome the limitations involved. Defamation cases, however, which by definition and process are separate and distinct from the other actions referred to, create significantly greater problems for an appellate court in this regard. The reasons for this are articulated right throughout this judgment.
101. How can a transcript convey the depth of a person’s feelings who has been publicly humiliated; whose sense of esteem and personal worth have been undermined, even shredded in some cases; whose presence even amongst strangers may result in being shunned or rebuffed? How can a cold print give a sense of that person’s hurt, perhaps touching the essence of who she is, of her character and personality, without which her sense of value could well be shattered? I very much doubt that without observing, assessing or listening to the essential witnesses, in particular the successful plaintiff, and without seeing her perform in the witness box, the members of an appellate court, deprived of such a facility, can truly feel the gravity of the injury, of the harm and of the damage for which that plaintiff is fully entitled to compensation. Such is a major handicap of significant proportions.
102. I have laboured, perhaps excessively, about the role of the jury in this type of case: phrases such as “unusual”, “uniqueness”, “exclusive”, “emphatic” and “sanctity” have been used to describe their participation in the process (paras. 49-54 supra). To give serious substance and effect to this recognition, it seems to me that unless the reasons for refusing a retrial are most compelling, then the preserve of that role should be maintained, and that by far the most feasible way of doing so is to order a re-trial. No such reasons to any remotely acceptable standard have been advanced for rejecting the respondent’s submission in this regard. I would therefore order a retrial.
Minority View:
103. I realise of course that this is a minority view within the court and that in the judgment of Dunne J., concurred in by Murray J., the damages have been reassessed and set at €1.25 million. In such circumstances, despite my decisive preference for a retrial, I might offer a view on what the alternative exercise might produce if my first line of approach had been similar to that of my colleagues.
104. So how should this Court position itself in assessing the damages? A jury brings to bear the normal community standards, its views are expected to represent right-thinking members of society, and it plays out this unique function in its assessment of such damages. I see no reason in principle why an appellate court should not endeavour to apply these standards and approach the exercise through the visual instrumentality of the community, which is envisaged in this exercise. Evidently it will suffer from the limitations set out elsewhere in this judgment but, subject thereto, should in general approach the task in this manner.
105. Insofar as referring to awards in other defamation cases should be the choice of the Court or any member of it, I strongly feel that the observation of Geoghegan J. at p. 43 of O’Brien should firstly be applied. The learned judge said: “[b]efore one begins to consider de Rossa v Independent Newspapers plc or any other comparison, it is important in my view that the Supreme Court should thoroughly consider the case before it in isolation of comparisons.” I therefore propose to approach the reassessment of damages in the general manner herein described.
106. As my views on the defamatory nature of the material published and on the causative consequences for Mrs. Leech are fully ventilated elsewhere, it is not necessary to repeat either here. In light of such matters, there can be no doubt but that the damages must be very substantial indeed. To reflect the various interests involved, and having had due regard to the legal principles above outlined, I consider that the sum of €1,000,000.00 should constitute the award in favour of the respondent. Whilst I acknowledge that there is some intuitive element in this, I should also point out, as I have done elsewhere, that there are also many substantial constraints of an objective nature involved. In arriving at this sum I have endeavoured to reflect both. Finally, I have not considered it necessary to refer to or to rely upon any alleged comparator in this context. In fact, I am quite satisfied that none of the authorities cited can, even with appropriate adjustments, be rendered comparable to the salient features of the instant case (see para. 83 supra). Accordingly, I have treated this matter solely in its own right.
Donal Kinsella v Kenmare Resources Plc and Charles Carvill CA
Court of Appeal
28 February 2019
unreported
[2019] IECA 54
Ms. Justice Irvine
February 28, 2019
JUDGMENT
Introduction and Meaning of Press Release.
Written by Baker J. and adopted by the Court.
1. Following a trial before de Valera J. and a jury in this defamation action which lasted for fourteen days in November 2010 the plaintiff, Donal Kinsella, was awarded the sum of €9m compensatory damages and €1m aggravated damages arising from a press release issued on the 10th July 2007 by the defendants (“the Press Release”), such award of damages to be against the defendants jointly and severally, together with an order for costs. Execution on foot of the judgment was stayed subject to a condition that the defendants would forthwith pay to Mr. Kinsella the sum of €500,000 on account of the damages award.
2. The defendants, Kenmare Resources plc and Mr. Charles Carvill (hereinafter collectively “Kenmare”), have appealed the whole of the judgment and order of the High Court. It should be said that Kenmare and Mr. Carvill have at all times been represented by one legal team, have filed a single Notice of Appeal and have filed one set of legal submissions said to apply to both appellants. The Notice of Appeal seeks an order directing a full retrial in the High Court or in the alternative an order quashing the award of damages and if necessary a consequential order directing that Mr. Kinsella repay the said sum of €500,000 paid to him on account.
3. Mr. Kinsella, by Notice of Cross Appeal dated the 3rd April 2012, cross-appealed the determination of de Valera J. that the publication of the Press Release occurred on an occasion of qualified privilege and that he should not in the circumstances have permitted any question to go to the jury in respect of the issue of malice deriving from that determination. As the result of the trial would have been the same even had the determination on the question of qualified privilege been made in favour of Mr. Kinsella, the Notice of Cross Appeal simply seeks an order granting the cross appeal with costs and affirming the decision of the jury.
4. The grounds of appeal may conveniently be divided into a number of subheadings as follows:
(a) that the finding of fact by the jury that the publication of the Press Release was defamatory of Mr. Kinsella and that this finding was not open to the jury on the evidence before it (the meanings ground);
(b) that the publication of the Press Release occurred on an occasion of qualified privilege (the qualified privilege ground);
(c) that the trial judge misdirected the jury regarding the issue of malice (the malice question); and
(d) that the damages awarded to Mr. Kinsella were so unreasonable and/or irrational and/or unjustified and/or disproportionate as to be incapable of being upheld on appeal (the damages question).
5. Before considering the grounds of appeal I first set out the broadly undisputed facts.
Background
6. Mr. Kinsella was a founding member and director of Kenmare Resources plc, a public limited company with broad national and international business in the mining industry. At the time of the publication of the Press Release the subject matter of the claim, Mr. Kinsella was a director of Kenmare, its deputy Chairman and Chairman of its Audit Committee.
7. Charles Carvill (“Mr. Carvill”) was at all material times the Chairman of Kenmare.
8. The events giving rise to the proceedings commenced on the night of the 8th May 2007 in Moma, Mozambique where Mr. Kinsella and other members of the Board and officers of Kenmare were visiting a mining operation of the company.
9. Present on the evening in question was the Company Secretary, Miss Deirdre Corcoran, who was also Secretary to the Audit Committee of which Mr Kinsella was Chairman.
10. On the night of the 8th May 2007, Mr. Kinsella, who gave evidence that he was prone to sleepwalking and had consumed an amount of alcohol, presented himself naked on three occasions at the bedroom door of Miss Corcoran. Mr. Kinsella accepted that what had occurred constituted “misbehaviour” on his part and he apologised to Miss Corcoran for any embarrassment or upset caused by the incident. An independent investigation conducted by Mr Norman Fitzgerald of O’Donnell Sweeney Evershed, a Dublin based firm of solicitors of repute, found the actions of Mr. Kinsella to be “irresponsible” but that no sexual impropriety had occurred.
11. However, following the incident Miss Corcoran made it clear to Kenmare that she did not feel comfortable in her role as Company Secretary and Secretary of the Audit Committee working with Mr. Kinsella on an individual basis. Consequently, Kenmare requested that Mr. Kinsella retire from his role as Chair of the Audit Committee, although he was not asked to vacate his role as a member of the Committee or other offices he held in Kenmare.
12. A dispute arose between Mr. Kinsella and Kenmare following the request that he step aside from his role as Chair of the Audit Committee. Mr. Kinsella enlisted the help of a journalist friend, Mr. John Kierans, whom he invited to contact Ms. Corcoran in the hope that the threat of publicity would bring an end to the internal issue and that the likely publicity would encourage Ms. Corcoran and Kenmare to change their stance.
13. Mr. Kierans, the then editor of the Irish Daily Mirror newspaper, contacted Kenmare and, under threat of apprehended publicity, Kenmare issued the Press Release the subject of the proceedings. Kenmare has at all times maintained that the Press Release was issued on advice and in order to protect the interests of Kenmare and its shareholders.
14. The Press Release was issued through a firm of public relations consultants on the 10th July 2007 and reads as follows:
“Kenmare Calls Special Board Meeting
The Chairman of Kenmare, Mr. Charles Carvill has convened a special meeting of the Board of Directors to be held tomorrow, Wednesday 11th July. The purpose of the meeting is to consider a motion to remove Mr. Donal Kinsella as Chairman of the Company’s Audit Committee. Mr. Donal Kinsella is Deputy Chairman and a director of Kenmare.
There was an incident on 9th May 2007 at Kenmare’s Moma Titanium Minerals Mine in Mozambique. On foot of this incident, a complaint was made by the Company Secretary, Miss Deirdre Corcoran, against Mr. Donal Kinsella. Mr. Charles Carvill requested that the Company’s solicitors, O’Donnell Sweeney Eversheds, conduct an investigation and prepare a report on the incident for his consideration. This report was completed and presented to Mr. Charles Carvill on the 20th June 2007.
Mr. Carvill then sought and received a written apology from Mr. Donal Kinsella to Miss Deirdre Corcoran. The incident made it impossible for Miss Deirdre Corcoran, as Secretary to the Audit Committee, to work effectively with Mr. Donal Kinsella as Chairman of the Audit Committee. Mr. Charles Carvill therefore asked for Mr. Donal Kinsella’s resignation as Chairman of the Audit Committee.
Mr. Donal Kinsella’s voluntary resignation from the Audit Committee has not been forthcoming.
The Chairman has now called a special meeting of the Board at which Mr. Donal Kinsella’s removal as Chairman of the Audit Committee will be proposed.”
15. Following legal argument, the trial judge concluded that the Press Release had been published on an occasion of qualified privilege. Thereafter, the jury found that the Press Release was defamatory and had been published maliciously with the result that it made the award in favour of Mr. Kinsella in the total sum of €10m apportioned as outlined above.
MEANING
16. Mr. Kinsella pleaded that the Press Release meant or suggested that he had been guilty of inappropriate sexual behaviour towards Ms. Corcoran. One question was proposed to the jury concerning the meaning of the Press Release:
“QUESTION 1: Did the Press Release of the 10th July 2007 state or infer that Donal Kinsella had made inappropriate sexual advances to Deirdre Corcoran?”
17. The jury was told that if the answer to that question was “No” to proceed no further.
18. Kenmare argues that the Press Release was not capable of bearing the meaning determined by the jury with the result that the jury’s decision ought to be set aside as being irrational in the circumstances.
19. The starting point with regard to this ground must be respect for the role of the jury in a defamation action. Walsh J. in Quigley v. Creation Ltd. [1971] I.R. 269 explained the unique importance of the jury in a defamation case at p. 272:
“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.”
20. This recognition of the importance of the role of the jury means that the court will set aside a finding by a jury only if, in the words of Walsh J., it is one “to which reasonable men could not or ought not have come”.
21. This approach has found acceptance in a large number of judgments of the Irish courts and those of England and Wales. By way of example, in McDonagh v. Newsgroup Newspapers [2015] IECA 225, Hogan J. stated at para. 64 of his judgment that “particular weight – almost sanctity – must be given to the jury verdict because the jurors are, in principle, the ultimate arbiters of community standards, values and tastes”. The description sometimes used is that a jury decision will be set aside only if it is “perverse” or if there is “no rational explanation for it”, see for example Grobbelaar v. News Group Newspapers Limited [2002] 1 WLR 3024, a decision of the House of Lords on which Mr. Kinsella relies on the appeal.
22. Gatley in the 12th Edition of his authoritative text describes at para. 36.19 the position of the jury on issues of meaning as “uniquely important” and states as follows:
“An appellate court ought not to find the verdict of a jury on liability to be perverse unless there was no rational explanation for it. An inference of perversity should not be drawn lightly.”
23. However, appeals regarding matters such as the correctness of the charge of the trial judge or whether a jury’s finding was or was not supported by the evidence may be interrogated by an appellate court.
The size of the award as a factor in this ground
24. The first argument made by Kenmare on the appeal is that the size of the jury award must shake the confidence this Court would have in the reasonableness of the jury, and that the level of the award was at such an “absurd and irrational level” that it calls into question the jury’s verdict on all matters before it.
25. This argument was firmly rejected by the Supreme Court in McEntee v. Quinnsworth (Unreported, 7th December 1993) where Finlay C.J. said:
“Either a jury has in regard to a question before it proper material upon which it can make a finding in favour of either of the parties or it has not. If it appears to assess damages in a sum which could be considered as being wholly incorrect and in that sense perverse, I can find no requirement of justice or principle of law which would permit that fact to be taken into consideration in assessing the validity of a finding by the same jury of an issue of fact regarding liability.”
26. The House of Lords also rejected the argument that an appellate court was entitled to look to the level of damages to support the proposition that a finding of liability made by a jury was perverse. In the decision of Grobbelaar v. News Group Newspapers Ltd. [2002] 1 W.L.R. 3024 at para. 50, it was said in response to a similar argument:
“This reasoning is remarkable. It reasons that because the jury has gone wrong in verdict No 2, it has gone wrong in verdict No 1 – perversely wrong. This is simply a non sequitur. Verdict No 1 is not dependent upon the correctness of verdict No 2.”
27. I agree with the description by Lord Hobhouse of Woodborough that to assess the question of reasonableness by reference to the quantum of the award of damages is neither logical nor rational and the correctness of one verdict is not dependent on the correctness of the other.
28. Thus the authorities establish that the size of the damages award, even if it is considered by an appellate court to be excessive and disproportionate in all of the circumstances, is not a factor to be considered when it comes to assessing the validity of the jury’s finding on liability.
29. Further, in the present case this argument fails to recognise that the jury had before it an issue paper which set out in numbered and lettered paragraphs the steps it was to take in coming to its final assessment. The first question, the meanings question, was clearly distinguished from the other questions, those of malice and damages, and the assessment of the reasonableness of the jury decision must examine each individual element of the decision having regard to the fact that the jury itself was asked to separately assess and make a determination in identified steps.
The finding was not supported by the evidence
30. Kenmare argues that the finding of the jury that the Press Release was defamatory of Mr. Kinsella was contrary to the evidence and was not supported by the actual wording of the Press Release.
31. Kenmare had contended at trial that the Press Release did not convey any meaning of sexual impropriety of the type alleged by Mr. Kinsella and that the words used were circumspect and careful in stating only that it was not possible for Miss Corcoran to work efficiently with Mr. Kinsella. It was argued that that statement did not in itself mean that any incident of a sexual nature was to be inferred and that the jury’s finding must have been influenced by matters external to the language of the Press Release itself. The jury must have impermissibly taken into account references to the incident in Mozambique as something “juicy in the jungle”, or that an incident had occurred in “an exotic place” from accounts of the event in other publications.
32. Kenmare argues that the jury was also clearly influenced by questions put in cross-examination by Mr. Kinsella’s counsel regarding, for example, the fact that the story that Mr. Kinsella was sleepwalking without his pyjamas “had gone all over the world”. It is argued that a salacious meaning or one with sexual or exotic undertones does not flow by reasonable inference from the words of the Press Release and that the jury must have been influenced by extraneous factors given that the words of the Press Release in their ordinary meaning could not, on any rational reading, have been libellous
The charge regarding meaning
33. After giving his charge to the jury de Valera J. was requisitioned by counsel for Kenmare to clarify the task of the jury regarding the determination of meaning, and the sources from which that meaning was to be derived as it was argued that evidence of what had appeared in other publications had been given in the course of the trial and it was argued that the jury needed to be cautioned as to the correct approach to that evidence.
34. I have read the requisitions made to de Valera J. after he gave his first charge to the jury. On Day 6, Kenmare requisitioned the trial judge to recharge the jury with respect to the difference between the Press Release and the additional material not contained therein, what became known as the “wider story” which Mr. Kinsella said had come to be circulated and which he claimed had brought ridicule upon him.
35. I have also read the arguments on the first day of trial regarding the connection between the alleged ridicule said to have been visited upon Mr. Kinsella and what is argued to be the constrained language of the Press Release. I note also the submission made in the course of trial and on Day 6 in particular that the trial judge had erroneously commented on the fact that Kenmare had not called certain witnesses, including Miss Corcoran and Mr. Carvill (although his son Mr Michael Carvill was called), while making no reference at all to those possible witnesses that might have been called by Mr. Kinsella in support of his claim.
36. Kenmare also argues that the trial judge unduly focussed on the evidence of Mr. Kinsella in his charge and that the level of error was sufficient to justify this Court directing a new trial.
37. I have for the purpose of that argument examined the contents of the charge and the description of Mr. Kinsella’s conduct in making contact with his friend, the editor of the Daily Mirror which de Valera J. described as the act of calling “up his reserves”, an expression Kenmare had argued was unduly benign and failed to have regard to the fact that Mr. Kinsella himself in evidence had accepted that the purpose of what he called his “strategy” was to pressurise both Miss Corcoran and Kenmare into dealing with him favourably. Mr. Kinsella had admitted under cross examination that his purpose in contacting the editor of the Daily Mirror was to “cause upset to Miss Corcoran” (Day 3), and to threaten Kenmare and Miss Corcoran with the adverse publicity that was likely to attach to this story.
38. I also note that the trial judge did say to the jury in his charge that Mr. Kinsella had not been “directed to” make a written apology to Miss Corcoran but had chosen to do so, and I consider that he failed to adequately recharge on this point in the light of Kenmare’s contention that he had been overly benign in his description of Mr. Kinsella’s motives. I will deal with the consequence of this inadequacy later in this judgment.
39. Before de Valera J. recharged the jury he expressed a view that an attempt to summarise the evidence might lead to an argument that he was “putting [his] gloss on it” and that it was not, in his view, a good approach for him to summarise all of the evidence in giving a charge in a defamation case. This was the approach he stated he favoured and he was not further requisitioned in regard to the correctness of giving a short summary.
40. Having read the charge and the recharge by de Valera J., I note in particular the number of occasions where he stressed to the jury their particular role in making findings of fact. He explained that his role was to point out certain matters to them, that he was not inviting them to draw any conclusions and that the conclusions were matters entirely for them. Many times he used expressions such as “it is a matter for yourselves”, “if you wish you may consider it is of no relevance”, “it’s a matter entirely for yourselves”.
41. I also note that he expressly directed the jury to “take out that press release and examine it”.
42. I consider in the circumstances that the charge and recharge to the jury were sufficiently clear regarding their primary role of finding the meaning of the Press Release. I am further of the view that de Valera J. identified the approach to the evidence that he favoured, viz. that he would not attempt to summarise it having regard to its relative lack of complexity, and as that was not the subject of an express requisition or objection, it may not form the basis of an appeal.
43. In my view de Valera J. was entitled not to give a fuller summary of the evidence where as he himself put it “the jury had just finished hearing a six-day case, and where the issues and facts were broadly speaking not in contest, and where there was no factual complexity”.
44. Overall, I am satisfied that there was nothing included in or omitted from his charge that would cast in doubt the jury’s understanding as to its role in relation to the meanings question.
Hearsay evidence
45. Kenmare also makes the argument on appeal that de Valera J. failed to recharge the jury in regard to the fact that hearsay evidence was not admissible and that it should disregard any hearsay evidence or any evidence of the contents of other publications when it came to consider the meaning of the Press Release and whether it was defamatory in itself.
46. Kenmare submits that in the circumstances the trial judge failed to direct the jury correctly on the importance of not having regard to hearsay evidence and extraneous matters when coming to its conclusion regarding the meaning of the Press Release.
47. Gatley states a clear proposition that regard cannot be had to hearsay for the purposes of ascertaining the meaning of an alleged defamatory article and at para. 32.26 makes the point as follows:
“Where the claimant is relying on the natural and ordinary meaning of the words complained of, no evidence of their meaning is admissible or of the sense in which they were understood, or of any facts giving rise to inferences to be drawn from the words used.”
48. I accept that the jury was not charged in a sufficiently clear way regarding the fact that its function was to come to a view as to the meaning of the Press Release without a reliance on other extraneous and more salacious matters heard in the course of the trial. But the question remains whether the trial judge’s error is one that ought to lead this Court to set aside the verdict on meaning. I turn now to consider the correct approach in light of this conclusion
Discussion on the charges
49. In my view it would be wrong for this Court to unnecessarily interfere with the considered approach of a trial judge regarding how best he or she could properly summarise the evidence heard over a long trial.
50. O. 58, r. 7(2) of the Rules of the Superior Courts 1986 makes express provision for the grant of a retrial of a matter heard by a jury:
“(2) A new trial shall not be granted on the grounds of mis-direction or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the Judge at the trial was not asked to leave to them, unless in the opinion of the Supreme Court some substantial wrong or miscarriage has been thereby occasioned in the trial…”
51. The Supreme Court in Cooper-Flynn v RTE [2004] IESC 27 took this as its starting point and Keane C.J. referred to the judgment of Henchy J. in Kelly v. Board of Governors at St. Laurence’s Hospital [1988] I.R. 402, a medical negligence case, wherein it was stated that the rule applies where there has been a wrong or miscarriage “in the trial”, as distinct from the results of the trial. In his judgment Keane C.J. stated at para. 39 that:
“It would follow that the verdict of the jury should not be allowed to stand where the direction or ruling found to be erroneous was of such a character as to render the trial itself unfair or to give it the appearance of lack of fairness.”
52. The Supreme Court took the view that it might have been “preferable” if the trial judge had given a particular direction to the jury in strict compliance with statute, but that whilst that argument might be sufficient in certain circumstances to require a retrial it could not result in a direction for a retrial where the directions were “acquiesced in without reservation by the party who now argues they were incorrect”, unless the court is “satisfied that a substantial wrong or miscarriage resulted from the directions given” (para. 76).
53. Counsel for Kenmare argues that the correct approach is that identified by Fennelly J. at para. 221 of his judgment where he says:
“The wrong or miscarriage is not, therefore, unconnected with the result of the trial. It must be something liable to contribute to a miscarriage in the result.”
54. That approach properly respects the primacy of the role of jury but also identifies the important role that the trial judge performs in his or her charge to the jury. It is consistent with the old decision of the Supreme Court in Campbell v. Irish Press [1956] 90 ILTR 105 where Maguire C.J. said that a new trial should be awarded “if some substantial wrong or miscarriage had been occasioned”, and that this was so whether the point was taken at the trial by counsel or not (at p. 9).
55. A trial judge will give a direction to the jury based on his or her own observations of the jury and of the evidence in the run of the trial and an appellate court is singularly disadvantaged in regard to each of these factors which bore on the approach of the trial judge. Thus while arguments can and have been made by both Mr. Kinsella and by Kenmare regarding the inadequacy of the charge and recharge to the jury, the case law would suggest that it is only in exceptional cases and only when the appellate court can come to a view that errors or omissions in a charge would lead to a gross injustice that it would interfere.
56. Of more consequence however is the fact that the questions on the issue paper were the subject of submissions and argument before the trial judge. The first question was the only one relevant to meaning and did not include the different question of whether the Press Release was ever capable of bearing a defamatory meaning. Counsel for Kenmare had submitted that the correct question regarding meaning was whether the ordinary and natural meaning of the words was that Mr. Kinsella was “guilty of serious sexual impropriety” as opposed to “guilty of sexual impropriety” (Day 5, p. 58). What was not argued by Kenmare was that there was no question to put to the jury as to meaning in circumstances where the Press Release was clearly incapable of bearing any defamatory meaning. I accept in that context the argument made by Mr. Kinsella that Kenmare by permitting question 1 to go to the jury in the way in which it was formulated, accepted that the Press Release was at least capable of bearing the meaning for which Mr. Kinsella contended. No argument was made in the course of the trial that the jury ought to have been asked whether the Press Release was capable of bearing the meaning for which Mr. Kinsella contended, whether as a separate question or part of the question as formulated.
57. This point may therefore be answered as is contended by counsel for Mr. Kinsella in the light of the judgment of the Supreme Court in McEntee v. Quinnsworth, as being incapable of reversal by an appellate court given that the issue had not been raised or decided in the court below.
58. As to the argument that the jury must have been confused on meaning as a result of the hearsay evidence given by Mr. Kinsella, or because the jury did not have the evidence as to what was carried by the newspapers following the press release, a number of observations must be made. The hearsay evidence which was challenged was evidence given by Mr. Kinsella as to what others had said to him regarding the incident in Mozambique. Evidence of this nature is not evidence as to the truth of what those persons are alleged to have said, and is admissible as evidence of the effect of an alleged defamatory statement on the reputation of Mr. Kinsella. It is not admitted as evidence of meaning.
59. Gatley says at para 32.53 of his text that such evidence may be called because evidence from witnesses in whose estimation the reputation of a plaintiff is said to have been diminished is often not available. He gives as an example evidence that a plaintiff has been called names as a result of a libel found in the old decision of the Court of Appeal for England and Wales of Garbett v. Hazel Watson [1943] 2 All E.R. 359.
60. Mr. Kinsella relies on that statement and also on the judgment of the Supreme Court in Bradley v. Independent Star Newspapers Limited [2011] 3 I.R. 96 where Fennelly J. quoted the 11th Edition of Gatley at para 34.50 regarding the class of evidence that may be admissible and held that a claimant can give evidence about persons who made contact with him and by their conduct or statements had indicated they had identified him as the subject of the libel, or evidence that he had been the subject of ridicule and laughter at a public meeting.
61. Fennelly J. held that such evidence was admissible, not as constituting a form of exception to the hearsay rule but for the reason he explained at para. 123 as follows:
“Evidence is given of comments, remarks often insulting, made by third persons (not witnesses) saying or implying that they thought the article referred to the plaintiff. I do not think that it should be considered as [an exception to the hearsay rule]. The question is whether the plaintiff in a defamation action is identified in the article of which he complains. If he can show that persons, who have read the article, have identified him, that is evidence of that objective fact, which can be admitted for consideration by the jury.”
62. It seems to me that the trial judge did not fall into error in not expressly advising the jury in regards to the “hearsay” evidence as to the reaction of others to Mr. Kinsella following the publication of the Press Release. The evidence was not “hearsay” evidence in the sense that it was inadmissible. It is also of note, and perhaps a matter of some curiosity, that Kenmare had objected to the production by counsel in his opening statement to the jury of the newspapers which had reported the Press Release and where other and perhaps more salacious comments were contained. There was, nonetheless, some evidence as to the content of the newspaper articles given by Mr. Kinsella. Kenmare and Mr. Carvill did not later adduce the newspapers in evidence and cannot now, on appeal, argue that the jury might have been confused and might have in some way misunderstood the meaning of the Press Release on this account. Again, this is an example of an impermissible approach to an appeal.
Conclusion
63. I accept the proposition stated by Eady J. and repeated and praised as an “impeccable synthesis” by Lord Phillips M.R. on appeal in Gillick v Brook Advisory Centres [2001] EWCA Civ. 1263 at para. 7:
“The court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or an accountant would analyse documents or accounts…. The court should certainly not take a too literal approach to its task.”
64. The trial judge took a sensible and nuanced approach to the directions he gave to the jury regarding its role to find the meaning of the Press Release and it could not be said, having regard to the evidence that was before the jury, the content of the charge and recharge by De Valera J., and the submissions made by counsel for both sides to the jury, that the jury was liable to be confused, but more especially that this Court could come to a conclusion that the jury was confused or must have been confused in coming to the finding that it did regarding the meaning of the Press Release.
