Defences
Cases
Jameel v. Wall Street Journal Europe Sprl
[2006] UKHL 44
LORD BINGHAM OF CORNHILL
My Lords,
1. This appeal raises two questions on the law of libel. The first concerns the entitlement of a trading corporation such as the second respondent to sue and recover damages without pleading or proving special damage. The second concerns the scope and application of what has come to be called Reynolds privilege, an important form of qualified privilege.
2. The appellant is the publisher of The Wall Street Journal Europe, a respected, influential and unsensational newspaper (“the newspaper”) carrying serious news about international business, finance and politics. It is edited, published and printed in Brussels for distribution throughout Europe and the Middle East. It shares some editorial and journalistic personnel and facilities with its elder sister in New York, The Wall Street Journal, which has a large circulation in the United States.
3. The respondents, claimants in the proceedings, are Saudi Arabian. The first respondent is a prominent businessman and president of the Abdul Latif Jameel Group, an international trading conglomerate based in the Kingdom of Saudi Arabia comprising numerous companies and with interests in cars, shipping, property and distribution of electronic goods. The second respondent is a company incorporated in Saudi Arabia and is part of the Group. The first respondent is the general manager and president of the company, which does not itself own property or conduct any trade or business here, but which has a commercial reputation in England and Wales.
4. On 6 February 2002 the newspaper published the article which gave rise to these proceedings. It was headed “Saudi Officials Monitor Certain Bank Accounts” with a smaller sub-heading “Focus Is on Those With Potential Terrorist Ties”. It bore the by-line of James M Dorsey, an Arabic-speaking reporter with specialist knowledge of Saudi Arabia, and acknowledged the contribution of Glenn Simpson, a staff writer in Washington. The gist of the article, succinctly stated in the first paragraph, was that the Saudi Arabian Monetary Authority, the Kingdom’s central bank, was, at the request of US law enforcement agencies, monitoring bank accounts associated with some of the country’s most prominent businessmen in a bid to prevent them from being used, wittingly or unwittingly, for the funnelling of funds to terrorist organisations. This information was attributed to “U.S. officials and Saudis familiar with the issue”. In the second paragraph a number of companies and individuals were named, among them “the Abdullatif Jamil Group of companies” who, it was stated later in the article, “couldn’t be reached for comment”.
5. The jury in due course found that the article referred to was defamatory of both respondents. They may have understood the article to mean that there were reasonable grounds to suspect the involvement of the respondents, or alternatively that there were reasonable grounds to investigate the involvement of the respondents, in the witting or unwitting funnelling of funds to terrorist organisations. For present purposes it is immaterial which defamatory meaning the jury gave the passage complained of, neither of which the newspaper sought to justify.
6. The article was published some five months after the catastrophic events which took place in New York and Washington on 11 September 2001. During the intervening months the US authorities had taken determined steps, with strong international support, to cut off the flow of funds to terrorist organisations, including Al-Qaida. These steps were of particular importance in relation to Saudi Arabia, since a large majority of the suspected hijackers were of Saudi origin, and it was believed that much of their financial support came from Saudi sources. Yet the position of the Saudi authorities was one of some sensitivity. The Kingdom was an ally of the United States and condemned terrorism. But among its devoutly Muslim population there were those who resented the Kingdom’s association with the United States and espoused the cause of Islamic jihad. Thus there were questions about whether, and to what extent, the Kingdom was co-operating with the US authorities in cutting off funds to terrorist organisations. This was, without doubt, a matter of high international importance, a very appropriate matter for report by a serious newspaper. But it was a difficult matter to investigate and report since information was not freely available in the Kingdom and the Saudi authorities, even if co-operating closely with those of the United States, might be embarrassed if that fact were to become generally known.
7. The trial of the action before Eady J and a jury lasted some three working weeks and culminated in verdicts for the respondents and awards of £30,000 and £10,000 respectively. Much evidence was called on both sides, of which the House has been referred to short excerpts only. The judge rejected the newspaper’s argument on the damage issue ([2003] EWHC 2945 (QB), [2004] 2 All ER 92) and the Court of Appeal agreed with him ([2005] EWCA Civ 74, [2005] QB 904). The judge also rejected the newspaper’s claim to Reynolds privilege ([2004] EWHC 37 (QB)). On this question also the Court of Appeal upheld his decision, but on a more limited ground. This calls for more detailed consideration.
8. The judge put a series of questions to the jury which, so far as relevant to Reynolds privilege, were directed to two matters: the sources on which Mr Dorsey, as reporter, relied; and his attempt to obtain the respondents’ response to his inclusion of their names in his proposed article. Mr Dorsey testified that he had relied on information given by a prominent Saudi businessman (source A), confirmed by a banker (source B), a US diplomat (source C), a US embassy official (source D) and a senior Saudi official (source E). In answer to the judge’s questions the jury found that the newspaper had proved that Mr Dorsey had received the information he claimed to have received from source A, but had not proved that Mr Dorsey had received the confirmation he claimed from sources B-E inclusive. The judge attached significance to these negative findings, since Mr Dorsey said in evidence that he would not have written the article in reliance on source A alone. In the Court of Appeal, the judge’s reliance on these negative findings was criticised by the newspaper. At the outset of his direction to the jury the judge had pointed out that there was no plea of justification and that therefore, if the jury found the article defamatory of the respondents, they should assume it to be untrue. This direction, it was said, may well have infected the jury’s approach to the questions concerning sources B-E. The Court of Appeal refused the newspaper leave to raise a new ground of misdirection, and thought (para 66) that the jury had “almost certainly” based their answers on the impression made by witnesses in court. But the Court of Appeal preferred to base its decision on the other ground relied on by the judge to deny privilege.
9. Mr Dorsey described attempts to obtain a response from the Group about his proposed article. He said he had telephoned the Group office at about 9.0 a.m. and left a recorded message. The jury found that the newspaper had not proved on the balance of probabilities that that was so. There was, it was agreed, a telephone conversation between Mr Dorsey and Mr Munajjed, an employee of the Group, on the evening of 5 February, the day before publication. During that conversation, according to Mr Munajjed, he had asked Mr Dorsey to wait until the following day for a comment by the Group. He had, he said, no authority to make a statement and the first respondent was in Japan, where the time was 3.0 a.m. Mr Dorsey denied that Mr Munajjed had asked him to wait. But the jury found that Mr Munajjed had made that request. It was on this ground, as I understand, that the Court of Appeal upheld the judge’s denial of Reynolds privilege:
“82. We turn to the judge’s observation that the Jameels were not given sufficient time to comment on the proposed publication. It was to this matter that the jury’s questions 6 and 7 were addressed. Mr Dorsey had given evidence that he had telephoned the Jameels’ offices on the morning before the publication and left a recorded message. The jury found that this did not take place. What the jury did find had taken place was that Mr Dorsey had spoken to the Jameels’ representative, Mr Munajjed, on the evening before publication, that the latter had asked for the publication to be postponed so that he could contact Mr Jameel, who was in Japan on business, and that Mr Dorsey had declined this request. The judge found that there was no compelling reason why Mr Jameel could not have been afforded 24 hours to comment on the article. We can see no basis for challenging this conclusion, nor did Mr Robertson suggest that there was one.”
10. I turn to the two issues raised in the appeal.
DAMAGE
11. The issue under this head is whether a trading company which itself conducts no business but which has a trading reputation within England and Wales should be entitled to recover general damages for libel without pleading and proving that the publication complained of has caused it special damage. To resolve this question it is helpful to distinguish three sub-issues:
(1) whether such an entitlement exists under the current law of England and Wales;
(2) whether, if so, article 10 of the European Convention on Human Rights requires revision of the current domestic law; and
(3) whether, if not, the current domestic law should in any event be revised.
(1) The current domestic law
12. The tort of libel has long been recognised as actionable per se. Thus where a personal plaintiff proves publication of a false statement damaging to his reputation without lawful justification, he need not plead or prove special damage in order to succeed. Proof of injury to his reputation is enough.
13. It was argued in South Hetton Coal Company Limited v North-Eastern News Association Limited [1894] 1 QB 133 that this rule did not apply to trading companies. The newspaper in that case had published an article strongly critical of the way in which the plaintiff, a colliery owner, housed its workers, and the company had not pleaded or proved any actual damage. It was argued for the publisher that a corporation could have no personal character, and that the article had not related to the business of the company (pp 134, 137). The Court of Appeal unanimously rejected this argument. Lord Esher MR held the law of libel to be one and the same for all plaintiffs (p 138). While he referred to obvious differences between individuals and companies (pp 138-139), his conclusion (p 139) was clear:
“Then, if the case be one of libel – whether on a person, a firm, or a company – the law is that damages are at large. It is not necessary to prove any particular damage; the jury may give such damages as they think fit, having regard to the conduct of the parties respectively, and all the circumstances of the case.”
There need be no evidence of particular damage (p 140). Lopes LJ agreed (p 141): a company may maintain an action for a libel reflecting on the management of its business without alleging or proving special damage. Kay LJ also agreed (p 148): a trading corporation may sue for a libel calculated to injure them in respect of their business, and may do so without any proof of damage general or special, although, where there is no such evidence, the damages given will probably be small.
14. In Lewis v Daily Telegraph Ltd [1964] AC 234, 262, Lord Reid pointed out that a company cannot be injured in its feelings but only in its pocket. There was, however, no challenge in that case to the principle laid down in South Hetton, which was not cited in either party’s printed case, or in argument, or in any judgment.
15. Mr Robertson QC, for the newspaper, pointed out, quite correctly, that the Faulks Committee on Defamation, in its Report (Cmnd 5909, March 1975), para 336, recommended amendment of the South Hetton rule. The amendment recommended was, however, only to limit libel actions by trading corporations to cases where the trading corporation could establish either that it had suffered special damage or that the defamation was likely to cause it financial damage. This recommendation was made after considering trenchant criticisms of the existing rule made by Mr J A Weir (“Local Authority v Critical Ratepayer – a Suit in Defamation” (1972A) CLJ 238). It is not a recommendation to which Parliament has chosen to give effect.
16. In Derbyshire County Council v Times Newspapers Ltd the issue concerned the entitlement of a local authority, not a trading corporation, to sue in libel. But at first instance South Hetton was cited, and contributed to Morland J’s conclusion that a local authority could sue: [1992] QB 770, 781, 783-788. On appeal, counsel for the newspaper distinguished South Hetton on the ground of the colliery company’s trading character and counsel for the local authority relied on it: ibid, pp 792, 797. No member of the Court of Appeal questioned the decision. Balcombe LJ accepted South Hetton as binding for what it decided, but also (despite Mr Weir’s criticism) expressed his agreement with it: p 809. In the House, counsel for the local authority cited the decision ([1993] AC 534, 536-537). Counsel for the newspaper did not criticise it, but distinguished it as applicable to a company with a business reputation which a local authority did not have (p 538). In his leading opinion, with which the other members of the House agreed, Lord Keith of Kinkel (who had been a member of the Faulks committee) cited South Hetton at some length, and also National Union of General and Municipal Workers v Gillian [1946] KB 81, in which a non-trading corporation (a trade union) had been assimilated to a trading corporation. He then continued (p 547):
“The authorities cited above clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it. The South Hetton Coal Co case [1894] 1 QB 133 would appear to be an instance of the latter kind, and not, as suggested by Browne J, an authority for the view that a trading corporation can sue for something that does not affect it adversely in the way of its business. The trade union cases are understandable upon the view that defamatory matter may adversely affect the union’s ability to keep its members or attract new ones or to maintain a convincing attitude towards employers. Likewise in the case of a charitable organisation the effect may be to discourage subscribers or otherwise impair its ability to carry on its charitable objects. Similar considerations can no doubt be advanced in connection with the position of a local authority. Defamatory statements might make it more difficult to borrow or to attract suitable staff and thus affect adversely the efficient carrying out of its functions.”
Lord Keith then went on to give his reasons for concluding that a local authority was to be distinguished from other types of corporation, whether trading or non-trading.
17. In Derbyshire the correctness of South Hetton was not challenged, but acceptance of its correctness was an important step in Lord Keith’s reasoning and I find no ambiguity in the proposition he propounded: the authorities clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. In Shevill v Presse Alliance SA [1996] AC 959, decided some three years later by a differently constituted committee of the House, one of the plaintiffs was a trading corporation and the presumption of damage in libel cases was treated as part of our national substantive law. I conclude that under the current law of England and Wales a trading company with a trading reputation in this country may recover general damages without pleading or proving special damage if the publication complained of has a tendency to damage it in the way of its business.
(2) Article 10
18. Article 10 of the European Convention provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The central importance of this article in the Convention regime is clear beyond question, and is reflected in section 12 of the Human Rights Act 1998. Freedom to publish free of unjustifiable restraint must indeed be recognised as a distinguishing feature of the sort of society which the Convention seeks to promote. The newspaper in this case relies on article 10 to contend that a domestic rule entitling a trading corporation to sue in libel when it can prove no financial loss is an unreasonable restraint on the right to publish protected by article 10.
Reynolds v. Times Newspapers Ltd and Others
[1999] UKHL 45; [1999] 4 All ER 609; [1999] 3 WLR 1010 [2000] EMLR 1, [2001] 2 AC 127, 7 BHRC 289, [2000] HRLR 134
LORD NICHOLLS OF BIRKENHEAD
My Lords,
This appeal concerns the interaction between two fundamental rights: freedom of expression and protection of reputation. The context is newspaper discussion of a matter of political importance. Stated in its simplest form, the newspaper’s contention is that a libellous statement of fact made in the course of political discussion is free from liability if published in good faith. Liability arises only if the writer knew the statement was not true or if he made the statement recklessly, not caring whether it was true or false, or if he was actuated by personal spite or some other improper motive. Mr. Reynolds’ contention, on the other hand, is that liability may also arise if, having regard to the source of the information and all the circumstances, it was not in the public interest for the newspaper to have published the information as it did. Under the newspaper’s contention the safeguard for those who are defamed is exclusively subjective: the state of mind of the journalist. Under Mr. Reynolds’ formulation, there is also an objective element of protection.
The events giving rise to these proceedings took place during a political crisis in Dublin in November 1994. The crisis culminated in the resignation of Mr. Reynolds as Taoiseach (prime minister) of Ireland and leader of the Fianna Fáil party. The reasons for Mr. Reynolds’ resignation were of public significance and interest in the United Kingdom because of his personal identification with the Northern Ireland peace process. Mr. Reynolds was one of the chief architects of that process. He announced his resignation in the Dáil (the House of Representatives) of the Irish Parliament on Thursday, 17 November 1994. On the following Sunday, 20 November, the ‘Sunday Times’ published in its British mainland edition an article entitled ‘Goodbye gombeen man.’ The article was the lead item in its world news section and occupied most of one page. The article was sub-headed ‘Why a fib too far proved fatal for the political career of Ireland’s peacemaker and Mr. Fixit’. On the same day the Irish edition of the ‘Sunday Times’ contained a three page article headed ‘House of Cards’ concerning the fall of the Government. This article differed in a number of respects from the British mainland edition.
Mr. Reynolds took strong exception to the article in the British mainland edition. In the libel proceedings which followed, Mr. Reynolds pleaded that the sting of the article was that he had deliberately and dishonestly misled the Dáil on Tuesday, 15 November 1994 by suppressing vital information. Further, that he had deliberately and dishonestly misled his coalition cabinet colleagues, especially Mr. Spring, the Tanaiste (deputy prime minister) and minister for foreign affairs, by withholding this information and had lied to them about when the information had come into his possession. The author of the article was Mr. Ruddock, the newspaper’s Irish editor. Times Newspapers Ltd. was the publisher of the newspaper, and Mr. Witherow was the editor. They were defendants in the proceedings. The background facts are further elaborated in the judgment of the Court of Appeal, reported at [1998] 3 W.L.R. 862, 869-873. It was common ground before your Lordships that by instituting and prosecuting his libel action Mr. Reynolds had waived his immunity under the Irish constitution in respect of proceedings in the Dáil. His ability to do so was not questioned in your Lordships’ House.
The action was tried by French J. and a jury between 14 October and 19 November 1996. The issues at the trial were: the meaning of the article, qualified privilege at common law, justification, malice and damages. During the trial the defendants abandoned pleaded defences that the words were fair comment on a matter of public interest and that they were a fair and accurate report of proceedings in public of the Irish legislature.
The jury verdict took the form of answers to questions. The jury decided that the defamatory allegation of which Mr. Reynolds complained was not true. So the defence of justification failed. The jury decided that Mr. Ruddock was not acting maliciously in writing and publishing the words complained of, nor was Mr. Witherow. So, if the occasion was privileged, and that was a question for the judge, the defence of qualified privilege would succeed. Despite their rejection of the defence of justification, the jury awarded Mr. Reynolds no damages. The judge substituted an award of one penny. In the light of this nil award, costs were the only remaining issue. On this the defence of qualified privilege was still a live question. If this defence was available to the defendants, they had a complete defence to the action, and the judge would have ordered Mr. Reynolds to pay the defendants’ costs of the action. The judge then heard submissions on the question of qualified privilege. The defendants unsuccessfully contended for a wide qualified privilege at common law for ‘political speech’. The judge ruled that publication of the article was not privileged.
Mr. Reynolds appealed, contending that the judge had misdirected the jury in certain respects. The defendants cross-appealed against the judge’s decision on the qualified privilege point. The Court of Appeal, comprising Lord Bingham of Cornhill C.J., Hirst L.J. and Robert Walker L.J., allowed Mr. Reynolds’ appeal. They concluded, with regret because of the consequences for the parties, that the misdirections identified by the court were, cumulatively, such as to deny Mr. Reynolds a fair trial of his claim. They set aside the verdict,finding and judgment of the court below and ordered a new trial. The Court of Appeal also considered whether the defendants would be able to rely on qualified privilege at the retrial. The court held they would not. Your Lordships’ House gave leave to the defendants to appeal against this ruling, since it raised an issue of public importance. That is the issue now before your Lordships.
Defamation and truth
The defence of qualified privilege must be seen in its overall setting in the law of defamation. Historically the common law has set much store by protection of reputation. Publication of a statement adversely affecting a person’s reputation is actionable. The plaintiff is not required to prove that the words are false. Nor, in the case of publication in a written or permanent form, is he required to prove he has been damaged. But, as Littledale J. said in McPherson v. Daniels (1829) 10 B. & C. 263, 272, ‘the law will not permit a man to recover damages in respect of an injury to a character which he does not or ought not to possess’. Truth is a complete defence. If the defendant proves the substantial truth of the words complained of, he thereby establishes the defence of justification. With the minor exception of proceedings to which the Rehabilitation of Offenders Act 1974 applies, this defence is of universal application in civil proceedings. It avails a defendant even if he was acting spitefully.
The common law has long recognised the ‘chilling’ effect of this rigorous, reputation protective principle. There must be exceptions. At times people must be able to speak and write freely, uninhibited by the prospect of being sued for damages should they be mistaken or misinformed. In the wider public interest, protection of reputation must then give way to a higher priority.
Honest comment on a matter of public interest
One established exception is the defence of comment on a matter of public interest. This defence is available to everyone, and is of particular importance to the media. The freedom of expression protected by this defence has long been regarded by the common law as a basic right, long before the emergence of human rights conventions. In 1863 Crompton J. observed in Campbell v. Spottiswoode (1863) 3 B. & S. 769, 779, that ‘it is the right of all the Queen’s subjects to discuss public matters’. The defence is wide in its scope. Public interest has never been defined, but in London Artists Ltd. v. Littler [1969] 2 QB 375, 391, Lord Denning M.R. rightly said that it is not to be confined within narrow limits. He continued:
‘Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment.’
Traditionally one of the ingredients of this defence is that the comment must be fair, fairness being judged by the objective standard of whether any fair-minded person could honestly express the opinion in question. Judges have emphasised the latitude to be applied in interpreting this standard. So much so, that the time has come to recognise that in this context the epithet ‘fair’ is now meaningless and misleading. Comment must be relevant to the facts to which it is addressed. It cannot be used as a cloak for mere invective. But the basis of our public life is that the crank, the enthusiast, may say what he honestly thinks as much as the reasonable person who sits on a jury. The true test is whether the opinion, however exaggerated, obstinate or prejudiced, was honestly held by the person expressing it: see Diplock J. in Silkin v. Beaverbrook Newspapers Ltd. [1958] 1 W.L.R. 743, 747.
It is important to keep in mind that this defence is concerned with the protection of comment, not imputations of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere. Further, to be within this defence the comment must be recognisable as comment, as distinct from an imputation of fact. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made: see the discussion in Duncan and Neill on Defamation, 2nd ed. (1983), pp. 58-62.
One constraint does exist upon this defence. The comment must represent the honest belief of its author. If the plaintiff proves he was actuated by malice, this ground of defence will fail.
Privilege: factual inaccuracies
The defence of honest comment on a matter of public interest, then, does not cover defamatory statements of fact. But there are circumstances, in the famous words of Parke B. in Toogood v. Spyring (1834) 1 C.M. & R. 181, 193, when the ‘common convenience and welfare of society’ call for frank communication on questions of fact. In Davies v. Snead (1870) L.R. 5 Q.B. 608, 611, Blackburn J. spoke of circumstances where a person is so situated that it ‘becomes right in the interests of society’ that he should tell certain facts to another. There are occasions when the person to whom a statement is made has a special interest in learning the honestly held views of another person, even if those views are defamatory of someone else and cannot be proved to be true. When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged.
Sometimes the need for uninhibited expression is of such a high order that the occasion attracts absolute privilege, as with statements made by judges or advocates or witnesses in the course of judicial proceedings. More usually, the privilege is qualified in that it can be defeated if the plaintiff proves the defendant was actuated by malice.
The classic exposition of malice in this context is that of Lord Diplock in Horrocks v. Lowe [1975] A.C. 135, 149. If the defendant used the occasion for some reason other than the reason for which the occasion was privileged he loses the privilege. Thus, the motive with which the statement was made is crucial. If desire to injure was the dominant motive the privilege is lost. Similarly, if the maker of the statement did not believe the statement to be true, or if he made the statement recklessly, without considering or caring whether it was true or not. Lord Diplock. at p. 150, emphasised that indifference to truth is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true:
‘In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be ‘honest’, that is, a positive belief that the conclusions they have reached are true. The law demands no more.’
Over the years the courts have held that many common form situations are privileged. Classic instances are employment references, and complaints made or information given to the police or appropriate authorities regarding suspected crimes. The courts have always emphasised that the categories established by the authorities are not exhaustive. The list is not closed. The established categories are no more than applications, in particular circumstances, of the underlying principle of public policy. The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson’s dictum, in Adam v. Ward [1917] A.C. 309, 334, is much quoted:
‘. . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential’.
The requirement that both the maker of the statement and the recipient must have an interest or duty draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged. But this should not be allowed to obscure the rationale of the underlying public interest on which privilege is founded. The essence of this defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end. Thus the court has to assess whether, in the public interest, the publication should be protected in the absence of malice.
In determining whether an occasion is regarded as privileged the court has regard to all the circumstances: see, for example, the explicit statement of Lord Buckmaster L.C.in London Association for Protection of Trade v. Greenlands Ltd. [1916] 2 A.C. 15, 23 (‘every circumstance associated with the origin and publication of the defamatory matter’). And circumstances must be viewed with today’s eyes. The circumstances in which the public interest requires a communication to be protected in the absence of malice depend upon current social conditions. The requirements at the close of the twentieth century may not be the same as those of earlier centuries or earlier decades of this century.
Privilege and publication to the world at large
Frequently a privileged occasion encompasses publication to one person only or to a limited group of people. Publication more widely, to persons who lack the requisite interest in receiving the information, is not privileged. But the common law has recognised there are occasions when the public interest requires that publication to the world at large should be privileged. In Cox v. Feeney (1863) 4 F. & F. 13, 19, Cockburn C.J. approved an earlier statement by Lord Tenterden C.J. that ‘a man has a right to publish, for the purpose of giving the public information, that which it is proper for the public to know’. Whether the public interest so requires depends upon an evaluation of the particular information in the circumstances of its publication. Through the cases runs the strain that, when determining whether the public at large had a right to know the particular information, the court has regard to all the circumstances. The court is concerned to assess whether the information was of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice.
This issue has arisen several times in the context of newspapers discharging their important function of reporting matters of public importance. Two instances will suffice, together with one instance of the publication in book form of information originating with the publisher. Purcell v. Sowler (1877) 2 C.P.D. 215 concerned a newspaper report of a public meeting of poor-law guardians. During the meeting the medical officer of the workhouse at Knutsford was said to have neglected to attend pauper patients when sent for. In deciding that publication of this allegation was not privileged, the Court of Appeal looked beyond the subject-matter. The court held that the administration of the poor-law was a matter of national concern, but there was no duty to report charges made in the absence of the medical officer and without his having had any opportunity to meet them. The meeting was a privileged occasion so far as the speaker was concerned, but publication in the press was not. In Allbutt v. General Council of Medical Education and Registration (1889) 23 Q.B.D. 400, 410, the defendants published a book containing minutes of a meeting of the council recording that the plaintiff’s name had been removed from the medical register for infamous professional conduct. This was after an inquiry at which the plaintiff had been represented by counsel. The Court of Appeal held that the publication was privileged. Giving the judgment of the court, Lopes L.J. expressly had regard to the nature of the tribunal, the character of the report, the interests of the public in the proceedings of the council and the duty of the council towards the public. Perera v. Peiris [1949] AC 1, 21, was an appeal to the Privy Council from the Supreme Court of Ceylon. The ‘Ceylon Daily News’ had published extracts from a report of the Bribery Commission which was critical of Dr. Perera’s lack of frankness in his evidence. The Judicial Committee upheld a claim to qualified privilege. In the light of the origin and contents of the report and its relevance to the affairs of Ceylon, the due administration of the affairs of Ceylon required that the report should receive the widest publicity.
The courts have recognised that the status and activities of certain bodies are such that members of the public are entitled to know of their proceedings. Then privilege derives from the subject-matter alone. Fair and accurate reports of the proceedings of these organisations are privileged. A leading instance is Wason v. Walter (1868) L.R. 4 Q.B. 73, 89, concerning newspaper reports of debates in Parliament. The Court of Queen’s Bench held, by analogy with reports of judicial proceedings, that fair and accurate reports of parliamentary proceedings were privileged. Cockburn C.J. observed that it was of paramount public and national importance that the proceedings of either House of Parliament should be communicated to the public ‘who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends’.
In Webb v. Times Publishing Co. Ltd. [1960] 2 Q.B. 535 the defendants attempted to obtain similar blanket (or ‘generic’) protection for another category of subject-matter: reports of foreign judicial proceedings. There ‘The Times’ newspaper had published a report of the criminal trial in Switzerland of a British subject. Pearson J. rejected this approach, but he upheld the claim to privilege by applying the general principle enunciated in the line of authorities exemplified by Cox v. Feeney 4 F. & F. 13, Allbutt v. General Council of Medical Education and Registration 23 Q.B.D. 400 and Perera v. Peiris [1949] AC 1.
Similarly, in Blackshaw v. Lord [1984] 1 Q.B. 1, 6 the Court of Appeal rejected a claim to generic protection for a widely stated category: ‘fair information on a matter of public interest’. A claim to privilege must be more precisely focused. In order to be privileged publication must be in the public interest. Whether a publication is in the public interest or, in the conventional phraseology, whether there is a duty to publish to the intended recipients, there the readers of the ‘Daily Telegraph’, depends upon the circumstances, including the nature of the matter published and its source or status.
The decision of the Court of Appeal in Braddock v. Bevins [1948] 1 K.B. 580, on which the appellant newspaper placed some reliance, is consistent with this approach. The court held that Mr. Bevins’ election address at a local election was the subject of qualified privilege. In reaching its conclusion the court applied the classic requirements necessary to confer qualified privilege: see the judgment of Lord Greene M.R., at pp. 589-590. This decision was reversed by section 10 of the Defamation Act 1952:
‘A defamatory statement published by or on behalf of a candidate in any election to a local government authority or to Parliament shall not be deemed to be published on a privileged occasion on the ground that it is material to a question in issue in the election, whether or not the person by whom it is published is qualified to vote at the election.’
Parliament seems to have taken the view that the defence of comment on a matter of public interest provided sufficient protection for election addresses. Whether this statutory provision can withstand scrutiny under the Human Rights Act 1998 is not a matter to be pursued on this appeal. Suffice to say, Braddock v. Bevins did not place election communications into a special category.
In Derbyshire County Council v. Times Newspapers Ltd. [1993] AC 534 this House held that it was contrary to the public interest for organs of central or local government to have any right at common law to maintain an action for defamation. This is an instance, in the field of political discussion, of the court’s concern to remove all unnecessary fetters on freedom of speech. Beyond that, this decision does not assist in the present appeal.
In its valuable and forward-looking analysis of the common law the Court of Appeal in the present case highlighted that in deciding whether an occasion is privileged the court considers, among other matters, the nature, status and source of the material published and the circumstances of the publication. In stressing the importance of these particular factors, the court treated them as matters going to a question (‘the circumstantial test’) separate from, and additional to, the conventional duty-interest questions: see [1998] 3 W.L.R. 862, 899. With all respect to the Court of Appeal, this formulation of three questions gives rise to conceptual and practical difficulties and is better avoided. There is no separate or additional question. These factors are to be taken into account in determining whether the duty-interest test is satisfied or, as I would prefer to say in a simpler and more direct way, whether the public was entitled to know the particular information. The duty-interest test, or the right to know test, cannot be carried out in isolation from these factors and without regard to them. A claim to privilege stands or falls according to whether the claim passes or fails this test. There is no further requirement.