65. Put simply, the Press Release was held to be capable of bearing the meaning it did, and, in fact, as having a meaning for which Mr. Kinsella contended. That was a finding of a jury, and it is not apparent that it was arrived at following any error in the charge.
QUALIFIED PRIVILEGE (Cross-Appeal).
Written by Whelan J. and adopted by the Court.
66. This aspect of the judgment concerns Mr. Kinsella’s cross appeal in relation to the issue of qualified privilege.
67. Mr. Kinsella, in his Notice of Cross Appeal dated the 3rd April 2012, seeks to set aside that part of the ruling of the High Court judge delivered on the 17th November 2010 which determined that the Press Release was published on an occasion of qualified privilege. This in turn is reflected in the presence on the issue paper of question 2 and the answers given by the jury to that question on the 17th November 2010, which determined that the publication at issue was motivated by malice.
68. The grounds are pleaded as follows in the Notice of Cross Appeal:-
“(1) The Learned Trial Judge erred in law and in fact in determining the publication was an occasion of qualified privilege and in allowing any question to go to the Jury except Question 1 (on meaning) and the question on damages;
(2) Without prejudice to the aforesaid, the Learned Trial Judge erred in law and in fact in determining … the publication took place on an occasion of qualified privilege, without first obtaining the determination of the Jury on disputed issue [sic] of fact relevant to his determination”.
69. The second of the aforementioned grounds of appeal was not pursued on behalf of Mr. Kinsella in the course of the oral submissions and for that reason will not be further addressed. Given that the parties were agreed that it was for the trial judge to conclude whether or not the Press Release issued by Kenmare was published on an occasion of qualified privilege, the question for this court is whether de Valera J. answered that question correctly in light of the evidence and the prevailing legal authorities.
The Argument
Mr Kinsella’s stance
70. Counsel on behalf of Mr. Kinsella argued at the original trial, as he did in the course of this appeal, that there was, on the evidence, no conceivable legal basis upon which the publication of the Press Release could be thought to have occurred on an occasion of qualified privilege, as qualified privilege was predicated on an attack having been made on the character or conduct of the party who seeks to rely on it in defence, and there had been no such attack at the time the Press Release issued.
71. Counsel for Mr. Kinsella further submits that the trial judge erred in finding that the Press Release could attract qualified privilege in circumstances where the attack to which it purported to respond was merely anticipated, but had not materialised. The facts of this case were, it was submitted, wholly distinguishable from those in Oliver v. the Chief Constable of Northumbria [2003] EWHC 2417 and the High Court judge erred in law in relying upon that decision to support his conclusion. Counsel also relied on the decision of Bean J. in Bento v. Chief Constable of Bedfordshire Police [2012] EWC 1525, to argue that qualified privilege was not to be afforded to a person or entity such as Kenmare who, believing it was about to be criticised, had decided “to get their public retaliation in first”.
72. It was contended on behalf of Mr. Kinsella that the facts of this case did not fall into the well-known rubric described in Gatley and that it would be an extension without any justification of that principle to find qualified privilege where the evidence arguably demonstrated that Kenmare was not of the view that an attack was to be made in the newspaper on the following day. In this regard reliance was placed on the evidence given by Mr. Michael Carvill.
73. It was argued:-
“If there is qualified privilege for this…press release, then there is qualified privilege for every press release.”
There was, according to counsel, no distinction between the facts in this case and any case in which a Defendant or entity, believing that the press might publish something about it the following day, decided to issue a press release. Protection for that press release, on the grounds of qualified privilege, was wholly without authority.
74. Counsel for Mr. Kinsella also argued that there is no qualified privilege for excessive publication, namely publication to individuals who did not have a reciprocal duty or interest and that that had represented the law prior to the Reynolds decision. The onus was on Kenmare to show that it had an interest or a duty to make the statement it did and that the persons to whom it was made, namely the readers of the newspapers to whom the Press Release was circulated, had a corresponding interest or duty to receive it. According to Mr. Kinsella, this reciprocity would not normally be found in a publication made to the world at large, as was effectively the case here.
75. Finally, on behalf of Mr. Kinsella it was contended that, as the Press Release was not published on an occasion of qualified privilege, no finding of fact by the jury on malice was ever warranted or required.
Kenmare’s stance
76. The position of Kenmare at trial was that the Press Release had issued on an occasion of qualified privilege. This contention, it maintained, was supported by the evidence of its media expert Mr. Milton. He had supplied media advice to the company after having had discussions with a journalist whom he believed “had the makings of a story.” The witness indicated he anticipated that there would be an article published and that “if there was to be an article…I was told it was of a sexual nature.” Mr. Milton expressed the view that this would set the agenda for any subsequent coverage which might follow such an article. He stated: “because Kenmare was a PLC I thought it important, at the same time as I gave the information to the Daily Mirror, that we would give it to the business editors of Irish newspapers that regularly follow the affairs of Kenmare.” He expressed his advice as having been that the “response statement” should be provided not alone to the Daily Mirror but also to business journalists of newspapers that regularly cover the affairs of the company.
77. In offering an explanation as to why he believed it necessary to ensure that the Press Release was released to coincide with the anticipated story in the Daily Mirror, Mr. Milton’s evidence was that “media and news is in real-time.” He considered it would be difficult when the agenda was set to try to recapture the facts of what was going on. He stated: “we believed that the response statement we issued to the Daily Mirror, we couldn’t depend or reasonably expect that the Daily Mirror would reflect what we thought were the important points.” Mr. Milton stated he had anticipated that a fairly lurid story involving an incident of a sexual nature would be published.
78. Kenmare also sought to rely upon the evidence of Mr. Michael Carvill who gave evidence that the company was “extremely vulnerable to adverse publicity” at the time in question as it needed to raise finance. He stated that “we knew full well that the matter had already been released to the press and we were simply putting some clarification notes down in terms of a press release”.
79. According to counsel for Kenmare, the apprehended attack facing the company was akin to the anticipated attack faced by the Northumbria police force in Oliver v. the Chief Constable of Northumbria and that decision was good authority to support its argument that the Press Release was issued on an occasion of qualified privilege.
80. The argument advanced by Kenmare was that the company was entitled on the general facts that pertained to make the communication and was motivated by protecting the company’s own interests.
81. Extracts from Gatley were cited on behalf of Kenmare as authority for the proposition that if a party is repelling a charge or attack, the answer is given on an occasion of qualified privilege provided it is published for the purpose of repelling the charge and that it is proportionate to the necessity of the occasion
The Ruling
82. The trial judge approached the issue of qualified privilege on the basis that Oliver v. the Chief Constable of Northumbria was a good precedent in the matter. At p. 120 of the transcript day 5 he states:-
“….It seems to me that it was reasonable for the company to apprehend that an attack of some kind was going to be made on it. If someone is coming towards you with a rifle you don’t have to wait for them to pull the trigger. When they start pointing it at you that is the time to start worrying. I think the phone call was the pointing of the rifle in this case.”
83. The trial judge continued:-
“…I think that there was a potential perceived attack on the company.”
He found that it was “reasonable for the company to take the view that [the imminent news report] might be damaging to it” in the sense that “its financial base might be affected.”
He continued that:
“We are told, and it wasn’t contradicted in cross-examination… that it was a sensitive time for the company and I think, therefore, that the company needed to respond to the perceived attack. It is not for me to say whether the response …….that’s a matter for the jury,…was defamatory or not, but I think certainly it was made on an occasion of qualified privilege.”
84. Thus it was that the Court, with the assistance of counsel, crafted Questions 2 (a),(b) and (c) in order that the jury might determine whether or not the defence of qualified privilege, might nonetheless be defeated by the motivation of Kenmare at the time it issued the Press Release.
Was the trial judge correct in his determination that the press statement was published on an occasion of qualified privilege?
Statement in rebuttal of attack/anticipated attack.
85. Kenmare seeks to rely on the dicta of Bean J. in Bento v. The Chief Constable of Bedfordshire Police [2012] EWHC 1525 (QB), where the court considered the extent of qualified privilege in a press release as a reply to an anticipated attack. To the extent that qualified privilege may exist where an attack is merely anticipated, it would appear from this decision that is confined to a limited category of cases. Bean J. stated that it could only exist where the defamatory statement was:
(a) in reasonable anticipation of an imminent attack on the conduct of the maker of the statement; and
(b) limited to a proportionate rebuttal of the anticipated attack.
86. Before considering whether the first of these conditions was met in the present case, a consideration of the facts in Bento is warranted. In 2006 the body of a woman was found in a lake in Bedford. The claimant was arrested and charged with her murder. Following a trial by jury, he was convicted in July 2007 by unanimous verdict. A crucial part of the Prosecution’s case was the evidence of a forensic video analyst who expressed his opinion that in CCTV footage of the deceased she could be seen carrying a particular handbag. No contradictory expert evidence was adduced by the defence at the trial.
87. On appeal, fresh evidence was allowed which contradicted that of the forensic video analyst and the conviction was quashed. The Crown sought and obtained an order for a retrial. Thereafter in July 2009, the Crown Prosecution Service decided not to proceed with the re-trial. Bedfordshire Police strongly disagreed with this course of action, issuing a press statement outlining the unanimous verdict of the jury in the original trial which had resulted in Mr. Bento’s conviction. Mr. Bento claimed that the press statement was defamatory of him. The Chief Constable resisted the claim on the alternative bases of justification and qualified privilege. His main argument on qualified privilege was that the press release was issued in pursuance of a duty of the police to provide information regarding the status of an investigation and the right and interest of the public to receive that information. It was conceded that any such duty and right had to be balanced against Mr. Bento’s right to his reputation. Whilst he had been convicted of the crime he had subsequently had that conviction set aside. Bean J. did not accept that the public interest was served by the Chief Constable issuing statements to the effect that a decision not to pursue a prosecution was wrong or which bore the meaning that the individual concerned was or was probably guilty.
88. In his judgment Bean J. noted at para. 99 that the defendant could readily have issued a statement stating that:-
(a) The police had pursued a thorough investigation in the case.
(b) A jury had convicted Mr. Bento of her murder.
(c) The conviction had been set aside on appeal for reasons that did not involve any criticism of the police.
(d) The police were not involved in the decision as to whether a retrial should take place.
(e) No other suspect had ever been identified but that the real issue was whether the deceased was killed or had committed suicide.
(f) The police were disappointed for her family that there had been no resolution of the question of how she died.
(g) The police files would remain open.
89. Bean J., in considering the defence that the publication was made in rebuttal of an anticipated attack in the media about the police’s handling of the investigation into the death, considered the decision in Bhatt v. Chelsea and Westminster NHS Trust (Unreported, 16th October 1997) where Sir Maurice Drake held, in the course of an interlocutory appeal against a Master’s refusal to strike out a claim, that this form of qualified privilege extends to a statement in rebuttal of an anticipated attack:-
“The defendant trust’s press officer issued information to the press which was defamatory of the claimant in response to inquiries from the press indicating that articles based on the claimant’s criticisms of the trust were about to be published.
Sir Maurice observed (at p. 7) that it would be bad law to treat a response to an attack as privileged but not ‘a pre-emptive press release intended to stop the mischief which would be done by publication.’”
90. Bean J. noted that as at the hearing of the Bhatt case in October 1997:-
“No case has been found in which the courts held that a response to an anticipated attack may be covered by qualified privilege” (emphasis in original).
He also noted that there was no record of any case so holding since 1997 either. Bean J. expressed that he “very much doubted whether the decision is correct”
He continued:-
“I see no policy reason to extend qualified privilege to people who believe they are about to be criticised and decide to get their public retaliation in first.”
91. Bean J. continued at para. 104 of his judgment to state that, if Bhatt was correctly decided, qualified privilege had to be confined to cases which fell within the confines identified at para. 84 above, namely that the defamatory statement was:
(a) in reasonable anticipation of an imminent attack on the conduct of the maker of the statement; and
(b) limited to a proportionate rebuttal of the anticipated attack.
92. In my view, the approach of Bean J. has much to commend it.
93. With respect to the first of the conditions which he identified, a question is immediately raised as to whether the “attack” which was anticipated in the present case was truly one which went to the character or conduct of Kenmare. In Gatley, the form of the attack envisaged by the law was described similarly, with the authors at 14-51 stating that qualified privilege could be extended to a situation where a person’s “character and conduct” had been attacked, but not where someone had merely provoked controversy without making an attack. In circumstances where, as described above, there was significant uncertainty as to the angle which was to be taken by the anticipated report in the Daily Mirror, I am not satisfied that it was open to the court to conclude that an attack on the character or conduct of Kenmare was imminent. The anticipated story could have taken a number of approaches, many of which might not have impugned the conduct of Kenmare specifically. Mr. Carvill himself conceded that the officers of the company had no idea if something negative was to be said about Kenmare. It was insufficient for Kenmare to seek to rely upon the fact that Mr Milton drew the conclusion that the anticipated story would be “lurid” and “sexual”.
94. It seems to me that Kenmare, in order to benefit from an occasion of qualified privilege, was obliged to prove that it anticipated something which in a rather more concrete way attacked its character or conduct. Instead, what seems to have occurred is that Kenmare, fearing that it would lose control of a story which could generate negative publicity for the company, sought to get its retaliation in first, and published the Press Release in precisely the same manner as was criticised in Bento. I cannot conclude that the law in respect of qualified privilege was intended to entitle Kenmare to “set the agenda” on a potentially controversial news item by issuing a defamatory statement concerning Mr. Kinsella so long as it could establish that it had not act maliciously in so doing.
95. It is also clear from the second limitation identified in Bento that before Kenmare could seek to cloak its action of publishing the Press Release with qualified privilege it was essential that it demonstrate it acted in a proportionate manner. This was all the more important in circumstances where it engaged in publication in anticipation of what it considered might be published the following day in the Daily Mirror. In evaluating whether Kenmare acted proportionately in such circumstances, both the fairness of its conduct and the extent to which it had ensured that the recipients of the contents of the Press Statement had a reciprocal duty or interest in receiving it are required to be taken into account. I will return later to consider the existence or absence of such a reciprocal interest or duty.
96. Contrary to the contentions of Kenmare, a material element in the hinterland of fact leading to the issue of the Press Release on the 10th July 2007 was the report which had resulted from the inquiry commissioned by Kenmare in June 2007 and carried out by Norman Fitzgerald. That report, in the compilation of which Mr. Kinsella had fully co-operated, had exonerated him and this was repeatedly reiterated to the jury. Concerning Mr. Kinsella, Mr. Fitzgerald concluded “on the balance of probabilities, I am satisfied that Donal Kinsella was sleep walking that night and that he did not consciously or deliberately attempt to enter Deirdre Corcoran’s room. It follows that I find that Donal Kinsella did not have an improper motive in opening Deirdre Corcoran’s door.”
97. The Press Release as issued omitted the central finding of Kenmare’s own report. In evaluating the reasonableness or otherwise of Kenmare’s conduct, a central consideration is the omission from the Press Statement of the crucial fact that an independent investigation requisitioned by Kenmare had wholly exonerated Mr. Kinsella. Irrespective of what Kenmare anticipated the expected Daily Mirror article might contain, no valid justification was advanced for the omission. The exclusion was both unfair to Mr. Kinsella and presented a fundamentally inaccurate picture of his conduct. Accordingly, even if the aforementioned facts might be considered to be of more relevance to the issue of malice, they also, in my view, serve to demonstrate that Kenmare did not act in a proportionate manner in publishing the Press Release which it did, and for that reason also the trial judge should have rejected its claim of qualified privilege.
98. Finally, on the issue of proportionality, I am also satisfied that the issue of the Press Release to the mass media amounted to excessive publication such as to disentitle Kenmare from seeking to cloak that statement with qualified privilege. This is because the vast bulk of recipients to whom it was likely to be published had no legitimate common interest in its receipt, a matter to which I will now refer in greater detail.
Reciprocity of duty and interest.
99. Qualified privilege is defined in the form of a bilateral interest/duty test that connects the maker of a statement with its recipient(s). A publication may attract qualified privilege if its maker had an interest or a legal, social or moral duty to communicate information and could demonstrate that its recipients had a corresponding duty or interest to receive it. The requirement of reciprocity is essential. The conditional and limited quality of the immunity afforded by qualified privilege was not, in my view, adequately addressed by the trial judge in his ruling. Whilst there was evidence that the company had shareholder and investor interests to protect, the burden fell to Kenmare to establish that it was under a duty to communicate the content of the Press Release to the public at large and that the public, as the recipients of that information, had a corresponding duty or interest to receive it.
100. McMahon & Binchy, in their analysis of qualified privilege in Law of Torts , (4th ed.) at 34.193 state: “The key concepts in the defence are a duty to receive or interest in receiving the information and a reciprocal duty or interest in the person who publishes the statement to give it.”
101. On day 5 of the hearing at p.75 of the transcript, it was contended on behalf of Kenmare that the class of persons who had an interest in receiving the Press Release was “…primarily the business community, investors, potential investors and shareholders. But in practical terms, that is almost the domestic public at large”. However, the duty to publish under the traditional qualified privilege rubric is ordinarily confined to an individual or group of individuals who are likely to be directly affected by the information communicated, which in the present case was the shareholders, investors or employees of the company.
102. Kenmare, in this regard, sought to rely on the decision of Oliver v. Chief Constable of Northumbria Police [2003] EWHC 2417 where at para. 40 Gray J. stated:
“I accept that dicta can be found in the cases which can be read as suggesting that other factors come into play when determining the existence of privilege. Perhaps the best example is the statement of Lord Buckmaster in London Association for the Protection of Trade v Greenlands at p.23, where he states that it is necessary to take into account ‘every circumstance associated with the origin and publication of the defamatory matter in order to ascertain whether the necessary conditions are satisfied, by which alone protection can be obtained.’ But, in my view, it is well established by subsequent authorities that matters such as the relevance of what was communicated, the reasonableness or fairness of what was communicated and whether the defendant could have honestly believed in the truth of what was communicated all go to the question of malice and not to the anterior and distinct issue of whether the occasion was privileged.”
103. The judgment of Gray J. continues: —
“As to the dictum of Lord Buckmaster quoted earlier, Simon Brown L.J. explained in Kearns that what Lord Buckmaster was saying was that ‘every circumstance has to be considered which bears on the question whether the necessary conditions for invoking privilege are satisfied.’ In other words, he was confining himself to the existence of the conditions for invoking privilege and not with any broader question. Moreover, I am satisfied that, when Lord Atkinson spoke in Adam v. Ward at p.339 of having regard to all the circumstances and the existence of reasonable grounds on the part of the commentator for belief in the truth of what was published, he was addressing the issue in what circumstances a communication made on a privileged occasion will lose the protection of the privilege by reason of the excessive language used. So much is clear from the paragraph commencing at the foot of p.334.”
104. The decision in Adam v. Ward [1917] A.C. 309 was cited with approval by the Supreme Court in Green v. Blake & Ors [1948] 1 I.R 242 at p. 253-254, where Maguire C.J. stated:
“The question whether the occasion was privileged is to be tested by the criteria laid down by Parke B. in Toogood v. Spyring:-
‘If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.’
It is the occasion on which a statement is made which is privileged. In my opinion the earlier actions of a defendant which lead up to the making of the statement can only be enquired into for the purpose of showing, by affirmative evidence, in the words of Parke B., that there was ‘malice in fact —that the defendant was actuated by motives of spite or ill-will independent of the occasion on which the communication was made.’”
105. Lord Atkinson in Adam v. Ward states at p. 334 of the judgment:-
“It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential. Nor is it disputed that a privileged communication – a phrase often used loosely to describe a privileged occasion and vice versa – is a communication made upon an occasion which rebuts the prima facie presumption of malice arising from a false and defamatory statement prejudicial to the character of the plaintiff, and puts the latter on proof that there was malice in fact: per Parke B., Wright v. Woodgate 2 C.M. and R. 573 at 577. Nor that the question of whether the occasion is a privileged occasion or not is, if the facts be not in dispute, or if in dispute have been found by the jury, a question of law to be decided by the judge at the trial. Nor yet that a person making a communication on a privileged occasion has not, in the first instance and as a condition of immunity, to prove affirmatively that he honestly believed the statement made to be true, his bona fides being in such a case always presumed…”
106. It is clear from the aforementioned jurisprudence that a defence of qualified privilege is only available in respect of private communications and does not generally extend to mass media publications due to the fundamental requirement of reciprocal duty and interest.
107. The common law recognised that only in exceptional circumstances could publication to the world at large be protected by qualified privilege. Such a contention was advanced in Reynolds v. Times Newspaper Ltd [2001] 2 A.C. 127 based on the proposition that an incremental development of the common law was warranted by the creation of a new category of occasion that would be privileged on the subject matter alone – mainly political information. This argument was in turn closely based on the High Court of Australia decision in Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520 where that court held that qualified privilege would exist for all publications of political information subject to the publisher proving reasonableness of conduct.
108. It is clear on the facts as proven in the present case that the necessary conditions for invoking qualified privilege are not satisfied. However, the publication of the Press Release to the mass media was an excessive publication not within the class of publications to which the exception applies since the vast bulk of recipients had no legitimate common interest in its receipt. This deprived it of the essential prerequisite of reciprocity of duty and interest as between the publisher and the recipient of the information. The contentions advanced by counsel on behalf of Kenmare at the trial failed to establish that the general public had a reciprocal or any interest in receiving it.
109. The decision of the Supreme Court in Hynes-O’Sullivan v. O’Driscoll [1988] 1 I.R. 436 is authority for the proposition that the defendant’s mere honest belief that the party addressed had an interest or a duty to receive the publication in issue could not render the occasion privileged.
110. There is some validity in the contention advanced on behalf of Mr. Kinsella that the decision in Oliver v. the Chief Constable of Northumbria Police [2003] EWHC 2417 is distinguishable insofar as, in the latter case, the Northumbria Police were aware that a television programme was due to be broadcast that same evening based on the allegations contained in the leaked Oliver report. By contrast, the transcript of the cross-examination in particular of Mr. Michael Carvill suggested that at least on his part, beyond surmise, submission and conjecture, he did not have specific information that the Daily Mirror was going to attack Kenmare. In the course of cross-examination Mr. Michael Carvill stated in the presence of the jury:-
“We just wanted to put out the basic facts in a manner that … we could point them and say those are the facts, but we don’t want to comment further.”
111. The evidence of Mr. Milton, the media expert retained by the company, was that, based on his conversation with the journalist, Mr. Kierans, the allegations would be “sexual in nature.” Kenmare was in the position that it did not know that there would be an attack. At best it anticipated an attack and in that respect the evidence did not establish that it would concern the character and conduct of Kenmare. It was in these circumstances that Mr Milton crafted a press statement for release to the wide world.
112. Another feature that distinguishes the facts under consideration on this appeal from those in Bento and Oliver is that in both what the court was concerned with was a police force, a body that exercises in important public function and which is both accountable to the public and reliant on its trust. Given this context, it may be the case that anticipated attacks on the police or analogous institutions may justify particularly speedy responses which strongly defend those institutions, and therefore run the risk of defaming an innocent party. It can hardly be said that this logic can apply to the present case, where the party in question was a company, albeit a public limited company, which exercises a purely commercial function.
113. Even if it had been established, which it was not, that Mr. Milton anticipated, as a result of his conversation with Mr. Kierans, a direct attack on the character or conduct of Kenmare, the Press Release published to the world as a whole was, in my view, on the facts and in all of the circumstances, not proportionate. The fundamental requirement of reciprocity of duty and interest was fatally absent. Kenmare failed to make out any valid basis in law for the proposition that the world at large had a recognised duty or interest in receiving the publication. It is unclear what interests of the business community, including shareholders and investors in the company, could have been served by the issuing of the Press Release. After all, those responsible for the Press Release were unaware of the nature of the media coverage which they feared, and therefore it is difficult to say what they sought to respond to or clarify by publishing it. In my view, the dissemination was wholly excessive and the vast preponderance of recipients lacked any recognised interest in its receipt.
114. The trial judge, in my view, failed to have any or any adequate regard to the lack of objective justification on the part of Kenmare for unfairly and irresponsibly publishing the Press Release to the world at large in circumstances where the general public did not have a reciprocal duty and interest in its receipt.
115. Accordingly, Kenmare failed to objectively justify the Press Release and its contents as being fairly warranted. Whilst these last mentioned issues would be relevant to the jury’s assessment of the existence or absence of malice, the question is whether and to what extent in the circumstances arising in this case do they also go to the question of whether the occasion of publication of the Press Release was privileged. To seek to bring anticipated publications, the material substance of which is not actually known to the publishing party, within the ambit of the defence of qualified privilege necessarily involves a mixture of both conjecture and retrospective rationalisation.
For all of the reasons earlier set forth, I am satisfied that the Press Release was not published on an occasion of qualified privilege and that the trial judge erred in finding that it was. That being so it is not necessary to consider whether the trial judge misdirected the jury on the question of malice, malice being relevant only in the event that publication occurred on an occasion of qualified privilege.
116. Finally, Mr. Kinsella concedes that the result of the action would have been the same even without the presence on the Issue Paper of question 2 (in relation to malice) with the result that the relief sought by him is confined to a claim that the cross appeal be allowed and that an order be made providing for his costs of that appeal. In light of my earlier findings I would allow the cross appeal and propose that the costs in relation thereto be postponed for further legal argument.
DAMAGES
Written by Irvine J. and adopted by the Court.
117. This aspect of the judgment concerns the nature and quantum of the damages awarded to Mr. Kinsella by the High Court jury. As already stated, he was awarded damages of €9m in respect of the libel complained of and was awarded a further sum of €1m in respect of aggravated damages.
118. In the Amended Notice of Appeal, Kenmare maintains, inter alia:
(a) that the jury’s verdict on damages was so unreasonable and/or irrational and/or unjustified and/or disproportionate that it renders the entire of the jury’s verdict unsafe to the point that the entire verdict, including the jury’s verdict on liability, should be set aside and
(b) that the amounts awarded were so unreasonable and disproportionate to the damage caused to the plaintiff’s reputation that they should be set aside.
119. In the course of its submissions, Kenmare argues that, if it is unsuccessful in relation to the first of the aforementioned grounds of appeal, but successful in relation to the second, this Court should reassess the damages in accordance with what it considers proportionate to award Mr. Kinsella having regard to the injury sustained. Alternatively, it submits that the action should be remitted to the High Court for a full rehearing rather than for a rehearing confined to the issue of quantum.
120. In order to consider the validity of the grounds of appeal advanced by Kenmare in respect of the awards of damages made by the jury, it is necessary, first, to consider the function of awards of damages in defamation proceedings, second, the circumstances in which an appellate court should interfere with an award made by a jury, third, the guidance available to an appellate court when asked to set aside an award of damages as disproportionate and, fourth, the factors in that assessment.
Function of an award of damages in defamation proceedings
121. An award of damages in a defamation action is intended to serve a different function to an award of damages in other types of litigation. Its primary function is to vindicate the plaintiff’s reputation, but it also intended to compensate for any injury sustained as a result of the defamation. The amount of compensation must be sufficiently large such that if disclosed to a bystander it would readily convince them of the baselessness of the allegation complained of. Further, insofar as an injury to a person’s reputation can be compensated for by an award of damages, the damages must be great enough to achieve that objective. In this regard, it is important to remember that damage to a plaintiff’s reputation can have far-reaching consequences, a fact emphasised in many of the leading texts on the law of defamation. It may result in a plaintiff being ostracised and rejected both socially and in the workplace and this is but one of the reasons that injury caused by defamation is not easy to value in monetary terms. Accordingly, it can be stated that not only is the function of an award of damages in a defamation action different, for example, to that in a personal injury action, but the injury inflicted is much more difficult to value because of its often highly subjective nature.
122. As with awards of damages in personal injury cases, any award made in respect of damages for defamation must be fair to the plaintiff and the defendant and should not be excessive. An award should certainly not be large to the point that it will not only have the effect of vindicating the plaintiff’s good name, but also of restricting freedom of expression, particularly that enjoyed by the media as guaranteed by Article 40.6.1 of the Constitution. In Dawson v. Irish Brokers Association (Unreported, Supreme Court, 27th February 1997) the following guidance is provided by O’Flaherty J. at p. 700:
“defendants in defamation cases should never be regarded as the custodians of bottomless wells which are incapable of ever running dry. The opposite has proved true in the publishing sphere in this and other countries – with sad consequences for those who lost employment as a result of untoward awards. Further, unjustifiably large awards, as well as the cost attendant on long trials, deals a blow to the freedom of expression entitlement that is enshrined in the Constitution.”
123. The potential for defamation awards to restrict freedom of expression received some attention from the ECtHR in Independent Newspapers (Ireland) Ltd v. Ireland (App No. 28199/15) (2018) 66 E.H.R.R. 23. The issue before the court was whether the safeguards in Irish domestic law both in principle and as they were applied in the proceedings were adequate and effective in preventing disproportionate awards of damages. The court found that a defamation award of €1.25m against the newspaper which was fixed by the Supreme Court following an appeal against the jury’s award of €1.872m. (see Leech v. Independent News and Media [2014] IESC 79) constituted a restriction of its right to freedom of expression as protected under Article 10 of the European Convention on Human Rights, which in the circumstances had not been justified. It emphasised that, especially where the media is concerned, unpredictably high damages in defamation cases are capable of having a chilling effect and “they therefore require the most careful scrutiny and very strong justification.” The court did not, however, speculate as to the likely outcome of the proceedings had there been no violation of Article 10 and therefore rejected the newspapers claim for payment of €1.05m., that sum representing the difference between the final award of damages made by the Supreme Court and the newspaper’s own assessment of an appropriate amount of compensation for Ms Leech of €175,000.
124. One might observe in passing that the ECHR does not, of course, have direct effect in this State and, insofar as it forms part of the law of the State, it is only by reason of the specific provisions of the European Convention of Human Rights Act 2003. As s. 3(1) of the 2003 Act makes clear, the duty to perform functions “in a manner compatible with the State’s obligations under the Convention provisions” applies only to “organs of the State.” As the courts are excluded from the definition of “organ of the State” by s. 1(1) of the 2003 Act and as the defendants are plainly not such an entity, the 2003 Act has, in strictness, no application to the present case, save for the interpretative obligation imposed on this Court by s. 2(1). This provision states that:-
“In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”
125. For the reasons set out elsewhere in this judgment, I consider that the common law principles governing the award of damages in defamation cases can, where necessary, be accommodated to the requirements of Article 10 of the ECHR by means of the interpretative principle contained in s. 2(1) of the 2003 Act. It is, in any event, clear from Supreme Court decisions such as Dawson that damages awards in defamation cases must meet proportionality standards if constitutional guarantees in respect of free expression in Article 40.6.1 are not to be compromised by the chilling effect of disproportionately high awards. This is a point which this Court has, in any event, recently affirmed in assessing the quantum of damages in defamation cases: see Christie v. TV3 Television Networks Ltd. [2017] IECA 128.
126. Finally, an appellate court must act with a degree of caution when determining whether an award of damages for libel made by a jury in a particular case should be considered disproportionate by drawing a comparison with awards set aside as excessive in other defamation cases, not only by reason of the differing facts, but also because of the passage of time between the claims.
Aggravated and Exemplary Damages
127. In circumstances where the jury in the present case awarded a sum of €1m in respect of aggravated damages, it is also important to briefly refer to the circumstances in which a jury is entitled to make such an award of aggravated damages.
128. In Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305, Finlay C.J. described the damages that might be awarded in a case such as the present one in the following manner:
“In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my view, potentially relevant to any particular case. They are:-
1. Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.
2. Aggravated damages, being compensatory damages increased by reason of:-
(a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or
(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or
(c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.
Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.
3. Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered.”
129. Of some further assistance in relation to the purpose of an award of aggravated damages in a defamation action is the following brief but helpful statement of Eady J. made at para. 7 of his judgment in Henry v. News Group Newspapers Ltd. [2011] EWHC 1058 (Q.B.):
“The purpose of aggravated damages is to compensate the claimant for any salt that the relevant defendant has rubbed in the wound over and above the injury caused by the defamatory publication(s).”
130. Whilst aggravated damages are now dealt with under s. 32(1) of the Defamation Act 2009, at common law any adverse conduct on the part of a defendant between publication and trial that increased the harm suffered by the plaintiff might result in an award of aggravated damages. Relevant in this regard is the motive and conduct of the defendant. If there is evidence of malice or evidence to show that the defendant acted in a high-handed or malevolent manner with the result that the plaintiff’s self-esteem was further damaged, then aggravated damages may be awarded. An award of aggravated damages may also be justified if the plaintiff is subjected to an unduly prolonged or hostile cross-examination or if the trial is managed by the defendant in a manner calculated to attract further widespread publicity to the detriment of the plaintiff. These are but a few examples of the type of circumstances that may attract an award of aggravated damages.
131. Of particular importance is the fact that an award of aggravated damages is intended to be compensatory in nature. It is meant to compensate the plaintiff for some additional injury sustained as a result of the motivation or conduct of the defendant. And, because aggravated damages are compensatory in nature, the defendant’s means should not be taken into account by the jury when assessing the amount to be awarded. As is stated in Cox & McCullough, Defamation: Law and Practice (Clarus Press, 2014) at para. 11-66:-
“properly understood, therefore (and whereas there is a clear punitive element to such an award), the focus in making such awards should not be on the defendant’s conduct but on the extent to which the harm suffered by the plaintiff has been worsened or aggravated by such conduct.”
132. Finally, the overall damages figure awarded by the jury should reflect the harm suffered as a result of the initial wrongful act and also the extent to which that harm was aggravated by subsequent actions of the defendant.
133. Thus, aggravated damages must be distinguished from exemplary damages which are intended to punish a defendant for the wilful commission of a tort or to teach the wrongdoer that tort does not pay. Accordingly, by way of example, if a newspaper, without any genuine belief in the truth of some article it intends to publish, proceeds with that publication for the purpose of making a significant financial gain, then its conduct may be considered reprehensible to the point that an award of exemplary damages would be warranted. However, it is important to state that exemplary damages are exceptional and should only be awarded if the sum of compensatory damages and aggravated damages, when taken together, are considered inadequate to achieve the objectives of punishment, deterrence and disapproval.
134. One of the unique features of an award of exemplary damages is that, in fixing the amount of such damages, the jury may have regard to the means of the defendant. The means of a defendant is not relevant to compensatory or aggravated damages. It is important to make this point at this juncture as it was submitted by counsel on behalf of Mr Kinsella that the means of Kenmare in this case, a company having a value of some £650,000,000 Stg at the relevant time, was a factor which the jury was entitled to take into account when assessing damages. However, as is clear from the transcript of the within proceedings, the jury was not asked to make any award in respect of exemplary damages. Accordingly, the means of Kenmare could be of no possible relevance to the award made.
When should an appellate court set aside an award made by a jury as disproportionate?
135. Whilst there is no doubt as to the jurisdiction of this Court to substitute its own award for that made by a jury (see s. 48 of the Courts (Supplemental Provisions) Act 1961 and also the decision in Holohan v. Donohue [1986] I.R. 45), the relevant authorities universally advise that determinations of juries in defamation cases should only be set aside after the exercise of great caution.
136. In Barrett v. Independent Newspapers [1986] I.R. 13, Henchy J. warned against the temptation of an appellate court to condemn as perverse a jury verdict “merely because it does not accord with that of a judge”. A jury verdict is, he said:
“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.”
137. Denham J. in Cooper Flynn v. RTE [2004] IESC 27 described the role performed by the jury in a defamation action as “pivotal”.
138. In Barrett, the Court emphasised the weight and importance to be attached to the award of a jury in a defamation action in the following terms:
“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.”
139. The approach of Henchy J. in Barrett has, perhaps unsurprisingly, been approved of in many of the more recent decisions of the Supreme Court concerning defamation awards. By way of example, the following is what was stated by O’Donnell J. concerning the value of the jury’s assessment of damages in McDonagh v. Sunday Newspapers Ltd. [2017] IESC 59:-
“The reputation to which an individual is entitled, and whether any publication is defamatory, and the impact of any such defamation on an individual within the community, perhaps particularly when contained in mass circulation in newspapers or media organs with wide popular access, are all matters which members of the public who after all are the target audience of such publications, are well placed to gauge. Furthermore, the purchasing power of money and the value in real terms to the life and lifestyle of an individual is something which a jury composed of persons drawn from different social groups and having different life experiences, can collectively gauge and judge.”
140. I will pause here to observe that it appears to me that a party who seeks to have an award in a defamation action set aside as disproportionate, faces a more uphill battle and perhaps must reach a higher or different threshold to that which must be achieved by a party who seeks the same relief in an appeal against an award of damages in a personal injury action. In a personal injury appeal the appellate court will form its own assessment of what it considers would have been a just, fair and proportionate award of damages. As a somewhat general rule, if its own assessment is more than 25% above or below that awarded by the High Court, it will usually substitute its own award for that of the trial judge (see judgment of McCarthy J. in Reddy v. Bates [1983] I.R. 141 at 151). However, having regard to the sanctity of the role of the jury in defamation actions and the often highly subjective nature of the injury inflicted, upset and hurt being injuries that are not easily assessed by reference to what are often described as the arid and cold pages of a transcript, it seems to me that the appellate court in a defamation action would not necessarily interfere with an award made by a jury based on a similar type of assessment.
141. Notwithstanding the strong emphasis in many of the leading defamation judgments concerning the importance of the role of the jury and the sanctity of their awards, the fact of the matter is that in a very high percentage of appeals, the award of the jury may and will be set aside if it is considered disproportionate. I venture to suggest that in large part, given that most of those appeals relate to proceedings which predate the 2009 Act, this is due to the fact that the judges in those cases were limited in the directions they might give to the jury concerning how they should assess damages, an approach somewhat acerbically described by Sir Thomas Bingham M.R in John v. M.G.N. Ltd. [1997] Q.B. 586 as one which leaves the sheep without their shepherd:-
“Whatever the theoretical attractions of this approach, its practical disadvantages have become ever more manifest. A series of jury awards in sums wildly disproportionate to any damage conceivably suffered by the plaintiff has given rise to serious and justified criticism of the procedures leading to such awards. This has not been the fault of the juries. Judges, as they were bound to do, confined themselves to broad directions of general principle, coupled with injunctions to the jury to be reasonable. But they gave no guidance on what might be thought reasonable or unreasonable, and it is not altogether surprising that juries lacked an instinctive sense of where to pitch their awards. They were in the position of sheep loosed on an unfenced common, with no shepherd.”
142. That view was one which was not shared in this jurisdiction at the time. Hamilton C.J. in his judgment in De Rossa v. Independent Newspapers [1999] IESC 63, [1999] 4 I.R. 342 stated that it would be an invasion of the province or domain of the jury if it was to be buried with figures suggested by the parties or the judge or with figures emanating from other defamation or personal injury actions.
143. One would certainly hope that the effect of s. 31 of the 2009 Act, which not only allows the parties make submissions to the Court in relation to the matter of damages in a defamation action, but which also requires the trial judge to give directions to the jury in relation to the matter of damages, will in early course result in the making of awards which are not only proportionate to the injury sustained in any individual case but which will also be proportionate when considered in the context of awards of damages in other proceedings including personal injury actions.
Guidance available to an appellate court
144. It is clear from the decisions of the Supreme Court in cases such as O’Brien v. Mirror Group Newspapers [2001] 1 I.R. 1, McDonagh v. Sunday Newspapers Ltd. [2017] IESC 59, De Rossa v. Independent Newspapers Plc [1999] 4 I.R. 342 and Leech v. Independent Newspapers Ltd. [2014] IESC 79, that an appellate court, when considering whether or not a jury award was disproportionate may, for the purposes of guidance, have regard to previous awards made or endorsed by the Supreme Court as a test for the validity of the jury’s award.
145. An example of this approach is to be found in the judgments of Dunne and O’Donnell JJ. in McDonagh. The plaintiff in that case, Mr. McDonagh, sued in respect of a newspaper article entitled “Traveller is New Drugs King”, which he claimed to mean that he was a drug dealer, a loan shark, a tax evader, and a criminal. Although the newspaper successfully persuaded the jury of the truth of the latter two meanings, namely that Mr. McDonagh was a tax evader and criminal, it failed to prove that he was a drug dealer or a loan shark, in respect of which allegations the jury awarded damages of €900,000. In the Supreme Court, Dunne J. contrasted the award of €900,000 with other libel awards. In the course of her judgment she referred to the award as being one of the highest ever made by a jury in the history of the State. That being so, the court was, she concluded, required to consider whether the defamation which had led to such a high award was one of the most serious ever to have come before the courts. In other words, Dunne J. would appear to have taken the view that it was necessary to consider whether the award was not only proportionate to the injury to Mr. McDonagh’s reputation, having regard to the factors to which I will later refer, but also proportionate to the awards of damages made and/or upheld by the Supreme Court in other defamation cases.
146. In her judgment, Dunne J. acknowledged the clear difficulty of making any direct comparison between different defamations because of “the variety of factors that may be at play, such as the nature of the defamation allegation, the character and reputation of the person defamed, the extent of the publication and the impact on the person concerned, to name but a few”. Regardless, she concluded that the defamation in McDonagh was nothing close to as serious as that which had taken place in Leech. Like O’Donnell J., she concluded that, even if Mr. McDonagh had been a person of impeccable character and reputation, the award would have to have been considered excessive, it being “far larger than is necessary to put right the wrong done to the plaintiff’s reputation.”
147. As to the possibility of measuring or comparing the significance and gravity of differing wrongful acts of defamation in different cases, the following is what O’Donnell J. stated at para. 46 of his judgment in McDonagh:
“There is no market for defamatory publications and no reasonable proxy to provide a separate basis for assessing an award in a defamation case. Some guidance can be obtained from other substantial awards in defamation cases, particularly those which have been upheld on appeal, and to the extent where the Court of Appeal or Supreme Court substitutes its own award, then these may also provide some guidance. However, a note of caution is appropriate here too. While the monetary amounts awarded are readily comparable and can be placed on a scale, it is a much more difficult task to compare defamations than it is to compare personal injuries. A clean break may be less serious and may heal more quickly than a comminuted fracture. A fracture which enters an articular joint and gives rise to a risk or probability of future arthritis is more serious than one which does not. An injury to a young and active person may be different to the same injury sustained by someone older with a more sedentary lifestyle. These relativities should be reflected in awards. It is however more difficult to measure defamation in cases on any set scale. Taking simply by way of example the de Rossa and Leech cases and this case, each one has very different features. The distinctive aspect of the de Rossa case, was not just the serious allegations and the vigour with which they were pursued, but the longstanding reputation of the plaintiff, the fact that he was a very well-known figure, and the fact that his political career was based upon his reputation. He had achieved high office, and the publication threatened not just his public reputation, but his very career. On the other hand, the plaintiff in the Leech case was not widely known to the public at all, at least before the circumstances which gave rise to the series of publications. But on the other side of the balance, there were features of that case not present in de Rossa. As already discussed, the defamation in the Leech case was part of a repeated campaign which went to considerable lengths, both in the language used and photographs employed, to suggest an improper relationship on her part. Furthermore, and as already discussed, the damage done to her business was not only a significant factor in the case, but also one which made the assessment of damages more difficult. The issue in the present case is not readily comparable to either of those cases, although of course the award would suggest some comparison. There is no doubt that to allege that someone is a drug dealer, let alone a major drug dealer, and not establish the truth of that allegation, is a very serious defamation particularly when carried in the most prominent position in the largest circulating newspaper in the State.”
148. So, whilst many of the most often cited judgments acknowledge the difficulties in comparing the injurious nature of defamations in different cases, it has been the almost invariable practice of the Supreme Court to engage upon such an analysis, particularly in respect of the gravity of the libel, when considering whether an award made was or was not disproportionate to the injury sustained and the plaintiff’s right to have his or her good name vindicated.
149. Whilst recognising the somewhat different function of an award of damages in a personal injury action, many of the judgments in the cases to which I have earlier referred have acknowledged that it is often of at least some assistance to compare the award made by the jury to the level of general damages commonly awarded in the most serious cases of paraplegic or quadriplegic injury.
150. In relation to the use of personal injury awards as comparators in defamation actions, the decision in Lillie & Reed v. Newcastle City Council [2002] EWHC 1600 (Q.B.), a case involving entirely untrue allegations of sadistic child abuse, is, I believe, of some relevance. In his judgment concerning the damages awarded in that case, Eady J. stated that he felt it necessary to keep the amount of damages from exceeding the maximum awarded in personal injury proceedings, which he acknowledged at that time to be in the region of GBP £200,000. Thus, although at para. 1549 of his judgment he expressed himself satisfied that the claimants had merited an award at the highest permitted level “several times over” due to the scale, gravity and persistence of the allegations, he evidently felt precluded from exceeding the sum of GBP £200,000, noting his duty to “bring their compensation into line with current policy.” That approach is one which later developed significant traction in the English courts with the result that with the exception of a few very large awards, damages for defamation usually fall comfortably below what might be described as the “ceiling” for damages in personal injury cases. One such exception to which I will refer, because, as in this case, the claim was brought in respect of an allegation of sexual impropriety, is Garfoot v. Walker (The Times, 8th February 2000) where an award of damages in the sum of GBP £400,000 was made at a time when the maximum award for damages for personal injuries claims was in the region of GBP £200,000. However, the allegation in that case was one of rape and had been made against a member of the medical profession, a far cry from the gravity of the libel found by the jury in the present case. I make that observation mindful of the fact that any allegation of sexual impropriety is highly likely to have grave consequences for the person against whom it is made.
151. Returning to the authorities in this jurisdiction, the following was what O’Donnell J. stated in McDonagh concerning the value of drawing any comparison between a defamation award and awards made in personal injury cases:
“44. Turning to this case, I agree that broad comparisons can be made with personal injuries awards and awards in other defamation cases. These can provide some sense check for the assessment of damages because they represent a system which attempts to put monetary values on injuries whether physical, psychological, or reputational. However, they cannot be treated as precise guidance. The assessment of damages for personal injuries has itself long been recognised as a business of equating incommensurables, or, as O’Higgins C.J. put it in Sinnott v. Quinnsworth [1984] I.L.R.M. 523, ‘assaying the impossible’. There is no market in personal injuries to which a court can refer for evidence and guidance. No one offers to sell, or would be permitted to buy, a broken leg. However, unless the cost of accidents causing injuries are imposed upon the person causing the accident, the inevitable outcome will be that the incentive towards careful conduct is reduced, and the number of accidents will increase. To some extent, a similar calculation arises here.
45 … [I]t is clear, therefore, that no easy or direct comparison can be made in this regard with defamation cases. Nevertheless, as an indicator of courts’ approach to the business of ascribing a monetary value to the damage and injuries suffered by a plaintiff, the awards in personal injuries do provide some guidance. On this basis, plainly, the figure of €900,000 is comparatively speaking extremely high.”
152. I will make just one final brief observation in relation to the type of exercise that might be carried out by an appellate court when asked to consider whether an award made by a jury in a defamation action was proportionate to the injury sustained. In the course of considering whether the award of €900,000 in McDonagh was proportionate and fair to the parties, O’Donnell J. at para. 24 of his judgment observed that the size of the award was such that the plaintiff could have lived off it comfortably for the rest of his life. He noted that the award would not be subject to tax and that in such circumstances it was worth considering just how long and hard an individual would have to work to amass such a sum and also what might be purchased with a sum of that magnitude. Accordingly, it would appear that these are yet further factors which might provide guidance concerning the proportionality of any award.
153. As already stated, this aspect of defamation proceedings is now governed by s. 31 of the Defamation Act 2009 which would appear to permit the trial judge to refer to awards in other defamation proceedings and/or to the type of damages that might be awarded in certain types of personal injury actions when directing the jury as to “the matter of damages as required by s. 31(2)”. As is observed by Cox & McCullough at para. 11-35, it is not that the jury should be asked to draw a comparison between the injury to a plaintiff’s reputation and a physical injury inflicted on a third party. Rather, the purpose of the comparison should be to inform the jury’s sense of objective justice with the hope that awards made with the benefit of such guidance would become more consistent inter se and thus more proportionate to the injury wrongfully inflicted. The practice of asking the jury to make such a comparison has, as the authors observe, the merit of encouraging the making of awards that fit within the moral compass of the average person.
Factors relevant to the assessment of damages by a jury
154. In her judgment in McDonagh and in her decision in Leech, Dunne J. referred to the passage from the judgment of Hamilton C.J. in the De Rossa case in which he quoted with approval a passage from the English Court of Appeal in John v. MGN Ltd. [1997] Q.B. 586 at p. 463:
“The factors to be taken into account in determining the damages to be awarded are clearly set out in many cases and in particular in the judgment of the Court of Appeal in John v. M.G.N. Ltd. [1997] Q.B. 586 at p. 607 of the report where it is stated as follows:-
‘The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation, the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation; but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way’.”
155. I now propose to look at the factors identified in the authorities as relevant to the assessment of damages in a defamation action and I will do so having regard to the evidence given in these proceedings and the facts as found in a number of the other defamation claims to which I have earlier referred. I will also address the argument advanced on behalf of Kenmare to the effect that Mr. Kinsella’s alleged conduct in precipitating the publication of the press release ought to have disentitled him to any damages or alternatively should have been reflected in the jury’s award. I propose to consider the evidence and the arguments under the following headings:
(i) Gravity of the defamation;
(ii) Effect on the plaintiff;
(iii) Extent of publication;
(iv) Conduct of the defendant;
(v) Conduct of the plaintiff.
Gravity of the defamation
156. The text of the Press Release is core to a consideration of the gravity of the defamation in the present proceedings. Notwithstanding the fact that it is set out in full earlier in the judgement, I will nonetheless repeat it here because of its importance.
“Kenmare Calls Special Board Meeting
10th July, 2007.
The Chairman of Kenmare, Mr. Charles Carvill has convened a special meeting of the Board of Directors to be held tomorrow, Wednesday 11th of July. The purpose of the meeting is to consider a motion to remove Mr. Donal Kinsella as Chairman of the Company’s Audit Committee. Mr. Donal Kinsella is deputy chairman and director of Kenmare.
There was an incident on 9th May 2007 at Kenmare’s Moma Titanium Minerals Mine in Mozambique. On foot of this incident, a complaint was made by the Company Secretary, Miss Deirdre Corcoran, against Mr. Donal Kinsella. Mr. Charles Carvill requested that the Company solicitors, O’Donnell Sweeney Eversheds, conduct an investigation and prepare a report on the incident for his consideration. This report was completed and presented to Mr. Charles Carvill on 20 June 2007.
Mr Carvill then sought and received a written apology from Mr. Donal Kinsella to Miss Deirdre Corcoran. The incident made it impossible for Miss Deirdre Corcoran, as Secretary to the Audit Committee, to work to work effectively with Mr. Donal Kinsella as Chairman of the Audit Committee. Mr. Charles Carvill therefore asked for Mr. Donal Kinsella’s resignation as Chairman of the Audit Committee.
Mr. Donal Kinsella’s voluntary resignation from the Audit Committee has not been forthcoming.
The Chairman has now called a special meeting of the Board at which Mr. Donal Kinsella’s removal as Chairman of the Audit Committee will be proposed.”
157. Also of particular relevance is the first question which was put to the jury, namely:-
“Did the Press Release of 10th July 2007 state or infer that Donal Kinsella had made inappropriate sexual advances to Deirdre Corcoran?”
158. It is obviously a grave matter to publish about someone something from which it is to be inferred that they made inappropriate sexual advances to a work colleague. Nonetheless, that is not as serious as publishing a statement from which it is to be inferred that they had made serious inappropriate sexual advances to a colleague or that they had, for example, sexually assaulted their colleague. Like every type of offensive conduct, there is a moral scale upon which any defamatory comment or statement concerning sexual misconduct can readily be placed. A false allegation of rape, as was the case in Garfoot would perhaps be close to the top of that scale. The question is where on the scale of contemptible, immoral or criminal sexual conduct should the defamatory allegation that Mr Kinsella made an inappropriate sexual advance to a female colleague be located?
159. This type of theoretical scale was referred to by Henchy J. in Barrett when, in the course of his judgment, he addressed the lack of assistance available to the jury to guide it in its assessment of the damages that it should award. At p. 24 of his judgment he stated as follows:
“The fact remains, however, that the jury were not given any real help as to how to assess compensatory damages in this case. A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of, namely, that in an excess of triumphalism at his leader’s success the plaintiff attempted to tweak the beard of an unfriendly journalist. The jury might 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.”
160. In considering where the allegation made against Mr Kinsella should fall on the scale of damaging accusations, relevant in my view is the fact that when endeavouring to reach agreement on the questions to be put to the jury, counsel for the defendant submitted that the first question should be:
“Did the Press Release of 10th July 2007 state or infer that Donal Kinsella had made serious inappropriate sexual advances to Deirdre Corcoran?” (emphasis mine).
161. Counsel for Mr. Kinsella disagreed with that submission and successfully argued that the word ‘serious’ should not be included. It follows that Mr. Kinsella himself did not believe that it could reasonably be inferred from the Press Release that he had been guilty of any serious sexual impropriety but only of sexual advances which could not be classified as serious.
162. Whilst all accusations of sexual impropriety are extremely serious, it is beyond question that the more egregious the allegation the greater the effect it will likely have on the life of the person against whom it is made. It is important therefore to consider where the sexual impropriety alleged against Mr. Kinsella would sit on an imaginary scale of sexual allegations that could be made against an individual, and that scale would have to include all types of allegations of sexual impropriety such as rape, sexual assault and lewd or sexually provocative behaviour.
163. Whilst a notional hierarchy of such conduct might not meet with universal approval, since every allegation of sexual impropriety connotes a matter of inherent gravity, this type of imaginary scale serves to demonstrate that the allegation of sexually inappropriate conduct made concerning Mr Kinsella was far from the gravest type of allegation of sexual misconduct that might have been made, as is perhaps also apparent from cases such as Garfoot and Lillie. This is clearly an important factor when it comes to considering whether the damages awarded by the jury in this case should be considered proportionate.
164. When compared to the defamations which underpinned the awards of damages made or upheld by the Supreme Court in the cases to which I have already referred, and while once again acknowledging the difficulty in comparing the gravity of individual libels, I am nonetheless satisfied that on the facts of the present case the defamation in this case was nothing as grave as that perpetrated on the plaintiffs in any of those cases as is hopefully apparent from the following brief summary of the facts in O’Brien, Leech and De Rossa .