Statutory privilege
Many, if not all, of the common law categories of case where reports of proceedings attract privilege are now the subject of statutory privilege. Successive statutes have extended the categories. The Law of Libel Amendment Act 1888 granted qualified privilege to fair and accurate reports published in newspapers of a limited range of public meetings. In 1948 the Report of the Committee on the Law of Defamation (Cmd. 7536), chaired by Lord Porter, recommended that the classes of reports subject to qualified privilege should be extended, and that they should be re-classified into two categories: those where statements were privileged without explanation or contradiction, and those where privilege was conditional on publication on request of a letter or statement by way of explanation or contradiction. The Defamation Act 1952 gave effect to these recommendations. Among the publications having qualified privilege without explanation or contradiction was a fair and accurate report of proceedings in public of the Irish legislature. Until abandoned, this was one of the defendants’ pleaded defences in the present proceedings.
In 1975 the committee on defamation chaired by Faulks J. considered a proposal that a statutory qualified privilege should be created to protect statements made, whether in a newspaper or elsewhere, if the matter was of public interest and the publisher believed the statement of facts was true and he had taken reasonable care in relation to such facts. In its report (Cmnd. 5909) the committee did not accept this proposal. The committee considered this would seriously alter the balance of the law of defamation against a defamed plaintiff. The committee noted that the common law defence of qualified privilege was available to the media as much as anyone else, and referred to the Cox v. Feeney line of cases.
In 1991 the Supreme Court Procedure Committee, chaired by Neill L.J., in its Report on Practice and Procedure in Defamation considered that fair and accurate coverage by the British media of statements and proceedings abroad ought to be protected by qualified privilege in circumstances which would attract privilege if comparable statements or proceedings occurred in this country. The committee recommended this result should be achieved by statute. The committee regarded the ‘duty’ test as too stringent in modern conditions and productive of too much uncertainty. The committee was opposed to the introduction of a defence similar to the ‘public figure’ defence enunciated by the United States Supreme Court in New York Times Co. v. Sullivan (1964) 376 U.S. 254.
The Defamation Act 1996 broadly gave effect to the Neill committee recommendations. The Act contained an extended list of categories of statutory qualified privilege. In the Act of 1996 and the Act of 1952 statutory privilege was additional to any common law privilege, but did not protect publication of any matter which was not of public concern and the publication of which was not for the public benefit: see section 15 of the Act of 1996 and section 7 of the Act of 1952.
In other countries
Before turning to the issues raised by this appeal mention must be made, necessarily briefly, of the solutions adopted in certain other countries. As is to be expected, the solutions are not uniform. As also to be expected, the chosen solutions have not lacked critics in their own countries.
In the United States the leading authority is the well-known case of New York Times Co. v. Sullivan 376 U.S. 254. Founding itself on the first and fourteenth amendments to the United States Constitution, the Supreme Court held that a public official cannot recover damages for a defamatory falsehood relating to his official conduct unless he proves, with convincing clarity, that the statement was made with knowledge of its falsity or with reckless disregard of whether it was false or not. This principle has since been applied to public figures generally.
In Canada the Supreme Court, in Hill v. Church of Scientology of Toronto (1995) 126 D.L.R. (4th) 129, rejected a Sullivan style defence, although that case did not concern political discussion. The Supreme Court has not had occasion to consider this issue in relation to political discussion.
In India the Supreme Court, in Rajagopal v. State of Tamil Nadu (1994) 6 S.C.C. 632, 650, held that a public official has no remedy in damages for defamation in matters relating to his official duties unless he proves the publication was made with reckless disregard of the truth or out of personal animosity. Where malice is alleged it is sufficient for the defendant to prove he acted after a reasonable verification of the facts.
In Australia the leading case is Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520. The High Court held unanimously that qualified privilege exists for the dissemination of information, opinions and arguments concerning government and political matters affecting the people of Australia, subject to the publisher proving reasonableness of conduct. The High Court regarded its decision as an extension of the categories of qualified privilege, and considered that the reasonableness requirement was appropriate having regard to the greater damage done by mass dissemination compared with the limited publication normally involved on occasions of common law qualified privilege. As a general rule a defendant’s conduct in publishing material giving rise to a defamatory imputation would not be reasonable unless the defendant had reasonable grounds for believing the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Further, the defendant’s conduct would not be reasonable unless the defendant sought a response from the person defamed and published the response, except where this was not practicable or was unnecessary.
In South Africa the issue has not been considered by the Constitutional Court. In National Media Ltd. v. Bogoshi 1998 (4) S.A. 1196, 1212 the Supreme Court of Appeal broadly followed the approach of the Court of Appeal in the present case and the Australian High Court in the Lange case. Press publication of defamatory statements of fact will not be regarded as unlawful if, upon consideration of all the circumstances, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time.In considering the reasonableness of the publication account must be taken of the nature, extent and tone of the allegations. Greater latitude is usually to be allowed in respect of political discussion.
In New Zealand the leading case is the Court of Appeal decision in Lange v. Atkinson [1998] 3 N.Z.L.R. 424. The Court of Appeal held that members of the public have a proper interest in respect of statements made about the actions and qualities of those currently or formerly elected to Parliament and those seeking election. General publication of such statements may therefore attract a defence of qualified privilege. The exercise of reasonable care by the defendant is not a requirement of this defence. This decision is currently under appeal to the Privy Council. The Judicial Committee heard this appeal shortly before the Appellate Committee of your Lordships’ House, similarly constituted, heard the parties’ submissions on the present appeal.
A new category of privileged subject-matter?
I turn to the appellants’ submissions. The newspaper seeks the incremental development of the common law by the creation of a new category of occasion when privilege derives from the subject-matter alone: political information. Political information can be broadly defined, borrowing the language used by the High Court of Australia in the Lange case, as information, opinion and arguments concerning government and political matters that affect the people of the United Kingdom. Malice apart, publication of political information should be privileged regardless of the status and source of the material and the circumstances of the publication. The newspaper submitted that the contrary view requires the court to assess the public interest value of a publication, taking these matters into account. Such an approach would involve an unpredictable outcome. Moreover, it would put the judge in a position which in a free society ought to be occupied by the editor. Such paternalism would effectively give the court an undesirable and invidious role as a censor or licensing body.
These are powerful arguments, but I do not accept the conclusion for which the newspaper contended. My reasons appear from what is set out below.
My starting point is freedom of expression. The high importance of freedom to impart and receive information and ideas has been stated so often and so eloquently that this point calls for no elaboration in this case. At a pragmatic level, freedom to disseminate and receive information on political matters is essential to the proper functioning of the system of parliamentary democracy cherished in this country. This freedom enables those who elect representatives to Parliament to make an informed choice, regarding individuals as well as policies, and those elected to make informed decisions. Freedom of expression will shortly be buttressed by statutory requirements. Under section 12 of the Human Rights Act 1998, expected to come into force in October 2000, the court is required, in relevant cases, to have particular regard to the importance of the right to freedom of expression. The common law is to be developed and applied in a manner consistent with article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Cmd. 8969), and the court must take into account relevant decisions of the European Court of Human Rights (sections 6 and 2). To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved.
Likewise, there is no need to elaborate on the importance of the role discharged by the media in the expression and communication of information and comment on political matters. It is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment. In this regard it should be kept in mind that one of the contemporary functions of the media is investigative journalism. This activity, as much as the traditional activities of reporting and commenting, is part of the vital role of the press and the media generally.
Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognise that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others.
The crux of this appeal, therefore, lies in identifying the restrictions which are fairly and reasonably necessary for the protection of reputation. Leaving aside the exceptional cases which attract absolute privilege, the common law denies protection to defamatory statements, whether of comment or fact, proved to be actuated by malice, in the Horrocks v. Lowe [1975] A.C. 135 sense. This common law limitation on freedom of speech passes the ‘necessary’ test with flying colours. This is an acceptable limitation. Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth.
In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation. Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based.
With defamatory imputations of fact the position is different and more difficult. Those who read or hear such allegations are unlikely to have any means of knowing whether they are true or not. In respect of such imputations, a plaintiff’s ability to obtain a remedy if he can prove malice is not normally a sufficient safeguard. Malice is notoriously difficult to prove. If a newspaper is understandably unwilling to disclose its sources, a plaintiff can be deprived of the material necessary to prove, or even allege, that the newspaper acted recklessly in publishing as it did without further verification. Thus, in the absence of any additional safeguard for reputation, a newspaper, anxious to be first with a ‘scoop’, would in practice be free to publish seriously defamatory misstatements of fact based on the slenderest of materials. Unless the paper chose later to withdraw the allegations, the politician thus defamed would have no means of clearing his name, and the public would have no means of knowing where the truth lay. Some further protection for reputation is needed if this can be achieved without a disproportionate incursion into freedom of expression.
This is a difficult problem. No answer is perfect. Every solution has its own advantages and disadvantages. Depending on local conditions, such as legal procedures and the traditions and power of the press, the solution preferred in one country may not be best suited to another country. The appellant newspaper commends reliance upon the ethics of professional journalism. The decision should be left to the editor of the newspaper. Unfortunately, in the United Kingdom this would not generally be thought to provide a sufficient safeguard. In saying this I am not referring to mistaken decisions. From time to time mistakes are bound to occur, even in the best regulated circles.. Making every allowance for this, the sad reality is that the overall handling of these matters by the national press, with its own commercial interests to serve, does not always command general confidence.
As high-lighted by the Court of Appeal judgment in the present case, the common law solution is for the court to have regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends upon its quality as well as its subject-matter. This solution has the merit of elasticity. As observed by the Court of Appeal, this principle can be applied appropriately to the particular circumstances of individual cases in their infinite variety. It can be applied appropriately to all information published by a newspaper, whatever its source or origin.
Hand in hand with this advantage goes the disadvantage of an element of unpredictability and uncertainty. The outcome of a court decision, it was suggested, cannot always be predicted with certainty when the newspaper is deciding whether to publish a story. To an extent this is a valid criticism. A degree of uncertainty in borderline cases is inevitable. This uncertainty, coupled with the expense of court proceedings, may ‘chill’ the publication of true statements of fact as well as those which are untrue. The chill factor is perhaps felt more keenly by the regional press, book publishers and broadcasters than the national press. However, the extent of this uncertainty should not be exaggerated. With the enunciation of some guidelines by the court, any practical problems should be manageable. The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse. An incursion into press freedom which goes no further than this would not seem to be excessive or disproportionate. The investigative journalist has adequate protection. The contrary approach, which would involve no objective check on the media, drew a pertinent comment from Tipping J. in Lange v. Atkinson [1998] 3 N.Z.L.R. 424, 477:
‘It could be seen as rather ironical that whereas almost all sectors of society, and all other occupations and professions have duties to take reasonable care, and are accountable in one form or another if they are careless, the news media whose power and capacity to cause harm and distress are considerable if that power is not responsibly used, are not liable in negligence, and what is more, can claim qualified privilege even if they are negligent. It may be asked whether the public interest in freedom of expression is so great that the accountability which society requires of others, should not also to this extent be required of the news media.’
The common law approach does mean that it is an outside body, that is, some one other than the newspaper itself, which decides whether an occasion is privileged. This is bound to be so, if the decision of the press itself is not to be determinative of the propriety of publishing the particular material. The court has the advantage of being impartial, independent of government, and accustomed to deciding disputed issues of fact and whether an occasion is privileged. No one has suggested that some other institution would be better suited for this task.
For the newspaper, Lord Lester’s fall-back position was that qualified privilege should be available for political discussion unless the plaintiff proved the newspaper failed to exercise reasonable care. One difficulty with this suggestion is that it would seem to leave a newspaper open to publish a serious allegation which it had been wholly unable to verify.Depending on the circumstances, that might be most unsatisfactory. This difficulty would be removed if, as also canvassed by Lord Lester, the suggested limitation was stated more broadly, and qualified privilege was excluded if the plaintiff proved that the newspaper’s conduct in making the publication was unreasonable. Whether this test would differ substantially from the common law test is a moot point. There seems to be no significant practical difference between looking at all the circumstances to decide if a publication attracts privilege, and looking at all the circumstances to see if an acknowledged privilege is defeated.
I have been more troubled by Lord Lester’s suggested shift in the burden of proof. Placing the burden of proof on the plaintiff would be a reminder that the starting point today is freedom of expression and limitations on this freedom are exceptions. That has attraction. But if this shift of the onus were applied generally, it would turn the law of qualified privilege upside down. The repercussions of such a far-reaching change were not canvassed before your Lordships. If this change were applied only to political information, the distinction would lack a coherent rationale. There are other subjects of serious public concern. On balance I favour leaving the onus in its traditional place, on him who asserts the privilege, for two practical reasons. A newspaper will know much more of the facts leading up to publication. The burden of proof will seldom, if ever, be decisive on this issue.
For Mr. Reynolds, Mr. Caldecott submitted that in the context of political speech a report which ‘failed to report the other side’ should always fail the common law test and, further, that there should be a burden on the newspaper to establish a cogent reason why it should be excused from proving the truth of the assertion. I cannot accept either of these suggested requirements. Failure to report the plaintiff’s explanation is a factor to be taken into account. Depending upon the circumstances, it may be a weighty factor. But it should not be elevated into a rigid rule of law. As to the second requirement, it is not clear to what extent, and in what respects, this suggestion covers ground different from the ground already covered by the common law principle.
Human rights jurisprudence
The common law approach accords with the present state of the human rights jurisprudence. The immensely influential judgment in Lingens v. Austria (1986) 8 EHRR 407 concerned expressions of opinion, not statements of fact. Mr. Lingens was fined for publishing in his magazine in Vienna comments about the behaviour of the Federal Chancellor, Mr. Kreisky: ‘basest opportunism’, ‘immoral’ and ‘undignified’. Under the Austrian criminal code the only defence was proof of the truth of these statements. Mr. Lingens could not prove the truth of these value judgments, because Mr. Kreisky’s behaviour was capable of more than one interpretation. In a passage, often overlooked, at pp. 420-1, in para. 46 of its judgment, the European Court of Human Rights stated that a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The facts on which Mr. Lingens founded his value judgments were undisputed, as was his good faith. Since it was impossible to prove the truth of value judgments, the requirement of the relevant provisions of the Austrian criminal code was impossible of fulfilment and infringed article 10 of the Convention. The court has subsequently reiterated the distinction between facts and value judgments in De Haes and Gijsels v. Belgium (1997) 25 E.H.R.R. 1, 54 at para. 42.
In Fressoz and Roire v. France (unreported), 21 January 1999, Case No. 29183/95, paragraph 54, the court adverted to the need for accuracy on matters of fact. Article 10 protects the right of journalists to divulge information on issues of general interest provided they are acting in good faith and on ‘an accurate factual basis’ and supply reliable and precise information in accordance with the ethics of journalism. But a journalist is not required to guarantee the accuracy of his facts. Bladet Tromso and Stensaas v. Norway (unreported), 20 May 1999, Case No. 21980/93 involved newspaper allegations of fact: cruelty by seal hunters. The Court of Human Rights considered whether the newspaper had a reasonable basis for its factual allegations. Similarly, in Thorgeirson v. Iceland (1992) 14 EHRR 843 two newspaper articles reported widespread rumours of brutality by the Reykjavik police. These rumours had some substantiation in fact: a policeman had been convicted recently. The purpose of the articles was to promote an investigation by an independent body. The court held that although the articles were framed in particularly strong terms, they bore on a matter of serious public concern. It was unreasonable to require the writer to prove that unspecified members of the Reykjavik police force had committed acts of serious assault resulting in disablement.
None of these three latter cases involved political discussion, but for this purpose no distinction is to be drawn between political discussion and discussion of other matters of public concern: see the Thorgeirson case, at pp. 863-4, 865 para. 61, 64.
Conclusion
My conclusion is that the established common law approach to misstatements of fact remains essentially sound. The common law should not develop ‘political information’ as a new ‘subject-matter’ category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern. The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern.
Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.
1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff’s side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.
This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.
In general, a newspaper’s unwillingness to disclose the identity of its sources should not weigh against it. Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.
Privilege and the facts of this case
The appellant newspaper’s primary submission was that they never had the opportunity of pleading and proving a case that the ‘circumstantial test’ was satisfied, because this test had not been formulated until the Court of Appeal gave judgment. I am not persuaded by this line of argument. Mr. Reynolds’ case before the judge was that all the circumstances had to be taken into account. He specifically relied on the gravity of the charge, the presentation of lying as an allegation of fact and not as an opinion or value judgment, the omission of Mr. Reynolds’ defence as given by him in the Dail debate on Wednesday, 16 November 1994, and the difference between the versions in the mainland and Irish editions. In the exercise of its discretion the Court of Appeal decided to rule on the issue of qualified privilege, rather than leave this matter to be dealt with by the trial judge at the re-trial.
I can see no sufficient ground for interfering with that decision. Further, despite the defendants’ criticisms of some of the grounds set out by the Court of Appeal at [1998] 3 W.L.R. 862, 911-912, the facts relied upon by Mr. Reynolds before the judge were clear and undisputed. A most telling criticism of the article is the failure to mention Mr. Reynolds’ own explanation to the Dáil. Mr. Ruddock omitted this from the article because he rejected Mr. Reynolds’ version of the events and concluded that Mr. Reynolds had been deliberately misleading. It goes without saying that a journalist is entitled and bound to reach his own conclusions and to express them honestly and fearlessly. He is entitled to disbelieve and refute explanations given. But this cannot be a good reason for omitting, from a hard-hitting article making serious allegations against a named individual, all mention of that person’s own explanation. Particularly so, when the press offices had told Mr. Ruddock that Mr. Reynolds was not giving interviews but would be saying all he had to say in the Dáil. His statement in the Dáil was his answer to the allegations. An article omitting all reference to this statement could not be a fair and accurate report of proceedings in the Dáil. Such an article would be misleading as a report. This article is not defended as a report, but it was misleading nonetheless. By omitting Mr. Reynolds’ explanation English readers were left to suppose that, so far, Mr. Reynolds had offered no explanation. Further, it is elementary fairness that, in the normal course, a serious charge should be accompanied by the gist of any explanation already given. An article which fails to do so faces an uphill task in claiming privilege if the allegation proves to be false and the unreported explanation proves to be true.
Was the information in the ‘Sunday Times’ article information the public was entitled to know? The subject matter was undoubtedly of public concern in this country. However, these serious allegations by the newspaper, presented as statements of fact but shorn of all mention of Mr. Reynolds’ considered explanation, were not information the public had a right to know. I agree with the Court of Appeal this was not a publication which should in the public interest be protected by privilege in the absence of proof of malice. The further facts the defendants wish to assert and prove at the retrial would make no difference, either on this point or overall. I would dismiss this appeal.
LORD STEYN
My Lords,
I gratefully adopt the account of the background given by Lord Bingham of Cornhill, C.J., in sections I, II, and III of the judgment of the Court of Appeal (reported at [1998] 3 W.L.R. 862, 868H-876F), as well as the summary given by my noble and learned friend Lord Nicholls of Birkenhead. I therefore turn directly to the central issues.
The New Landscape
Important issues regarding the reconciliation of the colliding right of free speech and the right to reputation need to be considered in the light of the new legal landscape. In what was at the time regarded as a classic direction on fair comment to the jury Diplock J. in Silkin v. Beaverbrook Newspapers Ltd. [1958] 1. W.L.R. 743, 746 observed:
“In the first place, every man, whether he is in public life or not, is entitled not to have lies told about him; and by that is meant that one is not entitled to make statements of fact about a person which are untrue and which redound to his discredit, that is to say, tend to lower him in the estimation of right-thinking men.”
The present case involves a defamatory and factually false statement which the newspaper honestly believed to be true. If the observation of Diplock J. is taken not only as the starting point but as reflecting an absolute rule, there would be no room for any qualified privilege in respect of political speech. But the law has not stood still. In Attorney-General v.Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109, 283-4, Lord Goff of Chieveley observed that there was in principle no difference between article 10 of the European Convention of Human Rights and the English law of confidence. Article 10 is in the following terms:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers . . . 2. The exercise of these freedoms, since it carriers with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
In Derbyshire County Council v. Times Newspaper Ltd. [1993] AC 534, 551G, Lord Keith of Kinkel, speaking for a unanimous House, endorsed in a carefully considered passage Lord Goff’s observations in the context of article 10 of the Convention and the law of defamation.
It is worth considering why Lord Goff and Lord Keith could so confidently assert that the law of England and article 10 of the Convention is the same. In my judgment the reasons are twofold. First, there is the principle of liberty. Whatever is not specifically forbidden by law individuals and their enterprises are free to do: see Lord Goff, at p. 283G, where he stated that in England “everybody is free to do anything, subject only to the provisions of the law.” By contrast the executive and judicial branches of government may only do what the law specifically permits. Secondly, there is a constitutional right to freedom of expression in England: see Broome v. Cassell & Co. Ltd. [1972] AC 1027, 1133 A-B per Lord Kilbrandon. By categorising this basic and fundamental right as a constitutional right its higher normative force is emphasised. These are perhaps some of the considerations which enabled Lord Goff in 1988 and Lord Keith in 1993 to hold that article 10 of the Convention and the English law on the point are in material respects the same. Now the Human Rights Act 1998, which will corporate the Convention into our legal order, is on the statute book. And the government has announced that it will come into force on 2 October 2000. The constitutional dimension of freedom of expression is reinforced. This is the backcloth against which the present appeal must be considered. It is common ground that in considering the issues before the House, and the development of English law, the House can and should act on the reality that the Human Rights Act 1998 will soon be in force.
The new landscape is of great importance inasmuch as it provides the taxonomy against which the question before the House must be considered. The starting point is now the right of freedom of expression, a right based on a constitutional or higher legal order foundation. Exceptions to freedom of expression must be justified as being necessary in a democracy. In other words, freedom of expression is the rule and regulation of speech is the exception requiring justification. The existence and width of any exception can only be justified if it is underpinned by a pressing social need. These are fundamental principles governing the balance to be struck between freedom of expression and defamation.
The Issues
The issues to decide are as follows: (1) Is there a generic qualified privilege extending to publication by a newspaper to the public at large of information including assertions of fact concerning government and political matters which affect the people of the United Kingdom? If there is such a generic qualified privilege, the appeal must succeed. If the answer is in the negative, further issues arise. (2) After stating the traditional issues of duty and interest applicable to qualified privilege, the Court of Appeal enunciated what it described as “a circumstantial test.” The second issue is whether that test is correct in law. (3) If neither the generic test nor the circumstantial test is correct, what is the applicable law regarding qualified privilege in respect of political speech containing a defamatory and factually false statement which was honestly believed to be true? Under this heading the requirements and conditions applicable to such a qualified privilege (if any) are in dispute. (4) Whatever test is laid down, what are the respective functions of judge and jury? (5) Depending on the way the issues of law are resolved, should the decision of the Court of Appeal be affirmed or should it be quashed? (6) What order should be made?
Issue (1): Generic qualified privilege and political speech.
Counsel for the newspaper did not invite your Lordships to develop English law in line with the landmark case of New York Times Co. v. Sullivan (1964) 376 U.S. 254. The United States Supreme Court unanimously held that a public official could not succeed in an action for libel without proving that the defendant was actuated by actual malice, that is, at least with a reckless disregard of the truth. The question was whether a particular advertisement forfeited constitutional protection by reason of the falsity of some of the factual statements and the alleged defamation of a public official. The Supreme Court declared the relevant state law unconstitutional. In the present case counsel for the newspaper cited passages from the classic judgment of Brennan J. in the Sullivan case about the chilling effect on freedom of speech of too broad a defamation law. Perhaps for present purposes the most important passage is the following (at pp. 278-279):
“The state rule of law is not saved by its allowance of the defence of truth. . . . A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions–and to do so on pain of libel judgments virtually unlimited in amount–leads to a comparable ‘self-censorship.’ Allowance of the defence of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. . . . Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone.’ . . . The rule thus dampens the vigour and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.”
Given the limited way in which counsel used the Sullivan case I need not explore the subsequent development of the doctrine in Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 and other cases.
Counsel submitted that the House should recognise a qualified privilege extending to the publication by a newspaper to the public at large of factual information, opinions and arguments concerning government and political matters that affect the people of the United Kingdom. For convenience, I will call this a generic qualified privilege of political speech. A distinctive feature of political speech published by a newspaper is that it is communicated to a large audience. And this characteristic must be kept in mind in weighing the arguments in the present case. It is further essential not to lose sight of the factual framework in which the question arises, namely a defamatory and factually incorrect statement which the newspaper believed to be true.
It is now necessary to explain what is meant by a generic qualified privilege. It is to be contrasted with each case being considered in the light of its own particular circumstances, that is, in an ad hoc manner, in the light of the concrete facts of the case, and balancing in each case the gravity of the damage to the plaintiff’s reputation against the value of publication on the particular occasion. A generic privilege, on the other hand, uses the technique of applying the privilege to a category or categories of cases. An example is the rule in the Sullivan case, which requires proof of malice in all defamation actions by public officials and public figures. In the present case counsel for the newspaper argues for a generic test not applicable to a category of victim (such as public figures) but dependent on the subject matter (political speech).
This is a branch of law in which common law courts have arrived at sharply divergent solutions. In the Sullivan case the United States Supreme Court upheld a public figure defence. In Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520 the Australian High Court allowed a qualified privilege of political speech subject to a requirement of due care. In impressive and valuable judgments Elias J. (now Chief Justice) and the Court of Appeal of New Zealand allowed a generic defence of free speech, the rationale of the decisions being policy considerations applicable to New Zealand: Lange v. Atkinson [1997] 2 N.Z.L.R. 22 and [1998] 3 N.Z.R. 424. And in Reynolds v. Times Newspaper Limited [1998] 3 W.L.R. 862 the Court of Appeal enunciated a circumstantial test depending substantially on the source of the information. There are at stake powerful competing arguments of policy. They pull in different directions. It is a hard case in which it is unrealistic to say that there is only one right answer. And in considering the decisions in other jurisdictions it is right to take into account that cultural differences have played an important role.
Counsel for Mr. Reynolds submitted that a generic qualified privilege of political speech, defeasible only by proof of malice or reckless disregard of the truth, would make the prospect of suing a newspaper which published defamatory and false allegations about a politician without checking the facts unduly difficult.óKóóK On the other hand, counsel for the newspaper argued that in the case of an unchecked publication alleging grave misconduct the newspaper would be at significant risk of an adverse jury verdict on the ground of recklessness. He submitted that in the absence of a generic qualified privilege investigative journalism into political matters is inadequately protected. He argued that the generic test will result in more predictable decisions. And he emphasised that it would be consistent with the spirit of the new legal landscape to develop the law in this way.
Weir, A Casebook on Tort, 8th ed., (1996) describes defamation as “the oddest” of the torts. He explains (at p. 525):
“he (the plaintiff) can get damages (swingeing damages!) for a statement made to others without showing that the statement was untrue, without showing that the statement did him the slightest harm, and without showing that the defendant was in any way wrong to make it (much less that the defendant owed him any duty of any kind)”
Weir, at p. 530, observes that “the courts could arguably have done more to prevent the law becoming as absurd, complex and unfair as it is, without resigning themselves to saying, as Diplock L.J. did, that the law of defamation “has passed beyond redemption by the courts” (Slim v. Daily Telegraph Ltd. [1968] 2 Q.B. 157, 179). Weir states that “the law of England is certainly stricter than that of any free country . . .” at p. 528. The argument for addressing the chilling effect of our defamation law on political speech and for striking a better balance between freedom of speech and defamation is strong: see Eric Barendt and others, Libel and the Media: The Chilling Effect, (1997), Clarendon Press, Oxford, pp. 191-192. But the burden is on counsel for the newspaper to demonstrate that the development he advocated would in practice be fair and workable, and could sensibly be accommodated in our legal system.
On balance two particular factors have persuaded me to reject the generic test. First, the rule and practice in England is not to compel a newspaper to reveal its sources: see section 10 of the Contempt of Court Act 1981; R.S.C., Ord. 82, r.6; and Goodwin v. United Kingdom (1996) 22 EHRR 123, 143 at para. 39. By contrast a plaintiff in the United States is entitled to a pre-trial enquiry into the sources of the story and editorial decision-making: Herbert v. Lando (1979) 441 U.S. 153. Without such information a plaintiff suing for defamation in England will be substantially handicapped. Counsel for the newspaper observed that the House could recommend a reform of the procedural rule. This is an unsatisfactory basis to embark on a radical development of the law. Given the procedural restrictions in England I regard the recognition of a generic qualified privilege of political speech as likely to make it unacceptably difficult for a victim of defamatory and false allegations of fact to prove reckless disregard of the truth. Secondly, a test expressed in terms of a category of cases, such as political speech, is at variance with the jurisprudence of the European Court of Human Rights which in cases of competing rights and interests requires a balancing exercise in the light of the concrete facts of each case. While there is as yet no decision directly in point, it seems to me that Professor John Fleming is right in saying that the basic approach of the European Court of Human Rights has been close to the German approach by insisting on individual evaluation of each case rather than categories: “Libel and Constitutional Free Speech,” in Essays for Patrick Atiyah, ed. Cane and Stapleton (1991), p. 333 at pp .337 and 345. Our inclination ought to be towards the approach that prevails in the jurisprudence on the Convention. In combination these two factors make me sceptical of the value of introducing a rule dependent on general categorisation, with the attendant sacrifice of individual justice in particular cases.