165. In O’Brien, the defendant newspaper had published an article in which it maintained that Mr. Denis O’Brien, who at the relevant time was one of Ireland’s most prominent businessmen, had paid IR £30,000 to a Government Minister as a bribe with the objective of securing a licence for a radio station and that he had also secured a licence for Esat Digifone in circumstances which gave rise to a suspicion of bribery such that his conduct warranted investigation by a Government appointed tribunal. He was awarded €250,000 in the High Court and the newspaper appealed that award.
166. The Supreme Court took the view that even though the libel was undoubtedly serious and justified an award of substantial damages, it could not be regarded as coming within the category of the grossest and most serious type of libel which had come before the courts. It set aside the High Court award and sent the action back for rehearing on the issue of damages. As Dunne J. in her judgment in McDonagh noted, it was indeed ironic that on the retrial Mr. O’Brien was awarded the much greater sum of €750,000.
167. Whilst it is very difficult, for the reasons earlier stated in this judgment, to compare one defamation with another, it is hard to see how the libel in the present case could be treated as one which was anything close to as grave as stating of a prominent businessman that he had bribed a government minister for the purposes of securing a highly lucrative contract.
168. Likewise, in Leech the defamation found by the jury was, on any reasonable assessment of the differing facts, significantly more serious to that complained of by Mr. Kinsella. Dunne J. at para. 138 of her judgment considered the gravity of the defamation by reference to the meanings ascribed by the jury to the words complained of. It was clear from their answers to the questions posed that they accepted the thrust of Ms. Leech’s case to the effect that the article meant that:
“(a) she, a married woman with two children, had an affair with the Minister;
(b) that as a result of that affair, she got lucrative Government contracts;
(c) that she was someone who was prepared to have an adulterous affair to advance her business career;
(d) that she betrayed the trust of her husband and children.”
169. When compared to the question posed to the jury in the present case, one cannot realistically suggest that the defamation in the present proceedings was as grave as that in Leech. It is nonetheless extremely important not to underestimate, first, the undoubted seriousness of a statement from which it was to be inferred that a successful businessman, husband and father had made inappropriate sexual advances to a female colleague and, second, the serious personal and professional repercussions that might be expected to flow as a result, apart altogether from the consequential hurt, distress and embarrassment. The defamation here was admittedly a serious one: it is just that it was not by any means as serious as that at issue in Leech.
170. Relevant also to my assessment of the proportionality and fairness of the award made in the present case is the fact that notwithstanding the gravity of the libel in Leech and O’Brien, neither was considered to be as serious as the libel in de Rossa which was described as coming within the category of the gravest and most serious libels which had ever come before the court.
171. In de Rossa, the jury found that the words complained of by the respondent meant that he had been involved in or tolerated serious crime and that he personally supported anti-Semitism and violent communist oppression. The following is what Hamilton C.J. stated concerning the publication of such words in relation to Mr. de Rossa:
“To publish such words in relation to the plaintiff, a politician dependent on the support of his constituents and his colleagues and at a time when he was engaged in negotiations, as was well known to the defendant at the time of publication, which might lead to his participation in government, renders such publication more serious and grave, particularly when they might have interfered with his chances of participation in such government. The words published clearly affected the plaintiff’s personal integrity and professional reputation.”
172. Once again, looking at the gravity of the defamation in the instant case and comparing it with that in de Rossa, regardless of the very different facts of both cases, no reasonable person could consider the allegation made against Mr. Kinsella, namely that of having made inappropriate sexual advances to a female colleague, to be as serious or as damaging as a statement that a politician had, as a matter of course, tolerated serious crime, and supported anti-Semitism and violent communist oppression.
Effect on Plaintiff
173. To assess the effect of the libel on Mr. Kinsella, it is necessary to revisit some of the evidence which he and his daughter, Ciara, gave to the jury concerning this issue.
174. Mr. Kinsella told the jury that he was a married man with six children who had started his business career by running a hotel. Thereafter, he had become the owner of a successful jeans manufacturing business. Later still he had become the Chairman of a company known as Seafield Gentex which had two factories, one in Balbriggan and one in Trim, County Meath.
175. According to Mr. Kinsella, he had become involved in Kenmare Resources in 1986 and at the time he was defamed was Deputy Chairman of the company and Chairman of its Audit Committee. He also told the court that Kenmare was worth approximately £650,000,000Stg and that it had bought a mine in Mozambique in 2007, a purchase which involved an investment of hundreds of millions of euros.
176. Mr. Kinsella stated that when he read the Press Release initially he did not think it was that bad. Later, when he read it again, he felt it suggested he had done something salacious, sinister or improper. When his wife saw the Press Release in their home that evening, she said nothing and went upstairs. His son John, who worked at Kenmare at the time, threw the Press Release on the table in disgust saying “My Jesus, what were you doing. You don’t get put down for doing nothing Dad.” He arranged for his wife to go to Spain with his daughter, Ciara, lest the media jump on the story. Mr. Kinsella stated that at that stage he feared he might lose his relationship with his wife and children because of what he described as a “contaminant” or “virus” having come into their home.
177. Mr. Kinsella told the court that on the day following the Press Release he was upset because one of the newspapers had carried an article which contained a lot more information than he had given to Mr. McEneaney.
178. When asked about the effect of what had resulted from the Press Release on his life, Mr. Kinsella recalled a number of incidents, some of which were mundane, but often involved what he described as “catcalling, jibes and jokes”. He described not wanting to go into the clubhouse at his golf club on the day after the Press Release as he was ashamed and embarrassed about what had been claimed in the newspaper that morning. Mr. Kinsella also described an occasion upon which somebody had texted him to say that they were going to a fancy dress party, but because the fancy dress shop was closed they had decided to go to the party as him. Concerning this incident, he said “I thought it was funny and it was said in good heart, that is the type of thing that was said”. He then described an unpleasant incident that had occurred in 2009 when he was in Croke Park. According to Mr. Kinsella, a noisy businessman, whilst in the presence of a large gathering of people, had attacked him by stating “I don’t know what the f-ing hell you were doing with that woman” with the result that he could not get away from him quickly enough. Mr. Kinsella also described how, shortly after his removal as Chairman of the Audit Committee, he had attended the Galway Races and when in the Winners’ Enclosure, somebody had started singing the ‘We Have No Pyjamas’ song. “There was a lot of fun about that”, he said.
179. Whilst it is always difficult from a transcript to assess the extent to which a witness was or was not upset or distressed when recalling events such as those last described, certainly the language used by Mr. Kinsella was not that of a man who felt himself grievously damaged or hurt by those episodes. However, he gave evidence to the effect that he was seriously upset at how he was treated on other occasions and he instanced some deeply offensive conduct to which he had been subjected. He mentioned the murmur which might start following his entry into a room. Mr. Kinsella described how, occasionally, somebody would have a “go at him” if they did not like his opinion and might say something like “what would you know, sure you’ve got no pyjamas” or “what would you know, you’re a molester”. He also described having been rebuked as a pervert of sorts by a consultant who was working on a project with him and how he had been treated in a similar fashion when on one particular occasion he had questioned the accounts of his rugby club. Mr. Kinsella sought to explain how he felt he had lost the right to argue, disagree or give an opinion lest he be challenged by reference to the defamation and how, as of the date of the trial in November 2012, “this” was still part of his life.
180. The only other evidence relevant to the effect of the libel on Mr Kinsella was that of his daughter, Ms. Ciara Kinsella. In her evidence, she stated that her father was shaken by the Press Release as it had not indicated that he had been exonerated by Kenmare. She had not seen him on the day of the Press Release and confined her evidence to how he presented the following day. She told the jury that she thought her father looked old, small and upset.
181. What is clear from the evidence is that the Press Release and whatever was published in the newspapers the following day, a matter to which I will later return, caused Mr. Kinsella much upset and distress over the ensuing years. Nonetheless, it would seem that he was able to take in relatively good spirits the jibes and comments made by friends or acquaintances relating to what had been published as a result of the Press Release. It is certainly clear from his evidence that he felt capable of braving the golf club, the Galway Races, Croke Park, his rugby club, etc., even if at times he was embarrassed or upset by conduct or comments arising from what had been published concerning the events that had taken place in Mozambique. That is not to say that Mr. Kinsella’s feelings of upset in relation to what he considered was likely being said behind his back did not cause him significant hurt and embarrassment.
182. Relevant also to this particular issue is that Mr. Kinsella did not seek to contend that his relationship with his wife or children had been seriously or permanently adversely affected by the libel, other than in the relatively immediate aftermath of the Press Release when he felt that a virus of distrust had entered his home. His relationship with his wife of 40 years, it would appear, remained strong, as apparently did his relationship with his family. Material in this regard is Mr. Kinsella’s letter to Mr. Carvill of the 9th July 2007, wherein he stated that his whole family had read the report of Mr. Norman Fitzgerald and were supporting the stance he was taking in the matter. Furthermore, they had, he insisted, unanimously resolved to defend what he described as “the family honour” in the face of Kenmare’s allegedly despicable conduct. Certainly, Mr. Kinsella’s eldest daughter gave no evidence to suggest that she thought any the less of her father as a result of what had been published in the Press Release. Indeed, she referred to the fact that the Press Release had been unfair to him as he had been exonerated by the independent investigation, evidence which suggests that from the outset he had her support and that she accepted he had done nothing of a sexually inappropriate nature. In this respect the effect on Mr. Kinsella of the libel was much less serious than the effect of the defamation in Leech, where what was published concerning Ms. Leech’s alleged relationship with the government minister had caused enormous damage and distrust to the point that her marriage had been put at real risk.
183. Neither was it ever claimed by Mr. Kinsella that the libel in this case had any serious adverse effect on his business, income or career prospects. Again, the facts of this case are in stark contrast to those in Leech, where the libel was not only of much greater gravity, but was one which had had a devastating effect on a business which was in an embryonic stage at the time and which, as a result, never got off the ground. I think it is important here to record that it is to be inferred from the decision of Dunne J. in Leech that a significant figure was included in the general damages awarded in respect of financial loss. This is important when considering the parameters of an award that might be considered proportionate in a case such as this.
184. As already cautioned in many of the judgments to which I have earlier referred, it is indeed difficult to compare and contrast the effect of different defamations on individual plaintiffs. Nonetheless, what can safely be said is that the defamation in this case had, for Mr. Kinsella’s personal and professional relationships, nothing like the very far-reaching implications that were visited upon Ms. Leech as a consequence of the defamation in her case.
185. Having considered all of the evidence in the present proceedings, I am quite satisfied that the effect of the Press Release and whatever followed in the newspapers the following day, whilst serious and regrettable, was fortunately nothing as far-reaching as it might have been.
Extent of publication
186. Regrettably, for the purposes of considering the extent to which the libel in these proceedings was published, it is probably necessary to refer briefly to (i) certain aspects of the pleadings, (ii) the evidence concerning republication and (iii) a number of rulings made by the trial judge.
187. In his Re-Amended Statement of Claim delivered on the 28th January 2010, Mr. Kinsella pleaded that the appellants well knew that the Press Release would, as a natural and probable consequence of their actions, be published by national newspapers and broadcasters. In particular, at para. 25B it was pleaded as follows:-
“Subsequently, the said words as published by the Defendants were in fact republished by national newspapers and broadcasters with the effect that the Plaintiff’s personal and professional reputation was further seriously injured as a result of this republication which was a direct consequence of the original publications made by the Defendants. The Defendants are liable for the damage caused to the Plaintiff by this republication, details of which can be adduced in evidence at the hearing of these proceedings.”
188. In the course of his opening address to the jury, counsel on behalf of Mr. Kinsella sought to have handed in to the jury certain articles that had been published by the newspapers on the 11th July 2007. Following an objection on the part of the appellants, the trial judge ruled that the articles could not be handed to the jury at that time. It is also relevant to record that at no later stage in the proceedings did Mr. Kinsella seek to introduce the articles published on the 11th July 2007 as evidence in support of his claim.
189. Regardless of the fact that the newspaper articles published on the 11th July 2007 were not introduced as evidence in the proceedings, Mr. Kinsella told the jury that when he looked at one of the newspapers that day he was upset by its content and that it contained a lot more information than what was in the Press Release or what he had told journalists. Furthermore, Mr. Michael Carvill, when questioned regarding the extent of the publication, whilst denying that Kenmare was responsible for the story published by the newspapers, accepted that “things” had been published by three newspapers the following day, i.e., the Irish Independent, Irish Times and the Irish Examiner, and that the “story” about Mr. Kinsella had gone all over the world.
190. At the end of the closing address to the jury by counsel for Mr. Kinsella, in the course of which he had emphasised the extensive publication of the libel by reason not only of the Press Release but because of what had later been published in the newspapers, counsel for the appellants requisitioned the trial judge to instruct the jury that there was no evidence of what had been carried by the newspapers the following day. It was submitted on behalf of the appellants that the only publication of which there had been evidence was publication of the Press Release to the business desks of four newspapers. Counsel submitted that in order that damages could be claimed for any additional injury caused as a result of what had appeared in the newspapers, the burden of proof was on Mr. Kinsella to prove that the articles in the newspapers and the Press Release had the same sting and that he had failed to do so.
191. In response, counsel for Mr. Kinsella submitted that he had been precluded by the trial judge from bringing to the jury’s attention the newspaper articles published the following day which, he maintained, bore the same sting as the Press Release. He submitted that the newspaper articles were the natural and probable consequence of the actions of the appellants in sending the Press Release to the business desks of the relevant newspapers with the result that they were liable for the additional upset and hurt caused by the republication. The appellants must have expected that the sting of the Press Release, namely that Mr. Kinsella had been guilty of making inappropriate sexual advances to a female colleague, would appear in the newspapers. According to counsel, the fact that the jury did not see the newspapers did not preclude Mr. Kinsella from making the case that as a consequence of the Press Release, the sting of that Press Release had gone out to the world via the readership of the newspapers. The readers had, according to counsel, received the story that the appellants had given to the newspapers. Furthermore, counsel maintained that Mr. Kinsella had proved that the sting of the Press Release, namely that he had acted in a sexually inappropriate way with a female colleague, was what had emerged from the articles published in the newspapers the following day. It did not matter that in giving their evidence, witnesses had referred to facts which had not been in the Press Release, such as the fact that he may not have been wearing pyjamas. The sting remained the same regardless of any additional information or change of wording, namely, that he had been guilty of sexual impropriety with a female colleague.
192. It is also perhaps relevant to note that, in the absence of the jury, counsel for the appellants accepted that the Press Release had been published in full in both the Irish Independent and the Irish Times on the 11th July 2007.
193. Ultimately, counsel for Mr. Kinsella advised the trial judge that, in his view, the difficulties that had emerged due to the fact that the newspaper articles were not proved in evidence would adequately be met if the jury could be told that the Irish Independent and the Irish Times had carried the Press Release in full the following day. In response, counsel for the appellants maintained that the problem with that approach was that the evidence given by Mr. Kinsella suggested that he had been held up to ridicule because of the additional information contained in the newspaper articles which information had not emanated from Kenmare. Furthermore, the plaintiff had not sought to prove that the sting of the Press Release was the same as the sting of the newspaper articles.
194. In the course of his ruling in relation to the appellants’ requisition, the trial judge confirmed that he had not precluded the plaintiff from proving what had been published by the newspapers following the Press Release. He had only prohibited the plaintiff from handing the newspapers to the jury in the course of the opening. He indicated that he would tell the jury that whilst there was no absolute proof that the Press Release had been published by the newspapers, they were entitled to take the view, in light of the thrust of the evidence, that it had been so published. Accordingly, the trial judge went on to advise the jury that it was for them to decide, on the balance of probabilities, whether or not the statement contained in the Press Release had received widespread distribution by being published in the three newspapers or whether it had been confined to the business desks of the relevant newspapers.
195. From his ruling it is clear that the High Court judge was satisfied that there was sufficient evidence from which the jury might conclude that the Press Release had received widespread distribution by being published in the three newspapers referred to by Mr. Carvill in his evidence. I would also infer from his charge that he must have been satisfied that the evidence concerning the defamation, insofar as it focused on factual information not contained in the Press Release, such as the fact that Mr. Kinsella was not wearing pyjamas, was such that the jury might reasonably conclude that the sting of what was published in the newspapers was not inconsistent with the sting of the Press Release, although he gave the jury no guidance in this regard. The trial judge would appear to have found favour with the legal argument advanced on behalf of Mr. Kinsella that, having given the Press Release to the business desks of the newspapers, the appellants should not be permitted to hide behind the fact that additional information had been published by the newspapers for the purposes of seeking to avoid compensating Mr. Kinsella for the additional hurt and embarrassment he experienced by reason of what had been published by the newspapers. Thus he left it open to the jury to decide as a matter of probability whether the Press Release was likely republished in the articles that appeared the following day. It is, of course, important to remember that in circumstances where the jury did not get to see any of those articles, it could not have been influenced by any other more damaging or salacious material that they may have contained. All the jury was aware of was the content of the Press Release and what was said by Mr. Kinsella and Mr. Carvill concerning what was later published.
196. In my view, it is beyond doubt, having regard to the charge of the trial judge and the size of the award made, that the jury must have accepted that the content of the Press Release was likely published in the Irish Independent, Irish Times and Irish Examiner on the 11th July 2007. It follows that it was the extent of that publication that the jury was entitled to consider when making its award. It was nonetheless confined to assessing damages on the basis that what was republished was no more damaging than what was to be inferred from the Press Release itself. The jury was not, for example, entitled to award Mr. Kinsella damages on the assumption that the newspaper articles had included significantly more serious or salacious allegations of sexual misconduct or that the articles were given any particular prominence in the newspapers.
197. Relevant also to a consideration of whether or not the damages awarded to Mr. Kinsella were proportionate is the fact that the extent of the publication in this case was nothing remotely as intense as that which occurred in Leech where the plaintiff had been subjected to a repetitive daily assault to her reputation. Neither was there any evidence that Mr. Kinsella had been the victim of any salacious headlines or photographs destined to attract the attention of the reader. In this regard it is worth recalling what McKechnie J. stated concerning the nature and extent of the publication at para. 88 of his judgment in Leech:-
“if such allegations had been confined to a single publication, then matters may not have been as confrontational for the plaintiff as they turned out to be. Unfortunately, however, no doubt by way of a strategic policy decision, deliberately and tactically executed, the defendant in a cold and calculating manner decided to attack the reputation of the plaintiff, and did so in a targeted and sequential way; all inevitably resulting in a crescendo which occurred when public scorn and contempt was at its highest.”
198. All of that is not to seek to diminish or minimise the serious consequences for Mr. Kinsella of the fact that the sting of the Press Release found its way into articles published by three national newspapers on the 11th July 2007. As was clear from Mr. Kinsella’s evidence, the sexual impropriety attributed to him by the Press Release as later republished had a significant adverse effect on his reputation and standing in his personal, social and professional life.
Conduct of the Defendant
199. In many libel actions a defendant will seek to defend a claim for defamation by relying upon a plea of justification. Where the trial proceeds on that basis, the plaintiff who succeeds in his or her action will probably have been caused much additional and unnecessary hurt and upset by reason of that approach, apart altogether from the fact that they are also likely to have received further adverse publicity. In addition, their cross-examination will likely have been more gruelling and distressing than would have been the case had the action been defended on some alternative basis. However, the appellants did not take such an approach in the present case. They defended the proceedings on the basis that the Press Release was not capable of bearing the meanings which had been attributed to it by Mr. Kinsella and, in the alternative, on the basis that if the meanings alleged were established, the publication had taken place on an occasion of qualified privilege. It follows that the conduct of the appellants in the manner in which they defended the proceedings was not, in my view, particularly relevant to the assessment of damages to be made by the jury. By way of contrast, in Leech the newspaper defended the proceedings on the basis of a plea of justification and fair comment and an apology was only provided following the award of the jury in the sum of €1.872 million. Relevant also to the defendant’s conduct when it came to the assessment of damages in that case was the fact that the newspaper had cropped and manipulated certain photographs to lend force to the implication that Ms. Leech had been awarded government contracts by virtue of the fact that she was having an affair with a Government Minister.
200. In relation to the conduct of the appellants, I accept the submission made on behalf of Mr. Kinsella that the jury was entitled to take into account its finding to the effect that they had intended to embarrass Mr. Kinsella by sending the Press Release to the newspapers. However, that is not a factor which in my view should have warranted any significant augmentation of the damages which might otherwise have been awarded. I say this because that conduct did not lead to any additional damage to Mr. Kinsella’s reputation as would have been the case had the appellants sought to defend the proceedings based upon a plea of justification. As already stated, the purpose of damages in defamation proceedings, leaving aside aggravated and/or exemplary damages, is to compensate for the injury sustained and vindicate a person’s reputation. To this extent, whether the appellants did or did not intend to cause Mr. Kinsella damage by publishing the Press Release did not impact upon the injury sustained or further damage his reputation.
Conduct of the plaintiff
The relevance of Mr. Kinsella’s involvement in allegedly precipitating publication of the Press Release to the media.
201. The heading to that section of Kenmare’s written submissions which commences at para. 115 reads as follows: —
“The plaintiff’s own admitted role in precipitating the press release was such that he ought not have been entitled to any damages”.
202. This, as far as I am aware, is the only time that Kenmare ever asserted that Mr. Kinsella’s conduct predating the press release could, as a matter of law, disentitle him to an award of damages in the event of the jury finding that he had been defamed. Whilst in the course of his address to the jury, senior counsel for Kenmare placed great emphasis on Mr. Kinsella’s conduct over the week which preceded the publication, highlighting the threats conveyed to Kenmare in correspondence and his use of Mr. Kierans to intimidate Ms. Corcoran so that she might withdraw her insistence that he resign as Chairman of the Audit Committee, at no stage did he suggest to the jury that such conduct would warrant it making no award of damages if it found the press release to be defamatory. Neither did Kenmare requisition the trial judge to advise the jury that such was its entitlement. Furthermore, no legal authority has been provided to support Kenmare’s assertion that Mr. Kinsella be entitled to a nil award of damages by reason of his conduct and neither is such a claim the subject matter of any of the multitudinous grounds of appeal in its Notice of Appeal. Accordingly, I do not propose to consider this submission further.
203. A somewhat different argument was made by Kenmare at para. 115 of its written submissions. There it was contended that:-
“the jury’s award of damages (both compensatory and aggravated) totally failed to have any regard to the Plaintiff’s own role in precipitating the sequence of events which led to the defamation of which he complains.”
It was argued on behalf of Kenmare that Mr. Kinsella had incited, provoked and precipitated the Press Release with the result that if he was entitled to any damages the award should have been “contemptuous” in nature.
204. On behalf of Mr. Kinsella it was argued that there was ample evidence to justify the jury’s rejection of Kenmare’s submission. In cross-examination Mr. Kinsella had stated that he did not want publicity and that he had called Mr. Kierans, who was a personal friend, and had requested him to contact Ms. Corcoran with the aim of keeping matters out of the public domain. Counsel for Mr. Kinsella further relied upon the fact that the “central thesis” of the closing speech of counsel for Kenmare was that Mr. Kinsella had been involved in a “dishonest scheme of orchestrating Mr. Kierans’ involvement” and that he had been the author of his own misfortune. However, it was clear from the award made by the jury that they had rejected these submissions and had found favour with Mr. Kinsella’s evidence.
205. As was noted by O’Donnell J. in McDonagh:-
“A jury’s decision is necessarily opaque. The decision is delivered, and not the reasons for it. It cannot be interrogated for justifications, and may indeed be arrived at by a process of compromise”.
Whilst that is undoubtedly an important observation in the context of jury actions in general, the degree of opacity of any particular decision made by a jury will depend upon the circumstances or issue under consideration in any individual case. It is true that in the present case this Court has nothing from the jury to explain the factors or evidence which it took into account when it assessed the damages to which it considered Mr. Kinsella entitled. Nonetheless, it would be perverse, from the unprecedented size of the award, to draw any inference other than that the jury rejected in no uncertain terms the submission advanced on behalf of Kenmare that Mr. Kinsella had been the author of his own misfortune in inciting, provoking or otherwise precipitating the press release. There is no opacity at play here. The only question that needs to be answered is whether there was credible evidence upon which the jury was entitled to so conclude.
Burden of proof in overturning the findings of a jury on a question of fact
206. In McEntee v Quinnsworth Ltd. (Unreported, Supreme Court, 7th December 1993) Finlay C.J. stated at pp. 20-21 of the judgment: –
“Having regard to the principles enunciated in the cases of Dunne (an infant) v. The National Maternity Hospital and Hay and O’Grady, it seems quite clear to me that once a jury were satisfied of the honesty and integrity as witnesses of the two Plaintiffs in this case they were well entitled on their evidence to accept that they had not been guilty of theft. In so doing the fact that they were rejecting the evidence of Mr. Kelly, the store security man and of the other security man who though submitted as an independent witness was in fact under contract to the Defendants and in instances other than the direct evidence concerning theft possibly preferring the evidence of the Plaintiffs to some of the evidence of the members of the Garda Síochána who were later called to the scene does not in any way invalidate their verdict.”
207. The judgment continued:
“This principle that the appellate court should not overturn a decision on fact made either by a judge sitting without a jury or by a jury who have seen and heard the witnesses is no mere procedural limitation on our appellate function. It is fundamental and the precise issues with regard to which it is raised in this case illuminate its importance as a fundamental principle of justice. If the submission made by the Defendants on this part of their appeal were to be accepted by this court then in effect what this court would have done would have been in the case of two persons in respect of whom a jury were satisfied that it had not been proved they were guilty of theft to condemn them as thieves with all the consequential damage to their reputation never having heard or seen either of them giving evidence.”
208. Finlay C.J., in considering a submission that the verdict of the jury was perverse, having cited Dunne (an infant) v. The National Maternity Hospital [1989] I.R. at p. 108 with approval, proceeded to state:-
“Insofar as the judgments of the former Supreme Court in McGreene v. Hibernian Taxi Company [1931] I.R. 319 can be interpreted as meaning that in Ireland the appellate jurisdiction of the Supreme Court from the High Court includes a jurisdiction to set aside a jury’s finding of fact on the grounds that it was against a predominant weight of evidence even though it could not be said to be a finding which a reasonable jury could not make, I must decline to follow it. The sole test in my view is whether in accordance with the principles I have outlined the learned trial judge was correct in law in leaving the challenged issue of fact to the jury.”
209. Perhaps the most often cited authority on this issue is the judgment of McCarthy J. in Hay v. O’Grady [1992] I.L.R.M. 689, where at p. 694 he stated as follows:-
“If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.”
210. In the present case, regardless of the view that any member of this Court might have concerning Mr. Kinsella’s reprehensible conduct in engaging Mr. Kierans with a view to intimidating or embarrassing Ms. Corcoran into withdrawing her demand that he stand down as Chairman of the Audit Committee, there was ample evidence upon which the jury was entitled to rely in order to reject the submissions advanced on behalf of Kenmare that he had incited, provoked or precipitated the Press Release.
211. The jury had Mr. Kinsella’s own evidence that he had contacted Mr. Kierans in the hope and expectation of being able to keep the Mozambique incident out of the public arena. It was open to the jury, as arbiters of fact, having been afforded the opportunity to observe his demeanour, to satisfy themselves as to his honesty and integrity and to draw their own conclusions as to his likely state of mind when he approached Mr. Kierans.
212. There was other evidence too that, notwithstanding his exoneration by the independent inquiry, Kenmare was more than willing to avail of the incident as a mechanism to facilitate an ulterior objective on its part to undermine Mr. Kinsella’s position within the company or otherwise secure his expedited exit from the company. In particular, the evidence of Mr. Finbar Cahill, which inter alia questioned the bona fides of Kenmare and his clearly expressed perception of a lack of meaningful or constructive engagement in his attempts to amicably resolve matters between the parties, was available to the jury and appeared in many material respects to be supportive of contentions advance by Mr. Kinsella both in his direct evidence and in cross-examination. Furthermore, the fact that the jury found that Kenmare had published the Press Release with the intention of embarrassing Mr. Kinsella also serves to demonstrate that the jury did not favour the evidence or submissions of Kenmare that Mr. Kinsella’s conduct had provoked or precipitated the press release. These are but indicative examples of the extensive evidence which the jury had before it to weigh in the balance in arriving at its determination on the crucial factual disputes.
213. Accordingly, I am entirely satisfied that the issue as to whether Mr. Kinsella was the author of his own misfortune, as was contended for by Kenmare at the trial and in its closing address to the jury, was a question of fact which fell exclusively within the domain of the jury for its determination. The necessary inference from the size of the award of damages made is that the jury rejected that proposition and in my view there was credible evidence to support that conclusion. Accordingly, Mr. Kinsella’s conduct was not a factor which had to the reflected in the award of damages made.
Discussion and decision as to whether the award of €9m by way of compensatory damages should be set aside
214. Having regard to the guidance provided by the Supreme Court in the authorities earlier referred to as to how an appellate court should assess whether or not an award of damages made by a jury in defamation proceedings should be considered proportionate to the injury sustained, I am fully satisfied that the award of €9m in respect of compensatory damages awarded in this case must be set aside.
215. First, the award made in favour of Mr. Kinsella is approximately seven times greater than any previous award of damages made or upheld by the Supreme Court in a defamation action, with Leech being the highest at €1.25m. As already stated on many earlier occasions in this judgment, no reasonable jury or court could consider the defamation in this case to be more serious than that in Leech, not to mention more serious to the point that Mr. Kinsella could reasonably have been awarded a multiple of the damages awarded in Leech, which included a significant sum for financial loss. Consequently, the award must be considered disproportionate to the injury sustained and for that reason alone should be set aside.
216. Second, the award of €9m represents approximately fifteen times more than might be awarded to a child born with a condition such as cerebral palsy as a result of negligence at the time of their birth, or to a young person rendered quadriplegic as a result of some other type of tortious behaviour. I would here observe that those most badly affected by cerebral palsy invariably suffer from spasticity and are wheelchair bound for life apart from the fact that they need to be fed, toileted and hoisted from one piece of equipment to another on a daily basis. Many are destined to experience significant ongoing pain and most require ongoing medication and medical intervention just to survive.
217. Most plaintiffs who suffer the severest of injuries, such as those to whom I have just referred as well as those who are rendered paraplegic or quadriplegic, will be denied, amongst so many other things which people unaffected by significant injury take for granted, their dignity, the right to work and the joys of intimacy, marriage and children. Most who have preserved brain function live fearful of what may happen to them when their parents or loved ones die and/or the money awarded to them by way of compensation runs out.
218. The fact that these gravely injured plaintiffs often obtain additional large awards in respect of the cost of future care, housing or other heads of financial loss is, in my view, irrelevant to the value of using awards of general damages in catastrophic injury cases as a helpful comparator when considering, amongst the other factors already mentioned, whether the damages awarded to a plaintiff by a jury in a defamation action were proportionate. Those additional sums are awarded on the basis that they will be invested and drawn down on an annual basis to meet the plaintiff’s ongoing care, medical expenses and other needs and in all brain damage cases remain under the control of the Offices of the Wards of Court. They are not monies available to be used by the plaintiff in the same way as they might enjoy sums awarded as general damages for pain and suffering.
219. I recognise that the purpose of an award of general damages in a personal injury action is different from that of an award of damages in a defamation action, particularly by reason of the fact that the latter type of award is one which must not only compensate the plaintiff for the injury caused but must also vindicate their good name. Nonetheless, as I have earlier stated, and particularly where the appellate court is charged with safeguarding against disproportionately large awards, as was urged by the ECtHR in Independent Newspapers (Ireland) Ltd v. Ireland, I am satisfied that the awards of general damages made in the most severe personal injuries cases provide a good moral compass to guide a jury or an appellate court towards the making of a proportionate and fair award in a defamation claim. Taking guidance from that moral compass, and without any intended disrespect to Mr. Kinsella for the hurt and upset which he undoubtedly suffered as a result of the appellant’s wrongful conduct, the award in the present case was, in my view, perverse and divorced from reality. I am entirely satisfied that no jury could reasonably have come to the conclusion that an award of the magnitude of €9m was necessary to compensate Mr. Kinsella for his hurt and upset and to re-establish his reputation.
220. I ask myself how I might explain to a young person rendered quadriplegic as a result of the negligence of a third party, and who as a result had received an award of general damages of €500,000 to compensate them for the lifetime of pain, suffering and loss that they would endure, that Mr. Kinsella, a man who had lived a full and happy life until he was 64 years of age, could justly and fairly receive a sum of €9m as compensation for the hurt and upset he experienced as a result of the fact that it was widely published about him that he had made an inappropriate sexual advance to a female colleague and in order that he might vindicate his good name. Apprised of Mr. Kinsella’s personal circumstances, they would, I am sure, reflect upon the fact that notwithstanding what was published about him, he continued to enjoy a happy marriage, the support of his children, friends and colleagues, was able to participate in all of his much-valued sporting and leisure activities and, with the exception of the occasional upsetting incident, continued to enjoy the very full and rewarding life that he had lived prior to that publication.
221. Third, without seeking to diminish the seriousness of the defamation in the present case, the allegation made against Mr Kinsella, when considered on a spectrum of potential allegations concerning sexual conduct, was not remotely close to the top of the scale of inappropriate sexual allegations that could have been made, as is clearly demonstrated when contrasted with the wholly false allegation of rape made in the Garfoot case. It follows as a matter of logic that if the award of €9m awarded in the present case were to stand, in order for awards to be proportionate inter se, a person wrongly accused of rape would likely have to receive an award in excess of €20m or thereabouts. The logical consequence of finding that the award of €9m was proportionate would be that awards in excess of €10m might become an unexceptional feature of defamation proceedings in this country, at least in cases of serious defamation. Apart from the fact that such awards would likely have a chilling effect on freedom of expression, particularly insofar as the news media is concerned, I am satisfied that such awards would also be offensive to public opinion particularly, as O’Donnell J. observed in McDonagh, if one considers awards of that magnitude in the context of what ordinary members of society can expect to earn over a lifetime or what might be purchased with a sum of that size.
222. Fourth, the gravity of the libel and the effect it had on Mr. Kinsella was of a significantly lesser magnitude than in Leech, de Rossa and O’Brien. Accordingly, having regard to the fact that the award made to Mr. Kinsella was several multiples greater than any of the awards made in the aforementioned cases, regardless of the sanctity of the role of the jury in defamation proceedings, the award must be set aside as disproportionate to the injury sustained and his entitlement to have his good name vindicated. It is to state the obvious that whilst Ms. Leech, like Mr. Kinsella, was relatively unknown at the time she was libelled, by the end of the two-week period during which the newspaper had published eleven articles in which she was defamed, she had become “notorious”. The extent of that notoriety is evidenced by the fact that she had become the subject matter of questions raised in the Dáil. So, whilst the libel perpetrated against Mr. Kinsella undoubtedly caused him ongoing upset and distress the effect that it had on his reputation was nothing close to that which was visited upon Ms. Leech.
223. Fifth, whilst the jury clearly accepted that newspaper articles containing a similar sting to that of the Press Release had been published to readers of Irish newspapers all over the world, Mr. Kinsella was not a well-known public figure. In this respect the extent of the publication was far less damaging than would have been the case in O’Brien and de Rossa where the plaintiffs were both well-known internationally. For this reason, it is also difficult to see how a jury or this Court could conclude that Mr. Kinsella experienced much by way of additional injury or hurt by reason of the fact that the relevant articles may have been published all over the world. If he was not known by sight or by name to those who read the newspaper articles overseas, it is difficult to understand how he suffered much by way of additional injury due to that aspect of the publication or how he was or might in the future be subjected to any ridicule or contempt by those readers.
224. Sixth, awards of damages in defamation proceedings must be fair to the parties and in this respect it is to be remembered that the second named appellant in the within proceedings is a natural person and is jointly and severally liable for the award made in this claim. As was stated by O’Flaherty J. in Dawson v. Irish Brokers Association (Unreported, Supreme Court, 27th February 1997), “[t]he defendants in defamation cases should never be regarded as the custodians of bottomless wells which are incapable of ever running dry”. An award of €9m would appear to fall foul of this guidance. It was an award of a magnitude which on any run of the evidence was wholly unfair to the defendants and one which provided Mr. Kinsella with an unjustifiable windfall.
225. Finally, it is clear from the judgment of the ECtHR in Independent Newspapers (Ireland) Ltd) v. Ireland that the appellate court has a role in safeguarding against disproportionately large awards of damages in defamation actions and that it is obliged to scrutinise carefully awards which appear “unpredictably high”. The award made by the jury in this case clearly falls into that category. For completeness I would here note that the ECtHR considered that the award of €1.25m made by the Supreme Court in Leech constituted a restriction on the newspaper’s right to freedom of expression as protected under Article 10 of the Convention, the extremely grave nature of the libel and the reprehensible conduct of the newspaper notwithstanding. However, the fact that these proceedings are not brought against a newspaper, does not, in my view, weaken the importance of the guidance provided by the ECtHR. It is to be remembered that most libel actions which are not brought against newspapers are brought against individuals or corporate entities who will not be insured in respect of any award of damages made in such proceedings and disproportionately large awards may have catastrophic consequences for those defendants. Having regard to all of the aforementioned factors the award of €9m by way of compensatory damages clearly must be set aside on the basis that no reasonable jury could have considered an award of that magnitude necessary to compensate Mr. Kinsella for the injury which he sustained and in order that he might re-establish his reputation.
226. I pause here momentarily to say that I regret having to describe the jury in this case, or indeed the jury in any other defamation case, as “unreasonable” and their decision “perverse”. This is because the jury, like all juries in defamation proceedings which predate the 2009 Act, was asked to assess damages with little or no guidance as to how it should carry out that task. Jury members are not lawyers. They know nothing of the law of damages or the levels of awards that have been approved of by appellate courts in other defamation actions. Their unpreparedness for the task of assessing damages is to be contrasted with the knowledgeable preparedness of the members of the appellate court who will later sit to adjudicate on the reasonableness of their decision. When doing so the members of the court will, of course, call upon their own legal training and their familiarity with the law of damages. More importantly they will get to make their decision guided by the knowledge of all past awards of damages earlier approved of in defamation proceedings, as well as the prevailing level of damages in personal injury actions. Further, judgments made in a collegiate setting naturally benefit greatly from the pooled knowledge and expertise of the individual members of the court. Much harder is the role of the jury who, although charged with achieving the same end, namely the making of a fair and just award of damages, are expected to do so absent legal training or any of the tools made available to the professionals. So whilst the award of the jury in this case must be considered “unreasonable” and “perverse”, I use those words in a technical sense because it is those words that are used in the relevant case law. They are not intended to reflect any moral judgment on the members of the jury.
Discussion and decision as to whether the award of €1m in respect of aggravated damages should be set aside
227. In his closing address to the jury, counsel for Mr. Kinsella asked the jury to consider making an award of aggravated damages to his client. He did so based upon the manner in which Mr. Kinsella had been challenged concerning one particular aspect of his evidence.
228. Mr. Kinsella’s evidence was that on the day after the night upon which he had been found sleepwalking by Mr. Carvill, he had travelled in a jeep with Ms. Corcoran as far as the gate of the premises where they had been staying. According to Mr. Kinsella, in the course of that short drive Ms. Corcoran had stated “Donal Kinsella, you are a very lucky man. If I did not wait for you, you would have been left behind by your friends”. According to Mr. Kinsella, Ms. Corcoran had been both “courteous” and “nice” and from their engagement he was absolutely satisfied that she could not have been upset or offended by anything that had occurred the previous night.
229. In the course of cross-examination, it was put to Mr. Kinsella by counsel on behalf of the appellants that no such conversation had taken place in the jeep, that Mr. Kinsella’s evidence in this regard was “a complete fabrication” and that Ms. Corcoran would give evidence that the conversation described by Mr. Kinsella had never taken place.
230. It is undoubtedly the case that Mr. Kinsella was annoyed and upset by the suggestion that his evidence in relation to the aforementioned conversation was a fabrication, as is clear from the following exchange: —
“Q. I have to suggest to you that this is a complete fabrication, Mr. Kinsella.
A. Well, then you are suggesting wrong. I can’t let you away with that, Mr. Shipsey. You are not to say that’s a fabrication. That’s not a lie. That is the absolute truth.”
231. It is common case that Ms. Corcoran was not called as a witness, as had been promised, with the result that no evidence was advanced to challenge that which had been given by Mr. Kinsella concerning the conversation.
232. When the trial judge came to charge the jury he referred to the manner in which Mr. Kinsella’s evidence concerning his conversation with Ms. Corcoran had been challenged. He also referred to the fact that the appellants had not, as they had promised to do, called any evidence to back up the challenge made to Mr. Kinsella that his evidence was a fabrication. The trial judge told the jury that if they considered it appropriate to “top up” the general damages they could do so in order to express their disapproval of what he described as “the aggravated insult to Mr. Kinsella”. Regarding the level of those damages, the High Court judge told the jury that they should be less than the amount awarded in respect of the defamation itself.
233. Regrettably, it is a feature of an adversarial system of litigation that counsel for one party will invariably be given instructions to challenge the evidence given by the other party as to the truth of their evidence. In almost every case each party will maintain that some aspect of their opponent’s evidence is untrue. The plaintiff will say that “A” happened and the defendant will say that “B” happened. In order for the defendant to contend that “B” happened it must be put to the plaintiff’s witnesses that their evidence to the effect that “A” happened was untrue. After all, there would likely be no litigation if the parties were agreed as to the relevant facts and circumstances. Accordingly, it might be said that in every case where counsel challenges the truth or accuracy of a witness’s evidence-in-chief they could be stated to be accusing that witness of committing perjury or a criminal offence. It is upon this type of questioning, albeit accompanied by the use of strong language, that Mr. Kinsella relies to support his entitlement to an award of aggravated damages and to stand over the size of that award.
234. It is true that what happened in the present case was perhaps somewhat more serious than the process described in the last preceding paragraph insofar as, having challenged Mr. Kinsella’s evidence as a fabrication, the appellants did not, as they maintained they would, call Ms. Corcoran to counter his evidence. While that is indeed regrettable and should not have occurred, in my experience that type of conduct on the part of a litigant and/or their counsel has never been treated as sufficiently high-handed or malevolent to warrant an additional award of aggravated damages. In the vast majority of cases when counsel challenges the evidence of a witness by stating that their evidence will be contradicted by some other named witness, counsel has every intention of calling that witness to give evidence. However, very occasionally, and usually for reasons that were not to be anticipated when the challenge was made, it becomes clear that there is no longer any good reason why the named witness should be called. While the failure to call the witness promised by counsel on cross-examination may result in a reprimand from the trial judge, if complained of by the opposing party, I know of no case in which such an approach has, of itself , ever led to an award of aggravated damages.
235. In my view, the questioning of Mr. Kinsella regarding the aforementioned conversation and the failure of the appellants to call Ms. Corcoran to challenge his evidence provided no reasonable basis for an award of aggravated damages and the trial judge should have directed the jury to that effect. The situation might have been different had the questioning upon which Mr. Kinsella relied as objectionable been part of an overly prolonged or hostile cross-examination.
236. In coming to my conclusion in relation to the award made in respect of aggravated damages, I also have to the forefront of my mind the fact that the purpose of an award of aggravated damages is to compensate a plaintiff for some additional injury perpetrated beyond the libel the subject matter of the proceedings. In this context, whilst Mr. Kinsella was clearly upset about the fact that he had been accused of fabricating the conversation between himself and Ms. Corcoran, the additional upset caused by that challenge could not have inflicted upon him an injury of the type or magnitude that would have warranted the award of an additional sum by way of aggravated damages. There are few witnesses who leave a witness box unchallenged as to the truth of their evidence or who do not feel somewhat bruised and upset as a result of the oftentimes hard-hitting consequences of an adversarial system of litigation.
237. Furthermore, even if there was a legal basis upon which an award of aggravated damages might have been made, the award would in any event have to be set aside because the sum awarded was disproportionate to the extent that it must be considered perverse and irrational. No reasonable jury could have concluded that an award of that magnitude was necessary to compensate Mr. Kinsella for any additional upset caused by the questioning earlier described. I would observe that the award of aggravated damages was almost as large as the highest ever award made in this State for defamation, i.e., the award made in Leech which, as already stated, was considered excessive by the ECtHR notwithstanding the gravity of the defamation and its ensuing consequences for Ms. Leech in terms of injury, loss and damage.
Remedy
238. It is not in dispute that, pursuant to the provisions of s. 96 of the Courts of Justice Act 1924 (as amended by s. 48 of the Courts (Supplemental Provisions) Act 1961), this Court, in lieu of ordering a new trial or sending the proceedings back for an assessment of damages, could substitute its own award of damages for that made by the jury. This jurisdiction was affirmed in Holohan v. Donohoe [1986] I.R. 45. Furthermore, the Court enjoys a similar jurisdiction at common law as is clear from decisions such as that of the English Court of Appeal in Skeate v. Slaters Ltd. [1914] 2 K.B. 429.
239. Nonetheless, there is good reason for an appellate court to be slow to usurp the role of a jury in assessing damages for defamation. In his judgment in Barrett v. Independent Newspapers Ltd. [1986] I.R. 13, Finlay C.J. stated at p. 19 that, although the assessment by a jury of damages was not sacrosanct, it certainly carried “a very unusual and emphatic sanctity”. As was observed by McKechnie J. in his dissenting judgment in Leech, the jury trial has been retained for defamation actions initiated in the High Court, whereas it has been abolished for many other forms of civil action, and this retention “must be considered deliberate and necessarily of value”. He maintained that in defamation proceedings, where a primary concern is the hurt and humiliation experienced by a plaintiff, the role of the jury in applying community standards to these experiences ought to be preserved, especially in circumstances where an appellate court was poorly placed to do same due to its inability to directly assess and evaluate the evidence of witnesses. For these reasons, it could be said that there should be strong and compelling reasons as to why an appellate court would substitute its own award.
240. In his judgment in McDonagh, O’Donnell J. described the discretion of an appellate court to either substitute its own award of damages or send the matter back for a retrial as a choice “between alternatives, neither of which is attractive”. In relation to the latter option he observed that:-
“[A] re-trial is not like the re-running of a science experiment with one variable element excluded. In such a situation all the elements present in the previous experiment can be introduced in precisely the same way, and none of them have, by definition any memory of the previous experiment. The same cannot be said of litigation. Some witnesses may not be available, others may become available, and those who were present in both cases will not be able to, and in most re-trials will not be permitted to, forget what occurred and was said in the previous trial. The events the subject matter of these proceedings occurred nearly twenty years ago. Inevitably the memories of all the witnesses will be poorer. There are also other problems which have no easy answer. What if anything is a jury to be told about the previous trial? This is a case which has attracted a high degree of publicity and commentary, and reference to a previous trial might well trigger memories of the award in this case, or prompt research on the part of the jury… Put at its lowest, no one can suggest that a trial of twenty years remove from the events described and the publication complained of is a very satisfactory option.”
241. In that case, given the time which had elapsed and the costs which had accrued, O’Donnell J. concluded that the prospect of a re-trial, with the possibility of further appeals, was a “less satisfactory and less just solution”.
242. In her judgment in the same case Dunne J. reached a similar conclusion. Although conceding that the task of assessing damages in a defamation action at appellate level was a difficult one which should be undertaken “only in exceptional cases”, she too drew attention to the further expense and delay inherent in a re-trial, concluding that it was “undoubtedly in the interests of justice for the parties at this stage to bring an end to this lengthy litigation.”
243. Dunne J. had, in the earlier case of Leech, adopted the same approach of substituting an award of damages, again in reliance on the time elapsed since the material events, which in that case had been 10 years. There can be no doubt that similar concerns present themselves in the instant case, in which over 11 years have passed since the events in Mozambique and the ensuing press release. I am inclined to agree with the comment of O’Donnell J. in McDonagh that there is a “strong incentive towards bringing finality to litigation”, as well that of Fennelly J. in Ryanair v Aer Rianta [2003] 4 I.R. 264, which was quoted with approval by O’Donnell J.:-
“The public interest in the proper administration of justice is not confined to the relentless search for perfect truth. The just and proper conduct of litigation also encompasses the object of expedition and economy”.
244. Finally, it is perhaps the case that the rather unusual events subsequent to the decision of the Supreme Court in O’Brien should give cause for caution where the ordering of a re-trial is concerned, particularly as the hearing will not benefit from the increased guidance to jurors that is now available by reason of the provisions of the 2009 Act. As already observed, in that case, the Supreme Court ordered that a jury award of €250,000 be set aside as excessive having regard to the injury suffered by the plaintiff. However, upon a re-trial on the issue of damages, the jury decided to favour Mr. O’Brien with an award of €750,000, an occurrence that hardly speaks well of the legal process governing defamation proceedings prior to 2009. There is, of course, also the possibility that Mr. Kinsella may be dissatisfied by any award of damages made by a new jury and may wish to appeal that award.
245. What can safely be stated is that it is far from probable that both parties will consider whatever award may be made by a new jury to be proportionate having regard to the circumstances, with the result that yet further legal costs and delay will follow.
246. As matters stand, almost twelve years have now elapsed since the events the subject matter of these proceedings. If the proceedings are remitted to the High Court, that will probably add a further six months to the life of the proceedings, even if they are remitted for an assessment of damages only. If there was to be an appeal that could stimulate a further delay of somewhere between two and three years. In other words, the likely consequence of remitting the proceedings to the High Court would mean that the action might not conclude until 2022, a scenario which it is hard to justify regardless of what is described as the sanctity of the award of a jury in defamation actions. In such circumstances both parties would be exposed to differing risks depending on the approach taken by the parties to those proceedings and the orders ultimately made.
247. For the above reasons, which I consider to be strong and compelling, I would favour the approach adopted in Leech, where the court substituted its own figure for that which had been awarded by the jury. For completeness I would also observe that it appears that a similar course of action would have been preferred by a majority of the Supreme Court in McDonagh, had it not been for the fact that the appeal settled just before the court’s decision was actually delivered.
Reassessment of damages
248. As was stated by the ECtHR in Independent Newspapers, it is vital for an appellate court, where it chooses to reassess the damages to which a plaintiff is entitled as a result of defamation, to provide a clear explanation for the award made. I regret that in meeting this requirement I will now have to repeat some aspects of the evidence to which I have already referred.
249. I am also mindful of the concern expressed in the aforementioned judgment that in assessing the damages to which I consider Mr. Kinsella is entitled, I should not be influenced by the magnitude of the award made by the jury at first instance. However, I believe I must have regard to the size of the award for one purpose only, namely to guide me as to the likely findings of fact made by the jury. I am satisfied that one must approach my assessment on the basis that it is to be inferred from the enormity of the award that the jury likely accepted in full the sincerity of Mr. Kinsella’s evidence, the extent of his embarrassment and upset as a result of the libel, and that they also preferred his account of the disputed facts.
250. In reaching the conclusions which follow I have kept to the forefront of my mind the fact that the award must be sufficiently large to compensate Mr. Kinsella both for the injury and upset that flowed from the defamation and to vindicate the damage occasioned to his reputation.
251. Concerning the injury, i.e., the hurt and upset caused to Mr. Kinsella as a result of the defamation, it is clear from the evidence that he suffered much by way of upset and embarrassment, certainly in the short term. He described how the publication affected his relationship with his family, friends and work colleagues.
252. It would appear from Mr. Kinsella’s evidence that he coped relatively well with the jibes and jokes of friends and colleagues concerning what had been published about him. However, he was clearly upset about what he considered was likely being said about him behind his back, or by those people who, when he entered a room, he thought to be murmuring about him in an unsavoury way. Mr. Kinsella also recalled a number of unpleasant incidents when, by reason of the defamation, he had been “called out”, so to speak, as somebody who had been guilty of sexual impropriety with the result that he felt reluctant to express his opinion for fear of this type of wounding behaviour.
253. Mr. Kinsella also told the court of how, in the aftermath of the Press Release he felt that a virus of distrust had entered his home. He felt it necessary to send his wife and daughter away for a short holiday so that they could be protected from what might be said in the newspapers. His son had reacted angrily and with distrust to the Press Release albeit that his daughter, Ciara, was obviously convinced from the outset that he had done nothing wrong. Thankfully, there was no evidence to suggest that there was anything other than very short-term adverse consequences for his relationship with his wife.
254. In terms of the damage to Mr. Kinsella’s reputation, it is undoubtedly the case that to publish of a man that he made inappropriate sexual advances to a woman is very damaging indeed, even if it be the case that in terms of all of the possible allegations of sexual misconduct that might be made, it is not by any means the most serious one. It is nonetheless the type of allegation that is not easily forgotten and has the potential to lead to professional and social ostracization, not that there was any evidence of that having occurred in this case. However, only knowledge of the fact that Mr. Kinsella had received a relatively substantial award of damages would likely convince a member of the public aware of the defamation that what had been said about him was without any foundation. Relevant also is the fact that the publication in the instant case was extensive, even if, for the reasons earlier outlined, I think it is highly unlikely that the damage to Mr. Kinsella’s reputation was significantly increased because of what was published concerning the Press Release in other countries.
255. In coming to my view as to what I consider to be a just and fair award I have also factored into my consideration the awards made or upheld by the Supreme Court and this Court in recent defamation proceedings. In addition to the Supreme Court decisions in cases such as Barrett, de Rossa, Leech and McDonagh, it might be noted that in Speedie v. Sunday Newspapers Ltd. [2017] IECA 15 this Court rejected the argument that an award of €85,000 was inadequate to compensate the plaintiff in respect of a defamatory article which had alleged that he assorted with known criminals.
256. In Christie v. TV3 Television Networks Ltd. [2017] IECA 128, the defamation consisted of a short nine-second clip of television footage which mistakenly showed the solicitor for the defendant in a serious criminal trial rather than (as had been intended) the accused himself. In the High Court, the trial judge (who for this purpose sat without a jury) assessed the starting point of damages as €200,000. Hogan J. held that this starting figure was too high, saying:
“…None of this is to say that it was not a serious defamation, because it was. As I have already observed, the potential for confusion, distress and embarrassment was considerable and should not be minimised. It is rather to say that it was not a defamation of such a character as would merit a starting point in the region of €200,000 in terms of the assessment of damages. If that were indeed the starting point in a case of this kind, then, adapting the language of Henchy J. in Barrett, the damages in respect of a deliberate, calculated accusation of serious wrongdoing by the plaintiff in which he had been mentioned by name would be ‘astronomically high.’
For my part, taking account all relevant factors – a once-off nine second broadcast, the fact that the plaintiff was not named, the very limited range of viewers who might think that the news item referred to Mr Christie, the absence of any animus towards the plaintiff, coupled with the fact that it was plainly a case of mistaken identity – I consider that these mitigate the otherwise very serious nature of the defamation. In the light of these factors, therefore, it is sufficient to state that this is not a defamation which would warrant a starting point in damages of €200,000 identified by the trial judge and that in these circumstances a starting point of €60,000 is appropriate and proportionate.”