I would answer question (1) by saying that there is no generic qualified privilege of political speech in England.
Issue (2): Soundness of the circumstantial test
My Lords, it is important to appreciate that the judgment of the Court of Appeal marked a development of English law in favour of freedom of expression. In the context of political speech the judgment recognised a qualified privilege, dependent on the particular circumstance of the case, provided that three requirements are fulfilled. The first and second are the familiar requirements of duty and interest. The Court of Appeal then stated a third and separate requirement. The passage in the judgment reads as follows (at pp. 899G-900B):
“Were the nature, status and source of the material, and the circumstances of the publication, such that the publication should in the public interest be protected in the absence of proof of express malice? (We call this the circumstantial test.)
“We make reference to ‘status’ bearing in mind the use of that expression in some of the more recent authorities to denote the degree to which information on a matter of public concern may (because of its character and known provenance) command respect . . . The higher the status of a report, the more likely it is to meet the circumstantial test. Conversely, unverified information from unidentified and unofficial sources may have little or no status, and where defamatory statements of fact are to be published to the widest audience on the strength of such sources, the publisher undertakes a heavy burden in showing that the publication is ‘fairly warranted by any reasonable occasion or exigency.'”
Later in the judgment the Court of Appeal observed (pp. 909H-910C):
“It would, however, in our judgment, run counter to English authority and do nothing to promote the common convenience of our society to discard the circumstantial test. Assuming in each case that a statement is defamatory and factually false although honestly believed to be true, it is one thing to publish a statement taken from a government press release, or the report of a public company chairman, or the speech of a university vice-chancellor, and quite another to publish the statement of a political opponent, or a business competitor or a disgruntled ex-employee; it is one thing to publish a statement which the person defamed has been given the opportunity to rebut, and quite another to publish a statement without any recourse to the person defamed where such recourse was possible; it is one thing to publish a statement which has been so far as possible checked, and quite another to publish it without such verification as was possible and as the significance of the statement called for. While those who engage in public life must expect and accept that their public conduct will be the subject of close scrutiny and robust criticism, they should not in our view be taken to expect or accept that their conduct should be the subject of false and defamatory statements of fact unless the circumstances of the publication are such as to make it proper, in the public interest, to afford the publisher immunity from liability in the absence of malice. We question whether in practice this is a test very different from the test of reasonableness upheld in Australia.” (Emphasis supplied)
The circumstantial test was not put forward in the Court of Appeal by either side or raised in argument. But the development was well within the power of the Court of Appeal. On balance, however, I am satisfied that the support for it in the authorities is not great. Except for obiter dicta in Blackshaw v. Lord [1984] Q.B. 1, 42 the other decisions relied on by the Court of Appeal (see [1998] 3 W.L.R. 862, 894H-899D) are cases of institutional reporting which are materially different fromóKóóK reports resulting from investigative journalism. And Blackshaw v. Lord predates the Derbyshire case [1993] AC 534.
The Court of Appeal observed “We question whether in practice this [the circumstantial test] is a test very different from the test of reasonableness upheld in Australia.” This is a reference to the decision of the High Court of Australia in Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520. The Lange decision was substantially influenced by a New South Wales statute which imposed a standard of reasonable care on publishers: see Michael Tilbury, “Uniformity, The Constitution and Australian Defamation Law at the Turn of the Century,” in Torts Tomorrow: A tribute to John Fleming, ed. Mullany and Linden, (1998), p. 244 for a perceptive analysis of the distinctive Australian context. In reply counsel for the newspaper put forward the Lange solution, with the legal burden on the plaintiff, as an alternative solution. In my view such a development would involve a radical re-writing of our law of defamation. Contrary to the submissions of counsel I also do not think it is a satisfactory way of redressing the imbalance between freedom of speech and defamation in England. I would reject this argument.
For the newspaper counsel argued that the particular requirements of the circumstantial test stated by the Court of Appeal are unduly restrictive. There is force in this argument. I will return to it. Counsel for Mr. Reynolds pointed out in his case:
“It is conceptually difficult to reconcile on conventional principle a finding that there is a duty to publish and a reciprocal interest with a conclusion that there is nonetheless no privilege. Some unease with this approach may be seen in the Court of Appeal’s qualified conclusion that in the instant case “the duty and interest tests were, in general, satisfied . . .” (at p. 911E)
He submitted that there is a structural flaw in the circumstantial test. He invited your Lordships not to adopt it. I would not accept the circumstantial test is soundly based. Having reached this point I would not wish to be taken to reject entirely the reasoning of the Court of Appeal. It will be recalled that the Court of Appeal had observed (at 910 B-C):
“While those who engage in public life must expect and accept that their public conduct will be the subject of close scrutiny and robust criticism, they should not in our viewbe taken to expect or accept that their conduct should be the subject of false and defamatory statements of fact unless the circumstances of the publication are such as to make it proper, in the public interest, to afford the publisher immunity from liability in the absence of malice.” (Emphasis supplied)
After all, this is the core of the reasoning of the Court of Appeal.
I would however rule that the circumstantial test should not be adopted.
Issue (3): The alternative tests of duty and interest
If both the generic test and the circumstantial test are rejected, as I have done, the only sensible course is to go back to the traditional twofold test of duty and interest. These tests are flexible enough to embrace, depending on the occasion and the particular circumstances, a qualified privilege in respect of political speech published at large.
The critical question is then to decide what requirements should be imposed in respect of qualified privilege in the context of political speech. In my view the passages in the Court of Appeal judgment which I have cited should not be elevated to legal requirements. Those passages, with a distinction drawn between official and “unofficial sources,” and between “a government press release” and “the statement by a political opponent,” could create the impression that if information is not obtained from a prima facie authoritative source, a privileged occasion does not arise. A rule, principle or approach that in considering a plea of qualified privilege of political speech greater weight should be given to what is said on behalf of the government than what is said on behalf of the opposition, other political parties or pressure groups is unacceptable in our democracy. And I am confident that the Court of Appeal did not intend to make such a ruling.
Counsel for Mr. Reynolds did not invite your Lordship to endorse the observations of the Court of Appeal. Instead he submitted that in the context of political speech qualified privilege must always fulfil as part of the duty test three legal requirements: (1) that the occasion must be one in respect of which it can fairly be said that it is in the public interest that the information should be published; and (2) that a report which “failed to report the other side” would always fail the test; (3) that there is a burden on a publisher of a report to prove that there is a cogent reason why it should be excused in the particular circumstances from justifying the truth of the assertion.
My Lords, the first proposition involves nothing radical or extravagant. It builds on the web of existing law. I am content to accept that it should be the governing principle. The second proposition put forward by counsel as an independent legal requirement is implausible. A failure to report the other side will often be evidence tending to show that the occasion ought not to be protected by qualified privilege. But it would not necessarily always be so, e.g. when the victim’s explanation is unintelligible or plain nonsense. This was recognised in the Australian Lange case: 189 C.L.R. 520, 574. The suggested strict requirement runs counter both to the pragmatic approach of the common law and a test dependent on particular circumstances. The third proposition overlaps with the first requirement. But as expressed it would emasculate the qualified privilege of political speech. I would reject it.
Returning now to the requirement that the occasion must be one in respect of which it can fairly be said to be in the public interest that the information about political matters should be published, I would accept that it may be objected that this requirement is imprecise. But this is a corner of the law which could do with the minimum of legal rules. And what is in the public interest is a well-known and serviceable concept. It will, of course, have to be given practical content. Inevitably the question will arise in concrete cases whether the newspaper was entitled to rely on the information it had obtained before publishing. This issue can be accommodated within the test of an occasion in the public interest warranting publication. In my view such an approach complies with the requirement of legal certainty. And in practice the issue will have to be determined on the whole of the evidence. If a newspaper stands on the rule protecting its sources, it may run the risk of what the judge and jury will make of the gap in the evidence.
The context in which the qualified privilege of free speech should be applied is all important. It was said by counsel for the newspaper that the English courts have not yet recognised that the press has a general duty to inform the public of political matters and that the public has a right to be so informed. If there is any doubt on the point this is the occasion for the House to settle the matter. It is an open space in the law which can be filled by the courts. It is true that in our system the media have no specially privileged position not shared by individual citizens. On the other hand, it is necessary to recognise the “vital public watchdog role of the press” as a practical matter: see Goodwin v. The United Kingdom (1996) 22 EHRR 123, 143, para. 39. The role of the press, and its duty, was well described by the European Court of Human Rights in Castells v. Spain (1992) 14 EHRR 445, 476, para. 43 in the following terms:
“. . . the pre-eminent role of the press in a state governed by the rule of law must not be forgotten. Although it must not overstep various bounds set, inter alia, for the prevention of disorder and the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on political questions and on other matters of public interest.
“Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society.”
In De Haes Gijsels v. Belgium (1997) 25 E.H.R.R. 1 the European Court of Human Rights again emphasised that the press plays an essential role in a democratic society. The court trenchantly observed (at p. 53; para. 39):
“It is incumbent on the press to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them.”
This principle must be the foundation of our law on qualified privilege of political speech.
The correct approach to the line between permissible and impermissible political speech was indicated by the European Court of Human Rights in Lingens v. Austria (1986) 8 E.H.R. 407, as follows (at 419, para. 42):
“The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt article 10(2) enables the reputation of others–that is to say, of all individuals–to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.”
Implicit in that dictum is the distinction that speech about political matters has a higher value than speech about private lives of politicians. The dictum in the Lingens case was reinforced by the European Court of Human Rights in Oberschlick v. Austria (1991) 19 E.H.R.R. 389, 422, para. 59. Moreover, it will always be necessary to take into account the dynamics of the role of the press and that “news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest”: The Sunday Times v. United Kingdom No. 2 (1991) 14 E.H.R.R. 229, 242 (para. 51). If the matter is approached in this liberal way the balance in our law between freedom of information and the right to reputation should fulfil the Convention requirement of being necessary in a democracy.
In the result I would uphold qualified privilege of political speech, based on a weighing of the particular circumstances of the case.
Issue (4): The function of the judge and jury
My Lords, the American Law Institute, Restatement of the Law, Torts, 2d, (1977) summarises in paragraph 619 the function of judge and jury in the following terms in regard to privilege:
“(1) The court determines whether the occasion upon which the defendant published the defamatory matter gives rise to a privilege. “(2) Subject to the control of the court whenever the issue arises, the jury determines whether the defendant abused a conditional privilege.”
The commentary on subsection (1) reads as follows:
“Whether a privilege exists at all is a question for the court. This requires the court to determine whether the circumstances under which the publication was made were such as, . . . to make the publication privileged. This is true whether the issue involves the existence of an absolute privilege or of a conditional privilege. If the facts are in dispute, the jury is called upon to consider the evidence and pass upon the issues thus raised. It is for the court, however, to decide whether the facts found by the jury made the publication privileged or to instruct the jury as to what facts they must find in order to hold the publication privileged.”
For the sake of completeness the commentary on subsection (2) is as follows:
“The question whether the defendant acted for an improper purpose or in an improper manner is material if the publication is conditionally privileged . . . Under these circumstances, the qualified protection thus created is lost if the defendant has utilized the privilege for a purpose other than that for which the privilege was created, or if he otherwise abused the privilege. . . . These questions are for the jury to determine unless the facts are such that only one conclusion can reasonably be drawn.
For my part these principles admirably and accurately state the English law and practice on the topic of qualified privilege: see Hebditch v. MacIlwaine [1894] 2 Q.B. 54, 58; Adam v. Ward [1917] A.C. 309, 318; Minter v. Priest 1930 A.C. 558, 571-572; Kingshott v. Associated Kent Newspapers [1991] 1 Q.B. 88, 101A-C. I would apply it to the qualified privilege of political speech.
The particular qualified privilege which I have held to exist may or may not involve issues of primary or secondary fact which are for the jury. But the judge may withdraw the issue from the jury if only one conclusion can be drawn and, in any event, in the light of the jury’s findings of fact it is for the judge to decide whether the occasion was privileged.
Issue 5: The decision of the Court of Appeal
The question arises how the appeal should be resolved.
The Court of Appeal enunciated a test of qualified privilege, which marked a new development of the law. As a result of the speeches in the House today a different approach has been adopted. In this very difficult case nobody could at the time of trail realistically have foreseen this outcome. Given that a retrial, involving a different judge and jury has been ordered, I regard it as fair that the issue of qualified privilege should be before the judge and jury to be considered in accordance with the speeches delivered today. In any event, on the basis of a transcript of evidence not placed before the Court of Appeal, it is now clear that the Court of Appeal’s assumption “that there was no evidence before the jury that Mr. Spring authorised Mr. Finlay to accuse Mr. Reynolds of lying” was wrong: at p. 911F. Furthermore, the finding that “Mr Spring did not in terms accuse Mr. Reynolds of lying to the Dáil” is arguably contrary to the findings of the jury and, in any event, debatable. Indeed counsel for Mr. Reynolds described it as a complex issue. Moreover, the issue of justification will have to be reconsidered at the retrial and the evidence on it may overlap with the evidence on qualified privilege. It is fair that both the issues of justification and qualified privilege should be considered by the judge and jury.
The only escape from this outcome is to say that a failure to publish the explanation given by Mr. Reynolds in the Dáil precludes the newspaper as a matter of law from relying on the qualified privilege of political speech. My Lords, I have already explained why I would not put the law in such a rigid straight jacket. And my understanding is that there is no support for such a rule in the speeches delivered today.
For these reasons I would hold that the Court of Appeal’s ruling (at p. 912A) that “this was not a publication which should in the public interest be protected by privilege in the absence of malice” should not be upheld. Issue 6: The disposal of the appeal.
I would allow the appeal and remit the issue of qualified privilege to be considered at the retrial.
LORD COOKE OF THORNDON
My Lords,
I am in full agreement with the speech of my noble and learned friend Lord Nicholls of Birkenhead.
The article sued on is a mixture of allegations of fact, comment and reporting. The chief defence at the trial was justification: that is to say, truth. The sting of the article was that Mr. Reynolds had lied to and deceived by non-disclosure the Dáil and his colleague in government, Mr. Spring. An impugning of what was said in the Dáil was thus at the heart of the case, but it became common ground in the argument of this appeal that the plaintiff was entitled to waive and had waived parliamentary privilege. It would seem that implied waiver may likewise explain Adam v. Ward [1917] A.C. 309; contrast Prebble v. Television New Zealand Ltd. [1995] 1 AC 321.
The defence of justification in the present case was disposed of by the jury’s finding that the allegation complained of was not true in substance–a finding reached notwithstanding certain misdirections which the Court of Appeal held to have had the effect of denying the plaintiff a fair trial. The part of the Court of Appeal’s judgment concerning misdirections has not been challenged on the appeal to your Lordships. At first sight it seems odd that the jury awarded no damages. Lord Lester of Herne Hill Q.C. for the appellants suggested during the argument before the Appellate Committee that the jury’s reason for no award was that in evidence before them there were some Irish newspapers containing similar material, on which the plaintiff had not sued in Ireland. That may explain the apparent inconsistency in the verdict, but has little if any bearing on the issue of qualified privilege which your Lordships have to determine.
Other defences pleaded had been fair comment on a matter of public interest, and a fair and accurate report of proceedings in public of the Irish legislature (Defamation Act 1952, section 7 and Schedule, paragraphs 1 and 14; cf. Defamation Act 1996, section 15 and First Schedule, paragraph 1). But both these defences were abandoned at the outset of the trial. Fair (that is to say, honest) comment would have failed because, as the jury in effect found, the basic facts were not truly stated. To the extent that the article was a fair and accurate report of proceedings in the Dáil, it would have been protected by statutory qualified privilege; but it was not a fair and accurate report, as it omitted the explanation given to the Dáil by Mr. Reynolds. In any event the reporting of the proceedings in the Dáil was mixed up with other allegations, including lying, which the newspaper appeared to adopt as its own or to accept; and these would have been outside the statutory reporting privilege.
In that situation the defence could not succeed unless the case could be brought within the protection of the subsisting principles of common law regarding qualified privilege (which are not limited or abridged by the statutory privileges: see section 7(4) of the Act of 1952 and cf. section 15(4) of the Act of 1996); or unless the court could be persuaded to introduce into English law a new generic head of qualified privilege for political discussion, on lines similar, for instance, to that proposed for New Zealand by the New Zealand courts in Lange v. Atkinson [1997] 2 N.Z.L.R. 22; [1998] 3 N.Z.L.R. 424, contemporaneously under appeal to the Privy Council. The less-sweeping new generic head established by the High Court of Australia in Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520 might be an alternative approach.
In Reynolds the defence preferred to take the high ground. As in the courts below, counsel for the appellants to your Lordships concentrated on arguing for a new generic privilege for political discussion, limited merely by the possibility of the plaintiff’s proving malice. Only in the dying stages of Lord Lester’s reply was a less radical new generic privilege put forward as an alternative. This would have some similarity to the solution evolved for Australia in Lange v. Australian Broadcasting Corporation, with a major difference as to onus. The fallback position of the present appellants would involve placing on the plaintiff the burden of proving unreasonable conduct or lack of reasonable care on the part of the defendant, whereas the Australian solution requires the defendant to establish reasonableness.
Arguments invoking freedom of speech in a democracy have ready moral, intellectual and emotional appeal, and in this instance their presentation by Lord Lester and Mr. James Price Q.C. lacked nothing in potency. Some famous observations were cited. Your Lordships’ Committee were reminded that it was eloquently said by Judge Learned Hand in United States v. Associated Press 52 F. Supp. 362, 372 (1943) that the First Amendment ” . . . presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.” In like vein was the pronouncement of Holmes J., dissenting but with the concurrence of Brandeis J., in Abrams v. United States 250 U.S. 616, 630 (1919) ” . . . the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . “
Such observations are most naturally apposite, however, to freedom to express ideas and convey news. Neither of the cases in which they were made was a defamation case. It would be dangerous to stretch them out of context. As to defamatory allegations of fact, even in the United States the opinions of jurists differ on the extent to which the collectively cherished right of free speech is to be preferred to the individually cherished right to personal reputation; and it is certain that neither in the United Kingdom nor anywhere else in the Commonwealth could it be maintained that the people have knowingly staked their all on unfettered freedom to publish falsehoods of fact about political matters, provided only that the writer or speaker is not actuated by malice. It would be a mistake to assume that commitment to the cause of human rights must lead to a major abandonment of established common law limitations on political allegations of fact. See, for instance, the Francis Mann lecture by Sir Sydney Kentridge Q.C. (as he now is) Freedom of Speech: Is it the Primary Right?, published in (1996) 45 I.C.L.Q. 253, wherein Sir Sydney argues against introducing a New York Times Co. v. Sullivan-type defence for political discussion (see 376 U.S. 254). “It should not be beyond a court’s ability,” he says at page 268, “to distinguish in any particular case between hard-hitting political criticism and truly libellous allegations of fact.” I would follow that approach.
As I understand it, none of your Lordships who sat in this case and in the New Zealand Lange case favours any new form of generic privilege for political discussion; and I am of the same mind for the following main reasons:
(i) Although investigative reporting can be of public benefit, the commercial motivation of the press and other sections of the media can create a temptation, not always resisted, to exaggerate, distort or otherwise unfairly represent alleged facts in order to excite the interest of readers, viewers or listeners. This very case may conceivably be an illustration. On the same date, 20 November 1994, as that of the British mainland edition of the ‘Sunday Times’ containing the article sued on, the Irish edition of the same paper carried a much longer article on the same subject. It presented Mr. Reynolds as a victim of circumstances, which it traced in much detail, and its tone is markedly less dramatic and more objective. As the Court of Appeal records, Mr. Reynolds accepts the article in the Irish edition as being very largely accurate and on the whole unobjectionable. It is common ground that those responsible for the British mainland edition knew what was to be published in the Irish edition. A possible inference, albeit supported by no direct evidence, is that it may have been felt that as full, factually detailed and balanced an account would not have the same appeal for British mainland readers. Be that as it may, there is in my opinion no good reason why politicians should be subjected to a greater risk than other leading citizens, or for that matter any other persons, of false allegations of fact in the media.
(ii) In the United Kingdom a succession of well-qualified committees on the reform of defamation law have rejected anything approaching the generic privilege for which the appellants primarily contend. They have specifically rejected for the United Kingdom a Sullivan approach. Counsel for the present appellants disclaimed seeking to go as far as that case. Still, they adopted as part of their argument certain letters from a leading New York libel attorney, which they tendered during the hearing of this appeal, including an assessment that in the United States public officials and public figures not only have a genuine opportunity to meet the Sullivan test but often do so by succeeding in actual litigation.
What is being proposed for the appellants is, or is at least close to, Sullivan in a limited sphere (politicians but not at this stage other public figures) but without any assurance that, on the issue of malice, the plaintiff will have access to the defendant’s sources. As I understand it, plaintiffs do commonly have such access in the United States. In the United Kingdom the common law and practice regarding protection of media sources has been strengthened by section 10 of the Contempt of Court Act 1981, prohibiting any court from requiring disclosure of a journalistic source unless satisfied that disclosure is necessary in (inter alia) the interests of justice. A contemporary textbook, Carter-Ruck on Libel and Slander 5th ed. (1997), pp. 105-107, refers to the difficulty of predicting when disclosure will be ordered, citing X Ltd. v. Morgan-Grampian (Publishers) Ltd. [1991] 1 A.C. 1 and Goodwin v. United Kingdom 22 EHRR 123. See also Maxwell v. Pressdram Ltd. [1987] 1 W.L.R. 298 for a vivid illustration of this uncertainty in the defamation field.
(iii) There are further reasons why the exception of malice is a dubious safeguard. Few persons contemplating bringing a defamation suit would derive much confidence from advice that, if the case were skilfully handled, their lawyers might succeed in proving malice. The defendant is entitled to a direction that, while recklessness as to whether the facts are true or not amounts to malice, mere carelessness, impulsiveness, vehemence of language, and even gross and unreasoning prejudice, do not: see Horrocks v. Lowe [1975] A.C. 135, 145 to 146 and 150, per Viscount Dilhorne and Lord Diplock respectively. So too, although much was made for the present appellants of the ability of a jury to find malice if a defendant newspaper elects not to reveal its sources, the defendant will normally be entitled to a direction that in itself unwillingness to reveal confidential sources is not evidence of malice. The burden of proving malice is a heavy one and it may be extremely difficult to establish: Spring v. Guardian Assurance Plc. [1995] 2 AC 296, 329 per Lord Slynn of Hadley, 346 per Lord Woolf.
(iv) It is doubtful whether the suggested new defence could sensibly be confined to political discussion. There are other public figures who exercise great practical power over the lives of people or great influence in the formation of public opinion or as role models. Such power or influence may indeed exceed that of most politicians. The rights and interests of citizens in democracies are not restricted to the casting of votes. Matters other than those pertaining to government and politics may be just as important in the community; and they may have as strong a claim to be free of restraints on freedom of speech.
(v) The existing balance between the right to personal reputation and freedom of speech has been carefully and gradually developed over the years by common law and statutes. It is true that the restrictions on freedom of speech that have been thought necessary to give reasonable protection to personal reputation may have a tendency to chill the publication, not only of untruths, but also of that which may be true but cannot be proved to be true. But there is nothing new in this. Nor, as far as I am aware, is there any way of assessing which tendency is the greater–although experience of libel litigation is apt to generate a suspicion that it is the former. A new generic qualified privilege of the width primarily urged for the appellants would do violence to the present pattern of the law without any compelling evidence of necessity. As regards discussion of government and political matters, the defences of justification, fair comment and privilege for fair and accurate reports of certain proceedings would all, at one stroke, be rendered virtually obsolete. No longer would the defendant have to prove the truth of any defamatory allegations or substratum of fact. No longer would any report have to be fair and accurate. The sole safeguard would be the possibility of the plaintiff’s proving malice, as to the adequacy of which I have already expressed misgivings. Of course a trial judge may point out that the truth of an allegation has not been pleaded or proved, but such niceties can be buried beneath the general impression conveyed to the public of who has won or lost the case.
(vi) The foregoing considerations do not exert the same force against the solution evolved in the Australian Lange case 189 C.L.R. 520. Reconciling the differences of opinion in Theophanous v. Herald & Weekly Times Ltd. (1994) 182 C.L.R. 104 and Stephens v. West Australian Newspapers Ltd. (1994) 182 C.L.R. 211 and in some respects modifying the view of the majority in those cases, the High Court in Lange settled on a new common law privilege for communications to the general public on government or political matters, conditioned by a defence onus of proving reasonableness of publication. New South Wales statute law was held to be consistent with this solution. The federal Constitution, providing for representative and responsible government, was now seen, not as a direct source of the privilege, but as a restriction on legislative power and a background or context helping to demonstrate a need to develop the common law of Australia. As I see it, however, the United Kingdom is no less a representative democracy with responsible government than Australia. The same can be said of other comparable jurisdictions, including New Zealand. For the purposes of defamation law, the background or context does not seem materially different. The constitutional structures vary, but the pervading ideals are the same. Freedom of speech on the one hand and personal reputation on the other have the same importance in all democracies.
But the Australian solution is not supported by either side in the present litigation (the fallback position of the appellants differing as to onus), and I share the view that your Lordships should not impose it without at least some difference of emphasis. The whole purpose of defamation law is to enable a plaintiff to clear his or her name. The privilege required for reasonable freedom of speech does run counter to that purpose in some cases. A major expansion of the privilege, such as may have been achieved in Australia, shifts the focus of political defamation to the conduct of the defendant. In practice it may leave a politician plaintiff without redress. His or her private life may be immune from the extended privilege, but otherwise the opportunity of a public clearing of name may be virtually gone. If the Australian solution has disadvantages, they may lie in this change of focus and in the singling out of politicians as acceptable targets of falsehood.
Further, it is hard not to see something a little incongruous or awkward about the proposition stated in the Australian Lange case:
“Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege” (189 C.L.R. 520, 573).
This appears to set an Australian judge the task of determining what would have been the common law of England on the case at hand, at some unspecified date, before the judge can decide whether to disapply that law. If workable in Australia, it could hardly be appropriate in England.
(vii) In the judgment now under appeal the Court of Appeal described the New Zealand Lange case as the sheet anchor of Lord Lester’s arguments [1998] 3 W.L.R. 862, 906D. In that case the New Zealand courts struck out on a new line in deciding not to apply the decision of the New Zealand Court of Appeal in Templeton v. Jones [1984] 1 N.Z.L.R. 448. That decision was not in proceedings against a newspaper or a broadcasting station but, even so, the approach in the New Zealand Lange case is different.
The parties in Templeton v. Jones were rival candidates for a parliamentary seat at a general election. The defendant had made to the annual general meeting of the electorate branch of his political party a speech in which he said (inter alia), apparently as a statement of fact, that the plaintiff despised Jews. Copies of his speech were distributed by the defendant to the parliamentary press gallery. As a result the allegation in the speech was broadcast in a national television news programme. The action was brought on that publication, for which it was not denied that the defendant was responsible. On an appeal from a pre-trial ruling the Court of Appeal held that there was neither any general privilege protecting publication of political matter to the public at large, nor in the particular circumstances any privilege protecting the publication of this allegation by the defendant.
On the question of general privilege, the authorities cited specifically in the judgment were from several jurisdictions. From England Duncombe v. Daniell (1837) 8 C. & P. 222; Braddock v. Bevins [1948] 1 K.B. 580; Plummer v. Charman [1962] 1 W.L.R. 1469, 1474, per Diplock L.J.; and Blackshaw v. Lord [1984] Q.B. 1. From Australia Lang v.Willis (1934) 52 C.L.R. 637, 667, per Dixon J. From Canada Douglas v. Tucker [1952] 1 D.L.R. 657; Globe and Mail Ltd. v. Boland (1960) 22 D.L.R. (2d) 277; Jones v.Bennett (1968) 2 D.L.R. (3d) 291; and Lawson v. Chabot (1974) 48 D.L.R. (3d) 556. From New Zealand Bradney v. Virtue (1909) 28 N.Z.L.R. 828, 839, per Edwards J.; Truth (N.Z.) Ltd. v. Holloway [1960] N.Z.L.R. 69; Dunford Publicity Studios Ltd. v. News Media Ownership Ltd. [1971] N.Z.L.R. 961; and Brooks v. Muldoon [1973] 1 N.Z.L.R. 1. In the light of these authorities, and notwithstanding New York Times Co. v. Sullivan 376 U.S. 254, the New Zealand Court of Appeal in Templeton v. Jones declined to introduce in New Zealand a new generic privilege.
My Lords, with the benefit of the arguments in the present appeal and in the appeal to the Privy Council in the New Zealand Lange case, I have returned to the authorities on which Templeton v. Jones was founded. As the authorities stood in 1984, I continue to regard the decision in Templeton v. Jones as inevitable. It is as well to add that in Horrocks v.Lowe Lord Diplock remarked (see [1975] A.C. 135, 152) that qualified privilege does cover what local councillors say at meetings of the council or its committees; but that appears to be an exception to and not to undermine his broader proposition in Plummer v. Charman [1962] 1 W.L.R. 1469, 1474:
“I need hardly say that there is no privilege known to the law which entitles persons engaged in politics to misstate a fact about their opponent provided that they say it honestly even though untruthfully. They can comment upon the conduct of persons in public life, provided they do so honestly and without malice.”