257. While the defamation here is of a different character than that alleged in both Speedie and Christie, the allegation and its effects on the plaintiff are more serious than either of those two cases. This in itself is a strong indicator that any award now made by this Court should be significantly higher than the €85,000 figure in Speedie and the €60,000 starting figure in Christie.
258. I have also, albeit to a lesser extent, had regard to the levels of awards of general damages commonly made to those who have fallen victim to catastrophic injury, as I have to factors such as the average industrial wage, how many years it might take the average worker to earn the sum which I have decided upon and what might be purchased with a tax-free award of that size.
259. Having regard to all of the aforementioned factors I am satisfied that a just and fair award in all of the circumstances would be the figure of €250,000.
Conclusion/summary
(i) Kenmare has not established the existence of any circumstances which would justify this court interfering with the finding of the jury as to the meaning of the Press Release and its determination that it was defamatory of Mr. Kinsella. This Court, being an appellate court, respects the role of the jury in coming to the determination which it did, a determination that was open to it having regard to the evidence and the question posed for its consideration.
(ii) The Court is satisfied that there was no serious error in the manner in which de Valera J. charged the jury regarding the meaning of the Press Release.
(iii) The Court is satisfied that the High Court judge erred in law, on the facts of this case, in concluding that the publication of the Press Release took place on an occasion of qualified privilege.
(iv) The Court is also satisfied that the award of €9m compensatory damages in respect of the libel established by Mr. Kinsella must be set aside as disproportionate, unjust and unfair in circumstances where it is satisfied that no reasonable jury could have considered that an award of that magnitude was necessary to compensate him in respect of the injury which he sustained and in order that he might re-establish his reputation.
(v) The Court is further satisfied that the manner of Mr. Kinsella’s cross-examination did not justify the trial judge leaving open to the jury the possibility of an award of aggravated damages, and for that reason the award of €1M made in respect of aggravated damages must be set aside. Even if the issue of aggravated damages fell to be considered by the jury the award made would, in any event, have to be set aside as disproportionate, unjust and unfair in all of the circumstances. It was an award which no reasonable jury could have considered necessary to compensate Mr. Kinsella for any additional hurt or upset caused by the manner in which he was cross-examined concerning the conversation which he maintained he had had with Miss Corcoran while they were in a jeep in Moma, Mozambique.
(vi) It does not follow as a matter of law or principle that because the awards made by the jury in respect of general damages and aggravated damages were disproportionate, perverse and unfair that the court should set aside the findings of the jury in respect of any other issue.
(vii) For the reasons earlier stated in this judgment, of the two possible options open to this Court to remedy the wrong visited upon the appellants by the awards of damages made by the jury, the Court, for the reasons earlier stated, would favour reassessing the damages to be awarded to Mr. Kinsella rather than remitting the proceedings to the High Court for a rehearing on the damages issue.
(viii) The Court has considered in full the evidence advanced by Mr. Kinsella concerning the effect of the publication of the Press Release on all aspects of his life and recognises that any award of damages to be made in his favour must also be sufficient to vindicate his reputation. In coming to its conclusion the Court has, of course, had regard to all of the legal principles and other factors discussed earlier in this judgment and has taken into account the awards of damages approved of by appellate courts in other proceedings, particularly those in defamation proceedings. Thus the Court has concluded that an award of damages in the sum of €250,000 would be just and fair compensation for the wrong visited upon Mr. Kinsella as a result of the Press Release.
(ix) The Court will accordingly set aside all orders for damages made by the jury and will substitute in their stead an award of general damages in the sum of €250,000, for which the appellants, Kenmare and Mr. Carvill, will be jointly and severally liable.
Hill v. Cork Examiner Publications Ltd.
[2001] IESC 95 (14 November 2001)
Judgment of Mr Justice Francis D Murphy Delivered the 14th Day of November, 2001 [Nem Diss.]
___________________________________________________________________________
On the 17th day of November, 2000, Barr J ordered that Finbarr Hill, the above named Plaintiff/Respondent, (Mr Hill) should recover from the Cork Examiner Publications Limited, the above named Defendant/Appellant (the Examiner) the sum of £60,000 as damages for a defamatory article published by the Examiner of and concerning Mr Hill together with the costs of the proceedings. It is from that judgment award and order that the Examiner appeals to this Court.
The background to these proceedings is as follows. On the 5th day of July, 1994, Mr Hill pleaded guilty to a charge of occasioning actual bodily harm contrary to s.47 of the Offences Against the Person Act, 1861, on which he had been indicted, and on the 25th of July, 1994, it was ordered that he be imprisoned on that charge for the term of three years from the 6th day of July, 1994, subject to the provision that such sentence should be reviewed on the 11th January, 1996. Subsequent to his imprisonment the Examiner, with the permission of the relevant authorities, decided to publish an article on Cork jail where Mr Hill was imprisoned. A journalist and photographer in the employment of the Examiner visited the prison. The journalist obtained certain information and the photographer took a number of photographs including a photograph of the cell occupied by Mr Hill. It appears that the reason for photographing the particular cell was that it was kept in a clean condition by Mr Hill. It also contained a number of posters which might have been expected to give added interest to the publication. There is some dispute as to how it came about, but Mr Hill was undoubtedly photographed in his cell and that photograph was published in an article published in the Examiner newspaper on the 25th day of October, 1995, under the headline “Isolation of Cork Jail’s C Wing”. In the article it was stated that C Wing prisoners were child molesters, sexual offenders or incarcerated there for their own protection.
By plenary summons issued on the 17th day of December, 1995, Mr Hill instituted proceedings against the Examiner claiming damages for libel. It was contended in the statement of claim subsequently delivered that the article published by the Examiner and/or the juxtaposition of the accompanying photographs meant, and were understood to mean that the Plaintiff was a sexual offender; a child molester, rapist or otherwise that he was a person who was dissolute and of criminal character. In their defence the Examiner denied that the article bore or was understood to bear the meaning attributed to it by Mr Hill and furthermore the Examiner denied that the Plaintiff had been injured in his credit or his reputation. It was expressly asserted by the Examiner that Mr Hill was a man of worthless reputation having been convicted of a number of criminal offences. The matter was heard before Mr Justice Barr and a jury on the 15th and 16th of November, 2000. Mr Hill and his father, Denis in addition to four other witnesses were called on behalf of the Plaintiff. No witnesses were called on behalf of the defence. At the conclusion of the trial the following questions were put to the jury and answered by them as follows:-
“Question 1: Would a reasonable reader of the article complained of have been left with the impression that the Plaintiff was at the time of publication one of those incarcerated in that part of Cork prison which was at that time reserved for sexual offenders, child molesters and offenders segregated from the rest of the prison population in the interest of their own safety?
Answer: Yes.
Question 2: If the answer to question 1 is in the affirmative was the Plaintiff thereby libelled?
Answer: Yes.
Question 3: If the answer to question 2 is in the affirmative assess damages:
Answer: £60,000.”
From that award and the order made pursuant thereto the Examiner appeal to this Court by notice dated the 15th day of December, 2000, which set out seventeen grounds of appeal. However, Mr John Gordon, SC, on behalf of the Examiner condensed or grouped the grounds of appeal under four headings, namely:
“1 That the finding of the jury as to the impression which the article would have created on the reasonable reader was erroneous and contrary to the evidence adduced.
2 That the trial Judge erred by imposing an “excessive limitation” on the evidence that the Defendant was permitted to adduce in relation to the offence in respect of which the Plaintiff was serving a sentence at the time of publication of the article.
3 That the trial Judge misdirected the jury on a variety of issues but in particular in relation to:-
(a) the inferences which should be drawn from the article and the gravity of the implication that Mr Hill was a sexual offender and
(b) the absence of the Plaintiff’s consent to his being photographed in the cell or such photograph being used in the context of the proposed article.
4 That the award of a sum of £60,000 was perverse and contrary to the weight of evidence.”
Counsel on behalf of the Examiner drew attention to the fact that the article in question related to the prison as a whole: that it referred to a total population of 230 prisoners as distinct from the 14 sex offenders incarcerated in C Wing. Indeed the article referred to different categories of prisoners including those convicted of murder, manslaughter, drug offences and larceny as well as sex offences. Again, attention was drawn to the fact that three of the four photographs accompanying the article related to the persons or places not particularly connected with C Wing. On the other hand there was no doubt that the article was entitled “Isolation of Cork Jail’s C Wing” and that the subheading refers to “Cork Prison’s Prison Within a Prison”. Perhaps it would be correct to say that about one third of the article did focus on sex offenders and their situation in the prison. I am fully satisfied that the jury having considered the article as a whole were entitled to conclude that a reasonable reader of the article would have been left with the impression that the Plaintiff was at the time of the publication one of those incarcerated in that part of Cork prison which was reserved for sex offenders, child molesters and offenders segregated from the rest of the prison population in the interests of their own safety. I believe that that question was properly left to the jury and I am reinforced in that opinion by the fact that no application for a direction was made at the conclusion of the Plaintiff’s case.
By letter dated the 23rd day of October, 2000, Messrs Ronan Daly Jermyn, Solicitors on behalf of the Examiner, informed Messrs Fitzgerald & O’Leary, Solicitors on behalf of Mr Hill, of their intention to lead evidence of certain matters of which particulars were set out in that letter. Those particulars referred to three prosecutions, namely, the prosecution of Mr Hill by the DPP on the 31st of May, 1989; the prosecution of Mr Hill on the 7th of May, 1992; the prosecution of Mr Hill on the 17th of February, 1996, and, finally the prosecution of Mr Hill on the 5th of July, 1994, which resulted in his being sentenced to the term of imprisonment which he was serving at the date on which the article was published. In relation to the three earlier prosecutions Mr Hill was not sentenced to any term of imprisonment. The letter from Messrs Ronan Daly Jermyn aforesaid was in effect a notice under Order 36 Rule 36 of the Rules of the Superior Courts which, while permitting the Examiner to give such evidence in mitigation of damages, limited such evidence to that of which particulars had been furnished, save with the leave of the trial Judge.
As a result of that notice, a debate took place between Counsel and certain rulings were made by the learned trial Judge at the outset of the trial. Detailed discussion took place as to the nature of evidence as to the bad reputation of the plaintiff which might be tendered on behalf of a defendant in a libel action. It was accepted by both Counsel that the judgment of Cave J in Scott .v. Samson [1882] 8 QBD 491 correctly stated the law in relation to general evidence of bad reputation when he said:-
“Damage, however, which he (the plaintiff) has sustained must depend almost entirely on the estimation in which he was previously held. He complained of an injury to his reputation and seeks to recover damage for that injury; and it seems most material that the jury who have to award those damages should know, if the fact is so, that he is man of no reputation. To deny this would, as is observed in Starkie, evidence, be to decide that a man of the worst character is entitled to the same measure of damages with one of unsullied and unblemished reputation.”
The problem has always been to distinguish between evidence of general bad reputation and of specific conduct on which such reputation might be based. As Lord Denning pointed out in Plato Films Ltd .v. Speidel [1961] 1 AC 1090 (at 1138):-
“In order to arrive at a man’s character and reputation we should call those who know him and have had dealings with him: for they provide the only sound foundation on which to build … If it is evidence of good character, a witness of good standing is called, such as a clergy man, a school teacher, an employer and is asked such questions as these: “What are you? How long have you known him? Have you known him well? Have you had an opportunity of observing his conduct? What character has he borne during the time for honesty, morality or loyalty? (according to the nature of the case)”. “As far as you know, has he deserved that character?” …. If it is a witness of bad character which is given (such as that of a man who is a reputed thief or a woman is a common prostitute), the evidence often takes the form of a police officer who knows him being called and saying: “I know the defendant and have known him (or her) for some time he is a well known pickpocket” or “she is a common prostitute” or as the case may be.”
In general, specific acts of misconduct are not admissible as proof of general bad reputation. Perhaps the primary reason for that restriction is that the allowance of such evidence would lead to innumerable subsidiary trials of collateral issues concerning the reputation of the plaintiff. It is clear that evidence of specific previous convictions is an exception to the rule. One justification for that exception is the clarity and certainty with which a conviction can be established. In the course of his debate with Counsel the learned trial Judge summarised the position as follows:-
“He (the plaintiff) has an admitted bad reputation relating to the offence of which he was serving a sentence at the time. That is a serious crime which the jury will be told about but I do not think it would be proper to go into the minutiae of that particular crime. It would mean investigating the entire of it and it would be bringing the jury down a cul de sac which would not really in the end help them very much. At the end of the day they know he has been convicted of a serious crime, that is all they require to know. I will certainly exclude all attempts to investigate the details of that particular crime.”
When Counsel on behalf of the Examiner indicated his intention to put to the Plaintiff the publicity which the offence had attracted the learned trial Judge commented as follows:-
“You will be treading on delicate ground but the way you put it just now it seemed to me to be acceptable but you are treading on delicate ground there is the risk of having the jury discharged it maybe so it is only right to indicate that to you.”
The learned trial Judge went on to state expressly that the publicity attracted by the offence would have been well publicised in Cork and evidence of it would be unobjectionable. As the Judge said “widespread publicity is fair enough because that relates to his reputation”.
In my view those observations made, as they were, at the commencement of the case and not directed to any specific application to tender any particular evidence or to rule on any question put in cross-examination, are very helpful and entirely unobjectionable. Furthermore, the warning that a particular line of cross-examination might lead to the jury being discharged was not, in the context, a threat by the Judge but a fair reminder by him to Counsel of the delicate balance which the law requires to be preserved between giving evidence of general reputation and excluding the matters of specific misconduct (other than criminal convictions).
The Examiner did not in fact call any witnesses to give evidence of general bad reputation but did invite witnesses, and in particular Mr Denis Hill, to comment on his reaction to the conviction of the Plaintiff for causing actual bodily harm to a member of the Garda Síochána. Mr Hill Senior was not invited to comment on any particular newspaper reporting on his son’s conviction for that offence. It would seem to me that evidence of that nature would have been admissible and within the general ruling given by the trial Judge at the commencement of the trial.
On behalf of the Examiner it was contended that the form of the trial Judge’s charge to the jury tended to imply or assume that the article was defamatory of Mr Hill and, furthermore, by describing sex offences as “loathsome crimes” the Judge had usurped the function and role of the jury in determining whether the article was defamatory and, if so, the range of damages to be awarded by way of compensation.
This argument is based – as is so often the case of a challenge to a charge – on a restricted analysis of the charge itself and more particularly the context of the trial in which the charge is delivered. From the outset the entirety of the article was made available to the jury. It is proper to recall that the article was handed in to the jury and furthermore Counsel on behalf of the Plaintiff, in opening the case, was required by the defence to read the entire of the article to the jury. In my view there could be no doubt whatever but that the jury had an opportunity of seeing, reading and understanding the totality of the article and the accompanying photographs. It must also be recognised that the trial Judge in his charge emphasised more than once that all matters of fact were to be decided by the jury and not by the Judge. Finally – and in the circumstances of this case it is of particular importance- no requisition was made in respect of the charge in relation to any such complaint but only in regard to the particular issue as to whether the Plaintiff (Mr Hill) had consented to his photograph appearing in conjunction with the article.
In the course of his charge the learned trial Judge gave directions to the jury in relation to the matter in which the photograph was taken of Mr Hill in his cell and subsequently used in the offending article. Counsel on behalf of the Examiner made a requisition in relation to that aspect of the charge and sought (and obtained) the recall of the jury for further guidance in relation to it. In his direct evidence Mr Hill explained that he had made it clear that he did not want to be in any picture taken of the cell occupied by him and that it was in fact agreed by the Governor of the prison that he would not be in the picture. In cross-examination when Mr Hill repeated that he had not consented to the photograph being taken it was put to him that the photograph might reasonably create the impression that he was actually posing for the photograph. His account was challenged along those lines. No evidence was called on behalf of the Defendants to dispute the Plaintiff’s version and the evidence given by the prison Governor and Mr Maurice Healy, a prison officer, might be described as inconclusive. As the trial took place five years after the photograph had been taken, it is not surprising that the prison officers were vague in their recollection as to precisely what was said at the time when the photographs were taken. I am fully satisfied that there was nothing included in or omitted from the charge in relation to this aspect of the matter which could have unfairly affected the outcome of the trial.
As to damages: In some cases it is possible to make a reasonably accurate estimate of the damages sustained by a plaintiff as a result of the wrong doing of a defendant. Where a plaintiff is disabled as a result of the wrong doing with the result that it can be anticipated with reasonable confidence that he would be unable to return to work at all or at any rate to resume employment at a particular level of remuneration for a period which can be ascertained with reasonable confidence the loss so sustained can be determined on the basis of mathematical – perhaps crude mathematical – principles. On the other hand it is difficult, if not impossible, to find any nexus between the pain, embarrassment or disfigurement suffered by a plaintiff and the sum of money which would be appropriate to compensate him for any such consequences of a wrong doing. Judges in charging juries as to their responsibilities in determining damages or in performing the same task themselves can say or do little more than recall that damages are designed to compensate for the consequences of a wrong doing and not to punish the wrong doer. It will always be said – perhaps unhelpfully – that the sum awarded should be reasonable to the plaintiff and also reasonable to the defendant. In relation to the extent to which a trial judge could and should give guidance as to an appropriate measure of damages was considered by this Court in De Rossa .v. Independent Newspapers [1999] 4 IR 6 and again in O’Brien .v. MGN (unreported 25th October, 2000). Whilst other jurisdictions have accepted the concept of such guidelines that concept has been rejected in this jurisdiction. Apart from any other consideration there would appear to be insuperable difficulties for any judge to assemble the appropriate body of information on which to base such guidelines.
A special status attaches to an award for damages for defamation as determined by a jury. In Barrett .v. Independent Newspapers [1986] IR 13 the then Chief Justice pointed out (at page 19) that:-
“The assessment by a jury of damages in a defamation action had an unusual and emphatic sanctity and an appellate court should be slow to interfere with such an assessment. However, the discretion of the jury in the assessment of damages was not limitless and the damages awarded must be fair and reasonable having regard to all of the circumstances and must not be disproportionate to the injuries suffered by the plaintiff and a necessity to vindicate the plaintiff in the eyes of the public.”
In the present case the learned trial Judge did remind the jury that “the accused has a damaged character. He has pleaded guilty to a serious crime of violence in the course of an affray involving a number of people in which he has pleaded guilty to causing substantial personal injury to a member of An Garda Síochána. That is a serious offence”.
The learned Judge in his trial went on to say:-
“If you find, therefore, that he was libelled was the article then he is entitled to damages but not to the extent which would be justified if he had himself a blameless character.”
Indeed the learned trial Judge in the course of his charge emphasised that:-
“If you come to assess damages there is no doubt about it that this case is not one where large damages are merited.”
There was indeed one aspect of the charge on which both parties were agreed and on which the trial Judge inadvertently misdirected the jury. The learned Judge did refer to the career of the Plaintiff subsequent to his release from prison and the good reputation and good work record which he created in the subsequent years. As a matter of law that subsequent reputation was not directly relevant in ascertaining the damages caused by the defamatory article. To that extent the Examiner might have objected to the observations of the trial Judge. On the other hand the emphasis placed on the relatively prompt reinstatement of the Plaintiff’s good name was a factor which might have tended to reduce the amount of the damages awarded by the jury. Certainly neither party sought to raise any requisition on the charge of the learned trial Judge in respect of that matter.
At the end of the day this Court is left with the difficult task of determining whether an award of £60,000, for what was a fairly serious libel of a young man, albeit a young man with a somewhat flawed reputation, was disproportionate to the injury done to him in all of the circumstances of the case. One particular circumstance to which the Examiner draws attention is the fact that any imputation that the Plaintiff was or fell within the category of sex offenders or rapists was corrected by a notice or clarification published in the Examiner on the 21st of November, 1995. That clarification was not an apology and in the circumstances could not have been. Moreover, the Examiner emphasises that the clarification was published at the earliest practicable date: the delay in publication being due substantially to the failure of the Plaintiff for his legal advisors to co-operate in publishing such a notice at an earlier date.
There is no doubt that the sum of £60,000 awarded by the jury was a substantial sum. It may well be at the higher, or even the highest, of the figures in the range which would be appropriate to compensate a Plaintiff for the wrong doing which he has suffered. However I am not satisfied that the figure awarded is so disproportionate to the injury sustained by the Plaintiff (Respondent) that it can or should be set aside by this Court. Accordingly I would dismiss the appeal and affirm the order and judgment of the High Court.
Nolan v Sunday Newspapers Ltd (trading as Sunday World)
[2019] IECA 141 (15 May 2019)
JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 15th DAY OF MAY 2019
1. The plaintiff/respondent commenced these proceedings seeking an award of damages for defamation against the Sunday World newspaper because he considered that his good name and reputation had been seriously traduced in two separate editions of that newspaper on the 15th July 2012 and again on the 3rd March 2013. He also claimed damages in respect of breaches of his constitutional right to privacy.
2. The proceedings were determined in favour of the respondent, and by order dated 14th June 2017 (O’Connor J. sitting without a jury) he was awarded damages for defamation in the amount of €310,000, being €250,000 for general damages, €30,000 for aggravated damages, and €30,000 for punitive damages. The appellant appeals not only against the award of these damages, but also against the trial judge’s finding that the respondent was defamed by the said articles, and that his reputation had been damaged. The trial judge concluded that the right to privacy was not engaged.
3. The articles in question were salacious in nature, and were accompanied by photographs of the respondent attending what were described as sex parties or ‘swingers’ parties, and in the company of females who I will describe simply as being scantily clad. For the purpose of this appeal any further detail as to the nature of the parties themselves, the activities that may occur between consenting adults attending same, or the manner in which attendees shown in the accompanying photographs were clad, is unnecessary.
4. The articles in question not only described him as someone who attended such parties (which he does not deny – in fact the photographs would preclude any such denial), but also as an organiser of such parties. He denies that he was an organiser, and, indeed, the appellant does not seek to stand over that part of the story. In its defence the appellant did not plead truth as a defence under s. 16 of the Defamation Act, 2009 (“the 2009 Act”). Nor did it plead ‘honest opinion under s. 20, nor ‘fair and reasonable publication on a matter of public interest’ under s. 26 thereof. The defences relied upon were (a) that the words and photographs complained of, whether in their natural and ordinary meaning or by way of innuendo or otherwise, did not bear, nor were they understood to bear or capable of bearing the meanings ascribed to them by the respondent at para. 20 of his statement of claim or any defamatory meaning; and (b) that the articles and photographs were published on an occasion of privilege, namely that they were published in good faith as part of the appellant’s lawful and legitimate reporting on matters of public interest.
5. The meanings attributed by the respondent in his statement of claim at para. 20 thereof were the following:-
(i) The plaintiff is involved in the provision of sexual opportunities for financial gain;
(ii) the plaintiff helped organise swingers’ parties across Ireland;
(iii) the plaintiff has sought or permitted newspaper publicity in relation to his sex life;
(iv) the plaintiff allowed a newspaper to publish photographs of a private and intimate nature of him at private parties in intimate poses with partially clad women;
(v) the plaintiff’s occupation was organising sex parties across Ireland, and
(vi) that the plaintiff was involved in the sex trade.
6. While the appellant acknowledged during the trial of this action that it had incorrectly referred to the respondent as an organiser of such parties in these articles, rather than a mere attendee, it went on to argue that any damage to the respondent’s good name and reputation arose from his attendance at the parties, and not the erroneous reference to him as an organiser.
7. In relation to the defence of privilege, as particularised, namely that the articles constituted a fair and reasonable publication on a matter of public interest, the appellant relied on its belief that the respondent is “a public figure”. In that regard, reliance was placed upon the fact that (a) he was a well-known and prominent GAA footballer having represented Kildare in the 1992 Leinster football final against Dublin, (b) that his brother had been in the past Mayor of Kildare, (c) that he was a friend of a named prominent politician, and (d) that he had achieved notoriety in the media in 2002 when he was convicted of laundering money for a well-known criminal, which resulted in a suspended prison sentence and a fine of €25,000.
8. Prior to the publication of the first article on the 15th July 2012 a journalist employed by the appellant had called unannounced and without invitation to the respondent’s home in an effort to seek comments on the article that it was proposed would be published. Despite protest from him, and despite his urging the journalist that any publication would cause serious damage to his family relationships, including with his young children, the publication went ahead. I should add that by this time, the respondent was separated from his wife but enjoyed regular and consensual access with and shared custody of his children, then aged twelve and six respectively. He was fearful that those arrangements would be put in jeopardy by the proposed publication.
9. The second publication occurred on 3rd March 2013 without any prior warning, and the respondent considered that it compounded the damage caused by the earlier publication. It was only after the second publication that the respondent consulted his solicitor. Following the first publication the respondent had taken no action but he hoped that the newspaper would not repeat the publication.
10. As for the damage caused by these publications, the respondent pleaded the following in his statement of claim:-
(i) It caused the plaintiff’s wife, from whom he is separated, to question his suitability to have contact with his children, and to remove them from his care.
(ii) It caused the plaintiff’s wife to change the surnames under which his children were enrolled in school and by which they were referred so as to avoid association with him.
(iii) The plaintiff was shunned by his neighbours and ostracised by his friends and was the subject of public scorn and humiliation.
(iv) The plaintiff was forced to move house.
11. Part of the evidence adduced by the respondent in relation to reputational damage resulting from these articles was that at the time of publication he was a rugby coach with a well-known rugby club in Dublin. He ceased that role in the club following the second publication, and he terminated his membership.
12. At trial the respondent gave evidence and called just one witness, namely Tom Power who was a friend of his since about the year 2000. They had met through rugby, and met socially on a regular basis both before and after these publications. Mr Power gave evidence as to the negative effect the articles had had on the respondent, and on his social and work life generally, including that after the second article appeared the respondent had been very depressed and had spoken of “ending it all” – something that Mr Hogan dissuaded him from doing, and, instead, recommended that he would speak to his doctor.
13. Mr Hogan was cross-examined during which he was asked whether it would be fair to say that it was the revelation that the respondent attended swingers’ parties that put people off him. Mr Hogan did not think so, but rather that those friends thought that he was organising the parties. He said that he knew that some of the men in question had been told by their wives to keep away from him. But he was quite definite that it was the allegation that he was organising the parties that caused the problem, and not simply his attendance at them, although he had no doubt that some people might have thought that attending them was not “quite right”, but that is “between themselves”. During cross-examination he went on to state that the respondent had been held in high esteem at the particular rugby club “because of his success as a coach … at different age groups, mostly in the under 20s”.
14. Following the evidence given by Mr Hogan, and the closure of the respondent’s case, the appellant did not call any evidence.
The trial judge’s findings
15. In his written judgment ([2017] IEHC 367), having set out brief extracts from the 2012 article and having described the photographs that accompanied it and the accompanying captions, the trial judge found that the photographs and captions “inclines a reasonable viewer towards the impression that the plaintiff was a major organiser of orgies”. He went on to describe the 2012 article as characterising the respondent as “a principal organiser of orgies in the State with a lurking undertone of criminality”.
16. The trial judge went on then to consider the 2013 article and the photographs that accompanied it. In that regard he stated that “the journalist relied on his own “investigation” in 2012 to implicate the plaintiff inaccurately and unfairly in what one might call an industry of providing sexual services, for the 2013 edition”.