It is also true that, (unlike earlier authorities and the New Zealand Lange case and the present case) Templeton v. Jones related to a television programme. The power of the media and the facility of communicating with the general public have certainly been much increased by television. It seems to me, however, that this is far from a ground for extending the heads of privilege. On the contrary, if anything it adds to the importance of principles aimed at ensuring journalistic responsibility.
But the common law nowhere stands still. In this field of much international debate, I think that it was open to the New Zealand Court of Appeal in the Lange case to reconsider Templeton v. Jones. Indeed I would put it more strongly. In the light of the intervening line of cases across the Tasman–namely, the Theophanous, Stephens and Australian Lange cases–I would accept that reconsideration of Templeton v. Jones was either incumbent on the New Zealand courts or at least highly appropriate. It is the result, so far, of their reconsideration with which I respectfully disagree. In the Reynolds case Lord Bingham of Cornhill L.C.J. in giving the judgment of the English Court of Appeal has said that in the New Zealand Lange case ” . . . no or at least insufficient weight is given to the proper balance . . . ” (see [1998] 3 W.L.R. 862, 907H). For the reasons set out in my present speech, I agree with the Lord Chief Justice and his colleagues. At the same time, as a party to the Privy Council judgment in the New Zealand Lange case, I am equally clear that there is a high element of judicial policy in the resolution of the issue, and that the best course is to refer the New Zealand Lange case back to the New Zealand Court of Appeal to enable account to be taken of the Reynolds case. In other words, the possibility of a difference between English and New Zealand common law on the issue has to be accepted, albeit not advocated.
(viii) International human rights law, whenever relevant, should have an important part to play in developments of the common law. For United Kingdom courts, particular importance must attach to the European Convention for the Protection of Human Rights and Fundamental Freedoms, bearing in mind that by section 6(1) of the Human Rights Act 1998 it is unlawful for a public authority to act in a way which is incompatible with a Convention right. By section 6(3)(a) “public authority” here includes a court or tribunal. By section 2(1)(a) decisions of the European Court of Human Rights must be taken into account. The Convention rights here relevant are to be found in article 10.1 (which includes rights to freedom of expression, and to receive and impart information and ideas) and are subject to article 10.2 (which speaks of accompanying duties and responsibilities and authorises such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of others). The Act is not yet in force, but naturally the appeal was argued on the footing that regard should be had to it.
The jurisprudence of the European Court of Human Rights has been reviewed by Lord Nicholls. I need say only that it reveals first an emphatic distinction between fact and opinion, secondly a careful examination of all the circumstances of a particular case before a decision is reached as to whether freedom of expression is to be treated as the dominant right. As the European case law stands at present, no trace is to be found of endorsement of a generic privilege in the political context. This is not surprising in view of the balance aimed at by article 10. I am afraid that the arguments for the appellants would tend, in effect, to divert your Lordships from the European path.
(ix) The Human Rights Act also has a special provision, original to the United Kingdom, pointing to the answer to the present problem. It is section 12:
“12.–(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. . . .
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to –
(a) the extent to which –
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
(5) In this section –
court includes a tribunal; and
relief includes any remedy or order (other than in criminal proceedings).”
The omitted subsections contain restraints on ex parte and pre-trial relief, and the whole section is inspired by the purpose of ensuring a due measure of media freedom. What are significant in the present context are the references to journalistic material and especially to the extent to which it is, or would be, in the public interest for the material to be published. The focus appears to be on the particular material rather than the general subject matter. Of course the general subject matter is a factor to be considered, but I do not think that a court would discharge its responsibility under the section by going no further than satisfying itself that the material related to government or political matters. A more specific examination appears to be contemplated by Parliament. The common law of qualified privilege should evolve in harmony with that legislative approach.
Cumulatively the reasons under the foregoing heads lead me to the view that the Court of Appeal in the present case and an earlier Court of Appeal in Blackshaw v. Lord [1984] Q.B. 1 adopted substantially the right approach. The categories of qualified privilege are not closed. When a case cannot be brought within an established generic category, it may nevertheless call for a finding of privilege if in all the circumstances the classical tests of reciprocal interest and duty or common interest are satisfied. Although sometimes newspaper privilege has been put on the ground of common interest (see Perera v. Peiris [1949] AC 1, 22), the weight of authority favours the former test and it has the advantage of underlining media responsibility. There are occasions when the media may rightly claim to have a social or moral duty to publish defamatory material to the world at large; but there is no room for any suggestion that the motive of increasing readership or audience is a sufficient interest, nor does it seem altogether realistic to treat the media as no more than citizens communicating with other citizens on matters of common interest. It was indeed the duty of the media on which in his sustained argument Lord Lester placed constant stress.
In the judgment now under appeal the circumstantial test was separated to some extent from the duty and interest tests. Not entirely, I think, for it was said that, while the duty and interest tests were “in general” satisfied, the circumstantial test was not. This may indicate that the Court of Appeal thought that the general subject matter of the article brought it potentially within qualified privilege but that the particular context and surrounding circumstances ruled the privilege out. The threefold analysis is largely a matter of arrangement. I agree that the twofold classical test is enough, once it is accepted that all the circumstances of the publication are to be taken into account. It is undeniable that a privilege depending on particular circumstances may produce more uncertainty and require more editorial discretion than a rule-of-thumb one. But in other professions and callings the law is content with the standard of reasonable care and skill in all the circumstances. The fourth estate should be as capable of operating within general standards.
A more formidable argument against the approach of the Court of Appeal is that it introduces at the stage when the existence of privilege is determined issues which are said to be relevant only to malice or abuse of the occasion. In the leading case of London Association for Protection of Trade v. Greenlands Ltd. [1916] 2 A.C. 15, 23, Lord Buckmaster L.C. said:
“Again, it is, I think, essential to consider 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 this investigation it is important to keep distinct matter which would be solely evidence of malice, and matter which would show that the occasion itself was outside the area of protection.”
Lord Lester pointed out that at the end of his speech (at p. 27) Lord Buckmaster L.C. indicated that whether the material published had been checked went only to malice. The argument is that failure to include the plaintiff’s account, or to give him an opportunity of contradicting the article to be published, are examples of matters which do not bear on the existence of privilege, but only on the loss of privilege.
The answer to that argument, in my opinion, is to be found in the nature of the publication. The Greenlands case was one of publication in confidence to a single potential customer. Many qualified privilege cases are concerned with very limited publications. Then, the occasion and the subject matter being identified, there is normally no reason to go further. When a publication to the world at large is in issue, however, the policy of the law is different. For reports, fairness and accuracy are essential at common law (Wason v. Walter (1868) L.R. 4 Q.B. 73), just as they invariably are for statutory reporting privileges (see now the Defamation Act 1996, section 15 and Schedule 1). Some of the latter also require compliance with requests to publish reasonable statements by way of explanation or contradiction.
Hitherto the only publications to the world at large to which English courts have been willing to extend qualified privilege at common law have been fair and accurate reports of certain proceedings or findings of legitimate interest to the general public. In Blackshaw v. Lord [1984] Q.B. 1, Templeton v. Jones [1984] 1 N.Z.L.R. 448, and now the present case, the law is being developed to meet the reasonable demands of freedom of speech in a modern democracy, by recognising that there may be a wider privilege dependent on the particular circumstances. For this purpose I think it reasonable that all the circumstances of the case at hand, including the precautions taken by the defendant to ensure accuracy of fact, should be open to scrutiny. Lord Nicholls has listed, non-exhaustively, matters to be taken into account. As the Court of Appeal suggested, this brings English law into a position probably not very different from that produced by the Australian reasonableness test, but perhaps rather more consonant with common law tradition. Onus becomes unimportant, except in the sense that evidence of the circumstances surrounding the publication is necessary. The contents of the publication in those circumstances become all-important.
The established common law rule, for which Adam v. Ward [1917] A.C. 309 is the leading authority, is that disputed questions of fact relevant to an issue of qualified privilege are for the jury, but otherwise it is for the judge to determine whether the privilege applies: see Gatley on Libel and Slander, 9th ed. (1998), para. 34.15. The editors of that work evidently regard this common law rule as unaffected by Kingshott v. Associated Kent Newspapers Ltd. [1991] 1 Q.B. 88, which they deal with elsewhere therein, particularly in para. 15.5, note 43. In this I think they are right. The Kingshott case held that Adam v. Ward had not overruled earlier decisions on what is now section 15(3) of the Defamation Act 1996, a provision excluding statutory reporting privilege if matter published to the public, or a section of the public, “is not of public concern and the publication . . . is not for the public benefit.” Distinguishing Adam v. Ward as not concerned with the statutory privilege, the Court of Appeal in Kingshott held that under the statute public concern and public benefit were matters for the jury. The principal judgment was given by Bingham L.J., as he then was, and it may be significant that in his Reynolds judgment on common law privilege he makes no mention of the Kingshott case.
At common law any value judgment required in determining whether a publication is privileged has been widely understood, in England and I believe elsewhere in the Commonwealth, as falling to the judge. I would be loath to entrench upon that understanding. Defamation cases are already difficult enough for juries, and the drastic judicial surgery that has had to be undertaken to curb extravagant awards of damages (see John v. MGN Ltd. [1997] QB 586) suggests that it may now be over-romantic to conceive of juries as champions of freedom of speech as in the days of Penn and Mead’s case (1670) 6 St.Tr. 951 and Bushell’s case (1670) 6 St.Tr. 999.
As for the application of the principles to the circumstances of the present case, I cannot do better than reproduce the Court of Appeal’s words reported in [1998] 3 W.L.R. 862, 911-912-
“As already noted, in the present case there was only one issue of fact which was pertinent to qualified privilege left to the jury, namely whether the words complained of correctly reported Mr. Spring’s stated reasons for withdrawing from the government. This question was answered in the defendants’ favour, and is not the subject matter of the plaintiff’s appeal. We can therefore proceed on the footing that this answer was correct, and that otherwise the relevant facts are not in issue.
The circumstances in which Mr. Reynolds’s government fell from power were matters of undoubted public interest to the people of Great Britain. We think it clear that the defendants had a duty to inform the public of these matters and the public had a corresponding interest to receive that information. So the duty and interest tests were, in general, satisfied. We cannot, however, regard the circumstantial test as satisfied.
(1) The allegation that Mr. Reynolds had lied was attributed in the article to an unidentified colleague of Mr. Spring. This source was later identified, as a result of the exchange of witness statements, as a Mr. Finlay, who was not a deputy but was described in the Dáil as ‘Mr. Spring’s programme manager.’ There was no evidence before the jury that Mr. Spring authorised Mr. Finlay to accuse Mr. Reynolds of lying, and Mr. Finlay (although present in court for part of the trial) was never called as a witness. In the bitter aftermath of these events, a member of the staff of one of Mr. Reynolds’s leading political opponents could scarcely be judged an authoritative source for so serious a factual allegation. (2) Mr. Spring did not in terms accuse Mr. Reynolds of lying to the Dáil. He did, in his speech on Wednesday, 16 November, strongly criticise Mr. Reynolds for failing to disclose what he had known on Tuesday, 15 November about the Duggan case; but his criticism was consistent with an honest but mistaken omission on Mr. Reynolds’s part. (3) The defendants wholly failed to record Mr. Reynolds’s own account of his conduct, as described by him when addressing the Dáil in the Wednesday debate. (4) The defendants did not, between the debate on Wednesday and publication on Sunday, alert Mr. Reynolds to their highly damaging conclusion that he had lied to his coalition colleagues and knowingly misled the Dáil so as to obtain his observations on it. (5) The defendants failed to resolve whether Mr. Reynolds was a victim of circumstance, as conveyed to Irish readers in the ‘House of Cards’ article, or a devious liar, as conveyed to readers on the mainland of Britain. It should have been obvious that he could not be both.
Given the nature, status and source of the defendants’ information, and all the circumstances of the publication, this was not in our judgment a publication which should in the public interest be protected by privilege in the absence of proof of actual malice.”
Subject to the refinement that the circumstantial test should not be treated as something apart from the duty-interest test, I would be content to adopt all of that. Variousexplanations were offered for the appellants, but they do not shake the essential accuracy of what the Court of Appeal said. It does seem to me to be correct that there was no evidence before the jury that Mr. Spring authorised Mr. Finlay to accuse Mr. Reynolds of lying. There was some evidence to the effect that one might naturally assume from Mr. Finlay’s association with Mr. Spring that he spoke with the latter’s authority; but that is a different point and does not in my view affect the balance of the case as to qualified privilege. If their primary argument for generic privilege fails, the appellants seek to have the issue of qualified privilege determined at a new trial and on possibly different evidence. My Lords, I cannot think that this would be just. They had every opportunity at the trial of calling such evidence as they saw fit. In the light especially of Blackshaw v. Lord [1984] Q.B. 1, it was readily foreseeable that any privilege might be held to depend on the particular circumstances; and the pleadings and arguments for the defendants were wide enough to cover this possibility, although it was not the outcome for which they primarily contended. The new trial has not been ordered because of any defect in the trial having anything to do with the ruling against qualified privilege. On that issue the defendants have had their day in court–indeed many days in three courts–and, if a new trial does take place, it should be, as I see the justice of the case, on the basis that the article is not eligible for privilege. I would dismiss the appeal.
LORD HOPE OF CRAIGHEAD
My Lords,
Among the issues which are raised by this case are two important questions which relate to the structure of the law of defamation in its application to qualified privilege.
The first question is whether discussion of matters relating to the public conduct of those elected to positions of responsibility in government (referred to as “political discussion” by Lord Lester of Herne Hill Q.C. in the course of his argument) should be accorded the benefit of a generic common law qualified privilege. If that were so, all defamatory statements of fact made in the course of such discussion would be protected by the privilege. And the benefit of the defence would extend not only to the newspapers but to all sections of the media. The result would be that all statements of fact falling within the scope of this category would be presumed to have been made without malice. The burden of proving malice would rest in all such cases on the person who claimed that the statement was defamatory.
The second question assumes that the availability of the defence will continue to depend upon the facts of each case. It relates to the tests which must be applied in order to decide whether, in the particular circumstances, the occasion on which the statement was made was one which entitled the maker of it to the protection of the qualified privilege. Giving the judgment of the Court of Appeal, Lord Bingham of Cornhill C.J. said that three tests required to be satisfied: the duty test, the interest test and the circumstantial test: [1998] 3 W.L.R. 862, 899D-G. At the end of the judgment, at p. 911E, he said that the duty and interest tests were, in general, satisfied in this case but that the court could not regard the circumstantial test as satisfied. In the last paragraph of the judgment, at p. 912A, he said:
“Given the nature, status and source of the defendants’ information, and all the circumstances of the publication, this was not in our judgment a publication which should in the public interest be protected by privilege in the absence of proof of actual malice.”
The question is whether, in its formulation of the circumstantial test, the court went further than it ought to have done in defining the circumstances of the occasion by introducing into that test matters of fact which might be thought to be relevant to the issue of malice – indicating abuse of the occasion – rather than to the question whether the occasion itself was privileged.
The generic privilege
The occasion for which the appellants seek to be accorded the benefit of a generic qualified privilege was the publication in an edition of the “Sunday Times” newspaper circulating in the United Kingdom of an article relating to the resignation of Mr. Albert Reynolds, who had just resigned as Taoiseach in the Irish government, and the collapse of his coalition government. Mr. Reynolds claims that passages in that article meant and were understood to mean that he had deliberately and dishonestly lied to the Dáil by suppressing information which he possessed about the suitability for promotion of the Irish Attorney-General whose appointment to the Presidency of the High Court of Ireland he was promoting, and that he deliberately and dishonestly misled his coalition cabinet colleagues by withholding that information from them and lying about when the information came into his possession.
The generic privilege for which the appellants contend was formulated in various ways by Lord Lester. But in essence his submission was that it should extend to any discussion of a governmental or political matter affecting the people of the United Kingdom. He made it clear that the privilege for which he contended was intended to apply only in respect of criticism of political conduct and not to private conduct. The theme which he stressed throughout was that the justification for the generic privilege was that it was necessary in a modern democratic society, in view of the strong public interest in free speech in general and in freedom of expression on political issues on the press and other sections of the media in particular.
An examination of this issue must start from familiar first principles. The foundation of an action of defamation is malice. If words are used which are defamatory and untrue the law implies malice. That presumption is rebutted if the occasion when the words were used is privileged. The privilege destroys the presumption. But it remains open to the claimant to prove that there was malice in fact. At the heart of the matter is the question whether “the occasion” is privileged. This occurs where the person who makes the communication has an interest or duty to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it: Adam v. Ward [1917] A.C. 309, 334, per Lord Atkinson. The interest or duty may be a legal or moral duty or it may arise from social circumstances. But it is essential that there should be a reciprocity of duty and interest as to the matter which is being communicated. As Lord Atkinson pointed out, the communication is often loosely described as privileged. But strictly speaking it is the occasion itself which is privileged.
It is important not to lose sight of this point as we examine the issues raised by this case. It is essential to a proper understanding of the structure of this branch of the law. The privilege is given not to communications nor to the people who communicate them, but to the occasion. No individual or organisation, such as a newspaper or any other section of the media, can assert that it is entitled to the benefit of qualified privilege simply because of who or what that individual or organisation is or what it does. It is the occasion of the communication which must be examined, to see whether there was an interest or duty to make it and a corresponding interest or duty to receive it, having regard to its particular subject matter.
The application of these principles to particular facts and circumstances may show that there are some occasions of qualified privilege which can be regarded as falling into a recognisable group or category. Cases of that kind may be regarded as attracting what has been described as a generic common law qualified privilege. All occasions falling within that group or category will be treated as occasions of qualified privilege, and proof of actual malice will always be required before the words used can be held to be defamatory. This assists free speech and full and frank disclosure of the facts. It removes the inhibiting, or “chilling,” effect which the law of defamation imposes on the discussion of matters of public interest. As a general rule it is beneficial and in the public interest that communication between parties with the necessary reciprocal duty and interest in the matter should not be inhibited.
But there is another general rule. The circumstances in which the common law defence of qualified privilege will be applied have always been defined broadly. In Perera v. Peiris [1948] AC 1, 20 Lord Uthwatt, giving the judgment of the Privy Council, said that their Lordships preferred to relate their conclusions to the wider general principle which underlies the defence of privilege in all its aspects rather than to debate the question whether the case fell within some specific category. This approach recognises the fact that the question is ultimately one as to striking the right balance between competing interests. In order to achieve this the primary concern of the law must be to maintain its flexibility. The advantages of certainty, which is the product of recognising that cases falling within a certain class or category will always attract qualified privilege, must be measured against the disadvantages which tend to flow from rigidity.
I think that three factors are relevant to the issue as to whether a generic qualified privilege can be recognised. The first relates to the precision with which the category can be described. The second relates to the persons to whom the material is to be communicated. The third relates to the issue of malice. As the only protection left against the damaging effect of communicating defamatory false statements is proof of malice which will remove the privilege, care should be taken not to give the benefit of the privilege too readily to persons or organisations whose sources of information are themselves protected to an extent which renders the issue of malice inscrutable.
If the category cannot be described precisely, it will be at risk of enlargement or erosion case by case and thus of losing touch with the underlying justification for the creation of the category. Where imprecision is unavoidable, the better course would seem to be to take each case on its own facts and circumstances. If the category is of a kind where the communication is made to a particular person or group of persons, and not to the public generally, it may be thought that the advantages of precision outweigh those which come with flexibility. The consequences to the person who is the subject of the communication are likely to be less serious than they would be if the defamatory statement of fact is published generally. But where the category involves communication to the public, the question must be whether the public interest in the receipt of the information will always outweigh the general public interest in protecting the reputation of the individual. This is a question which is particularly sensitive to changing circumstances, whether they be social or political, and to changes in the way in which information is presented or disseminated. As for the issue of malice, the less open the communicator is to scrutiny, the more important it is likely to be to retain the benefits of flexibility. Qualified privilege, in other words, should not be given to a category where the occasion of the communication is such that the privilege is at risk of becoming, in practice, absolute.
Against that background I regard the election cases as providing the most useful starting point for an examination of the authorities. This is a clearly recognisable group of cases, as to which the limits of the application of a generic qualified privilege can be readily identified. Lord Lester’s argument is that the temporal and geographical limits which have been laid down in these cases are out of date. He said that the law should now recognise that there is a point of principle in them which should be applied more generally. I think that there is much force in that argument. But is first necessary to examine the cases to see what that principle is, and whether the limits which have been set by these cases for the application of the qualified privilege are indeed too narrow and should now be modified.
In Duncombe v. Daniell (1837) 8 C. & P. 222, the defendant was a voter in a parliamentary election. He wrote two letters which were published in a newspaper, the “Morning Post,” which reflected upon the character of one of the candidates in his constituency. The plaintiff was awarded damages, whereupon the defendant applied for a new trial. One of the grounds for the application was that it was justifiable for an elector bona fide to communicate to the constituency any matter respecting a candidate which he believed to be true and believed to be material to the election. The application was refused. In the course of the argument Coleridge J., at p. 229, said that the defendant had to go further than that and show that the elector was entitled to publish it to all the world, as the publication was in a newspaper. Counsel for the defendant submitted that if no more was done than was necessary to make the matters known to the electors the publication was privileged, and that whether or not anything more was done was a question for the jury. Giving judgment Lord Denman C.J. said at p. 229:
“However large the privilege of electors may be, it is extravagant to suppose that it can justify the publication to all the world of facts injurious to a person who happens to stand in the situation of a candidate.”
The same point was raised in several Scottish cases towards the end of the nineteenth century. Two of these cases concerned statements made by individuals about the fitness for office of candidates who were seeking election at the time when the statements were published: Anderson v. Hunter (1891) 18 R. 467 and Bruce v. Leisk (1892) 19 R. 482. Two of them concerned anonymous letters, one about a candidate for election, the other about a public official, which were published in local newspapers: Brims v. Reid & Sons (1885) 12 R. 1016 and McKerchar v. Cameron (1892) 19 R. 383. It is worth mentioning these cases, as they contain some observations which are relevant to the issue which we have to decide.
In Anderson v. Hunter the pursuer was seeking election as a county councillor for a division of the county of where a parish had been divided into two electoral divisions for county council purposes. The defender lived in the same parish but he was an elector in the other division. He had made various statements to people in the parish that the pursuer was not fit to be elected as he would soon be bankrupt. His argument was that the statements were made in circumstances that were privileged, as he was a ratepayer in the parish and the pursuer was a candidate for the public post of county councillor on one of the divisions of that parish. It was rejected, simply on the ground that he was not a voter in the election with reference to which he was said to have made the statements complained of.
In Bruce v. Leisk the defender was an elector in the same ward of the burgh in which the pursuer was seeking election as a councillor, so the geographical problem which was the basis of the decision in Anderson v. Hunter did not arise. He was also a member of the ward committee appointed by the ratepayers to recommend suitable candidates for election. The Lord Ordinary, Lord Stormonth Darling, said, at p. 484 that even if the defender were only an elector, it seemed to him that the case was one of privilege and that the pursuer must prove malice. In his view it was contrary to public policy to deny electors latitude in discussing the qualifications of those who were standing for election. His decision was reclaimed to the Inner House, which upheld his decision that the action should be dismissed as the pursuer was not willing to aver malice. Lord President Robertson said, at p. 485; that it was clear case for connecting the language used with the fulfilment of a public duty, and that when electors are considering who shall be elected they are quite entitled to state to other people, similarly concerned, what they know, or believe they know, on the question whether or not the person should be elected. Lord Adam said at pp. 486-487:
“The question we have to consider is whether an elector has a right and privilege to state to other electors, or to another elector, what is germane to the election, and what he believes at the time to be true? If it is not already implied in the judgment in the case of [Anderson v. Hunter] that where a candidate is standing for an important public office, one of the disagreeable incidents of it which he has to face from the electors is such language as is here complained of, I have no difficulty in laying this down now. If it is alleged that the statement was made maliciously, then he will have an action, but not otherwise.”
Lord Kinnear was also of the opinion that the occasion was privileged, as it was clear from the pursuer’s own statement that the words of which he complained were uttered when the defender was engaged in the exercise of a public right, with a view to the performance of a public duty.
Non-disclosure of its sources by a newspaper was the issue in Brims v. Reid & Sons. In that a newspaper had published an anonymous letter concerning the fitness for office of the pursuer who was seeking re-election as a member of a town council and to the public office of Dean of Guild. The publisher refused to disclose the name of the writer of the letter which he had published in his newspaper. It was held that he could not plead privilege in action to the pursuer’s action of damages. Lord President Inglis gave his reasons, at p. 1020; in a passage from which is worth quoting at some length, as it covers a number of the issues raised in the present case in the course of the argument:
“It appears to me that, whatever might be the case if these statements had been made in an editorial article, about which I give no opinion, the fact that they were made in an anonymous letter is quite sufficient for the decision of this case. It is difficult to define the exact extent of the privilege of comment which the editor of a newspaper undoubtedly has to some extent upon the doings of public men; it is difficult to define what the class of public men is with reference to whose doings he enjoys that privilege, or what the kind of accusations that may be brought against the conduct of public men is; and yet again it is difficult to distinguish between the doings of a public man, as a public man, and as a private individual.
“But we are relieved of all these difficulties in the present case by the fact that the statements complained of are contained in an anonymous letter to the editor. The editor has declined to disclose the author. The effect of this in point of law is not to entitle this letter to be dealt with as if it had appeared in a leading article or in some part of the paper in which the editor speaks for himself. The law is that the editor accepts the position of the anonymous writer with every liability which could have been laid upon that writer if he had been disclosed. The question, then, is whether malice would require to be put in issue against the writer if he had been disclosed.
“Now, the answer to that question will depend upon who the writer was, and what his connection was with the matters on which he writes. But in the present case we cannot ascertain who the writer was, whether he was a ratepayer in Wick, whether he ever was in Wick in his life, or whether he is even a subject of Her Majesty. In short, we know nothing about him; he is a mere umbra. He is somebody who has libelled the pursuer, and is not in a position to justify that libel by proving its truth, or to justify it by saying that he has a privilege. . . .
“The newspaper editor can be in no better position then than the anonymous writer himself. Now, if the letter was written with malice, it is conceded that the pursuer is entitled to damages. But how can anyone prove malice on the part of a person of whom he knows nothing at all? What can he tell of his state of mind, or his relation to the matter on which he comments? Or how, on the other hand, can malice in such a case be disproved?”
Lord Shand made it clear, at p. 1021; that, if the question had arisen with reference to editorial comments in a leading article about the conduct of a public man seeking re-election to office on the eve of the election, he would have been in favour of the view that the occasion was privileged. But the writer of an anonymous letter could not be given the benefit of qualified privilege, and the editor of a newspaper could not, by adopting the letter, invest the writer with the privilege which might have attached to his own articles.
McKerchar v. Cameron was another case involving an anonymous letter published in a local newspaper. The letter contained statements indicating that the pursuer, who was a salaried official, was unfit for his post as a teacher in a public school. It was argued that the ratepayers and inhabitants of the neighbourhood had an interest and a right to know the contents of what was published, but the decision in Brims v. Reid & Sons was followed. It was held that there was no room for the defence of privilege, so there was no need for the pursuer to plead malice. The court did not need to decide whether a member of the public, in attacking any person holding any office under any public body, was entitled to the defence of privilege. But Lord McLaren observed; at p. 386; that it was difficult to see what duty or right there was on the part of a member of the public, as such, to criticise the conduct of a public servant who was in the public employment.
These cases indicate that the extent of the qualified privilege in relation to discussion of the public conduct of public officials, and especially of those who were seeking election to a public office or re-election, was already the subject of a vigorous debate one hundred years ago. Various strands of thought can be detected. It seems unlikely that the Scottish courts, by the end of the nineteenth century, would have taken the same line as was taken in Duncombe v. Daniell 8 C. & P. 222 where the privilege was held not to be available to an elector who published his statements under his own name in a newspaper. It seems to be implicit in the two Scottish cases which I have mentioned about the publication of anonymous letters by newspapers that the writers of those letters would have been able to argue that they were entitled to the defence of privilege if their names had been disclosed and they had been sued. The newspapers were small circulation, local newspapers. But at least it can be said that these cases were not decided on the narrow ground that publication in a newspaper was in itself enough to rule out the question of privilege.
As for the classes of persons by whom and about whose conduct comment might be made with the benefit of privilege, the criterion which was being applied was whether they were electors and candidates in the same electoral ward, district or constituency. But there are signs, particularly in the opinion of Lord President Inglis in Brims v. Reid & Sons, of a recognition that people in public positions generally, in regard to their conduct as such, were in a different position from private individuals. The Lord President referred to some of the difficulties in defining the class which have been raised in the present case. But he did not say that that was a fruitless exercise because comment of that kind could never attract the privilege.
I think that the geographical and temporal limitations which are apparent from the election cases provide a good illustration of the kind of situation which will attract a generic qualified privilege: cases falling within clearly defined limits, within which the elements of duty and interest in the publication of relevant matter will always be found. But that is not to say that there will not be other cases – of which the public conduct of public persons, especially those holding or aspiring to an elected political office, is the clearest example – where the privilege will be available. The difficulty as to these cases is one of definition, not one of principle.
Developments in regard to recognition of the fundamental right of free speech and to the nature of the electoral process since the end of the nineteenth century have reinforced the arguments in favour of the wider availability of the qualified privilege to those who publish material to the general public on matters of general public interest. There are powerful dicta to the effect that there is no inconsistency between article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the English common law on freedom of speech: see Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109, 283 per Lord Goff of Chieveley. But there can be no doubt that the incorporation of the Convention into English law by the Human Rights Act 1998 has strengthened the arguments in favour of the principles which are set out in that article.