17. In relation to the said 2013 “investigation” the trial judge stated at paras. 20-21:-
“20. A reasonable person who glanced at the 2013 edition and the 12 page investigation was likely to form the view that the characters (including the plaintiff) identified in the 2013 edition were immersed in economic activities involving the provision of sexual services or activities.
21. The context in which the plaintiff is placed in the 2013 edition is particularly awful once it is accepted, as this Court does, that there is not a shred of evidence to support a suggestion or innuendo that the plaintiff was involved in prostitution, pimping or any such type of illegal activity.”
18. Addressing the question of the distinction sought to be drawn by the appellant between the false description of the respondent as an organiser of such parties, as opposed to the correct description of him being someone who attended such parties, and the allegation that it was his attendance only which caused any reputational damage, the trial judge stated in para. 24 of his judgment:-
“24. It is worth noting at this stage that the Court accepts the evidence given by the plaintiff that he attended four of the relevant parties with his then partner (“L”) over a period of some 18 months. This fact did not hinder a vigourous cross-examination of the plaintiff which sought to have accepted by the plaintiff and this Court that: –
(i) There was no distinction in perception between attending a party at which there may have been multiple sex partner participation by people other than the plaintiff and the unsubstantiated allegation made against the plaintiff that he organised some or all of the parties.
(ii) The slight on the plaintiff’s reputation arose inexorably from his voluntary attendance at the four parties rather than the full-scale coverage and suggestions given in the editions as described.
(iii) The articles were of public interest which the defendant according to its formal defence was “entitled and duty-bound to report” as “matters of public interest”.
19. The trial judge then expressed “The Court’s View” as follows:-
“25. The attempt by counsel for the defendant to blur the difference between organising chess or quiz events and organising what came to be known as sex parties can be described as a debating style point. In other circumstances, it might have had traction were it not for the circumstances in which the allegations of organising sex parties were made in the editions.
26. Nothing arises from exploring general attitudes to those who have attended a party at which there was an opportunity to engage in sexual activity with others who were not partners. The plaintiff found the relevant parties distasteful and limited his attendance to four occasions before ceasing all interest in them after eighteen months. No witness was called by counsel for the defendant. Therefore, based on the impression which I formed at trial from listening to the plaintiff and his supportive friend, I do not accept the suggestion made on behalf of the defendant that the rugby club at which the plaintiff was a coach or the social group in which he mixed would have ostracised him as occurred due to his attendance at those four parties, if they had become public knowledge other than by way of the editions.
27. There was no evidence that anyone in the plaintiff’s social group learnt or was bothered to learn about the parties to which the plaintiff was brought to by L and which he attended with misgivings. Counsel for the plaintiff was right in submitting that there are occasions on which people attend parties reluctantly and appear in photographs with a smile which feign enjoyment.
28. The plaintiff’s explanation for his attendance at the parties is accepted by this Court having listened to and observed the plaintiff carefully. The plaintiff has had misfortunes but has shown that he owns up to responsibilities. The defendant did not take its opportunity to call evidence to rebut the plausible account given by the plaintiff for the reason to accompany and keep L in their relationship.
29. Most people who were correctly apprised of the plaintiff’s circumstances and the factors leading to the plaintiff’s attendance at the four parties, would not have ostracised the plaintiff as transpired.”
20. The trial judge made further findings at paras. 32-36 of his judgment in relation to the effect of the 2012 article which are relevant to the appellant’s grounds of appeal, as follows:
“32. The 2012 edition inevitably caused conversation among the friends and acquaintances of the plaintiff. A quote from a renowned psychologist in 2004 that “gratuitous gossip is confessional calumny, the slaughter of reputations, the death of marriages and the trauma of social exclusion” is quite apt save for the fact that the plaintiff had long separated from his wife by 2012. The gossip and talk did indeed lead to family and social exclusion of the plaintiff with continuing effects on his reputation. The plaintiff mentioned that an observer at the trial in Cork in March 2017 asked “why didn’t you invite me?” without thinking how hurtful that is to the plaintiff.
33. It is wrong for any person to think, conclude or joke as that observer suggested that the plaintiff organised or willingly attended the parties. One of the ongoing effects can thus be seen and it is important that this judgment and ultimate award marks how wrong such observations are in view of the finding of the repeated defamation of the plaintiff by the defendant through its considerable newspaper circulation.
34. It is over five years since the publication of the first edition and it is apparent that the plaintiff requires one or more of the remedies sought. The ongoing damage and hurt caused to the plaintiff should be alleviated by an award of damages. Such an award is one way of sending a message that the plaintiff should not be blaggarded while compensating him for the continuing injury to his reputation.
35. Depression, clouds of darkness and suicidal ideation are terms which hardly do justice to the effect of the 2012 edition on the plaintiff. The plaintiff lost access to his children and their names were changed when they moved school following the publication in July 2012. He was shunned by extended family and ostracised within his social and sporting circles. It is difficult to think of more serious consequences for a father, team coach and member of an established family in the community than those which occurred following publication of the defamatory material which led reasonable members of the plaintiff’s circle to conclude that he was at least one of the biggest organisers of orgies in the State.”
Meanings
21. Leaving aside for the moment the appeal on the ground of fair and reasonable reporting of a matter of public interest, and the appeal against quantum of damages, a central plank of the appellant’s appeal is the submission that there was no evidence on which the trial judge could properly conclude that the respondent’s reputation was damaged by him being wrongly identified as an organiser of sex parties, and that the respondent himself had accepted in cross-examination that it was his attendance at the parties, and not the allegation that he was an organiser, that was damaging to his reputation. It was submitted accordingly that where there was no evidence that the damage to reputation resulted from what was erroneously reported in the article, there can be no defamation, and therefore no basis for any award of damages.
22. In its notice of appeal, the appellant states that the trial judge failed to set out clearly and engage with what he considered to be the defamatory meaning of the statements published, and that he failed to properly evaluate and analyse the evidence. Specifically, it is submitted that the trial judge erred in finding that the 2012 article could be understood to mean that the respondent was the “principal organiser of orgies in the State with a lurking undertone of criminality”. It is also submitted that the trial judge erred in finding that the photographs of the respondent attending at some of these parties “for which he posed voluntarily” would leave a reasonable reader with an impression that “the plaintiff was a major organiser of orgies”. It is further submitted that the trial judge erred in finding that the 2013 article could be understood by the reasonable reader to mean that the respondent was “immersed in economic activities involving the provision of sexual services or activities”. Other errors relied upon in the grounds of appeal are that the trial judge erred in concluding that any reasonable reader would form the impression that the respondent was involved in the sex trade and that he had attended and/or organised the parties at the centre of these proceedings for financial gain. It is submitted that insufficient weight or indeed any weight was given by the trial judge to what is described as the respondent’s own admission under cross-examination that the accepted and popular meaning of a “swingers’ party” is one at which consenting adults partake in voluntary sexual activities.
23. The appellant submits that when viewed in its totality the evidence indicated that any reputational damage resulted only from the true factual statement of the respondent’s attendance at these parties and the accompanying photographs to which he consented showing him to be present, and not the false statement that he was an organiser of them. It is submitted that the evidence was that he consented to such photographs being taken at the parties, and to their being distributed among a large group of people who attend such parties, and consequently to a wider public.
24. The appellant also takes issue with the trial judge’s dismissal as a “debating style point” of the appellant’s submission that there was no distinction to be drawn in terms of reputational damage between organising swingers’ parties, and attending same, and his ignoring the respondent’s own acceptance of that proposition under cross-examination.
25. Running through the appellant’s submissions in relation to liability is this theme that it was the reporting of the respondent’s voluntary attendance at these parties clearly depicted in the accompanying photographs taken at some of the parties he attended that caused any damage to the respondent’s reputation, rather than the erroneous description of him as an organiser of such parties.
26. In challenging the trial judge’s findings in this regard, the appellant accepts that the role of this Court on appeal is constrained in some respects in relation to findings of fact made by the trial judge by reason of the principles in Hay v. O’Grady [1992] 1 IR 201. However, it is submitted that such constraints apply only where there is shown to be credible evidence to support the trial judge’s finding. It is submitted that there was no credible evidence to support certain relevant findings made by the trial judge, and others findings which were contrary to the respondent’s own evidence.
27. In contending that there was no credible evidence upon which the trial judge could rely for his finding that the respondent’s good name and reputation was damaged by the false statement in the articles that he was an organiser of sex parties, the appellant relies upon some of the evidence given by the respondent himself under cross-examination, and criticises the judgment of the trial judge for failing to identify particular words within the articles which he deemed to be defamatory or, as it is put by the appellant, what is “the true sting” of the articles when they are read as a whole.
28. The appellant relies upon a passage from the cross-examination of the respondent for its submission that the trial judge erred in concluding that the respondent’s reputation was damaged by the false statement that he was an organiser of, as opposed to him being simply an attendee at, these parties. It is contended that the respondent accepted during his cross-examination that it was his attendance at these parties that was damaging to his reputation, and not that false allegation that he organised them. The passage appears on Day 2, pp. 24-25 where counsel for the appellant explores this distinction with the respondent:
Q. Mr Nolan, have you ever attended, for instance, a table quiz in a GAA club?
A. Yes.
Q. Have you attended a few of them?
A. Table quizzes.
Q. Yes?
A. A couple of quizzes, yeah
Q. Yes. Would you be concerned if somebody reported in a newspaper that you had attended table quizzes in a GAA club?
A. No, I wouldn’t.
Q. Right.
A. Why should they report about me going to a table quiz?
Q. Well, would you be concerned that it breached your privacy rights?
A. Um, no, I don’t see any harm in it going to a table quiz if you’re asking me that question.
Q. Yes. Nor do I, Mr Nolan.
A. Okay.
Q. Would it be a private event that you think a newspaper would be prohibited from commenting upon?
A. No.
Q. Right, so we agreed to all that. Would you be concerned if a newspaper fell into error and said that you organised a table quiz in a GAA club when, in fact, you had merely attended it?
A. No, I wouldn’t.
Q. Why not?
A. A table quiz is a completely different thing than what this is.
Q. Yes. So because a table quiz is an inoffensive ordinary, but now, socially acceptable activity, it really doesn’t matter whether you attended or whether you organised it. Isn’t that correct?
A. Yes.
Q. So, it is not the organisation of an event that’s the issue. It is the nature of the event that is the issue, isn’t that right?
A. Okay, yes.
Q. Similarly, if you’d attended chess parties or backgammon parties or table tennis competitions in somebody’s house, you wouldn’t be concerned if somebody said that you had organised such events, as distinct from merely attending them, would you?
A. No, I wouldn’t, no.
Q. Because those events are unobjectionable and they are socially acceptable. Isn’t that correct?
A. Yes
Q. So the problem for you, Mr Nolan, is not that the newspaper says that you are organising an event when you are only attending the event. The problem for you is the event?
A. The event in this situation is private.
Q. We are going to come to the privacy but the problem for you in this case is that the event is sex parties. Isn’t that right, Mr Nolan?
A. People go to these parties, your honour, they either do what they want to do or they don’t. It’s up to themselves. My whole problem with everything that is going on here is the way I’ve been portrayed.
Q. But you see the point I’m making to you, Mr Nolan, and I think you do get it, is that there isn’t a big difference in perception between attending an event and organising an event?
A. Yes.
Q. Do you understand that?
A. Yeah, yeah I do. You are talking about the table quizzes.
Q. Yes. Provided the event as unobjectionable?
A. Yeah.
Q. Nobody really thinks particularly differently of a person who merely attends the event, as against a person who actively organises an event?
A. Okay.
Q. Isn’t that correct?
A. Yes.
Q. So actually, Mr Nolan, people don’t think in particularly different terms of people who attend sex parties on the one hand, a category that you accept that you are in, and people who organise sex parties on the other hand, a category that you dispute that you are in.
29. This skilful cross-examination of the respondent is beguiling in its logic and simplicity. But its syllogistic character is apt to disguise rather than enlighten. Such deductive reasoning which leads the respondent from his first position to his final and inexorable surrender to the proposition that there is no difference in perception between attending these events and organising them, should not distract from the fact that the important consideration in relation to meaning is to be determined by the trial judge (or the jury as the case may be) not so much based on the respondent’s subjective view as to meaning but rather by what the reasonable reader of the articles, in combination with the photographs and general presentation of the articles and taking the words in their ordinary meaning, would consider the meaning to be.
30. In the context of these particular articles, taken in combination with the photographs, captions and general presentation, the distinction sought to be drawn by the appellant between the damage to the respondent’s reputation by being reported as having attended these parties, and any caused by being described as an organiser of them, becomes blurred to extinction in my view. It was conceded that the reference to him being an organiser of these parties was incorrect. Whether he attended the parties voluntarily or was an unwilling participant, or whether he felt coerced in some way by his then partner seems to me to be irrelevant once there was a proper basis for the trial judge to conclude that his reputation was damaged by being identified as an organiser of such parties. In that regard I would point to the evidence of Mr Power which the trial judge was entitled to consider to be credible. Mr Power was clear that the reputational damage to the respondent emanated from the false statement that the respondent organised such parties, and not from the fact that he attended them.
31. I reject the appellant’s submission that, because under cross-examination the respondent submitted to the proposition put that there is no distinction between it being reported that he attended these parties and that he organised them, there was no damage to his reputation that arose from having wrongly been identified as an organiser of the parties, and that any damage that occurred arose from him being shown to having attended such parties. The trial judge was entitled to not be bound by the respondent’s surrender to that proposition, and to form his own objective view based on all the evidence which included the evidence of Mr Power, just as a jury would have done had this case been heard by a jury, as to whether to the reasonable reader of the articles in their context bore the meanings contended for by the respondent, or indeed any of the meanings contended for in his statement of claim. It is that objective view as to the meaning of the articles that is important. That view is not formed by reference to what the respondent himself stated he understood the meaning to be, or whether he does or does not accept that there is the distinction to be drawn between attending and organising the parties. His own view is likely to be subjective, and therefore risking the frailty and unreliability that may sometimes attach to a subjective view, in contradistinction to an objective view.
32. A party can frequently parse and analyse a trial judge’s written judgment and find some phrase or sentence that could have been more clearly expressed, or perhaps a word that might have been used loosely, or which is capable of different meanings in different contexts, and thereby attempt to satisfy an appellate court that the trial judge erred. This has happened in the present case, and I take just one example from the submissions made on this appeal. In written submissions and oral submissions counsel referred to the use by the trial judge of the word “glanced” in para. 20 of his judgment. I have already set out that sentence, but do so again for convenience:
“20. A reasonable person who glanced at the 2013 edition and the 12 page investigation was likely to form the view that the characters (including the plaintiff) identified in the 2013 edition were immersed in economic activities involving the provision of sexual services or activities”. [Emphasis provided]
33. Criticism made is of the use of the word ” glanced “, and it is submitted that the use of that word indicates an incorrect approach in the trial judge’s examination of the articles. It is submitted that the putative reasonable reader of the articles will not simply “glance” at the articles but will “read” them. It was submitted that this has led the trial judge into fundamental error in his assessment of the articles, and that if he had adopted the stance of a prudent reasonable reader, and not a person who would simply glance at the articles, he would have had to reach a conclusion that the articles did not bear the meanings that he attributed to them such as that the respondent was “a major organiser of orgies”, “a principal organiser of orgies in the State with a lurking undertone of criminality”, and was “immersed in economic activities involving the provision of sexual services or activities”.
34. Reading the judgment as a whole there is no basis for finding any serious error on the part of the trial judge by his use of the verb “glance” rather than another verb such as “read”, and certainly none that would justify setting aside his findings. In fact, however, in the present case the way the pages of the newspapers are set out by the juxtaposition of photographs with captions and headlines would, objectively, enable a mere ‘glance’ to capture the defamatory statement that the respondent “runs” or “organises” swingers’ parties. A closer reading will undoubtedly satisfy further curiosity on the part of the reader or the person who has “glanced”. But the way that the trial judge expressed himself is not in my view an error, and certainly not such as to lead to a conclusion that the trial judge’s examination of the articles and his conclusions are “seriously flawed” as submitted.
35. I am satisfied that the trial judge was correct to conclude that there was a meaningful distinction between being named as a person who attended such parties, and a person who organises such parties. He was also entitled to conclude that by referring in the 2012 article to the respondent’s conviction in 2002 for laundering money for a notorious drug dealer, and showing a picture of that criminal as part of the 2012 article, the appellant had characterised the respondent as “a principal organiser of orgies in the State with a lurking undertone of criminality”. One might ask rhetorically what purpose was sought to be served by referring to the respondent’s criminal conviction and association with that named person back in 2002, other than to imply by innuendo “an undertone of criminality” into the matters being reported in 2012.
36. I find no basis for interfering with the trial judge’s conclusion that it was the erroneous reporting of the respondent as the organiser of these parties that caused injury to his reputation and good name. There was credible evidence to support that conclusion.
37. Complaint is made also by the appellant that the trial judge failed to identify which of the meanings contended for by the respondent were made out to be defamatory, despite the fact that at the conclusion of the hearing an issue paper was provided to the judge by the parties in much the same way as would be provided to a jury had there been one. The trial judge made no reference in his judgment to this issue paper. In my view, the trial judge should not be criticised in this regard. While he obviously accepted an issue paper from the parties at the conclusion of the hearing when it was offered to him he was not obliged to. Neither in my view did he have to specifically address the issues in it, as would a jury.
38. In any event, this is not a case where a few words or even a sentence in an article is defamatory. In such a case the trial judge might be criticised for not identifying clearly the particular words that give rise to the defamatory meaning claimed to exist. In the present case it is not so simple because it is the 2012 article as a whole, including its accompanying photographs and captions and headings, and the 2013 article, which combine to create the defamatory meaning found by the trial judge. I am satisfied that reading the judgment as a whole the trial judge made it clear that the meaning which was defamatory was that the respondent was the organiser of sex parties, and not simply a person who attended same. That meaning is certainly within several of the meanings contended for in para. 20 of the respondent’s statement of claim.
Defence of privilege under s. 18 of the Act – lawful and legitimate reporting on matters of public interest
39. In this regard the defence particularised this defence by stating:
“The article the subject matter of these proceedings was published in good faith, as part of the defendant’s lawful and legitimate reporting on matters concerning and affecting the public at large.”
40. In replies to particulars the appellant expanded somewhat on that pleading, inter alia , as follows:
“The articles published by the defendant are articles concerning the issue of modern Irish attitudes to sexual and personal relationships. The articles included information and discussion regarding the issue of ‘swinger parties’ and ‘wife swapping parties’ and some of the persons attending same including but not limited to the plaintiff.
The articles generally also discussed other issues including but not limited to how the internet has affected sexual relations in Ireland including the sex trade and general attitudes to particular types of sex in Ireland which is of public concern. The articles contain information regarding the sex trade in Ireland including issues regarding those engaged in sex and the reasons they are engaged in this industry. It also discusses the broader issues of how sex and sexual relations have changed in Ireland including since the introduction of the Internet.
In the premises it is contend [sic] that the public had an interest to receive this information and was entitled to know it, there was a public interest value in publishing it and the defendants were exercising a legitimate function and/or duty of reporting a matter of serious public importance.”
41. In the High Court the appellants relied upon its contention that the respondent was a public figure. The basis for considering him to be such were that he had been a prominent GAA footballer having represented his county at senior level albeit many years previously, and that he had achieved public notoriety in 2002 as a result of media reporting of his conviction for money laundering for a notorious criminal for which he received a suspended sentence and a fine.
42. The trial judge concluded as follows in relation to the public interest plea:
“37. As for the public interest argument advanced, the Court stresses its duty to vindicate the rights of citizens. It will not be thwarted by the vacuous plea that there is a public interest in publishing salacious material without regard to the truth. Little, if anything, was done by the defendant to portray an accurate context for the plaintiff’s attendance at the parties in the 2012 edition. No consideration was given to the plaintiff’s pleas in advance of publication in 2012 about the potential effect on the relationship with his estranged wife and children by the publication of information which portrayed him as having a major role in organising orgies. Moreover, there was no suggestion that the journalist or anyone on the part of the defendant enquired about anything and not least the welfare of the plaintiff in the year elapsed between the 2012 edition and the 2013 edition with the heading “World of Vice Exposed”.
38. Lest there be any doubt, the intrusion into the plaintiff’s private life did not have any overriding consideration of the public interest. The defendant recklessly published prurient photographs and pieces which carried the import as described. The plaintiff had no option after the 2013 edition but to seek a commitment from the defendant to cease its apparent crusade to defame him with impunity. The defendant wrongly sought such impunity by reference to the plaintiff’s 10 year old suspended sentence and fine for acknowledged money laundering.”
43. It has been submitted that the trial judge has erred by not considering that the respondent was a public figure, and that the publication of his involvement in the parties in question was fair and reasonable. The appellant points to the fact that in opening the case to the High Court the respondent’s counsel himself described the respondent as “a football star in the 1990s”. It is suggested that this statement alone was sufficient to indicate that he is a public figure, and that this is only added to by the media coverage in 2002 surrounding his conviction for money laundering and his association at that time with a notorious criminal. In these circumstances it is submitted that the trial judge was in error in not concluding that the reporting was fair and reasonable, and to reject that ground of defence.
44. It is submitted that the subject matter of the articles was a topic of general and important public debate, and therefore a matter of public interest, and that this was actually accepted by the respondent in his own evidence. That is a reference to the respondent’s answer “yes” when counsel for the appellant put it to him in cross-examination: “Over the last 30 or 40 years there have been many public debates about sexual activity and what might be called the liberalisation of attitudes to sex. Isn’t that right?”
45. The respondent submits that the trial judge was correct to reject this defence firstly because the appellant called no evidence to advance its contention that it reported in good faith on a matter of public interest; and secondly in any event that it is clear that the appellant in fact acted in bad faith because (a) the journalist who visited the respondent’s house prior to the publication of the 2012 article never put to the respondent the allegation that it was going to publish and seek his response, and (b) because a number of the photographs that were published were in fact taken at a dinner party the respondent was attending, and not at one of the sex parties about which the article was reporting.
46. It is in my view clear from the judgment that the trial judge was satisfied that the subject matter of the articles did not cover a matter of public interest, and could not therefore be defended on the basis of privilege. That is clear from the trial judge’s description of the plea as “vacuous”. As I have said already in a different context, some might say that the trial judge could have expressed himself differently, or indeed have expressed his conclusions more extensively. But that is not to say that he erred. I am satisfied that the failure of the appellant to give any evidence whatsoever to substantiate the defence is sufficient to determine that it has not been made out by the appellant. It is clear from the section that the evidentiary burden is upon the appellant in this regard. That burden was not discharged, and for that reason I would uphold the trial judge’s conclusion.
47. If it was necessary to so conclude, I would consider that matters relied upon by the appellant to characterise the respondent as a public figure and, therefore, that the article was reporting on a matter of public interest were insufficient to constitute him as such. His prowess as a footballer at county level in 1998 is not sufficient to characterise him as a public figure. That is not altered in my view even if one adds to his former prowess as a footballer the fact that ten years previously he had been the subject of media coverage in relation to his money laundering conviction. I would have dismissed this ground of appeal on that basis also.
Damages
48. In relation to the general damages awarded in the amount of €250,000 the appellant submits that this level of damages was disproportionate, and failed to take account of the fact that the respondent was a willing participant in the parties, and consented to the taking of photographs showing him at such parties. It is also submitted that the trial judge failed to take account of relevant case law both in this jurisdiction and from the European Court of Human Rights, as to the importance of upholding the right to freedom of expression, while taking account of the defamation that has occurred. The appellant also submits that the trial judge erred in so far as he took into account “depression, clouds of darkness and suicidal ideation” about which the respondent gave evidence, but in circumstances where he called no medical evidence.
49. The trial judge considered the question of assessing general damages in some considerable detail. He heard submissions from the parties on the question which he stated he found of assistance. He considered numerous cases where damages were awarded, and went so far as to annex to his judgment the cases in question and the awards made. He noted also that appeal courts here had “applied restraint and proportionality while deferring to the undoubted right of juries to send message by an award to compensate a defamed person”. He went on to state:
“… my review of the awards and judgments in the Superior Court indicates willingness to award damages to put the plaintiff back into the position as if the defamation never occurred by vindicating the plaintiff in the eyes of the public through sending a message in the form of significant quantum to correct the wrong.”
50. The trial judge went on to express some doubt about the wisdom of comparing awards in previous cases since each case has its own unique facts, but that “all that can be achieved is an award of such a size as to compensate and to impress upon the public the nature of the defamation which has occurred”.
51. The trial judge also acknowledged that the assessment of damages in a defamation case is a different exercise than that in a personal injuries claim, and referenced in that regard the judgment of Dunne J. in Leech v. Independent Newspapers (Ireland) Limited [2015] 2 I.R. 214. He referenced also the provisions of s. 31 of the Act which sets out matters which the Court shall have regard to when assessing damages. At para. 62 of his judgment the trial judge stated:
“62. It can be extrapolated from many decisions that the damages award must be convincing and given in such a way as to vindicate the rights of the person who has been defamed. The quantum should be sufficient to demonstrate to observers that the defamatory articles should not have been published while other elements such as special damage and loss of opportunity may be taken into account also.”
52. The trial judge went on to refer to five criteria identified by Dunne J. in Leech which may be had regard to when assessing damages, namely the gravity of the libel, the extent of the publication, the conduct of the defendant, the impact of the defamation, and freedom of expression (as it may apply). Having done so, the trial judge expressed his view that “the defamation of the plaintiff in the editions was very serious”. Even though he allowed for the fact that it might have been worse, he nevertheless stated that “on a scale of 1 to 100, it reaches 75 when one takes account of all the circumstances and particularly those factors identified at s. 31(4) (a), (b), (c), (f) and (h) of the 2009 Act”.
53. The trial judge then concluded on the question of general damages as follows:
“66. The impact on the defendant was immense as already outlined. It is a credit to the plaintiff, his former wife, children, mother and friends to have regained some accord despite the total disrespect shown by the defendant and its employees.
67. In advance of awarding compensatory damages it may help to repeat that the research exercise undertaken by this Court since the trial was to identify if possible any common theme in the awards by juries which represent commonly held views. I am indeed conscious of the opinion of McKechnie J. (dissenting in part on the preserve of the unique role for a jury) in Leech v. Independent Newspapers (Ireland) Ltd where he said at para. 102:-
‘How can a transcript convey the depth of a person’s feelings who has been publicly humiliated; whose sense of esteem and personal worth have been undermined, even shredded in some cases; whose presence even amongst strangers may result in being shunned or rebuffed?’ which resonates when reading reports or records of previous awards too.’
68. In brief I discern that ordinary people sitting on juries recognise that damages for defamation send out a message of caution not only to the person who defames but also to the wider public for the benefit of the defamed. It is my view that the starting point in a defamation of the kind presented rose to €250,000 because of the elapse of time between the 2012 edition and the even more defamatory 2013 edition. In arriving at this point I take into account that I am going to award aggravated and punitive damages as well.”
54. An important feature of the appellant’s submission that the award of damages is disproportionate is their contention that the respondent had voluntarily attended these parties and had consented to photographs being taken of him there. However, that contention has been rejected. The defamation for which the respondent is entitled to be compensated is the serious erroneous statement that he was the organiser of such parties. The serious nature of that misstatement is not in my view diluted or minimised by the fact that he was a willing participant there, or the fact that he consented to photographs being taken of him while present.