In Braddock v. Bevins [1948] 1 K.B. 580 it was recognised that it was necessary for the welfare of society that there should be a frank exchange of information and opinions on matters relating to the exercise of the franchise by the electorate. Since that decision the width and subject matter of that exchange have been enlarged still further by a greater concentration upon the parties rather than on individuals in the electoral process. The growth of public opinion polls, both during election campaigns and between elections, has tended to shift attention towards the performance of the parties relative to each other throughout the entire calendar. The public conduct of leading politicians is now seen as the embodiment of a party’s performance and credibility. Recent developments in the method of electing candidates through party lists in the elections for the Welsh Assembly, the Scottish Parliament and the European Parliament have added to that development. These developments show that the case law which confined the privilege to comment on individual candidates at election time and to the electoral process within their own constituencies has become outdated. They support the argument, in a wider public interest, for the wider availability of the defence of qualified privilege.
But the question remains: should we now recognise a common law generic qualified privilege for political discussion? On balance I am of the opinion that this would not be satisfactory, bearing in mind the nature of the occasion and the use which would be likely to be made of it. It may be difficult to achieve a satisfactory definition of the category which will eliminate the risk of its being applied more widely to discussion about people in public life generally. A category which went that far was not asked for in this case, and I would regard it as unacceptable. But the greater risk is of defamatory statements of fact being communicated to a wide audience, based upon information communicated to the media by sources which those who publish the information must protect and consequently will not be revealed to the individual. The balance is a delicate one, as there are powerful arguments in favour of the constitutional right of free speech and, where politicians are involved, the interest and duty tests are likely to be satisfied in most cases without too much difficulty. But the importance which must be attached to the principle which justifies the protection of their sources by the media – which has an essential part to play in the role of the media in a free and democratic society – carries with it certain penalties.
One of these, I believe, is the discipline of having to justify each claim to the benefit of qualified privilege should the statements of fact which are made by the media turn out to be defamatory. The description of this discipline as having a “chilling” effect on free speech, as if this in itself shows that something is wrong with it, is too simple. Of course, it does “chill” or inhibit the freedom of the communicator. But there are situations in which this is a necessary protection for the individual. The first line of protection is removed, if the occasion justifies it, by the defence of qualified privilege. Proof of malice, which is the second line of protection, is likely to be very difficult, if not impossible, if the sources of the information cannot be identified. Taken on a case by case basis, the risk that this will be so is one which can be accepted as being in the public interest and therefore justified. But I would be unwilling to extend that risk to political comment generally. I would decline to recognise in this area of our public life a generic qualified privilege.
On this aspect of the case therefore I too am in full agreement with the speech of my noble and learned friend Lord Nicholls of Birkenhead.
The circumstantial test
As I see it, the application of this third test to the facts of this case raises an issue about the taxomony, or structure, of the common law relating to qualified privilege. There is no doubt that the Court of Appeal broke new ground when it identified this as an additional test which had to be satisfied in relation to any individual occasion when applying the law of qualified privilege. I do not see this, in itself, as a basis for criticising what was, on any view, an admirable, forward-looking and imaginative judgment. Initiatives of this kind are part of the life-blood of the common law. We all benefit from the constant process of adjustment and refinement as one case follows upon another and new problems reveal how the law can be explained better or further clarified.
The difficulty is, perhaps, more one of detail rather than of principle. In the past it has always been necessary to consider the circumstances in order to decide, as a matter of law, whether the interest and duty tests were satisfied. These are not abstract concepts. The occasion has to be identified, because it is the occasion which attracts the qualified privilege. To identify the occasion one must examine the nature of the material, the persons by whom and to whom it was published and in what circumstances. It may be necessary to resolve some questions of fact before the issue of law can be addressed as to whether the occasion was privileged. But the point is that if the issue of law is resolved in favour of the publisher and the argument is then taken against him that because he has misused the occasion he has lost the benefit of the privilege, further questions of fact will be raised. They too will involve a consideration of the circumstances. But it does not follow that the circumstances which will be relevant at this stage of the inquiry will be the same as those which were relevant to the question whether the occasion was privileged. On the contrary, they are likely to be different, as the question which must be answered at this stage is a different question.
As Lord Diplock explained in Horrocks v. Lowe [1975] A.C. 135, 149:
“With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.”
Lord Diplock then reviewed the various situations in which it may be proved against the publisher that there was some other dominant and improper motive on his part. The commonest case is where the dominant motive is not to perform the relevant duty or to protect the relevant interest but to give vent to a personal spite or ill-will towards the person defamed. This may be proved by direct evidence or by inference from the circumstances.
The test of malice; if I may paraphrase Brett L.J., as he then was, in Clark v. Molyneux (1877) 3 Q.B.D. 237 at 247 is: has it been proved that the defendant did not honestly believe that what he said was true, that is, was he either aware that it was not true or indifferent to its truth or falsity. It was contended in Horrocks v. Lowe that the inference of malice should be drawn from the contents of the speech, the circumstances in which it was made, the defendant’s failure two days later to apologise and the evidence which he gave in the witness box. But in the end the judge, who was sitting without a jury, declined to draw the inference that the defendant was indifferent to the truth or falsity of what he said.
In my opinion that case shows that the question of malice also involves an examination of the circumstances. But there is this difference. The question whether the occasion was privileged is a question of law for the judge. The question whether the occasion was abused because of malice is a question of fact which, if the trial is by jury, the jury must decide. This separation of function is clearly identified in the Scottish cases which I mentioned earlier. They were all decided on the preliminary issue of law as to whether the occasion was privileged. In each case the pursuer was seeking the approval of issues which were to be put before the jury at a jury trial. They were unwilling or unable to allege malice, so the whole question turned on the issue of qualified privilege. If the defence was upheld and malice was not averred there was no issue which could be put to the jury. In the United States of America the same separation of function is to be found in paragraph 619 of the American Law Institute, Restatement of the Law (1977), Torts 2d, Ch 26:
“(1) The court determines whether the occasion upon which the defendant published the defamatory matter gives rise to a privilege.
“(2)Subject to the control of the court whenever the issue arises, the jury determines whether the defendant abused a conditional privilege.”
I think that the circumstantial test tends to obscure this difference of function and, perhaps even more importantly, to obscure the difference between questions which go to the question of malice and the question whether the occasion was privileged. It is too widely formulated. It includes “the nature, status and source of the material, and the circumstances of the publication” without any qualification as to the purpose of examining this evidence [1998] 3 W.L.R. 862, 899G. It has had the effect in this case of introducing, at the stage of examining the question of law whether the occasion was privileged, assumptions which I think are relevant only to the question of fact as to the motive of the publisher: as where it is said that it is one thing for him to publish a statement taken from a government press release or the report of a public company chairman or the speech of a university vice-chancellor,and quite another to publish the statement of a political opponent or a business competitor or a disgruntled ex-employee: p. 909H-910A. In its application to the facts of this case, it has introduced questions as to the use of sources, as to a failure to publish Mr. Reynold’s own account of his conduct, as to the appellants’ failure to alert him prior to the publication of their conclusion that he had lied to his coalition colleagues and knowingly misled the Dáil so as to obtain his observations on it: p. 911F-H. In my opinion these considerations go to the question whether the appellants abused the occasion. This is a question of fact for Mr. Reynolds to establish upon a review of all the evidence. They do not go to the question whether the occasion itself was privileged.
In my opinion the circumstantial test is confusing and it should not be adopted.
Conclusion
I consider that the Court of Appeal were wrong to hold at p. 912A, as a matter of law, that in the light of the issues which they considered in their application of the circumstantial test the publication was not protected by qualified privilege. Although there is plainly a question as to whether the occasion was abused, I would hold that the prior question as to whether the occasion itself was privileged has not been properly addressed. It seems to me still to be an open one.
I would allow the appeal. In my opinion the question of law as to whether the occasion was privileged should be reconsidered by the judge at the new trial.
LORD HOBHOUSE OF WOODBOROUGH
My Lords,
I agree that this appeal should be dismissed for the reasons given by my noble and learned friend Lord Nicholls of Birkenhead. Like my noble and learned friend Lord Cooke of Thorndon, I am in full agreement with the speech of Lord Nicholls. The few words which I will add should not be read as in any way detracting from the clarity of that agreement.
This case is concerned with the problems which arise from the publication of factual statements which are not correct–i.e. do not conform to the truth. This case is not concerned with freedom of expression and opinion. The citizen is at liberty to comment and take part in free discussion. It is of fundamental importance to a free society that this liberty be recognised and protected by the law.
The liberty to communicate (and receive) information has a similar place in a free society but it is important always to remember that it is the communication of information not misinformation which is the subject of this liberty. There is no human right to disseminate information that is not true. No public interest is served by publishing or communicating misinformation. The working of a democratic society depends on the members of that society being informed not misinformed. Misleading people and the purveying as facts statements which are not true is destructive of the democratic society and should form no part of such a society. There is no duty to publish what is not true: there is no interest in being misinformed. These are general propositions going far beyond the mere protection of reputations.
The law of civil defamation is directly concerned with the private law right not to be unjustly deprived of one’s reputation and recognises the defence of privilege. The justification for this defence is at least in part based upon the needs of society. It can sensibly be asked why society or the law of defamation should tolerate any level of factual inaccuracy. The answer to this question is that any other approach would simply be impractical. Complete factual accuracy may not always be practically achievable nor may it always be possible definitely to establish what is true and what is not. Truth is not in practice an absolute criterion. Nor are the distinctions between what is fact and innuendo and comment always capable of a delineation which leaves no room for disagreement or honest mistake. The free discussion of opinions and the freedom to comment are inevitably liable to overlap with factual assumptions and implications. Some degree of tolerance for factual inaccuracy has to be accepted; hence the need for a law of privilege.
There is another aspect of the law which needs to be identified. Save as provided in section 1 of the Defamation Act 1996, any publication of a defamatory statement exposes the publisher of that statement to tortious liability. This is so whether or not he is the originator of the statement or is simply republishing what someone else has said. This rule is relevant to the defence of privilege and the media. Journalists very often have no personal knowledge of the truth or falsity of the facts which they report and publish. Typically they are reporters of material derived from others. The character of the source is relevant to the kind and the extent of the privilege which should be afforded to the publisher. For example, privilege attaches to the reporting of legal proceedings and of the evidence given to and the findings of Inquiries. It is in the public interest that the public should be informed about such matters and this is so even if some of what has been said during such proceedings may not have been true. But the same cannot be said of casual gossip overheard by a journalist; there is no public interest in its repetition unless it be factually true. Between these two extremes there is a spectrum of possible circumstances.
To attract privilege the report must have a qualitative content sufficient to justify the defence should the report turn out to have included some misstatement of fact. It is implicit in the law’s insistence on taking account of the circumstances in which the publication, for which privilege is being claimed, was made that the circumstances include the character of that publication. Privilege does not attach, without more, to the repetition of overheard gossip whether attributed or not nor to speculation however intelligent.
The decided cases confirm both the recognition of the element of public interest in the law of privilege (e.g. Perera v. Peiris [1949] AC 1) and the limits within which it must be kept (Blackshow v. Lord [1984] Q.B. 1; see also Truth (N.Z.) Ltd. v. Holloway [1960] N.Z.L.R. 69). The publisher must show that the publication was in the public interest and he does not do this by merely showing that the subject matter was of public interest. The decided cases also show that, anyway in English law, the doctrine of express malice does not provide an adequate safeguard. It is a very narrow doctrine as explained by Lord Diplock in Horrocks v. Lowe [1975] A.C. 135. The plaintiff has to prove that the publisher did not have an honest belief in the truth of what he was publishing: “the law demands no more” (p.150E). The subjective character of this criterion makes the plaintiff’s burden of proof one which it is difficult to discharge in all but the most blatant cases. It is also inadequate to meet the objective requirements of a satisfactory law of privilege. Both in England and in other countries there have been statutory interventions which affect the structure of this part of the law. In New South Wales this is manifestly so and in New Zealand the statutory definition of malice in section 19 of the Defamation Act 1992 clearly has to be taken into account. In England the provisions of the Defamation Act 1996 take the form of providing the media with additional special defences and therefore do not provide a justification for introducing the further modifications of the existing law for which the appellants have contended.
As your Lordships agree, there is no generic privilege. There are reasons of principle and practical reasons for this. No genus is satisfactory, nor is any genus more satisfactory than the criterion of what it is in the public interest that the public should know and what the publisher could properly consider that he was under a public duty to tell the public. It is clearly established in English law that the duty/interest test is not confined to private duties and interests. The public dimension recognised by the law encompasses in a satisfactory and adaptable manner those types of publication to which privilege should attach. Any generic category will tend to be both too wide and too narrow. It will fail to take account of the differing character and circumstances of the publications which may fall within it. It will fail to afford privilege to publications which fall outside its definition but are equally deserving of privilege.
Your Lordships were urged by the appellants to endorse an approach which would leave it to publishers to decide whether or not to publish and to uphold their privilege to do so save where the plaintiff can prove actual bad faith on the part of the publisher. Such an approach would of course be attractive to the media but it would be handing to what are essentially commercial entities a power which would deprive the subjects of such publications of the protection against damaging misinformation. Such persons and the public are entitled to the disinterested and objective involvement of the law. It is for the publisher to establish to the satisfaction of the law that the publication was privileged. It is only once the publisher has done this that a burden of proof passes to the plaintiff. As previously stated, the burden of proof which the plaintiff then has to discharge is not a light one.
There are advantages for the media in the present state of the law as the experience of the United States of America subsequent to the Sullivan case (376 U.S. 254) has shown. The present law is consistent with the publisher being able, if he so chooses, to preserve the confidentiality of his sources. The burden of proving circumstances justifying privilege is upon the publisher. Whether or not he chooses to disclose his sources in order to assist him to do so is (in general) a matter for him. If on the other hand there is some generic privilege which without more confers privilege, the aggrieved party must in justice be able to obtain discovery of all the relevant facts and documents to enable him to displace that privilege. This is what has happened in the United States. The trade-off for the more extensive defence has been the requirement of full disclosure by way of extensive and onerous pretrial discovery.
I agree with Lord Nicholls that the circumstances of publication have to be taken into account in determining whether any particular publication was privileged. This, as the authorities he cites show, is an established part of English law. The criticism to be made of the Court of Appeal judgment is that it sought to treat the circumstances as a separate and distinct element. This was unnecessary and mistaken. But the substance of the judgment must be upheld. The Court of Appeal also reached the right conclusion upon the application of the law to the essentially undisputed facts of the present case. There is no justification for allowing the defendants to reopen that aspect of the case on the retrial.
Cooney v Browne
[1985] I.R. 185
Hamilton J.
This is an application by the plaintiff for an order directing the first and second named defendants to furnish replies to the particulars sought by him by a notice dated the 26th July, 1984. In these proceedings, the plaintiff claims that he has been defamed by these defendants in an article entitled “Lost in the Mists of Introspection” which was published by them in the issue of The Sunday Tribune on the 1st January, 1984. The contents of the said article are set forth in detail in the statement of claim delivered on behalf of the plaintiff on the 3rd February, 1984.
In their defence delivered on the 3rd April, 1984, these defendants plead,inter alia, that:
“7. The said words are a fair comment on matters of public interest . . . and
9. Insofar as the words complained of consist of statements of fact, they are true in substance and in fact, and insofar as they consist of expressions of opinion they are fair comment made in good faith and without malice on the said facts of public interest.”
By notice dated the 26th July, 1984, the plaintiff sought inter alia, the following particulars:
“2. In relation to the matters contained in Paragraph 7 of the defence, state what are the matters of public interest referred to insofar as they are facts and relate to the plaintiff, and
(a) which of the words complained of are facts, the truth of which will be proved and which are correct,
(b) what facts are to be relied upon as supporting the factual statements made.”
The relevant replies as furnished by these defendants on the 1st October, 1984, consist of the following:
“2. See paragraph 3 of the statement of claim and paragraph 7 of the defence delivered herein. The particulars are a matter of evidence for the hearing of the action. We enclose herewith a copy of the entire article entitled “Lost in the Mists” a profile of Charles J. Haughey a portion of which the plaintiff complains of.
3.
(a) See replies to paragraph 2 above. This is a matter of evidence at the hearing of the action.
(b) This is a matter of evidence for the hearing of the action.”
Counsel for the plaintiff has submitted that the foregoing recited replies do not constitute an adequate reply to the notice for particulars and that the plaintiff is entitled to an order compelling these defendants to give the particulars sought in the notice delivered on his behalf on the 26th July, 1984. I do not intend in the course of this judgment to set forth in detail or to attempt to paraphrase the contents of the article complained of but it is necessary for me to refer to certain portions thereof, viz.
“The lengths to which at least two Ministers for Justice, Patrick Cooney and Gerry Collins went in order to cover up that crime was far more worrying than anything Doherty got up to.” and
“The fact is that the Gardai have been interfered with and abused by politicians and successive Ministers for Justice for years. Promotions within the force have been largely political and most of the senior personalities within it have won their positions largely because of the patronage of some powerful political figure. Those too were abuses of power and indeed far greater than Doherty’s unsuccessful attempt to move Sgt. Tully.
The behaviour of the Gardai over the past decade and the complicity of Ministers for Justice with what has gone on has been a far greater scandal than anything done by Doherty.
First, there was the period of concerted and intense Garda brutality during the period of the 1973-1977 Coalition. The best documented case of that period is that of the Sallins four. In this case, there was clear and undisputed evidence of the accused having been beaten up while in Garda custody and yet 82 Gardai gave categoric evidence that there had not been any ill-treatment.
It was clear that the statements of many of these Gardai were corporatively constructed, in that identical language was used to describe particular events. Although it was evident that there had been a high level of conspiracy within the Gardai to ill-treat these prisoners and then to cover up that
ill-treatment with a variety of methods, including organised perjury, there was never at any stage, any enquiry into the affair either within the Gardai, the Department of Justice or elsewhere. Indeed the Gardai involved in that escapade were all promoted subsequently by Gerry Collins who had demanded in opposition that their activities be investigated. All that was scandalous and of an order of scandal never approached by Doherty and yet those involved have all got away scot free including Gerry Collins. Then there was the fingerprint affair, already referred to. In his (sic) case, two senior members of the Fingerprint Section of the Technical Bureau effectively fabricated fingerprint evidence against an innocent man. Not only were they not disciplined for this but those who exposed the fabrication were victimised, and a cover-up of quite enormous dimensions was undertaken by the senior echelons of the Gardai and by two Ministers for Justice, Cooney and Collins.”
I refer to these passages from the article complained of for the purpose of illustrating that the article contains statements of fact, comments and expressions of opinion and these defendants plead that –
(a) the said words are a fair comment on matters of public interest and that,
(b) insofar as the words complained of consist of statements of fact, they are true in substance and in fact, and insofar as they consist of expressions of opinion they are fair comment made in good faith and without malice on the said facts which are matters of public interest.
Order 19, rule 6 (1) of the Rules of the Superior Courts provides that:
“A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just.”
The ordinary use and purpose of particulars is to define the issues between parties to any action or proceeding and thereby to prevent either party being taken by surprise and incidentally to limit as much as possible the length and expense of trials. Each party is entitled to know precisely what case the other party is going to make at the trial and be enabled to prepare accordingly. It is, as stated in Gatley on Libel and Slander, 6th edition, p. 1105, an accepted rule that a party is entitled to an order for particulars only for the purpose of ascertaining the nature of his opponent’s case that he has to meet, and not for the purpose of ascertaining the evidence by which his opponent proposes to prove it. In paragraph 7 of the defence, the defendants plead that “the said words are a fair comment on matters of public interest” and proceed to give particulars of the public interest. It was not necessary for them to so do as the question of what constitutes the public interest is a matter of law and would be dealt with by the judge at the hearing of the action and for that reason the plaintiff is not entitled to require them to give particulars of the public interest. What he is entitled to, however, is particulars of the facts alleged against the plaintiff upon which the comment, which is alleged to be fair, is based. As stated by Denning L.J. in Cunningham-Howie v. F.W. Dimbleby & Sons Ltd. [1951] 1 K.B. 360, at p. 363:
“Let us see what the plea of fair comment entails:An essential part of it, and the proper preamble to it, is for the defendant to allege that the facts upon which he comments are true. If that is expressly alleged, the plaintiff is clearly entitled to particulars of the facts. But even if it is not expressly alleged, it is still implicit in the plea; and if the plaintiff is to know the case he has to meet, he must be given particulars of the facts which are relied upon in support of the plea.”
The interests of justice require that the plaintiff in this case be given particulars of the facts alleged against him which are alleged to be true and which the defendant intends to prove at the trial and as stated by Denning L.J. in Cunningham-Howie’s case “the Defendant must know what they are, because he intends to prove them at the trial and it is no hardship for him to give particulars of them.”
With regard to the particulars sought in paragraph 3 of the notice dated the 26th July, 1984, which refers to paragraph 9 of the defence consisting of “the rolled-up plea”, which is in effect a combination of the pleas of justification and fair comment, the general trend in England, prior to the new rules was in the direction of not making the order where the facts, the comment in which is said to be fair, are defined as being the facts stated in the alleged libel. However, in the course of his judgment in the case of The Aga Khan v. Times Publishing Co. [1924] 1 K.B. 675, Scrutton L.J. stated at p. 682 that:
“Personally, if I were not hampered by authority, I should be inclined to say, in every case, in which this rolled-up plea is pleaded that the plaintiff is entitled to ask the defendant to specify the statements of fact which he says are true and the comments which he says are fair.”
It is a view with which I completely agree and simple justice requires, particularly having regard to the nature of the article in which the words complained of are used, referring as it does to “successive Ministers for Justice”, naming three in particular and containing statements of fact, opinions and comments without any clear delineation of what are facts, what are opinions and what are comments and which apply in particular to the plaintiff. Unlike Scrutton L.J. I am not hampered by the authorities to which he refers and I am satisfied that the interests of justice requires that these defendants be required to give particulars to the plaintiff stating:
1. Which of the words complained of they allege are statements of facts;
2. The facts they rely on in support of the allegation that the words are true;
3. The matters they rely on in support of the allegation that the words are true and I so order.
Finlay C.J.
I agree with the judgment about to be delivered by Henchy J.
Henchy J.
The plaintiff is a former Minister for Justice and is the present Minister for Defence. On the 1st January, 1984, there was published in The Sunday Tribunea lengthy article entitled “Lost in the Mists of Introspection.” The article referred to a number of matters which were instanced as scandals in the public life of this State and alleged a connection between the plaintiff as Minister for Justice and at least some of those matters.
The plaintiff has issued proceedings in the High Court claiming damages for libel. A defence has been delivered by the first and second defendants, who are respectively the editor of the newspaper and the company that owns and publishes the newspaper. Among the matters pleaded in the defence is what is called a rolled-up plea. It is in the following terms:
“In so far as the words complained of consist of statements of act, they are true in substance and in fact, and in so far as they consist of expressions of opinion they are fair comment made in good faith and without malice on the said facts which are matters of public interest.”
The plaintiff served a notice for particulars in which he asked the defendants to state (a) which of the words complained of are facts the truth of which will be proved and which are correct; (b) what facts are to be relied upon as supporting the factual statements made. The defendants refused to make the disclosures asked for, stating that they are a matter of evidence for the hearing of the action. The plaintiff then applied to the Court for an order directing the defendants to give the particulars asked for. Hamilton J. (as he then was) made such an order and it is against that order that this appeal has been taken by the defendants.
The plaintiff’s application is made under O. 19, r. 6, of the Rules of the Superior Courts. That is a general rule providing for a further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars. Unlike what is apparently the position in England, there is no special rule of court governing particulars in relation to a rolled-up plea.
The question then is whether there is any settled practice in this matter. It does not seem to me that the judicial decisions to which we have been referred indicate, at least as far as this jurisdiction is concerned, any settled practice. The one Irish decision on the matter appears to be Osborne v. The Irish Times (unreported, Supreme Court, 27th January, 1954), the judgments in which are somewhat unsatisfactorily recorded. Those judgments, in my view, do not support the defendants’ contention that it is impermissible to require a defendant to disclose which factual matters in a rolled-up plea he will seek to justify at the hearing.
The matter therefore falls to be decided on principle. The determining considerations seem to be these. Where particulars are sought for the purpose of delivering a pleading, they should not be ordered unless they can be said to be necessary or desirable to enable the party seeking them to plead, or for some other special reason: see O. 19, rule 6, (3). Where the particulars are sought for the purpose of the hearing, they should not be ordered unless they are necessary or desirable for the purpose of a fair hearing. “The object of particulars is to enable the party asking for them to know what case he has to meet at the trial, and so to save unnecessary expense, and avoid allowing parties to be taken by surprise”: Spedding v. Fitzpatrick (1888) 38 Ch. D. 410, at p. 413. Thus, where the pleading in question is so general or so imprecise that the other side cannot know what case he will have to meet at the trial, he should be entitled to such particulars as will inform him of the range of evidence (as distinct from any particular items of evidence) which he will have to deal with at the trial.
In this case, the factual elements in the article complained of are so numerous and so unspecific that it would be unfair to expect the plaintiff to come to court and present his case properly without knowing in advance the true range of the factual case that will be presented in support of the rolled-up plea. It would, of course be unfair to require the defendants to make a detailed disclosure of their evidence in advance, but all they are asked to do is to identify the matters in the article which they claim to be matters of fact and to state the facts which they intend to prove at the trial for the purpose of supporting those factual statements in the article. Such disclosure is in my view not unfair and indeed is highly desirable, if not necessary, in the interests of a fair trial.
I would dismiss the appeal but would vary the order of Hamilton J. by specifying the particulars to be delivered as those set out in the plaintiff’s notice for particulars, namely, (a) which of the words complained of are facts the truth of which will be proved and which are correct, and (b) what facts are to be relied upon as supporting the factual statements made.
Griffin J.
I agree.
Hederman J.
I agree.
McCarthy J.
I agree.
Meegan -v- Times Newspapers Ltd T/A The Sunday Times (HC)
[2015] IEHC 696
JUDGMENT of Mr. Justice Barr delivered on the 6th day of November, 2015
1. In this action, the plaintiff claims damages for defamation against the defendant, in relation to an article which appeared in the defendant’s newspaper, “The Sunday Times”, on 14th September, 2014. The following allegations were contained in the article:-
“A senior figure in the Continuity IRA (CIRA) has been identified by Special Branch as the person who received sensitive information from a former garda about operations against dissident republications.
Joe Fee, a convicted bomb maker who lives in Monaghan is the focus of an investigation into the disclosure of information likely to be of use to terrorists.
The female officer is said to have sent texts to Fee and alerted him to the identities of dissidents arrested by Gardaí. The texts were intercepted by Crime and Security, the garda agency responsible for spying on dissidents.
The officer who cannot be named resigned after being confronted. She is the subject of a continuing criminal investigation.”
2. The plaintiff states that she is the former member of An Garda Síochána referred to in the article. She has pleaded that these allegations are false and defamatory of her.
3. In its defence, the defendant has pleaded, inter alia, that the plaintiff was not identifiable from the content of the article. The defendant has also pleaded the defence of fair and reasonable publication on a matter of public interest pursuant to s. 26 of the Defamation Act 2009.
4. In this application, the plaintiff seeks discovery of documents from the defendant. The first and second categories of documents sought in the notice of motion are as follows:-
“(i) The notebooks used by the reporter and/or reporters/researchers involved in researching and writing the article identified at paragraph 3 of the defence and published under the headline ‘Convicted Bomb Maker was Recipient of Garda Intelligence’ which appeared on 14th September, 2014 in the defendant’s newspaper and as identified at paragraph 6 and 7 of the Statement of Claim, to include all drafts of the said article and sources, notes, memorandum, essays, aide-memoire and other materials used and/or prepared by the defendant, its servants or agents in respect of the said article as published by the defendant on 14th September, 2014.
(ii) Copies of the defendant’s news list, news conference schedules and minutes thereof containing reference to the publication of the article described in the within proceedings maintained by the author and/or authors, news editors and/or news editor, chief sub-editor and/or sub-editor and/or sub-editors and/or other servants and agents of the defendant for the Irish edition of The Sunday Times for publication of the Sunday Times of September 14th, 2014.”
5. The plaintiff states that having regard to the plea contained in the defendant’s defence to the effect that the plaintiff was not identifiable from the words contained in the article, it is relevant and necessary for the plaintiff to have discovery of documents from the defendant. The plaintiff argues that in circumstances where the defendant claims that the plaintiff is not identifiable from the words complained of and does not deny that the plaintiff is, in fact, the person referred to in the article, the reporters’ and/or researchers’ notebooks are likely to confirm or otherwise whether the said article referred to the plaintiff. The plaintiff further argues that the said news schedules, news lists and editorial materials maintained by the defendant’s servants or agents will contain reference to the intention and decision of the defendant to publish the defamatory article concerning the plaintiff.
6. The plaintiff further argues that the said documentation will tend to provide proof of the issues surrounding the identification of the plaintiff as the subject of the article wherein she is accused of criminal offences while a member of An Garda Síochána.