55. The appellant submits that the trial judge failed to take any account of the fact that the respondent’s reputation was already significantly tarnished by the fact of his conviction for money laundering in 2002 when assessing damages commensurate to the reputational damage caused to the respondent by the articles. However, the respondent correctly points out that the appellant cannot rely on that factor since it has failed to comply with O.1B, r. 10 of the Rules of the Superior Courts, which provides:
“(10) In a defamation action, in which the defendant does not by his defence assert the truth of the statement complained of in accordance with s. 16, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the defamatory statement was published, or as to the character of the plaintiff, without the leave of the Judge, unless seven days at least before the trial he furnished particulars to the plaintiff of the matters as to which he intends giving evidence.”
The appellant did not furnish any notice in compliance with this rule. It was therefore not entitled to call evidence in chief in relation to the character of the respondent. It is not in a position to complain on this appeal that the trial judge ought to have taken account of the previous bad character of the respondent or the damage already inflicted on his good reputation as a result of the money laundering conviction back in 2002.
56. In so far as the trial judge referred to the “depression, clouds of darkness and suicidal ideation” suffered by the respondent, he was in my view entitled to take account of the respondent’s evidence in that regard even though no medical evidence was called in support. This is not a personal injuries action where such expert evidence would be a requirement before compensation could be awarded. The assessment of damages for defamation is a different exercise. Where no evidence was called by the appellant to dispute the respondent’s own evidence of the effect of the defamatory statements and the fall-out from same upon him, these were factors that the trial judge was entitled to have regard to in assessing what level of general damages was appropriate and proportionate. They are part of “all of the circumstances of the case” referred to in s. 31(3) of the 2009 Act.
57. In addition, the appellant takes issue with the methodology employed by the trial judge whereby he used a scale of 1 to 100 and placing this case at 75 on that scale. I see no objection to a trial judge assessing the level of seriousness by the use of such a scale. It seems to me to bring a certain clarity to the level of seriousness considered to exist in any particular case, just as a doctor may ask a patient to describe the level of pain on a scale of 1 to 10. It is obviously a matter for any particular trial judge to use whatever method he or she finds useful for this purpose.
58. The appellant referenced this Court’s judgment in Christie v. TV3 [2017] IECA 128 where it significantly reduced an award of damages made in the High Court to a solicitor who had sued in defamation following the broadcast of a news bulletin in which an image of him appeared accompanied by text referring to him mistakenly as his named client who had been convicted of fraud. That judgment was delivered after the hearing of the present case in the High Court but before judgment was delivered. It appears that the trial judge had the opportunity to consider the judgment in Christie , and indicated in his judgment that he had incorporated “the views and judgment of the Court of Appeal”, but without addressing it in detail. The appellant submits that his judgment is at odds with the principles in Christie in which this Court significantly reduced the damages award. It has been submitted that the defamation in the present case is at a lower level even than that in Christie , and that the level of damages in the present case should be reduced significantly also.
59. In my view Christie was decided on very, and relevantly, different facts to the present case. This is clear even from the opening paragraph of the judgment of Hogan J. in Christie where he states that the plaintiff had been “unintentionally defamed by an evening news bulletin” broadcast by TV3, but that “TV3 had promptly broadcast an apology” and had “made an offer of amends pursuant to s. 22 of the Defamation Act 2009”. These features alone of that case serve to illustrate that it is not a proper comparator for the purposes of assessing general damages in the present case. That is not to say that the principles articulated therein are not of general application, particularly so far as the balance to be struck concerning potentially competing constitutional rights is concerned. Thus, as para. 33 Hogan J. states that “the law of defamation involves the striking of a balance by the Oireachtas of two potentially competing constitutional rights, namely, the protection of the right of a good name (Article 40.3.2) and right of free speech and expression (Article 40.6.1) … . This constitutional balance necessarily implies that an award of damages for defamation must be measured and proportionate”. That statement by Hogan J. is characteristically clear and succinct and is, I suggest, uncontroversial. But later paragraphs in the same judgment explain the reasons why in that case the Court was justified in reducing an award of €200,000 to a sum of €60,000, before applying a further discount so that the ultimate award was €36,000. Those reasons do not exist in the present case.
60. The appellant relied also on the judgment of the ECtHR in Independent Newspapers (Ireland) Limited v. Ireland (Application No. 28199/15) where one of the complaints was that the level of damages awarded was excessive and in violation of the newspaper’s right to freedom of expression under Article 10 ECHR. The appellant refers to this judgment in support of a submission that there is an obligation upon the trial judge to explain clearly the reasons for making an award of damages, and submits that the reasons appearing in the trial judge’s judgment in the present case are inadequate.
61. I cannot agree that the reasons for the trial judge’s assessment of damages are inadequately expressed. In my view his reasons are clear. He considered the judgment of Dunne J. in Leech . He considered the provisions of s. 31 of the Act of 2009. He examined a number of earlier cases in which damages had been awarded, and even attached to his judgment a schedule of 12 such cases to which he had regard. As I have said already he had regard to the five factors identified by Dunne J. in Leech which a trial judge should have regard to. He considered that the impact on the respondent was “immense”. He placed the case at point 75 on the 1 to 100 scale of seriousness to which he referred. In my view there was credible evidence before him to justify these findings. He had the opportunity to see and hear the plaintiff and his witness, Mr Power. The appellant did not go into evidence. The trial judge must be given a wide margin of appreciation in relation to his assessment of damages in those circumstances. This Court will interfere only where it is satisfied that the award is so disproportionate as to warrant intervention. This is not such a case. The defamation was very serious. It is not minimised by the fact that the respondent was a voluntary attendee at such parties. The serious defamation and consequent damage to reputation as made out by the evidence resulted from the erroneous naming of the respondent as an organiser of sex parties with a clearly implied undertone of criminality. As I have already stated, I do not accept that there is no meaningful distinction to be drawn between a person who simply attends such parties and one who organises same. I have dealt with that already. This was a serious defamation, on two separate occasions, where no apology was offered and no offer of amends was made after the respondent’s solicitor’s letter following the 2013 publication. The respondent is not to be faulted for remaining silent following the 2012 article in the hope that there would be no repeat. There were two publications which contained the defamatory material. This man’s reputation and the regard in which he was held within his community was seriously traduced and damaged. I will return to the question of the award of general damages in the amount of €250,000 after I have considered the respondent’s cross-appeal in relation to his claim for damages for breach of his constitutional right to privacy, since to an extent it seems clear that the trial judge considered that any breach of that right to be effectively merged with the claim for defamation, and in that regard I refer to what the trial judge stated at para. 50 of his judgment which appears at para. 67 below.
62. I am satisfied that the trial judge did not err in making an award of €30,000 under the heading of aggravated damages, as well as €30,000 for punitive damages. The trial judge has explained his reasons for doing so, and I consider that the facts of this case justify such awards. On the evidence that he heard, and taking all the facts and circumstances of the case into account I find no error on the part of the trial judge in this regard.
The cross-appeal – breach of constitutional privacy right
63. As noted earlier the trial judge had concluded in relation to the claim for defamation that “the intrusion into the plaintiff’s private life did not have any overriding consideration of the public interest”, which certainly suggests that he was satisfied that the article itself was an intrusion into the respondent’s private life. There is no doubt in my mind that the photographs accompanying the articles were equally so. The trial judge’s conclusion in relation to the respondent’s claim for damages for breach of privacy is contained at paras. 42-44 of his judgment where he stated:
“42. The essence of the plaintiff’s claim to privacy relies on a rather loose agreement or understanding with unidentified individuals that the photographs taken in 2010 and 2011 at the four parties would not be disclosed to anyone outside the group who attended the parties without the consent of those attending.
43. The plaintiff consented to the taking of photographs by a stranger who attended the party. It was also clear that the photographs were freely available among up to 26 people of which he might have only known four at most.
44. Therefore I cannot find that the right to privacy has been engaged. Unlike the situation in Herrity v. Associated Newspapers (Ireland) Limited [2009] IR 316, no issue arises about the lawfulness of the defendant acquiring the photographs…”.
64. The trial judge distinguished the present case from those in which the alleged breach of privacy emanates from some unlawful act, such as in Herrity , and also Mosely v. News Group Newspapers Limited [2008] EWHC 1777(Q.B), noting that in the latter the defendant had bribed and threatened sources, used hidden cameras in private property in order to record material of a sexual nature, and alleged that the parties which the plaintiff had attended involved “Nazi or concentration camp role-play; an allegation that the court found to be totally untrue”.
65. As also noted by the trial judge at para. 48 of his judgment the defendant in the present case was contacted by a source “who voluntarily provided information in relation to the parties which the plaintiff admitted attending”. In fact, the source was the respondent’s then partner who attended these parties with him. It appears that following the break-up of their relationship, she contacted the appellant newspaper and provided the photographs which appeared in the two publications concerned. As the respondent’s evidence showed, some of the pictures published were in fact of the respondent at a private Halloween party, and not one of the so called “swingers’ parties” which were the subject of the published articles.
66. The trial judge stated at para. 49 of his judgment:
“49. It may be unfortunate but it is the reality of the modern world that photographs can be taken so easily and disseminated within and outside a known group. It is the Court’s view that the right to privacy is a constitutional right to which effect is given when the existing law does not adequately protect the citizen. In this regard I am guided by the following excerpt from the judgment of O’Donnell J. in Clarke v. O’Gorman [2014] IESC 72, [2014] 3 IR 340 at para. 34, page 359: –
‘The intersection between claims for damages for breach of constitutional rights and claims in tort was discussed in Hanrahan v. Merck Sharp and Dohme Ireland Ltd [1988] ILRM 629. The effect of that decision is that the existing torts and other causes of action known to common law are to be considered the method by which the State performs its obligation to vindicate the constitutional rights of the citizen. It is only therefore if it can be shown that the existing law does not adequately protect the constitutional rights of the citizen that a separate claim for breach of constitutional rights can be invoked’.”
67. At para. 50 of his judgment the trial judge went on to state:
“There was some consensus in the submissions made to the Court that any damages which may be awarded to the plaintiff for defamation may be taken into account in a claim for a privacy right. I will go further and suggest that a person like the plaintiff who is satisfied with an award for damages for defamation, including aggravated and punitive damages, need not be concerned with the demands for a successful claim for damages in respect of a privacy right infringement. In other words, damages for defamation exceed those for invasion of privacy under current law according to my review.”
68. It would seem therefore that the trial judge considered that since the damages that a successful claim in defamation would attract would exceed any damages that might be awarded for a breach of privacy, the respondent need not concern himself with the latter.
69. The trial judge was also satisfied in any event that having permitted photographs to be taken of him at these parties, and in the knowledge that they could be disseminated among those attending those parties, and perhaps more widely among persons interested in such parties, he in effect had waived any right of privacy that might otherwise attach to them; and in addition that in any event the existing defamation law was the method by which the State had chosen to protect his privacy rights in relation to same, and he should not succeed in a separate claim for damages for breach of his right to privacy.
70. The difficulty I have with these conclusions is that the trial judge had already concluded that the defamation was the false statement that the respondent was the organiser of the parties in question, and not that he had attended the parties. The photographs show him attending such parties and are therefore not part of what he was compensated for by the award of damages for defamation. Therefore, it cannot be said that the damages in the tort claim have vindicated the respondent’s constitutional right to privacy in relation to the publication of the photographs. It would, of course, be different if the claim had been in relation to a pure loss of reputation. In those circumstances the respondent would not have been able to seek any additional head of redress such, as for example, a declaration that his right to a good name as protected by Article 40.3.2 had been infringed by the publication in question, unless he could also show that the existing law of tort was inadequate to protect these constitutional rights in the sense explained by Henchy J. in Hanrahan v. Merck, Sharpe Dohme [1988] ILRM 629. That, however, is not the case here, precisely because the respondent also has a separate claim for infringement of his constitutional right to privacy which on its facts is quite separate and distinct from any reputational claim.
71. The question, of course, remains whether the respondent must be seen to have waived his right to privacy in the photographs by agreeing to them being taken in the first place, and in the knowledge that they might be disseminated not only to those others attending the particular parties, but to a wider audience, albeit limited to persons interested in such parties. There is also the fact that the respondent’s evidence was that one of the photographs was not taken at a ‘swingers’ party at all, but rather at a private Halloween party. No evidence was called by the appellant to contradict that evidence.
72. Another question is whether, even if the damages awarded in respect of the defamatory statement, including aggravated and punitive damages, might indeed be sufficient to compensate also for the breach of privacy, the respondent may nevertheless be entitled to a declaration that his constitutional right to privacy was breached.
73. The respondent submits that the trial judge fell into error in a number of ways which are set forth as follows in his written submissions:
(i) finding that the plaintiff’s right to privacy had not been engaged;
(ii) not viewing the facts from the starting point that the plaintiff’s former partner with whom he had been in a committed relationship had provided intimate private details of their sex life to the defendant newspaper;
(iii) if he had done so, the trial judge would have found a most egregious breach of the plaintiff’s right to respect for his private life in circumstances where he found there was no public interest in the publication;
(iv) the learned trial judge correctly held that the plaintiff’s understanding was that the photographs would not be disclosed outside the group but failed to proceed to find that the publication was therefore wrongful; and
(v) the learned trial judge erred in failing to find that some of the photographs were wrongly stated to have been taken at a swingers’ party when the evidence was that they had been taken at a Halloween party attended by five people.
74. Certain other factual matters established by the plaintiff’s evidence, though not referred to in the trial judge’s judgment itself, are also relied upon by the respondent, namely:
(i) the content of the articles came into the possession of the defendant following email contact from the plaintiff’s former partner [L] who requested “full confidentiality” if she disclosed pictures of an ex-county footballer who “swings and likes to dress in women’s clothes”;
(ii) every potentially identifiable person in the photographs has their face pixelated apart from the plaintiff;
(iii) the plaintiff was door-stepped by Mr Donald, a journalist employed by the defendant, and told Mr Donald of the enormous harm he would suffer if the articles were published but the defendant ignored his pleas and proceeded to publish regardless;
(iv) the 2012 article clearly acknowledged that the swingers’ parties were private parties. They were referred to as “underground” and a “carefully guarded secret”;
(v) the plaintiff had an expectation [that] any photographs taken would not be shared beyond those at the party; and
(vi) the defendant called no witnesses, and the circumstances in which it obtained the content and the photographs and what it knew remains a mystery.
75. The respondent has referred to a number of authorities in support of his claim that he is entitled to a finding that his privacy rights were infringed by the publication of these photographs, and to damages, notwithstanding the award of damages for defamation, and notwithstanding that he had consented to the photographs being taken, and that he knew that they might be shared among those other persons attending such parties. Among the authorities to which the court has been referred are: Herrity v. Associated Newspapers (Ireland) Ltd [2009] 1 IR 316; McKennitt v. Ash [2008] QB 73; Douglas v. Hello Ltd (No.3) [2006] QB 125; Campbell v. MGN Ltd [2003] QB 633; PJS v. News Group Newspapers Ltd [2016] AC 1081; and Von Hannover v. Germany [2004] 40 EHRR 1.
76. The appellant relies heavily on the consent of the respondent to being photographed at the parties, and on what the trial judge referred to as “a rather loose agreement … with unidentified individuals that the photographs taken … would not be disclosed to anyone outside the group who attended the parties”. The respondent also accepted in his cross-examination that most of the other persons attending these parties were complete strangers to him. The respondent to the cross appeal argues therefore that the right to privacy was not a right on which Mr Nolan himself placed any great importance as he willingly attended the parties with others who were total strangers to him. Mr Nolan maintained his position that while he was content that the photographs be taken and that they might be distributed amongst that group, he had been told that they would not be put into the public domain. No evidence was adduced by the appellant to seek to contradict that evidence.
77. The newspaper relies also on its own right to freedom of expression also protected by the Constitution, and the presumption in favour of its protection both under the Constitution and under Article 10 of the European Convention on Human Rights. It submits that in the present case there are no exceptional or special circumstances that would justify permitting that right to be overborne by the respondent’s right to privacy in the photographs. In that regard reliance is placed on what was stated by Dunne J. in Herrity v. Associated Newspapers Limited at p. 340 when she stated:
“There is a hierarchy of constitutional rights and as a general proposition, I think, that cases in which the right to privacy will prevail over the right to freedom of expression may well be far and few between.”
78. While that particular sentence has been highlighted by the appellant, I would in passing note what follows immediately thereafter, namely:
“However, this may not always be the case and there are circumstances where it seems to me the right to privacy could be such that it would prevail over the right to freedom of expression. One of those circumstances arises on the facts of this case where the freedom of expression asserted is the publication of material obtained unlawfully … No one expects to see their private telephone conversations printed in a newspaper to excite prurient curiosity or to provide amusement for the paper’s readers.”
79. While in the present case there is no question of the photographs having been obtained unlawfully, I will return to the question whether, in circumstances where the respondent is not a public figure in the true sense, and his attendance at such parties is not itself a matter to be viewed as a matter of public interest, the publication of these rather salacious photographs in a national newspaper was motivated more by a commercial desire on the part of the newspaper to “excite prurient curiosity or to provide amusement for the paper’s readers” and sell more copies of its newspaper, than in the bona fide pursuit of a constitutional right to freedom of expression on a matter of public interest, in the proper sense of that term. In other words, while the publication certainly attracts constitutional protection under Art. 40.6.1, it may nonetheless be said to do so in somewhat weak fashion. The publication is some distance from the core objective of Art. 40.6.1, namely, as the provision itself states, criticism of Government policy and, by extension, providing a forum for informing the public, and discussion of, contemporary affairs.
80. The appellant is sceptical about the respondent’s evidence that there was an understanding or “rule” among those attending these parties that any photographs taken of those attending would not be disseminated beyond that group. The appellant submits that the trial judge was correct to describe the “rule” as a “rather loose agreement”, and submits that the respondent’s reliance upon the “rule” is untenable for a number of reasons. Firstly, there is no credible evidence of such a “rule”; secondly, even if there was such a “rule” the respondent himself had expressed to Mr Donald a willingness to breach it by naming everybody who had attended if the newspaper wold refrain from publishing the 2012 article; and thirdly, the respondent had admitted during cross-examination that he had consented to the photographs being distributed not only among those persons actually attending the particular parties at which the photographs were taken but among a wider community of people “who are into the scene” which he also said was “very big I think” (see Day 2, p. 66-68).
81. In some of the cases that have come before the courts in relation to a breach of privacy the breach has occurred in relation to material that has been obtained by unlawful means (see, e.g. Kennedy v. Ireland [1987] IR 587; Herrity v. Associated Newspapers (Ireland) Limited [2011] 1 IR 228). In such cases the very fact that the material was unlawfully obtained has been a significant factor in the court determining that the right to privacy was not outweighed by another right such as freedom of expression, or, indeed, by the common good. In Kennedy , it was conceded by the defendant that there was no lawful justification for the “tapping” of two journalists’ telephones. The Court (Hamilton P.) was satisfied that it constituted a breach of the plaintiffs’ constitutional rights to privacy. In that regard he stated at p. 593:
“There has been, as is admitted on behalf of the defendants, a deliberate, conscious and unjustifiable interference by the State through its executive organ with the telephonic communications of the plaintiffs and such interference constitutes an infringement of the constitutional rights to privacy of the three plaintiffs”.
82. Describing this constitutional right, Hamilton P. stated at p. 593:
“the nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society. The dignity and freedom of an individual in a democratic society cannot be ensured if his communications of a private nature, be they are written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with. I emphasise the words “deliberately, consciously and unjustifiably” because an individual must accept the risk of accidental interference with his communications and the fact that in certain circumstances the exigencies of the common good may require and justify such intrusion and interference. No such circumstances exist in this case.”
83. In his judgment in Norris v. The Attorney General [1984] IR 36 at p. 71, Henchy J. acknowledged that the right to privacy could be “hedged in by overriding requirements such as ‘public order and morality’ or ‘the authority of the State’ or ‘the exigencies of the common good’ “, but nevertheless stated:
“… There is necessarily given to the citizen, within the required social, political and moral framework, such a range of personal freedoms or immunities as are necessary to ensure his dignity and freedom as an individual in the type of society envisaged. The essence of those rights is that they inhere in the individual personality of the citizen in his capacity as a vital human component of the social, political and moral order posited by the Constitution.
Amongst those basic personal rights is a complex of rights which vary in nature, purpose and range … and which may be compendiously referred to as the right of privacy.”
84. These early authoritative statements as to the content and extent of the constitutional right to privacy are firmly embedded in our jurisprudence, and internationally. Where a breach of that right has occurred which is not justified by some other lawful consideration, or trumped by a different constitutional right enjoyed by the party responsible for the breach, and where the Court is called upon to recognise and vindicate that right where no other remedy can do so, the Court must act, whether by declaratory order or damages, or both.
85. In her judgment in Herrity , Dunne J. considered the leading cases on the right to privacy, and distilled from those cases certain principles which provide a clear guide to how a court called upon to vindicate a party’s privacy rights should proceed. At pp. 336-7 she stated:
“… What does emerge from the decisions to which I have referred and in particular from the decision in Cogley v. Radio Telefis Eireann [2005] IEHC 180, [2005] 4 IR 79 are the following principles: –
(i) There is a constitutional right to privacy;
(ii) The right to privacy is not an unqualified right;
(iii) The right to privacy may have to be balanced against other competing rights or interests;
(iv) The right to privacy may be derived from the nature of the information at issue – that is, matters which are entirely private to an individual and which it may be validly contended that there is no proper basis for the disclosure either to third parties or to the public generally;
(v) There may be circumstances in which an individual may not be able to maintain that the information concerned must always be kept private, having regard to the competing interests which may be involved but may make a complaint in relation to the manner in which the information was obtained;
(vi) The right to sue for damages for breach of the constitutional right to privacy is not confined to actions against the State or State bodies or institutions.”
86. In the present case it is important to keep in mind that these photographs were provided to the appellant newspaper by the former partner of the respondent after their relationship ended. It is not clear from the evidence who took the particular photographs, and in that sense it is unclear who actually owned them. But what is clear in my view from the evidence in the case is that it was implicit that, whoever took them, any such photographs showing the plaintiff attending such a party would remain private, and would never be published in a newspaper without his consent, and indeed the consent of any other attendees who could be identified in any particular photograph. The photographs had come into the possession of L in the context of a private intimate relationship which had come to an unhappy end. It is the case that the respondent’s former partner had contacted the newspaper after their relationship had ended to inform it that she had a story about an ex-GAA county footballer who attended swingers’ parties and who, she said, liked to dress in women’s clothes, and who was at the same parties as a named hurling star about whom the same newspaper had run a story on him attending swingers’ parties. In offering this story and the photographs this former partner had requested full confidentiality for herself. But she had no authority to hand over these photographs.
87. This is not a case where the newspaper itself took the photographs, either openly or clandestinely, such as occurred in Cogley . The photographs of the respondent attending these parties were taken with his knowledge and agreement, but the parties were private parties. It was not a public arena, such as at a disco or other such event in a public space such as a dance hall. While the respondent agreed to the photographs being taken, and knew that they might be distributed among a limited number of people who attended such parties, this, in my view, cannot be considered to be a consent to the photographs being published in a national newspaper, or even to the risk that they might be. It did not constitute a waiver of his right to privacy in respect of them. In my view the trial judge was correct to characterise the publication of these photographs as an intrusion upon his right to privacy. In truth these were private photographs taken for private purposes which were never intended to be made public.
88. The appellants must also be taken to have been aware that publication of the photographs was an invasion of the respondent’s privacy. This is supported by the fact that the faces of the other persons in the photographs were pixelated so as to conceal their identity. The appellant had also been made fully aware by the respondent prior to publication that the respondent did not want the article to appear in the 2012 edition of the newspaper, and to be identified therein. They therefore knew that by identifying him, including by showing photographs of him, they did so without his consent.
89. While there may not have been any illegality in the manner in which the appellant acquired these photographs, as was the case in Kennedy and Herrity , that feature is not in itself sufficient to confer a carte blanche to do as they wish with the photographs. I am completely satisfied that there was no overriding public interest to be served by publication of the photographs. The reasons given by the appellant for asserting a public interest in the story are insufficient. I have already addressed that question when dealing with the claim in defamation, and need not repeat it. The respondent was not a public figure, as contended, in respect of whom it might be considered that there was some valid public interest in exposing him as a person who attends such parties. He is, and was, a private person notwithstanding the limited publicity surrounding his conviction some ten years previously, or his even earlier status as a footballer who had achieved some success at inter-county level, who was simply engaging in an aspect of his private life in a private space when these photographs were taken. Even though he was aware that the photographs might be disseminated among those attending the parties, or even among a wider circle of persons interested in such parties, this did not constitute a waiver of his right to privacy in respect of them, and certainly did not protect the newspaper who published them solely for the commercially driven purpose of providing colour to the associated text in the articles, and for purely commercial gain, and not in any bona fide public interest or the common good. The appellant’s claim in that regard was in my view aptly described as “vacuous” by the trial judge.
90. There is about every person, be they a public figure or not, a carapace of privacy, recognised and protected by law, which protects a private space within which a person’s life may be lived without unwanted intrusion by others, including the media, and without fear that elements of that life that are within that private space will without their consent be exposed to public view for some commercial purpose such as the curiosity and gratification of a voyeuristic readership or other audience.
91. What happened to this respondent was a gross intrusion by the newspaper into that private protected space within his life. Whether he was a willing participant at these so-called swingers’ parties, and whether or not he enjoyed them, or simply went along because his partner wished him to, is really beside the point. They were parties held in private houses in which photographs of him were taken. He was not and is not a public figure. The publication of the photographs was a grave breach of his right to privacy. The fact that they were provided to the newspaper by the former partner of the respondent, and not taken by an employee of the newspaper itself does not absolve the appellant from its obligations not to unlawfully breach this constitutional right to privacy. In my view the justification for publication based on the “vacuous plea” of a public interest in articles to which the photographs were associated does nothing to mitigate the seriousness of the breach. The appellant was made aware that serious harm would result for the respondent, and, indeed, that occurred as predicted by him. The breach was deliberate, conscious and premeditated. In my view it cannot be excused.
92. I would allow the respondent’s cross appeal and declare that his constitutional right to privacy was breached by the appellant.
Damages
93. In so far as the trial judge melded together the question of damages for defamation and any award in respect of the unlawful intrusion upon the appellant’s privacy. I would not consider the award to be excessive overall. The award of punitive and exemplary damages was also justified on the facts of this case for the reasons given by the trial judge. It is fair to consider that in making an award of general damages in the total sum of €250,000 for defamation, the trial judge took into account the publication of the photographs which accompanied the articles themselves, and in doing so, in effect, reflected the breach of privacy.
94. I would not alter the overall level of the award of damages. However, I do feel for the reasons stated (a) that the respondent is entitled to a declaration that the publications of the photographs in the Sunday World editions of the 15th July 2012 and the 3rd March 2013 constitute a serious breach of his constitutional right of privacy, and (b) that such breach should be recognised by a meaningful award of damages under that particular heading. His constitutional right to protection of this privacy right in respect of these photographs is not vindicated in this instance by the remedy available to him for defamation and the award of damages under that heading, since the latter claim has been found proven only on the basis that he was falsely named as an organiser of the parties.
95. For that reason alone, I would vary the High Court order by recalibrating the award of damages made by the trial judge in order to reflect an award both for defamation and for breach of privacy, and by making the declaration referred to. I would therefore award the sum of €200,000 for general damages for defamation, as well as the amount of €30,000 for punitive damages, and €30,000 for exemplary damages, and would in addition to making the declaration referred to at (a) above in para. 93, make an award of €50,000 damages for breach of the respondent’s constitutional right to privacy.