7. In support of her argument that these categories of documents are relevant and necessary, the plaintiff referred to the following extracts from the judgment of Fennelly J. in Ryanair Plc v. Aer Rianta c.p.t. [2003] 4 IR 264 at p. 276:-
“In order to establish that discovery of particular categories of documents is ‘necessary for disposing fairly of the cause or matter’, the applicant does not have to prove that they are, in any sense absolutely necessary. Kelly J. considered the matter in his judgment in Cooper Flynn v. Radio Telefís Éireann [2000] 3 I.R. 344. He derived the useful notion of ‘litigious advantage’ from certain English cases. He adopted the following statement of Bingham M.R. in Taylor v. Anderton (C.A.) [1995] 1 W.L.R. 447 at p. 462:-
‘The crucial consideration is, in my judgment, the meaning of the expression ‘disposing fairly of the cause or matter’. Those words direct attention to the question whether inspection is necessary for the fair determination of the matter, whether by trial or otherwise. The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think, of no importance that a party is curious about the contents of a document or would like to know the contents of it if he suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it. That, in my judgment, is the test.’
It may not be wise to substitute a new term of art, ‘litigious advantage’ for the words of the rule. Nonetheless, the discussion gives guidance as to the context in which the matter has to be considered. Within that context, the court has to reach a conclusion as to the likely effect of the grant or refusal of the discovery on the fair disposal of the litigation.
The change made in to O. 31, r. 12, in 1999, exemplifies, however, growing concern about the dangers of unnecessarily costly and protracted litigation and, in particular, the burdens on parties and the courts arising from excessive resort to automatic blanket discovery. 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 objectives of expedition and economy.”
8. In relation to the first two categories of documents sought, the defendant stated that it is a well-established principle of the law of defamation that intention on the part of the person who made the impugned statement is irrelevant to the question as to whether the plaintiff was identified in the defamatory statement. The defendant referred to the following statement of principle in the judgment of Fennelly J. in Bradley v. Independent Star Newspapers Limited [2011] 3 IR 96 at p. 131:-
“One of the fundamental principles of the law of defamation is that the intention of the publisher is irrelevant to his liability if what he publishes is defamatory. This is most clearly demonstrated by the famous case of E. Hulton & Co. v. Jones [1910] A.C. 20, a case which raised the converse issue, whether a publisher who publishes a libel innocent of all knowledge that it refers to a particular person is, nonetheless, liable to that person. A well known newspaper published an article describing the attendance at a motor race at Dieppe. It described the antics, intending to refer to a fictitious person, of one Artemus Jones, and said of him that he was ‘with a woman who is not his wife, who must be, you know – the other thing!’. It added:- ‘Really, is it not surprising how certain of our fellow-countrymen behave when they come abroad? Who would suppose, by his goings on, that he was a churchwarden at Peckham?’ The real Artemus Jones was not, of course, a churchwarden at Peckham or anywhere else. He was a barrister on the North Wales Circuit. Nonetheless, a majority in the Court of Appeal and the House of Lords unanimously held that the test was not whether the defendant intended to refer to the plaintiff but whether the words published were understood by reasonable people who knew the plaintiff to refer to him.”
9. Later, in the course of the same judgment, Fennelly J. stated as follows at p. 134:-
“I would add that the principle that intention is irrelevant is a sound one. As already stated, the Oireachtas intervened by enacting s. 21 of the Defamation Act 1961 (now repealed) to mitigate the effects of innocent defamation. There are sound reasons of principle for not making intention the test. The press frequently prints stories concerning many sorts of wrongdoing, without identifying the miscreants. There may be many reasons. They may not have sufficient evidence to stand up in court as a justification defence. They may be in fear. Stories often develop piece by piece. Journalists may be motivated by a wish to protect persons. The stories may, nonetheless, be of public importance. If intention were to become the test, it would, for example, be open to a person not named in an article to seek to establish intention by means of discovery or interrogatories. The test for identification would cease to be whether the words, construed objectively, referred to the plaintiff, but rather whom the writer had in mind.”
10. The defendant also referred to the following paragraph from Gatley on Libel and Slander (12th Ed.), at para. 7.5:-
“The common law rule: intention immaterial. At common law it is immaterial that the defendant did not intend to refer to the claimant or did not even know of his existence. The question is: Would the words complained of be understood by reasonable people who knew the claimant to refer to him? If so, they are published of and concerning the claimant, no matter what the intention of the defendant may have been.”
11. The defendant also referred to the decision in Newstead v. London Express Newspaper Limited [1940] 1 K.B. 377 in support of its argument that the intention of the person making the statement is irrelevant to the question of identification of the plaintiff in the article.
12. The defendant argued that it was immaterial whether the defendant intended to identify the plaintiff or not. The proper test was an objective one: whether reasonable people who knew the plaintiff identified her as the subject of the article. The defendant pointed out that in the grounding affidavit sworn by the plaintiff’s solicitor, Mr. MacGuill, it was stated that the plaintiff would, in the course of prosecuting her case, objectively establish to the satisfaction of the jury that the article complained of did, in fact, refer to her. It was stated that she would do this by calling evidence to the effect that she was, in fact, identified by third parties as the person to whom the article referred. Mr. MacGuill stated that in circumstances where the defendant had not denied that she was the subject matter of the said article, discovery of the said notebooks used by the reporter and/or reporters involved in researching and writing the article, would remove any doubt that this article was intended to and did, in fact, refer to the plaintiff. The defendant argued that the question of the reporter’s intention was irrelevant to the matters which would be decided at the trial of the action.
13. I am satisfied that the argument put forward by the defendant is correct. Whether the defendant intended to refer to the plaintiff or not, is immaterial. The test is whether reasonable people, who know the plaintiff, understood it to refer to her. The plaintiff does not require discovery of documents to establish this in evidence. The plaintiff is not entitled to the first two categories of discovery on this basis.
14. The third category of documents sought was in the following terms:-
“(iii) Copies of all references and advices made and sought and received by the author and/or authors of the article with respect to the decision not to publish the plaintiff’s name.”
15. The plaintiff alleged that it would appear from the defence filed on behalf of the defendant, that an active decision was made by the defendant to attempt to conceal the identity of the plaintiff in the knowledge that the accusations made against her in the impugned article were defamatory of her and in spite of such knowledge, the defendant wilfully, recklessly and maliciously proceeded to publish the defamatory words of and concerning the plaintiff. The plaintiff further argued that the documents sought were relevant to the defendant’s requirement of full proof of all pleas and allegations and assertions made by the plaintiff in her Statement of Claim. It was submitted that the said category was particularly relevant to the plaintiff’s claim for aggravated damages for irresponsible publication concerning the plaintiff in her professional reputation.
16. In the Plenary Summons and Statement of Claim, there is a claim to aggravated damages. However, the plaintiff has not pleaded any specific basis on which the entitlement to such damages is said to arise.
17. In response to this aspect, the defendant has argued that aggravated damages are only payable where there has been some additional hurt to the plaintiff’s feelings caused by the conduct of the defendant. This is given statutory recognition in s. 32(1) of the Defamation Act 2009, which provides that where the court finds that the defendant was liable to pay damages to the plaintiff in respect of a defamatory statement and the defendant conducted his or her defence in a manner that aggravated the injury caused to the plaintiff’s reputation by the defamatory statement, then the court may, in addition to any general, special or punitive damages, payable by the defendant to the plaintiff, order the defendant to pay to the plaintiff damages, referred to as “aggravated damages”, of such amount as it considers appropriate to compensate the plaintiff for the aggravation of the said injury.
18. The defendant submitted that the plaintiff is not entitled to go on a fishing expedition by seeking discovery, in the hope that she would unearth something in the documents, which would give rise to additional hurt over and above that caused by the conduct of the defendant in publishing the article and thereby provide the basis for a claim to aggravated damages. The defendant argued that the plaintiff must know what additional hurt she had suffered and did not need discovery to establish such a claim.
19. The defendant relied on the case of Henry v. News Group Newspapers Limited [2011] EWHC 1058, and in particular to the following portions of the judgment of Eady J.:-
“7. 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) complained of. It follows that the aggravating conduct must have been known to the claimant. It cannot be relevant to enquire into what was going on behind the scenes (‘What the eye does not see …’).
…
10. Mr. Warby submitted that the disclosure application was a fishing expedition, in effect, to enable the claimant to advance her (irrelevant) case as to the state of the defendant’s actual knowledge (through one or more unidentified employees). Various reasons were advanced, but clearly the primary point is that the only ‘facts’ as to the defendant’s state of mind that could conceivably be relevant to the issue of aggravated damages are those perceived or known about by the Claimant. Accordingly, disclosure of documents cannot assist.
…
15. Mr. Warby further submits that it cannot be right to seek to augment damages in a libel action, which are intended to be primarily compensatory, by trying to prove that one’s beliefs about a defendant’s conduct are in fact true and extracting documents for that purpose. The result could well be that the award would then reflect injury to feelings caused by the disclosure rather than the publication. Also, there would be a risk of introducing, impermissibly, an element of punishment.”
20. The defendant also pointed out that the plaintiff had not pleaded malice against the defendant as a basis for any award of aggravated damages. The defendant relied on the following statement of the law in Gatley on Libel and Slander, (12th Ed.) at para. 31.8:-
“Malice. Where the claimant has pleaded malice in his reply in rebuttal of a defence of qualified privilege or honest comment, the parties must give disclosure of all documents which support or undermine the claimant’s case on the defendant’s state of mind. But where the claimant relies on the defendant’s motivation or state of mind in publishing the words in aggravation of damages, he is not entitled to disclosure from the defendant.”
21. I am satisfied that the defendant’s contention in this regard is correct. The plaintiff cannot seek discovery of documents in the hope that that will unearth something which will provide a basis for claiming aggravated damages. As submitted by Mr. Quinn, S.C., in order to make such a plea, the plaintiff must be able to point to some conduct on the part of the defendant which has caused the plaintiff additional hurt, over and above that caused by the publication of the article. The plaintiff must know what that conduct was. The plaintiff is not entitled to seek discovery of documents as a means of establishing a claim to aggravated damages.
22. At the hearing of this application, the plaintiff advanced a further ground for seeking discovery, which was not included in her original request for voluntary discovery, nor in the grounding affidavit sworn by her solicitor. This was, to the effect, that having regard to the fact that the defendant had pleaded the defence of fair and reasonable publication on a matter of public interest, pursuant to s. 26 of the Defamation Act 2009, she was entitled to obtain discovery of documents from the defendant. I adjourned the hearing of the motion to allow the plaintiff to make her claim in this regard on affidavit. Following that, both parties made legal submissions on the issue.
23. Section 26 of the Defamation Act 2009, is in the following terms:-
“26.— (1) It shall be a defence (to be known, and in this section referred to, as the “ defence of fair and reasonable publication ”) to a defamation action for the defendant to prove that—
(a) the statement in respect of which the action was brought was published—
(i) in good faith, and
(ii) in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit,
(b) in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient, and
(c) in all of the circumstances of the case, it was fair and reasonable to publish the statement.
(2) For the purposes of this section, the court shall, in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant including any or all of the following:
(a) the extent to which the statement concerned refers to the performance by the person of his or her public functions;
(b) the seriousness of any allegations made in the statement;
(c) the context and content (including the language used) of the statement;
(d) the extent to which the statement drew a distinction between suspicions, allegations and facts;
(e) the extent to which there were exceptional circumstances that necessitated the publication of the statement on the date of publication;
(f) in the case of a statement published in a periodical by a person who, at the time of publication, was a member of the Press Council, the extent to which the person adhered to the code of standards of the Press Council and abided by determinations of the Press Ombudsman and determinations of the Press Council;
(g) in the case of a statement published in a periodical by a person who, at the time of publication, was not a member of the Press Council, the extent to which the publisher of the periodical adhered to standards equivalent to the standards specified in paragraph (f);
(h) the extent to which the plaintiff’s version of events was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned;
(i) if the plaintiff’s version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person; and
(j) the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.
(3) The failure or refusal of a plaintiff to respond to attempts by or on behalf of the defendant, to elicit the plaintiff’s version of events, shall not—
(a) constitute or imply consent to the publication of the statement, or
(b) entitle the court to draw any inference therefrom.
(4) In this section—
“ court” means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury;
“ defamation action ” does not include an application for a declaratory order.”
24. The plaintiff’s counsel submitted that the burden of proof rested upon the defendant to establish the matters specified in section 26. He stated that by pleading s. 26, the defendant was putting in issue the question of whether the servants or agents of the defendant acted fairly and reasonably in relation to the publication of the article. He stated that the issue of whether there was responsible journalism, was thus raised on the pleadings. In these circumstances, it was necessary for the plaintiff to have discovery of documents so as to properly deal with this issue at the trial of the action.
25. In support of this argument, the plaintiff referred to the decision in Walsh v. The Newsgroup Newspapers Limited [2012] 3 I.R. 136. Counsel for the plaintiff submitted that it was clear from the decision of O’Neill J. in that case that discovery of documents would be granted where it was relevant to support a claim for aggravated damages, or to counter a defence raised by the defendant pursuant to s. 26 of the 2009 Act. The plaintiff referred to the following portion from the judgment of O’Neill J. at para. 25:-
“[25] …The plaintiff submits that this category of discovery is relevant because the existence or non-existence of documents in this category would be directly relevant to advancing the plaintiff’s case, to the effect, that the plaintiff or his representative was misled by the defendants as to the manner in which their investigation of the incident took place, and hence could assist the plaintiff in overcoming the defendants’ defence of fair and reasonable publication pursuant to s. 26 of the Defamation Act 2009…
[26] The plaintiff makes the case that the story was, in effect, procured by financial inducements offered by the defendants through its crime correspondent to Mr. Watters, and that the defendants misrepresented to the plaintiff or his representative that they had obtained the story from An Garda Síochána. The defendants deny these allegations. In my view, discovery of documents relating to communications between the defendants and An Garda Síochána would be relevant to the resolution of these disputed issues. The resolution of these issues will be central to a determination on the plaintiffs claim for aggravated damages and also to the defendants’ defence of fair and reasonable publication pursuant to s. 26 of the Defamation Act 2009. Insofar as this category of discovery is concerned, therefore, I am quite satisfied that the plaintiff has established that category 7 of the discovery sought is relevant to the issues in dispute in the action.”
26. The plaintiff’s counsel submitted that the offending article in this case was published on the front page of the newspaper and on its website. In these circumstances, it was submitted that the discovery sought was relevant to the matters raised in s. 26(1)(b) and (c). He submitted that it was also relevant to the matters which were raised for consideration by virtue of s. 26(2)(a), (b), (d) and (j). The plaintiff submitted that by invoking the provisions of s. 26, the defendants specifically put in issue the question of whether there was responsible journalism in the preparation and publication of the offending article. It was submitted that the discovery sought was directly relevant to the issues raised on the pleadings.
27. In response, counsel for the defendant stated that this application was merely a fishing expedition on the part of the plaintiff. He submitted that the plaintiff was trying to dig up some documentation which would provide a basis for her claim to aggravated damages. He stated that this was clearly impermissible for the reasons set out in the judgment of Eady J. in Henry v. Newsgroup Newspaper Limited [2011] EWHC 1058. He stated that the key question for determination by the court was whether discovery of documents was necessary for disposing fairly of the cause or matter. In this regard, he cited the judgment of Fennelly J. in Ryanair Plc v. Aer Rianta c.p.t. [2003] 4 IR 264, as referred to earlier in this judgment.
28. Counsel for the defendant submitted that the present case was not comparable to the circumstances in Walsh v. Newsgroup Newspaper Limited [2012] 3 I.R. 136. He stated that in the Walsh case, extensive particulars had been furnished of the circumstances giving rise to the claim for aggravated damages. In the present case, no such particulars were given. The plaintiff had not set out any basis for her claim to aggravated damages. There was just a bare claim to such relief in the Statement of Claim.
29. Counsel further submitted that the plaintiff had not set out any cogent reasons as to why she should be given discovery of documents having regard to the plea in the defence pursuant to s. 26 of the Defamation Act 2009. In this regard, the plaintiff’s solicitor had in a supplemental affidavit sworn on 21st October, 2015, set out the reasons why the documentation was relevant to the claim made pursuant to s. 26 of the Defamation Act 2009:-
“I say and believe that, while the Statement of Claim in the within proceedings does not contain a plea referring expressly to section 26 of the Defamation Act 2009, the said section being pleaded in defence to the plaintiff’s claim, the categories of documentation sought to be discovered on the within Notice of Motion are relevant to the within proceedings in light of the aforementioned plea by the defendant to the effect that it intends to rely on the said section 26.”
30. The defendant’s counsel submitted that this was a mere formulaic reason and was not a sufficient basis for directing discovery of documents against the defendant.
31. The court must consider whether the defendant in making the plea under s. 26 of the 2009 Act, thereby opened itself to an application for discovery of documents. There is some support for this proposition in Cox and McCullough “Defamation, Law and Practice” published by Clarus Press Limited, 2014, where the following opinion is stated at para. 14-109:
“Where there is a plea under s. 26 of fair and reasonable publication on a matter of public interest, there may be a requirement to discover journalist’s notes and other material relating to the issue of whether or not it was fair and reasonable to publish the statement concerned.”
However, there is no authority cited for this statement.
32. The decision in Walsh v. Newsgroup Newspapers Limited [2012] 3 I.R. 136, also supports the view that where a defence has been raised under s. 26 of the 2009 Act, the plaintiff will be entitled to seek discovery of documents from the defendant.
33. I am satisfied that the plaintiff is correct in her assertion that by raising the defence of fair and reasonable publication on a matter of public interest, the defendant has put in issue the question as to whether the defendant’s servants or agents acted fairly and reasonably in publishing the article. By making such a plea, the defendant has opened itself to an application for discovery of documents. The plaintiff will only be able to adequately deal with the assertions made by the defendant in this regard if she is given discovery of the journalist’s notes and other background material relevant to the publication of the article. In particular, she will need discovery of documents in order to deal with the issues raised in s. 26(1)(b) and (c). She will also need discovery of documents to deal with the matters raised by s. 26(2)(a), (b), (d) and (j). Accordingly, I direct that the defendant is to make discovery in the terms of the notice of motion. I will hear the parties in relation to the name of the deponent and the length of time required to make the discovery.
34. I should state that in directing that the defendant make discovery of documents, I am expressing no view on the issue as to whether any or all of the documents may be covered by either journalistic privilege or legal professional privilege. These are matters that can be raised in the usual way in the affidavit of discovery. The court will adjudicate on those issues, if and when they are raised by the defendant in its affidavit of discovery.
Meegan -v- Times Newspapers Ltd t/a The Sunday Times (CA)
[2016] IECA 327
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 9th day of November 2016
1. Where a defendant in a defamation action pleads in general terms the defence of fair and reasonable publication pursuant to s. 26 of the Defamation Act 2009 (“the 2009 Act”), is a plaintiff entitled in principle as a consequence of this plea to discovery of the journalist’s notes and other background material relevant to the publication in the article, subject only to questions of journalistic privilege and legal professional privilege? In his judgment of the High Court delivered on 6th November 2015, Barr J. answered that question in the affirmative: see Meegan v. Times Newspapers Ltd. [2015] IEHC 696. The defendant newspaper contends that this decision was incorrect and it now appeals to this court.
2. The present proceedings arise following the publication which appeared in the defendant’s newspaper, “The Sunday Times”, on 14th September 2014. The publication was in the following terms:
“A senior figure in the Continuity IRA (CIRA) has been identified by Special Branch as the person who received sensitive information from a former Garda about operations against dissident republications.
Joe Fee, a convicted bomb maker who lives in Monaghan is the focus of an investigation into the disclosure of information likely to be of use to terrorists.
The female officer is said to have sent texts to Fee and alerted him to the identities of dissidents arrested by Gardaí. The texts were intercepted by Crime and Security, the Garda agency responsible for spying on dissidents.
The officer, who cannot be named, resigned after being confronted. She is the subject of a continuing criminal investigation.”
3. The plaintiff states that she is the former member of An Garda Síochána referred to in the article. She has pleaded that these allegations are false and defamatory of her. It is not disputed by the defendant that the plaintiff is indeed the person referred to in the article although it contends that she has not been identified in the piece in question.
4. In its defence, the defendant has pleaded, inter alia, that the plaintiff was not identifiable from the content of the article. The defendant has also pleaded – albeit in the most general terms – the defence of fair and reasonable publication on a matter of public interest pursuant to s. 26 of the 2009 Act. Thus, para. 11 of the defence provides that if the words were indeed defamatory of the plaintiff, then:
“….the same constituted fair and reasonable publication on a matter of public interest. In this regard, the defendant will rely upon the provisions of section 26 of the Defamation Act 2009.”
5. The plaintiff sought discovery of certain categories of documents from the defendant and the request was in the following terms:
“Category 1
The notebooks used by the reporter and or reporters/researchers involved in researching and writing the article identified at paragraph 3 of the defence and published under the header “Convicted bomb maker was recipient of Garda intelligence” which appeared on September 14th 2014 in the defendant’s newspaper and as identified in paragraph 6 and 7 of the statement of claim. To include all drafts of the said article and sources, notes, memorandum, essays, aide-memoire, or any other material used and or prepared by the defendants its servants or agents in respect of the said article as published by the defendant on September 14th 2014.
Reasons
This category of discovery is required in light of the pleas contained in the defence delivered on June 8th 2015 to the effect that the plaintiff is not identifiable from the words contained in the said article of which she complains such claims contained at paragraphs 4 and 5 of the defence. In circumstances were the defendant claims the plaintiff is not “identifiable” from the words complained of and does not deny that the plaintiff is in fact the person identified in the article the reporters and / or researchers notebooks are likely to confirm or otherwise whether the said article referred to the plaintiff.
Category 2
Copies of the defendants’ news list, news conference schedules and minutes thereof containing reference to the publication of the article described in the within proceedings maintained by the author an/or authors, news editor and/or editor, chief sub-editor and/or sub-editors and/or other servant of agent of the defendant for the Irish edition of the Sunday Times for the publication of the Sunday Times of September 14th 2014.
Reasons
The said news schedules, news lists and editorial materials maintained by the defendant’s servants or agents will contain reference to the intention and decision of the defendant to publish the defamatory article concerning the plaintiff. Given that the defendant claims that the plaintiff is not identifiable from the words complained of in the said article and has not denied the fact that the words complained of relate to the plaintiff and has put the plaintiff on full proof of her claim the said documentation will tend to provide proof of the issues surrounding the identification of the plaintiff as the subject of the article wherein she is accused of criminal offences while a member of An Garda Síochána.
Category 3
Copies of all references and advices made and sought and received by the author and or authors of the article with respect to the decision not to publish the plaintiff’s name.
Reasons
The materials sought under this category of discovery are relevant to the defendants claim that the plaintiff is not identifiable from the words published in that it would appear from the defence that an active decision was made by defendant to attempt to conceal the identify of the plaintiff in the knowledge that the accusations made against her in the impugned article were defamatory of her and in spite of such knowledge the defendant wilfully, recklessly and maliciously proceeded to publish the defamatory words of and concerning the plaintiff. The said materials are further relevant to the defendant’s requirement of full proof of all pleas and allegations and assertions made by the plaintiff in her statement of claim. The said category is particularly relevant to the plaintiff’s claim for aggravated damages for irresponsible publication concerning the plaintiff in her professional reputation.”
6. The reasons originally advanced for the discovery of the categories of documents sought was on the basis that such material would tend to show why the defendant decided not to identify the plaintiff in the article or to publish her name. Barr J. refused to order discovery on this ground, saying in essence that this was irrelevant, as it was a well-established principle of the law of defamation that intention on the part of the person who made the impugned statement is irrelevant to the question as to whether the plaintiff was identified in the defamatory statement. No appeal has been taken by the plaintiff against this aspect of the High Court judgment.
The judgment of the High Court on the s. 26 point
7. The plaintiff, however, succeeded in obtaining an order for discovery on an alternative ground, namely, that having regard to the fact that the defendant had pleaded the defence of fair and reasonable publication on a matter of public interest, pursuant to s. 26 of the 2009 Act, she was entitled to the discovery sought as relevant and necessary to this defence.
8. Section 26 of the 2009 Act is in the following terms:-
“26(1) It shall be a defence (to be known, and in this section referred to, as the “ defence of fair and reasonable publication”) to a defamation action for the defendant to prove that:-
(a) the statement in respect of which the action was brought was published:-
(i) in good faith, and
(ii) in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit,
(b) in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient, and
(c) in all of the circumstances of the case, it was fair and reasonable to publish the statement.
(2) For the purposes of this section, the court shall, in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant including any or all of the following:
(a) the extent to which the statement concerned refers to the performance by the person of his or her public functions;
(b) the seriousness of any allegations made in the statement;
(c) the context and content (including the language used) of the statement;
(d) the extent to which the statement drew a distinction between suspicions, allegations and facts;
(e) the extent to which there were exceptional circumstances that necessitated the publication of the statement on the date of publication;
(f) in the case of a statement published in a periodical by a person who, at the time of publication, was a member of the Press Council, the extent to which the person adhered to the code of standards of the Press Council and abided by determinations of the Press Ombudsman and determinations of the Press Council;
(g) in the case of a statement published in a periodical by a person who, at the time of publication, was not a member of the Press Council, the extent to which the publisher of the periodical adhered to standards equivalent to the standards specified in paragraph (f);
(h) the extent to which the plaintiff’s version of events was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned;
(i) if the plaintiff’s version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person; and
(j) the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.
(3) The failure or refusal of a plaintiff to respond to attempts by or on behalf of the defendant, to elicit the plaintiff’s version of events, shall not:
(a) constitute or imply consent to the publication of the statement, or
(b) entitle the court to draw any inference therefrom.
(4) In this section:
? “court” means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury;
? “defamation action” does not include an application for a declaratory order.”
9. Barr J. took the view that in making the plea under s. 26 of the 2009 Act the defendant had, so to speak, opened itself to an application for discovery of documents:
“31. . . .There is some support for this proposition in Cox and McCullough, Defamation, Law and Practice (Dublin, 2014), where the following opinion is stated at para. 14-109:
“Where there is a plea under s. 26 of fair and reasonable publication on a matter of public interest, there may be a requirement to discover journalist’s notes and other material relating to the issue of whether or not it was fair and reasonable to publish the statement concerned.”
However, there is no authority cited for this statement.
. . .
33. I am satisfied that the plaintiff is correct in her assertion that by raising the defence of fair and reasonable publication on a matter of public interest, the defendant has put in issue the question as to whether the defendant’s servants or agents acted fairly and reasonably in publishing the article. By making such a plea, the defendant has opened itself to an application for discovery of documents. The plaintiff will only be able to adequately deal with the assertions made by the defendant in this regard if she is given discovery of the journalist’s notes and other background material relevant to the publication of the article. In particular, she will need discovery of documents in order to deal with the issues raised in s. 26(1)(b) and (c). She will also need discovery of documents to deal with the matters raised by s. 26(2)(a), (b), (d) and (j). Accordingly, I direct that the defendant is to make discovery in the terms of the notice of motion. ….
34. I should state that in directing that the defendant make discovery of documents, I am expressing no view on the issue as to whether any or all of the documents may be covered by either journalistic privilege or legal professional privilege. These are matters that can be raised in the usual way in the affidavit of discovery. The court will adjudicate on those issues, if and when they are raised by the defendant in its affidavit of discovery.”
The nature of the s. 26 defence
10. Section 26 of the 2009 Act is a novel provision which, as we were informed at the hearing of the appeal, has yet to be successfully invoked in any reported defamation case. The section is clearly designed to provide a defence for publishers who show that they acted bona fide and that the publication was fair and reasonable having regard, in particular, to the matters set out in s. 26(2) of the 2009 Act. Section 26 may be regarded as an endeavour by the Oireachtas to move away in some respects from the strict liability nature of the common law tort of libel and to introduce – in, admittedly, some specific and limited respects – a negligence based standard in actions for defamation under the 2009 Act. This is reflected, in particular, in s. 26(2)(i) which requires the court to have regard to the endeavours made by the publisher to verify the contents of the article in assessing the defence of fair and reasonable publication.
Discovery in cases where the s. 26 defence is pleaded: relevance and necessity
11. In the present case the plaintiff did not advance any reasons for the discovery sought arising from the s. 26 plea in any of the pre-motion correspondence. When the issue was first raised in the course of the hearing the plaintiff’s solicitor was permitted to file a supplemental affidavit setting out the grounds on which discovery of the existing categories of documents sought was said to be both necessary and relevant by reference to the s. 26 defence. The only reason given was:
“I say and believe that, while the statement of claim in the within proceedings does not contain a plea referring expressly to s. 26 of the Defamation Act 2009, the said section being pleaded in defence to the plaintiff’s claim, the categories of documentation sought to be discovered on the within notice of motion are relevant to the within proceedings in light of the aforementioned plea by the defendant to the effect that it intends to rely on the said s. 26.”
12. So far as discovery is concerned, of course, the material sought must be both relevant and necessary: see, e.g., P.J. Carroll and Co. Ltd. v. Minister for Health and Children [2006] IESC 36, [2006] 3 IR 431. There may well be cases where the type of discovery ordered here – such as, for example, journalists’ notes and other background material – might possibly be relevant in assessing whether a s. 26 defence has been properly made out. Such a plaintiff would, however, have to satisfy the court that the documents sought are both relevant and necessary to the particular defence being pursued. As matters stand, however, I consider that the plaintiff has not yet established that such discovery is necessary, in part because the defendant’s pleading in relation to the s. 26 defence is so general, but perhaps especially because the plaintiff has not sought the appropriate particulars which, when appropriately replied to, would articulate the precise basis for this defence.
13. Specifically, the grounds on which the defendant asserts that it was fair and reasonable to publish the article in question for the purposes of s. 26 are presently unclear. Viewed purely hypothetically, one could envisage an entire range of circumstances in which a newspaper might seek to set up a s. 26 defence. These might include, for example, a plea that there “were exceptional circumstances that necessitated the publication of the statement on the date of publication” (s. 26(2)(e)) or that the newspaper had sought (but failed) to obtain a response from the plaintiff prior to publication (s. 26(2)(i) or that the newspaper had sought “to verify the assertions and allegations concerning the plaintiff in the statement” (s. 26(2)(j)).
14. It is, therefore, the very broad and potentially all-encompassing nature of the s. 26 defence and an absence of identification of facts intended to be relied upon the defendant in pursuing such a defence which means that it would be inappropriate to order discovery at this juncture. In my view, this is a case where the plaintiff should, have sought further particulars of the nature of the s. 26 defence envisaged by the newspaper before bringing an application for discovery. As Henchy J. observed in Cooney v. Browne [1985] I.R. 185, 191 in the context of an application for particulars in a defamation action:
“Thus, where the pleading in question is so general or so imprecise that the other side cannot know what case he will have to meet at the trial, he should be entitled to such particulars as will inform him of the range of evidence (as distinct from any particular items of evidence) which he will have to deal with at the trial.”
15. Without prejudging in any way any application for particulars, it would have to be said that the present s. 26 defence is so general and imprecise that the plaintiff cannot at present know the nature of the actual s. 26 defence she will have to meet at trial, nor the facts which may be relevant in the context of any such defence.
16. Unless, therefore, the general and the unspecific nature of the s. 26 defence as presently pleaded is cut down by further pleading or particulars and the facts to be relied upon ascertained, then any discovery ordered by the court in the present case would be in the nature of the old orders for general discovery of any documentation which might possibly be relevant. This former practice has been disapproved of by the Supreme Court (see Brooks Thomas Ltd. v. Impac Ltd. [1999] 1 ILRM 171) and it is, in any event, out of line with modern thinking on discovery which suggests that discovery requests should be specific and focussed, so that the courts “should be willing to confine categories of documents to what is genuinely necessary for the fairness of the litigation”: see Ryanair Ltd. v. Aer Rianta cpt. [2003] IESC 62, [2003] 4 IR 264, 277, per Fennelly J.
17. It is, accordingly, on this point that I respectfully part company with the reasoning of Barr J. in the High Court.
Conclusions
18. One may sum up this general state of affairs by saying that it is at present premature to assess whether the discovery sought is genuinely necessary for the proper conduct of this litigation, at least until the scope and extent of the s. 26 defence is clarified and particulars of the facts proposed to be relied upon by the defendant in support of that defence are duly ascertained, whether by further pleading or by particulars. It follows, therefore, that the defendant’s appeal must accordingly be allowed.
19. It will be a matter for the plaintiff to decide whether and, if so, to what extent, she wishes to raise further particulars arising from the s. 26 defence. For the avoidance of any possible doubt, however, I would wish to make it clear that in the event that the scope and extent of the s. 26 defence is clarified following delivery of particulars, it will then be open to the plaintiff to seek discovery afresh. In that event, the plaintiff should then furnish in pre-motion correspondence the appropriate reasons based on that s. 26 defence as so clarified as why the discovery which might then be sought would be both relevant and necessary.
Ryanair Ltd -v- Somner
[2014] IEHC 634
Judgment of Mr Justice Michael Peart delivered on the 12th day of December 2014:
1. There are two motions before the Court for decision. I will deal firstly with the plaintiff’s motion for further and better for particulars, and then deal with the defendant’s motion for discovery against the plaintiff.
The plaintiff’s motion for further and better particulars:
2. In these proceedings the plaintiff, Ryanair, sues the defendant for, inter alia, damages for defamation.
3. The defendant was a pilot working for Ryanair from October 2004 until his resignation on medical grounds on the 16th September 2011.
4. In late December 2012 the defendant took part in a two-part television programme entitled ‘Mayday Mayday’, which was broadcast also on the internet, and it is alleged by the plaintiff that during the course of his contributions to that programme he stated particular words as set forth in the Statement of Claim which are defamatory of the plaintiff company. It is not necessary to set out all the allegedly defamatory words referred to in the Statement of Claim, but the plaintiff pleads that the words in question meant and were understood to mean, both in their natural and ordinary meaning and/or by way of innuendo, that:
(i) the corporate culture, management structure and the way Ryanair deals with its staff jeopardises the safety of passengers by placing pilots under abnormal stress and pressure.
(ii) the chances of being involved in a serious incident or accident on Ryanair are greater than on other airlines.
(iii) a serious incident or accident on Ryanair is inevitable.
(iv) Ryanair compromises the safety and lives of its passengers and is an airline that should be avoided.
5. In his Defence delivered on 23rd December 2013, he admits that he published the words complained of during the programme and on the website, and also, inter alia, pleads that the natural and ordinary interpretation or meaning of the words complained of is as the plaintiffs have pleaded in their Statement of Claim, except that it is not accepted that the words complained of meant that “a serious incident or accident on Ryanair is inevitable”.
6. As part of his Defence, the Defendant pleads honest opinion, truth, fair and honest publication on a matter of public interest, and qualified privilege.
7. In relation to honest opinion, it is pleaded (a) that the words complained of constituted the opinion of the defendant; (b) the opinion pertained to a matter of public interest, namely the adverse effect of the plaintiff’s corporate culture on passenger safety; (c) at the time of publication, the defendant believed in the truth of the said opinion, and continues to do so; (d) the said opinion was based on allegations and facts specified in the publication, and further/in the alternative, in the context of a broadcast concerning “the incident of 26th of July 2012” the audience knew or might reasonably be expected to have known what allegations of fact were being referred to, and further/in the alternative, the said opinion was based on allegations of fact to which privilege attaches.
8. The plaintiff raised particulars in relation to honest opinion and asked for full and detailed particulars of the allegations of fact specified in the publication upon which the defendant relies in support of the defence of honest opinion. Particulars were also sought in respect of any facts not specified in the publication but which it is alleged the audience knew or might reasonably be expected to have known, and also in relation to any allegations of fact to which the defendant asserts that privilege attaches, and also asked the defendant to identify the nature of the privilege which they alleged existed.
9. In its reply to this request for particulars, the defendant stated that the allegations of fact relied upon in support of the defence of honest opinion are that (i) pilots in Ryanair who raise serious concerns are quickly punished or disciplined; (ii) pilots in Ryanair are not valued or respected; (iii) that Ryanair engages in bullying, intimidation, threats and harassment; (iv) that there exists a layer of pilot fear and stress within Ryanair that does not exist within other airlines. (v) that the plaintiff’s corporate culture and management structure and the way that the plaintiff deals with its staff adds an extra layer of fear and stress; (vi) the fact that certain of the plaintiff’s pilots are being paid only when they fly; (vii) the fact that certain of the plaintiff’s pilots are based in foreign countries and are stressed because they are based in locations other than those where they want to be.
10. In answer to the request for particulars as to what the audience knew or might reasonably be expected to have known, the defendant stated that it was the plaintiff’s belligerent corporate culture and aggressive manner in which had dealt with both passengers and staff.
11. In answer to the request for full and detailed particulars of the allegations of fact to which the defendant asserts that privilege attaches, the defendant replied that the defendant’s stated opinions were based on the facts set out in replies 1 and 2 to which I have already referred, and went on to state that those facts were stated by the defendant on an occasion of qualified privilege which arises pursuant to common law, and pursuant to Section 18 of the Defamation Act, 2009.
12. In answer to the other requests for particulars set out above, the defendant stated that the nature of the privilege alleged is qualified privilege, and that this is privilege which arises from a line of authority commencing with Reynolds v. Times Newspapers Ltd [2001] 2 AC 127, and arising from Section 18 of the Defamation Act, 2009.
13. In relation to the defence pleaded that the publication constituted a fair and reasonable publication on a matter of public interest, the plaintiff sought particulars of the facts which it is alleged that the defendant’s publication was based upon (and which it is alleged the defendant knew or believed to be true) and also full and detailed particulars of all attempts made by the defendant to contact the plaintiff to obtain and publish a response from the plaintiff in advance of the publication, and also in relation to all attempts made and the means used by the defendant to verify the assertions and allegations concerning the plaintiff in advance of the publication.
14. In response to these requests, the defendant stated that the facts upon which the defendant’s statements were based, and which he as a former pilot of the plaintiff knew or believed to be true, are those facts set out in replies 1 and 2 in the replies to notice for particulars already been set out above. In relation to the other matters sought under this heading, the defendant stated that his statements were based on facts which he, a former pilot of the plaintiff, knew or believed to be true. He went on to state that the broadcaster of the programme on which the defendant’s remarks were published contacted the plaintiff in advance of the broadcasts in order to obtain and publish a response from the plaintiff, which response was both obtained and published during the course of the broadcasts. He went on to say that it was not necessary for the defendant to separately verify the assertions and allegations being made by him since they were based upon facts which he, as a former pilot of the plaintiff, knew or believed to be true.
15. Finally, the request for particulars sought further particulars of the basis upon which it was alleged that the defendant was entitled to rely upon the defence of privilege at common law, and the material facts upon which the defendant intends to rely in support of his defence of privilege at common law. To this, the defendant replied that this was a matter of law, but referred to the earlier reply which stated that the nature of the privilege was qualified privilege arising from the line of authority commencing with Reynolds v. Times Newspapers Limited.
16. The plaintiff was not satisfied with the replies which had been delivered on 4th March 2014 and served a Notice for Further and Better Particulars on 23rd April 2014. The plaintiff asked firstly whether it is claimed by the defendant that he raised concerns (regarding safety or otherwise) and was punished or disciplined by the plaintiff, and if so to provide full and detailed particulars of the material facts upon which the defendant intended to rely on support of that allegation. In answer to that, the defendant stated that it was a matter of evidence, but went on to say that the plaintiff presumably retains all of the defendant’s employment records, and knows the answer to the question that it is asking. Without prejudice to that assertion, the defendant went on to state that he had utilised the plaintiff’s confidential safety reporting system twice while flying for the plaintiff.
17. Secondly, the plaintiff asked whether the defendant claims that he was not valued or respected by Ryanair, and if so to provide details of any material facts which intended to rely on in support of that allegation. Again, the defendant stated that this would be a matter for evidence, but went on, without prejudice, to state that the defendant does indeed claim that Ryanair did not value or respect its pilots (including the defendant) during the course of his employment with the airline. He went on to state that during the broadcast the defendant confirmed that pilots within Ryanair suffer an extra layer of stress and that he would be giving evidence that one such fact was the plaintiff’s operation of an aggressive fuel usage policy, and that while working for the plaintiff he personally received correspondence relating to the fact that his “fuel burn” was at the bottom of the table operated by the plaintiff, and stated also that the plaintiff presumably still possesses such correspondence relevant to the defendant in this regard.
18. Thirdly, the defendant was asked to confirm whether he alleges he was the victim of bullying, intimidation, threats or harassment, and if so to provide full and detailed particulars of any material facts upon which he intended to rely in support of that allegation. To this, the plaintiff replied that the defendant was among pilots employed by the plaintiff who feared to speak out or otherwise criticise the plaintiff during the course of their employment. He went on to state that the plaintiff is notorious for its aggressive corporate culture and management structure, and that this would be a matter of evidence. Nevertheless, without prejudice to that, he went on to say that the facts relevant to such issues have been well particularised in the defendant’s defence and replies to particulars, and stated also that the defendant did not make any complaint to the plaintiff during the course of his employment relating to alleged bullying, intimidation, threats or harassment.
19. Fourthly, the defendant was asked to provide full and detailed particulars of the material facts upon which the defendant intended to rely on support of his allegation that there exists a layer of pilot fear and stress within Ryanair that does not exist within other airlines, to which the defendant again replied that this was a matter of evidence but, without prejudice, the plaintiff should refer to the particulars of Truth pleaded by the defendant in his defence, and should refer also to replies to the notice for further particulars itself.
20. Certain other details were sought and were given by the plaintiff and those matters do not form part of the issues to be decided on the motions for further and better particulars which the plaintiff has brought by way of Notice of Motion dated 11th June 2014 with which I am presently dealing.
21. The request for Further and Better Particulars requested full and detailed particulars also of the identities of any individuals (apart from himself) whom it is claimed were not respected or valued, were the victims of bullying, intimidation, threats or harassment, or were the subject of fear and stress within Ryanair and so forth. To this, the defendant has replied simply that this is a matter for evidence.
22. The plaintiff also asked the defendant to confirm that he did not contact the plaintiff in advance of the publication/broadcast in order to verify his assertions, to which the defendant has responded that the plaintiff knows full well that the defendant did not contact it in advance of the broadcast.
23. The defendant was also asked to distinguish between those facts which in its replies to particulars he had said that he knew to be true and those which he believed to be true. To this, the defendant set out under different fact headings, those facts which he believed to be true and those facts which he knows to be true.
24. The plaintiff had asked, in relation to any facts which the plaintiff said he believed to be true (as opposed to those which he knew to be true) to set out full and detailed particulars of the material facts alleged to support his belief. To this, the defendant stated that this was a matter for evidence.
25. The plaintiff is not satisfied that the defendant has fully complied with his obligations in relation to the provision of particulars, and has brought a motion to compel the defendant to comply and provide further and better particulars in relation to certain matters. The grounding affidavit in support of that motion which is sworn by Oisin O’Neill, who is the legal and regulatory affairs adviser employed by the plaintiff company, has described the defamatory allegations as relating to issues concerning the alleged corporate culture within Ryanair and the manner in which it treats its staff. He states his view that having raised the defence of honest opinion, the defendant is obliged to provide particulars of the facts upon which he alleges that this opinion is based. He has helpfully set forth in paragraph 13 of his grounding affidavit in great format the particular requests upon which further information and particulars was sought, the reply to that request and then the plaintiff’s comment in relation to that reply.
26. The plaintiff had asked the defendant to provide details of the identity or identities of individuals other than himself who were claiming to have been involved in the matters complained of by him in relation to the alleged corporate culture, the manner in which he became aware of same, the dates on which the defendant discussed same with any such individuals, and full and detailed particulars of the material facts alleged by the defendant to support such claims. To these requests the defendant had replied that this was a matter for evidence. In this regard the plaintiff comments that the defendant has made positive pleas concerning the treatment of pilots in Ryanair in support of his plea of honest opinion and has provided replies to particulars in respect of his own experience only. Mr O’Neill goes on to say that the plaintiff is seeking particulars concerning other pilots who the defendant is alleging were subjected to similar treatment, and goes on to state that if, as appears to be the case, the defendant intends to rely upon facts concerning the experiences of other pilots or staff of Ryanair, then he ought to provide particulars of same, and cannot simply be permitted to ambush the plaintiff at the trial with any witnesses he is calling. It is submitted that in circumstances where the defendant is obliged to prove the truth of the facts on which his honest opinion is based, it follows that the plaintiff must be provided with particulars of facts now since it is entitled to know the case that it has to meet. Similar comments and submissions are made in relation to other particular sought under that particular heading.
27. It will be recalled also that the plaintiff had asked in relation to alleged facts that the defendant believed to be true (as opposed to facts which he knew to be true) to provide full and detailed particulars of material facts which supported such a belief, and that the defendant had stated that this was a matter of evidence. In that regard the plaintiff says that such particulars are not simply a matter of evidence, and that the defendant is obliged to particularise the facts upon which is his opinion is based, and which he believes to be true, and that in circumstances where the defendant is obliged to prove the truth of those facts it follows that the plaintiff must be provided with particulars so that it can know the case that it has to meet.
28. It will be recalled also that the plaintiff in his first replies to particulars had stated that the broadcaster of the programme on which the defendant’s remarks were published had contacted the plaintiff in advance of the broadcasts in order to obtain and publish a response from the plaintiff, which response was both obtained and published during the course of the broadcasts. In its request for further particulars the plaintiff asked for full and detailed particulars of how the defendant came to participate in the programme in question, and how the defendant verified that the plaintiff’s full responses were obtained and published during the broadcasts. To those requests for further information, the defendant had stated that this was a matter of evidence. However the plaintiff submits that this is not so, and that in circumstances where the defendant concedes that he did not contact the plaintiff in advance of the broadcast it is essential that the plaintiff knows how the defendant came to participate in the program. The plaintiff further submits that since the defendant is relying upon the defence of fair and reasonable publication, the onus is upon him to prove that he published the statement in good faith, and that the particulars sought go to the question of the good faith or otherwise of the defendant, and to the question of whether it was fair and reasonable to publish the statement, given that the defendant himself had not contacted the plaintiff in advance of the publication.
29. In answer to this motion, the defendant has submitted that it has provided sufficient particulars for the plaintiff to know the case which it has to meet. It emphasises also that many of the particulars requested have been provided, and that the plaintiff makes no complaint in relation to the majority of the replies given. There are in effect only a small number of matters which are the subject of the present motion. Counsel has referred to the judgment of Ms. Justice Dunne in Quinn Insurance Limited and others v. Tribune Newspapers Plc and others, unreported, High Court, 13th May 2009.That was a case where the plaintiffs had sought further and better particulars of certain matters which the defendants had stated were a matter for evidence, and this led to the plaintiffs bringing a motion for further and better particulars under Order 19, r. 7 RSC. The learned judge concluded that the matters in question had been adequately particularised in replies already given, and refused to make the order sought. In so doing she considered the provisions of Order 19, r.3 RSC which provides for what pleadings should contain, and she considered a number of judgments on that topic, and stated:
“There is no doubt whatsoever that a party is entitled to know the nature of the case being made against them. However, the role of particulars is not to require a party to furnish detailed particulars of specific aspects of the case. It is sufficient that the issues between the parties should be adequately defined and that the parties should know in broad outline what is going to be said at the trial of the action.”
30. She considered other authorities to which she was referred, and then considered how the principles should be applied to that case. She stated in that respect:
“I think it is clear from the outline of the arguments I have set out, that the issue I have to consider is whether the defendants have, in fact, provided a broad outline of the case being made in justification against the plaintiffs, or are the plaintiffs attempting, by means of the notices for particulars, to force the defendants to disclose the names of the witnesses who will be giving evidence on their behalf at the trial of the action.”
31. Having set out an extensive consideration of quite a number of authorities on the question of particulars, she concluded:
“Having referred at length to the authorities opened to me in the course of argument, it seems that certain principles can be derived from those authorities. It goes without saying that a party is entitled to know the case being made against them. If necessary, particulars may be ordered to clarify the issues or to prevent the party from being taken by surprise at the trial of the action. However, a party is only entitled to know the broad outline of the case that he/she will have to meet. A party is not entitled to know the evidence that will be given against them in advance of the hearing. Further, it is not usual to order the names and addresses of witnesses to be furnished in advance of the action.”
32. Counsel for the plaintiff has submitted that the Quinn Insurance case was one where the defence of justification was in play, and that the judgment should be read in that light. However, I do not think that the general principles which emerged from that case are less applicable to the present case. The question in the present case is whether the defendant should be required to provide the further particulars being sought, which he has refused to provide on the basis that they are a matter for evidence. I am satisfied that he ought not to be required to provide any further particulars in relation to the small number of outstanding matters raised. I am satisfied that from the pleadings and such replies to particulars as have been furnished, the plaintiff knows not just broadly, but with some particularity, the issues being raised by the defendant by way of defence to these defamation proceedings. The plaintiff is not entitled, by way of replies to particulars, to the level of detailed information now being sought in the present motion. Ultimately the question is whether the plaintiff is at a litigious disadvantage by the defendant not having adequately particularised his defence so that the plaintiff in an unfair way is not aware of the issues being raised. That is not so in the present case. Of course, I accept that the plaintiff may wish to have as much information as possible in advance of the hearing of exactly what evidence is going to be given and who is going to give it. But that is not the same as saying that the defendant has not, for the purpose of the rules, adequately particularised the claims which he is making by way of defence to the plaintiff’s proceedings.
33. I therefore refuse the plaintiff’s application for an order under Order 19, r.7 RSC.
The plaintiff’s motion for discovery:
34. Two categories of documents are sought by the defendant. The need for these categories of documents is said to arise from some matters raised by the defendant in his Defence to the plaintiff’s proceedings. As part of that Defence, as already seen, the defendant relies upon the defence of Truth. Under the heading “Particulars of Truth” the defendant gave particulars of two matters that would be relied on in relation to passenger safety, namely the plaintiff’s fuel policy and also the plaintiff’s pilot hire policy.
35. In relation to the plaintiff’s fuel policy, particulars were given in relation to 26th July 2012 when it is alleged that three of the plaintiff’s passenger planes which were en route to Madrid airport had to divert to Valencia airport because of bad weather over Madrid. It was stated also within these particulars that these three planes were forced to declare a “fuel Mayday” over Valencia airport because of an apprehension on the part of the respective pilots that they could not land without going below the legally required level of final reserve fuel. Reference was made also to a Chilean plane which was similarly diverted but on account of engine failure. It was stated that all of these Mayday calls were made within a 15 minute period on that date and all four planes landed within a 16 minute period in circumstances where Valencia airport has only one landing runway, and it is suggested that these events represented a potential disaster scenario. The particulars went on to state that this potential disaster scenario was a direct result of a culture within the plaintiff’s business of prioritising fuel efficiency even at the expense of passenger safety, that the plaintiff encourages its pilots not to carry extra fuel on flights because the additional weight will lead to increased fuel consumption, and that the plaintiff operates a fuel burn league that lists the individual fuel consumption of each of its captains, and ranks at the bottom those captains who are considered to use too much fuel. It was stated also within these particulars that the plaintiff company admonishes pilots who appear at the bottom of that fuel burn league, while complimenting pilots who appear at the top, and further that the plaintiff severely limits the discretion of pilots to carry additional fuel over and above the amount prescribed in the Original Flight Plan. It was stated also that these factors have caused or contributed to a situation in which Ryanair aircraft have experienced an unusually high number of fuel emergencies.
36. In relation to the plaintiff’s pilot hire policy, these particulars of Truth stated that the plaintiff company employs a very large proportion of young and relatively inexperienced pilots, that it bases many of its pilots far away from their place of residence, which causes stress to pilots and means that they must use their rest days in order to travel, thereby leaving them socially exposed and frustrated. The particulars went on to say that the rosters designed by the plaintiff make it difficult for pilots employed by the plaintiff to get holidays at times that suit them and their families, and mean that they fly for a long time without leave. It was stated also that the threat to passenger safety represented by these factors is compounded by a fear on the part of the plaintiff’s pilots to speak out or otherwise criticise the plaintiff, and that this fear arises in large part due to the employment structure employed by the plaintiff. It was further particularised that the plaintiff is at liberty to effectively terminate its relationship with contract pilots, even those with contracts for a definite period, by simply refusing to allocate any flights to those pilots, and further that the plaintiff reacts in a very aggressive and angry manner to any perception of criticism, so that pilots are reluctant to complain. Finally it was stated that the plaintiff pursues a policy of intimidation and ridicule to discourage trade union membership.
37. The two categories of documents sought by way of discovery are set out in the notice of motion as follows:
Category 1:
(a) All documents relating to in-flight fuel-related incidents which took place: –
– During the five years prior to 26th July 2012
– On 26th July 2012
– from 26th July 2012 date
to include both internal corporate communications and communications with third parties such as:
-Communications with domestic and foreign regulatory authorities/aviation investigation bodies
– Communications with Chief Pilot/communications with Base Captains.
– Communications with the plaintiff’s public relations advisers, both the plaintiff’s Communications/Internal PR Department and external/PR advisers (to include the manner of presentation of explanations of any/all such fuel related incidents).
In relation to the 26th July 2012 fuel incidents, all correspondence between the plaintiff and: –
– The Irish and Spanish Aviation Regulatory Authorities/Investigation Agencies
– The Irish and Spanish Ministries of Transport
– And all documentation deriving from, and correspondence between, the plaintiff and the above-mentioned entities.
(b) all documents recording details of the plaintiff’s flight fuel policy since 1st January 2008 to include operation of fuel burn league tables, instructions given and/or agreed with Chief Pilot from time to time regarding fuel usage/planning policy, and all communications between the plaintiff companies/its Chief Pilot/its Base Captains/its management with its pilots generally concerning aircraft fuel usage and, in particular, all policies/changes to policies regarding the carriage of fuel in excess of flight plan fuel.
Category 2:
All documents in the possession, power or procurement of the plaintiff generated during the period 28 December 2007 and 28 December 2012 relating to the plaintiff’s pilot hire policy and in particular records of all discussions and decisions relating to the plaintiff’s policies concerning the contract hire of Ryanair pilots as well as records detailing the number of such pilots hired during the period in question and their operational locations throughout Europe.
38. The defendant submits that these documents are necessary because they will tend to support the defendant’s claim of Truth, and are directly relevant to the matters pleaded at paragraphs (h) to (n) in the Particulars of Truth contained in his Defence.
39. The plaintiff on the other hand has stated in its replying affidavit that the alleged fuel policy and any associated stress for pilots was not the subject of any part of the broadcasts. To this, the defendant responds that he is raising this as part of the justification for content of the programmes about which the plaintiff is complaining. The defendant states also that the fuel policy of the plaintiff company is relevant to the issues around the 3 emergency ‘maydays’ at Madrid airport on the 26th July 2012 which were part of the broadcasts in question.
40. I am satisfied that the documents sought in Categories 1 and 2 of the Notice of Motion are relevant to the issues between the parties in this case, and are necessary for the full and proper determination of the issues which arise from the pleadings in this case. They may either assist or damage either party’s case, but they are clearly relevant and necessary for a proper determination. This application cannot be described as a fishing exercise. The plaintiff has made its case clearly in its Statement of Claim. The defendant has availed of a number of Defences and has clearly nailed his colours to the mast by pleading honest opinion, truth and fair and reasonable comment on matters of public interest. In so far as he is able at this stage to do so, he has given particulars of the basis for these defences. He has not made mere bald assertions. He has provided certain particulars. He has satisfied this Court that the documents sought by way of discovery are relevant and are likely to assist him in mounting his defence to the plaintiff’s claim.
41. In relation to Category 1, I will order discovery of all documents relating to in-flight fuel-related incidents which took place from 26th July 2009 to 26th July 2012 (including those that took place on the 26th July 2012), to include all the documentation set forth in the Notice of Motion, save that in relation to the final paragraph setting out documents recording details of the plaintiff’s fuel policy, those should be produced in respect of a two year period from 28th December 2010 to 28th December 2012, rather than from 1st January 2008 as sought. I am not ordering discovery of the documents sought from the 26th July 2012 to date.
42. In relation to Category 2, I will order that those documents shall be discovered in respect of a period of two years from 28th December 2010 to 28th December 2012.
Donal Kinsella v Kenmare Resources Plc and Charles Carvill
2015 182 & 2015 183
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.
Black & Others v Northern Whig, Ltd.
High Court.
22 July 1942
[1943] 77 I.L.T.R 5
Brown, J.:
This action was originally brought by George R. Black against the Northern Whig, Limited, claiming damages for libel. By an Order of the High Court dated 21st November, 1941, it was ordered that nine other actions against the same defendants be joined with this action so that it came before me in the form of ten plaintiffs suing the defendants for libel. The ten plaintiffs are all members of the Belfast Corporation and the libel complained of is in a leader in the “Northern Whig” newspaper dated 7th August, 1941. In paragraph 4 of the Statement of Claim the plaintiffs set out the leading article in full, alleging it to be a libel. In the remaining paragraphs the plaintiffs plead certain innuendoes.
The defendants in their defence, paragraph 5, plead that the words complained of are no libel, and plead further that in so far as the said words are statements of fact they are true in substance and in fact, and in so far as they are expressions of opinion they are fair comment made in good faith and without malice towards the plaintiffs or any of them for the benefit of the public upon the said facts which are of public interest.
As far back as July, 1940, the Belfast Corporation asked the Ministry of Home Affairs to conduct a sworn inquiry into the affairs of the Whiteabbey Sanatorium. A statutory committee referred to as the Tuberculosis Committee, had been in charge of this institution. It consisted of 15 members of the Belfast Corporation and 3 coopted members. A special Act of Parliament was passed through the Parliament of Northern Ireland called the Local Government Inquiries Act (N.I.), 1940 (4 & 5 Geo. VI), c. 23, and a sworn inquiry was instituted under two inspectors appointed by the Ministry of Home Affairs into the administration of the Whiteabbey Municipal Sanatorium and the Graymount Childrens’ Hospital. These inspectors conducted an inquiry at considerable length, heard many witnesses on oath and in due course reported to the Home Affairs Ministry. On the 14th June, 1941, the Minister sent to the Belfast Corporation a report of the inquiry and his findings on the inspectors’ report.
This report set out that grave scandals had existed in the carrying on of the work at the Sanatorium and in his findings the Minister dissolved the Tuberculosis Committee, relieved the Corporation of the powers conferred upon it under sec. 4 of the Tuberculosis Prevention (Ireland) Act, 1908, (8 Ed. 7, c. 56), held that the Medical Superintendent of Health, Dr. C. S. Thomson, was deserving of censure on three grounds set out, and made severe strictures on other officials and employees amounting in some cases to dismissal.
The Report was published almost in extenso in the Press and created considerable uneasiness among the citizens of Belfast. Suspicion was aroused that what was happening in the work of the T. B. Committee might also be happening in the work or at least some of the work of the other 18 committees by which the Corporation carried on its work.
A meeting of the Belfast Corporation was held on 20th June, 1940, to consider the finding and observations of the Ministry of Home Affairs on the Report referred to above. At this meeting it was moved early in the discussion that the public and Press be admitted to the meeting and this motion was carried by 28 votes to 19. (Two members, one of them being Councillor Cole, one of the plaintiffs, did not vote). Upon this resolution being carried 14 members left the meeting in protest. During the hearing of this case the attitude of the plaintiffs in so retiring from the meeting was a matter of considerable controversy. The point of view of the plaintiffs was that the meeting of 20th June had been called in committee for the purpose of having a free discussion in private as to what steps should be taken. Discussion in committee, they alleged, was freer and more profitable than in open council. They also took the view that the council, having been called in committee, could not be turned into an open meeting of the council——there was no 7 days notice——the notice had not been affixed to the door——there was no precedent for such a course.
At the meeting of the 20th June it was resolved, inter alia, to appoint a small committee of the Belfast Corporation to consider the report of the Ministry of Home *6 Affairs in detail and make recommendations in connection therewith. This committee consisted of the Lord Mayor, two Aldermen and three Councillors. All through the hearing this committee was referred to as the “Big Six.”
The “Big Six” issued its first interim report in August, 1941, and a special meeting of the Council was held on 6th August, 1941, to receive it. The Report, inter alia, recommended Councillor Hopkins for very severe censure and Councillor Scott for censure in regard to their actions on the Sub-Committee of the T. B. Committee dealing with black-out purchases; it also recommended that the Medical Officer of Health be censured and the City Treasurer severely censured.
After the resolution to receive this report Councillors Hopkins and Scott made personal explanations regarding references to them in the report, and an amendment moved by Alderman Duff and seconded by Councillor Lavery “that the recommendation of the Special Committee (The Big Six) in regard to Councillor Scott be not accepted” was carried by 22 votes to 11. It is to be noted that Councillors Collier and Dowling, two of the plaintiffs, were among the four who did not vote on this resolution and Alderman Kennedy, another of the plaintiffs, voted against it. Then Councillor Dowling moved a further amendment. The effect of these amendments was that the censure recommended on Councillors Scott and Hopkins was deleted, and by Councillor Dowling’s amendment that the censure on the Medical Officer and City Treasurer was referred to the Committees concerned and that the functions of the Special Committee (“The Big Six”) were terminated.
This meeting was duly reported in the “Northern Whig” of August 7, 1941, and in the same issue the Editor, Mr. Hunt, wrote the leader which is complained of.
During the course of the trial Counsel for the plaintiffs intimated that he was not proceeding on the innuendoes in the article and that he relied on the claim that the article in its ordinary meaning was defamatory of the plaintiffs. Is the leading article a libel on the plaintiffs? In the paper the article is divided into three sections and the whole article is entitled in heavy black type: “THE ANSWER IS—COMMISSIONERS.” One-third way down is a sub-heading in black type: “Safeguards refused,” and two-thirds way down a further sub-heading, also in black type “Seven votes.”
The article, while approving of the actions of the Lord Mayor and the “best elements” of the Corporation, charges the others with voting to maintain their opportunities for patronage and privilege, attributes to them motives which they emphasized unblushingly and that they were propelled by anxious and apprehensive interests behind the scenes—that all they wanted of the ratepayers was to spend their money. It asserted that Councillor Dowling’s amendment sought to annul the sworn inquiry into the Whiteabbey scandals, to prevent any further investigation into maladministration and incompetence within the Corporation and to checkmate any further efforts at reform. The proceedings at the meeting are described as a travesty and an exploitation of democracy. Their conduct is referred to as jobbery. These are serious charges. On the whole, the only meaning that the ordinary reader could take from the article is that the voting on Councillor Dowling’s amendment was actuated by base and sordid motives in the selfish interests of the Councillors themselves and not in the interests of the ratepayers whom they were elected to represent.
I am satisfied from the evidence that these charges are untrue and that the article in its ordinary meaning as interpreted by the ordinary reasonable reader of the paper is defamatory of the plaintiffs, but the finding does not determine the case. If the defendants’ plea of fair comment is well founded then in spite of the defamatory nature of the article the defendants are entitled to succeed in this action.
Let me quote from the judgment of Lord Herschell in Davis v. Shepstone (1886) 11 A. C. at p. 190—“There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but by all members of the public. But the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed, or discreditable language used. It is one thing to comment upon or criticize, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct.”
The real issue in this case and the one fought most strenuously by both parties was this plea of fair comment. The onus was on the defendants to prove this plea. The plea in its form as pleaded and usually referred to as the “rolled-up plea” had received considerable consideration from the Courts of recent years.
(His Lordship here referred to two judgments, that of Cockburn, C.J., in Campbell v. Spottiswoode (1863) 3 B. & S. at pp. 776 and 777, and that of Buckley, L.J., in Peter *7 Walker & Son, Ltd., v. Hodgson [1909] 1 K. B. 239 on pp. 253/4 of the report.)
That the comment was on a matter of public interest is not disputed.
Were the facts truly stated? Was the comment made fairly and bona fide without malice as the honest expression of an opinion which the defendants held upon the facts truly stated? Was such opinion warranted by the facts in the sense that a fair-minded man might upon those facts bona fide hold that opinion?
By their plea the defendants said the statements of facts in the article were true and that the expressions of opinion were fair comment upon “the said facts.” By so pleading the defendants had tied themselves down to the admission that it was the statements of facts in the libel and no others on which they intended to rely. (See Bankes, L.J., in The Aga Khan v. The Times Publishing Company [1924] 1 K. B. 675.) In Digby v. The Financial News, [1907] 1 K. B. 502, Collins, M.R. says at p. 507: “Comment, in order to be fair, must be based upon facts, and if a defendant cannot show that his comments contain no misstatements of fact, he cannot prove a defence of fair comment. If the defendant makes a misstatement of any of the facts upon which he comments, it at once negatives the possibility of his comment being fair. It is therefore a necessary part of a plea of fair comment to show that there has been no misstatement of fact in the statement of the materials upon which the comment was based.” In agreement with this statement of Collins, M.R. I find in Gatley on Libel and Slander, 3rd edition at p. 677, that where the defendant relies as to the basis of his comment on the facts stated in the words complained of, as in this case, he must prove that all such statements of fact are true, otherwise he will fail in his plea of fair comment, and in support of this statement reference is made to Gooch v. New Zealand Financial Times (No. 2) (1933) N. Z. L. R. 257, where it was held that as in certain respects the facts stated in the article on which the action was based were not truly stated, the plaintiff was entitled to succeed without proof of malice in fact although the errors of fact were matters of minor importance and the article, written in good faith, deserved not condemnation but commendation.
His Lordship, after reference to particular sections of the article and commenting upon the difficulty in many cases of separating fact from comment upon the fact, continued:—
We come now to the statements “Impelled by motives which they themselves emphasize unblushingly, and propelled by anxious and apprehensive interests behind the scenes 21 members of the Council publicly and unapologetically voted to suppress the proposed investigation into the muddy and muddled affairs of the Corporation.” Mr. Whitaker, on behalf of the defendants, argued that this sentence was inverted, that the comment precedes the fact on which it is a comment, that this is ordinary “journalese.” He also argued that the word “and” must be read as meaning “or.” Some of the 21 were “impelled” and some were “propelled.”
This article must be interpreted as it would be by the ordinary reasonable reader. Undoubtedly it conveys to the ordinary reasonable mind the fact that these plaintiffs, in voting as they did were impelled by sordid motives—motives for which they should have blushed—or that they were propelled by anxious and apprehensive interests behind the scenes.
In Joynt v. The Cycle Trade Publishing Co. [1904] 2 K. B. 292 at p. 294 of the report, Kennedy, J. in summing up to the jury said “comment must not convey imputations of an evil sort except so far as the facts truly stated warrant the imputation.” And in Hunt v. The Star Newspaper Co., Ltd. [1908] 2 K. B. 309, Fletcher Moulton, L.J. at p. 321 says “To allege a criminal intention or a disreputable motive as actuating an individual is to make an allegation of fact which must be supported by adequate evidence.”
In Burton v. Board [1929] 1 K. B. at p. 306 Sankey, L.J. says “The plea is that the words are fair comment made in good faith and without malice upon a matter of public interest. Under a plea of that character the defendant is entitled to show and indeed he must show, what the facts were upon which he commented, that they are facts, that the matter is one of public interest, that the comment is fair, and that the comment was made in good faith and without malice.” I have come to the conclusion that these two statements “Impelled by motives which they themselves emphasize unblushingly and propelled by anxious and apprehensive interests behind the scenes” must be taken as statements of fact and that they are not truly stated. There is no evidence to support them as facts. If they are comment they are not warranted by any facts set out in the article. The remainder of the paragraph is partly fact and partly comment. “They defied the Ministry of Home Affairs and the Government.” These are statements of fact not truly stated. *8
The paragraphs under the heading “safeguards refused” are mostly comment and though a considerable portion of the comment is untrue I cannot say that a reasonable man with prejudiced views could not reasonably have come to the conclusion set out. Mr. Hunt, the defendant, said that his question “Why do the 21 refuse even to consider the devising of such safeguards?” was a simple query with no sting in it. The plaintiffs did not refuse to consider the devising of safeguards. They refused to allow the “Big Six” to devise the safeguards.
The concluding paragraphs of Mr. Hunt’s article were very strong. … “Away with the humbug, the fraud, the whole mean conspiracy!” are the words used. Mr. Hunt said he read Councillor Dowling’s speech carefully and could find in it nothing which would justify a man in voting against the report of the “Big Six.” Mr. Hunt said also that when Councillor Dowling said he did not approve of an investigation by the “Big Six,” he, Mr. Hunt, did not believe him to be sincere. The reason he gave for that conclusion is that the amendment did not suggest any alternative to investigation by the “Big Six.”
I am satisfied that throughout the whole article Mr. Hunt wrote without malice and believed in the truth of what he was writing. I have not parsed every word he said. He is entitled to great latitude in his comments. As I have set out, “all the said facts” in his article were not truly stated …. his comment was not always warranted by “the said facts” and consequently the defamatory article written by him is not protected by the plea of fair comment.
I now come to the question of damages. Some damages the plaintiffs must have. Their reputations have been attacked but I doubt if in reality they have been very much injured. It is true Mr. Hunt returned to the attack in later articles. His leader the next day is particularly objectionable.
It is not a case for contemptuous damages nor is it a case for heavy damages. I make no distinction between the plaintiffs and in my view the case will be met by giving each plaintiff judgment for £50 and costs.
Representation
Kevin Tracey v Irish Times Limited, Geraldine Kennedy and Eoin McVeigh
Supreme Court
30 July 2019
unreported
[2019] IESC 62
Mr. Justice John MacMenamin
July 30, 2019
JUDGMENT
1. On the 27th October 2011, the High Court, (Kearns P.), dismissed four defamation proceedings, along with two other cases which had been initiated by the appellant. The appellant appealed these orders. The appeals were originally brought to this Court. They were subsequently remitted to the Court of Appeal under the 33rd Amendment to the Constitution. Later, they were remitted back to this Court, pursuant to Article 64. On the 20th and 21st June, 2019, this Court dealt with this appeal, along with the other appeals brought by the appellant concerning similar High Court orders made on the same day. The six appeals, therefore, fall into two categories. The first group of four will be referred to simply as the “defamation appeals”. They arise from coverage of a District Court proceeding; the second group of just two, concern other forms of proceedings.
The Defamation Appeals
2. The defamation appeals are:
• Kevin Tracey v. Irish Times Limited, Geraldine Kennedy & Eoin McVeigh (High Court Record No. 2008/11101P, Supreme Court Appeal No. 454/2011). This concerned an article in the Irish Times.
• Kevin Tracey v. Independent Star Limited & Gerard Colleran (High Court Record No. 2008/11102P, Supreme Court Appeal No. 455/2011). This concerned an article in the Irish Daily Star.
• Kevin Tracey v. Independent Newspapers (Ireland) Limited, Gerry O’Regan, Stephen Rea and Tim Healy (High Court Record No. 2008/11103P, Supreme Court Appeal No. 456/2011). This concerned an article in the Evening Herald.
• Kevin Tracey v. Independent Newspapers (Ireland) Limited, Philip Molloy, Paul Dunne, Gerry O’Regan & Michael Denieffe (High Court Record No. 2008/11104P, Supreme Court Record No. 457/2011). This concerned an article in the Irish Independent.
For reference purposes, the other appeals are:
• Kevin Tracey & Anor. v. Ireland & Ors. (High Court Record No. 2009/11765P, Supreme Court Record No. 168/2012)
• Kevin Tracey & Anor. v. Crosbie & Ors. (High Court Record No. 2012/00397, Supreme Court Record No. 2012/396/12 and 392/12)
The Defamation Appeals: Context
3. All the articles in the defamation appeals were published on 17th September, 2004, the day after District Court proceedings in which the appellant was prosecuted for assault, but received the benefit of s.1(1)(i) of the Probation of Offenders Act, 1907. In each case, the defendants, who are now the respondents in this appeal, pleaded that the press coverage was privileged as being covered by s.18 of the Defamation Act, 1961, or the common law protection regarding contemporaneous reportage of court proceedings.
4. This judgment concerns the first of the defamation proceedings, where the Irish Times, Geraldine Kennedy and Eoin McVeigh are the respondents. It gives consideration to tests or principles applicable in a situation such as this. This judgment will be referred to in the other judgments delivered today as the “Irish Times judgment”.
The Irish Times Article
5. The Irish Times article was printed on an inside page of the newspaper on the 17th September, 2004. It was headed “Man guilty of assault took action against judge”. The appellant’s last name was incorrectly spelt throughout the article. The text of the article, some parts of which are now emphasised, read:
“A man who last year took a noise nuisance action against his neighbour, Circuit Court Judge Michael White, was yesterday convicted of assaulting another neighbour.
Kevin Treacey [sic], an engineer from Park Lane, Chapelizod, Dublin, was given the Probation Act because the assault, a push, was of a minor nature, Judge Michael Connellan ruled. In March last year, Mr. Treacey was ordered to pay €1,500 legal costs of an aborted noise nuisance action against White. Mr. Treacey had claimed he suffered nuisance from Judge White’s children playing their musical instruments.
He withdrew the complaint before it went to hearing, saying the nuisance had abated since the court case was initiated. He was ordered to pay the legal costs of the action because he failed to turn up in court to say he was doing so.
Yesterday’s case arose out of a dispute over local children playing football outside the Treacey home in April last year, shortly after the noise nuisance action had finished.
Dublin District Court heard Mr. Treacey went out three times to ask them to move away when the ball hit the wall of his house. The children, including two whose mother was the injured party, Mrs. Gabby Skinner, had to play on the street because there were young people drinking in the only other area available.
The ball eventually hit one of Mr. Treacey’s windows, and he went up and picked the ball up. Mrs. Skinner asked for the ball back, and during the confrontation she was pushed by Mr. Treacey, who denied touching her.
Judge Connellan said “As far as I am concerned, I am satisfied there was an assault on Mrs. Skinner, but it was of a very technical nature. The judge granted leave to appeal, saying that, even though there was no penalty, the Probation Act was still a criminal conviction.” (Emphasis added)
A question which arises later in this judgment is whether, arguably, the emphasised parts of the article may not be covered by the defence of privilege.
6. The events described in this judgment, and the proceedings which followed, were initiated prior to the passing of the Defamation Act, 2009. They therefore fall to be considered under the terms of the Defamation Act, 1961. Section 17 of the Defamation Act, 2009 also contains a fuller provision. It is unnecessary to quote it. Although the publication in question took place on 17th September, 2004, the Irish Times proceedings were initiated on the 23rd December, 2008, more than four years afterwards. The appellant, who appears on his own behalf, pleaded that the article damaged him in his good name, and professional reputation. He sought damages under various headings. A statement of claim followed more than a year later, on the 3rd February, 2010. There, Mr. Tracey claimed that, as a result of the article, he had suffered psychological damage and trauma, and contended the article was actuated by malice.
7. But one plea in the statement of claim is relevant to this appeal; it was to the effect that, in fact, the District Court prosecution had actually been dismissed under the Probation of Offenders Act, 1907 on the 16th September, 2004. Thus, Mr. Tracey submits he was not “ convicted ” of the assault.
The Extent of the Legal Protection
8. Section 18 of the Defamation Act, 1961 provided:
“A fair and accurate report published in any newspaper or broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station within the State or in Northern Ireland of proceedings publicly heard before any court established by law and exercising judicial authority within the State or in Northern Ireland shall, if published or broadcast contemporaneously with such proceedings, be privileged. …” (Emphasis added)
9. But, as the leading textbooks point out, this section does not specifically set out whether the privilege provided by the section is absolute or qualified in nature. (See Cox and McCullough, “The Law of Defamation”, Clarus Press, 2014, Chapter 7-54; and also McMahon & Binchy, “Law of Torts”, 4th Edition, Bloomsbury 2013, Chapter 34.173). The extent to which this statutory provision was, or is, supplemented by a common law privilege is also an open question. (On this, generally, also see Hayward v. Hayward [1886] 34 Ch.D 198; and Gatley on Libel & Slander, 12th Edition, p.310 – 320).
10. Relying on s.18, the respondents in this appeal pleaded that the article contained a fair and accurate report of proceedings publicly heard in a court established by law, and exercising judicial authority within the State. They pleaded that the article was absolutely privileged, or, alternatively, was protected by qualified privilege. The form and extent of the protection provided by 1961 Act, and its application to this case, is obviously a legal issue of some significance.
The Defence
11. The defence, therefore, also contained a preliminary objection, to the effect that the action should be struck out on the basis that the claim was unsustainable, bound to fail, frivolous and vexatious. The respondents pleaded the statement of claim did not disclose any reasonable cause of action, and reserved the right to make application to have the proceedings struck out, either pursuant to the provisions of O.19, r.28 of the Rules of the Superior Courts, or the inherent jurisdiction of the Court.
Correspondence
12. Between the 3rd February, 2010 to the 18th November, 2010, there was active correspondence between Mr. Tracey, the respondents, and later their solicitors. In the course of this correspondence, Mr. Tracey claimed damages in the sum of €1,500,000. The basis of his claim for this very substantial sum is unclear.
13. After the respondents filed their defence on the 29th June, 2010, they brought a motion seeking to have the motion struck out, either under O.19, r.28, or, alternatively, pursuant to the inherent jurisdiction of the Court. The evidence is that, in the same month, Mr. Tracey fell ill. He did not ever swear a replying affidavit in the motion, or substantively engage with the contention that his proceedings were bound to fail. Mr. Tracey remained ill for a considerable period of time thereafter. There is no evidence to the contrary.
Adjournments
14. The motion came before the President of the High Court on the 4th May, 2011. The respondents sought the relief claimed in the notice of motion. But, on that occasion, Kearns P. acceded to an adjournment application made on behalf of Mr. Tracey by a person describing himself as a “McKenzie friend”, a Mr. Justin Morahan. The motions were adjourned peremptorily against the appellant for hearing on the 27th October, 2011. In adjourning the matter, Kearns P. made it entirely clear that, if there was to be any future application for an adjournment, there would have to be compelling medical evidence before the court.
The 27th October, 2011
15. On the 27th October, 2011, the appellant was not present in court. He was, however, again represented by Mr. Morahan, who applied for a further adjournment. Before the President were two medical reports, to the President, to the effect that Mr. Tracey was ill, and could not attend court. There was also an affidavit from the appellant’s wife, Karen Tracey, filed on the 19th October, 2011, deposing that her husband remained ill.
16. In a report furnished to this Court for the appeal, Kearns P. stated that he had regard to this material, in particular, a medical report dated the 19th August, 2011, from Dr. Sarah McDonnell, and a further report dated the 7th September, 2011 from the Royal Victoria Eye & Ear Hospital, as well as Ms. Tracey’s affidavit. Having considered this material, the President refused the application for a further adjournment. He then heard submissions from counsel for the respondents on the main questions in the motion to strike out the proceedings. Having heard submissions from counsel, Kearns J. ordered that these proceedings be dismissed on the grounds that the claim was bound to fail by reason of the protection contained in s.18 of the 1961 Act. The order was based on the inherent jurisdiction of the court.
17. Despite his illness, the appellant was in a position to file a detailed notice of appeal to this Court on the 29th November, 2011. The notice of appeal contained some matters which had no basis. There was an allegation of bias. The fact that Kearns P. had previously made strike out orders in other proceedings brought by Mr. Tracey was not relevant. There was no reason for the President to recuse himself. The mere fact that a judge has previously made an order, or orders, adverse to the interests of a party, on other occasions, does not indicate bias. Far more would be necessary; for example, that a judge had expressed strong or fixed views as to the truthfulness of evidence given by a party. The allegations of bias against the President should not have been made. Thereafter, the appeal remained before this Court for a considerable period of time. It was remitted, and then returned to this Court.
18. The questions now for this Court are whether the President erred in law in proceeding to hear the application in the absence of the appellant; and whether he then erred in dismissing the proceedings. These questions are interlinked. First it is necessary to consider some case law.
The Legal Background: Other Considerations
Tracey v. McDowell
19. The procedural issue before the Court in this appeal is not entirely without legal precedent. The facts bear some resemblance to the circumstances which obtained in the case of Tracey & Anor. v. McDowell & Anor [2016] IESC 44, (Clarke C.J., MacMenamin J., Charleton J.), (McDowell). That case concerned a decision by Kearns P. to dismiss six, quite separate, proceedings in which Mr. Tracey and his wife, Karen Tracey, were plaintiffs. Mr. and Ms. Tracey had commenced these earlier proceedings by issuing a plenary summons, wherein they claimed that between the 14th August, 1999 until on or about the 14th March, 2002, claiming they had been subjected to a conspiracy and collusion of malicious prosecution, and abuse of the legal process, including false summonses, prosecutions, fines, endorsement of licence, prison sentence, and assaults.
20. As in this case, a representative appeared in the High Court to apply for an adjournment. But the medical reports were terse and unspecific. Again, Kearns P. delivered a judicial warning as to the consequences of non-appearance. The medical reports furnished did not address the real questions which the Court had to determine, which included the likely duration of the illness, and the fact that the President had previously made a specific direction that further medical reports were to be in sufficient detail as to allow him to make a clear decision as to when the case might proceed. Kearns P. decided to dismiss the proceedings. Mr. Tracey had appealed these decisions.
21. Delivering judgment in the appeal in this Court, Clarke C.J. took the opportunity to reiterate that the courts retain the power to ensure that litigation is conducted in a timely fashion, an obligation deriving both from the inherent power of the courts themselves, and also arising from the necessity to comply with ECHR requisites. He held that such duties devolve on the State as a whole, and all of its organs of governance, including the courts. Thus, a failure to put in place and maintain a system which permits the timely resolution of proceedings in a Convention-compliant manner, may create a situation where the State becomes liable under the ECHR for delay, even in the context of the common law “party led” litigation system. Thus, the Chief Justice pointed out, there may well be cases where a significant or persistent failure to comply with express court orders, or directions, might justify dismissal as a proportionate consequence, as a result of major procedural non-compliance. (See paras. 5.5, 5.6 and 5.8 of Tracey v. McDowell [2016]). The Chief Justice went on to point out that, in considering applications such as these, the duty of a court is to take into account the rights and interests of all parties, rather than one party, and that to adjourn a case as a result of one party’s non-attendance has the potential to affect the rights of other parties well beyond the individual on whose health status a doctor may be required to report. The judgment emphasises that a court is required to balance all the rights involved, and that, in order to achieve this end, a court will often require more information than is sometimes proffered in order to enable it to carry out that task properly. (para. 6.4). Specifically, there should be full information on the likely length of any indisposition on the part of a litigant. On the subject of medical evidence, Clarke C.J. made clear:
“… a bald medical certificate stating that Mr. X or Ms. Y is unfit will frequently be of very little assistance to the court in balancing the rights and interests involved. The court will need to know just what it is that the person concerned can and cannot do, for how long that condition is likely to last, with what degree of confidence can a prognosis for recovery (or at least a sufficient recovery to allow the proceedings to continue) be made and any other matters which might reasonably influence the court’s judgement”. (para. 6.7).
He went on to point out that, in extreme cases, a doctor who is given full instructions by, or on behalf of a client, but who does not engage with those instructions in a sufficient way to provide the court with enough information to enable an appropriate assessment to be made, may himself or herself be required to attend court to fill in the gaps.
22. But to this I would add that it would first be necessary to clearly show that a proper full request had been made in a timely manner to the doctor concerned. A party who makes reasonable and timely efforts to ask a doctor setting out what was required should not suffer if a doctor does not furnish a report. But as a corollary, a party must show they made a timely application for that medical report setting out why exactly a person cannot attend, and for how long?
23. In this 2016 judgment, this Court accepted that the trial judge was entitled to conclude there had been a failure on the part of Mr. Tracey to comply with the previous directions of the court concerning the filing of an appropriate medical report. Clarke C.J. did note, however, that medical reports had been furnished, which did advance matters somewhat beyond the position which had pertained on the previous occasion. These identified the medical conditions from which Mr. Tracey was suffering. There was at least a form of report from a consultant (or the consultant’s registrar). But Clarke C.J. pointed out that the trial judge was nonetheless more than entitled to consider that the medical evidence was insufficiently detailed, and entitled to conclude there had been inordinate and inexcusable delay. (para. 7.4, 7.5 and 7.6).
24. Clarke C.J. then went on to pose the rhetorical question, as to whether a dismissal of each of the relevant proceedings, rather than some lesser measure, was within the range of proportionate responses which it was open to the court to take in all the circumstances? He pointed out that, in all such cases, the court is required to determine where the balance of justice lies. The factors which may be relevant to such a consideration may vary from one type of case to another. In doing so, a court will bear in mind whether there is prejudice to any particular party. (paras. 7.6 and 7.7). The judgment commented that, while the President’s description of Mr. Tracey as a “serial litigant”, while not perhaps an ideal way of putting it, it was nonetheless relevant to the point that Mr. Tracey’s experience of litigation allowed the court to require a higher standard of compliance from him than might be the case in respect of a litigant who had no litigation experience whatsoever. Bearing in mind this, and Mr. Tracey’s subsequent good attendance record, this Court determined that the appeals should be allowed, on the basis that the High Court order had not considered the issue of proportionality of the order, which was disproportionate in effect. This Court directed that the case, along with the others, should be remitted to the High Court.
Court of Appeal Jurisprudence
25. Subsequently, the Court of Appeal has also subsequently had to consider issues of this type. (See Hanrahan v. Gladney [2018] IECA 403, Irvine J., and Kildare County Council v. Gerard Reid, a judgment delivered by Peart J. [2018] IECA 370. Both these judgments make clear that litigants must now recognise that courts owe duties to all parties, rather than one; and that the courts will require clear and cogent medical evidence precisely identifying why the appellant cannot appear and conduct the case, the duration of indisposition for the purposes of an adjournment application. These are a necessary requirement whether a litigant appears in person or is represented.
26. The observations of the courts must be seen in a context where, on occasion, the courts have been left in a situation where some litigants, whether represented or unrepresented, seemed to think the mere proffering of any medical report might be sufficient to obtain an adjournment. That is a fundamental misconception. Subject to reasonableness, the courts are entitled to ensure that, under the Constitution and Convention, the business of litigation proceeds in an orderly fashion, even in circumstances where litigants do not attend. A court will also consider whether there is a pattern of non-attendance, or other conduct such as the late and unexplained discharge of legal advisors, and retainer of new ones. A court is entitled to draw its own conclusions from such conduct, and, if it decides to adjourn, to set clear conditions on the adjournment.
Tracey v. McDowell [2018] IESC 45
27. Tracey v. McDowell & Others [2018] IESC 45 is a slightly different case. There this Court had to consider whether the High Court judge, Hedigan J., had been correct in striking out Mr. Tracey’s proceedings against two out of a number of named defendants in difficult proceedings now before this Court. The application was brought under O.19, r.28 RSC 1986. The judgment of this Court upheld the High Court order in part, but reversed in part. It considered the case against each of the moving parties in the motion individually, and distinguished the circumstances. It held the case against one defendant should be struck out under the Rules, but that the case against the other defendant should be remitted back to the High Court for re-hearing. It is relevant to this appeal, in that it shows that, in order to make a just order, an appeal court, as well as looking at the fact of an adjournment, is also entitled to consider the substance or merits of the case which has been struck out.
A Range of Orders
28. The jurisprudence, therefore, establishes a spectrum of instances where, when appropriate, or on appeal, a court may simply remit a case to the High Court for consideration, or, alternatively, having considered the issue raised in the pleadings (O. 19, r.28), or by the case more generally , (inherent jurisdiction), make whatever order is appropriate.
29. It is well established that the jurisdiction of the courts to strike out proceedings falls under two general headings. First, under O.19, r.28, a court may direct a stay or dismiss an action where a statement of claim fails to disclose a reasonable cause of action. Similar considerations may apply where what is pleaded does not amount to a defence. Additionally, proceedings may be struck out if they are frivolous or vexatious. (c.f. the discussion in Tracey v. McDowell, cited earlier). The inherent jurisdiction of the Court to strike out proceedings involves a somewhat broader scope of inquiry, which is not confined to the pleadings. The jurisdiction is to be exercised sparingly, and only in clear cases. If, having considered the case, a court is satisfied that a plaintiff’s case must fail, then it is a proper exercise of its discretion to strike out or dismiss proceedings, the continued existence of which cannot be justified, and which may manifestly cause irrevocable damage to a defendant. The order in this case was based on inherent jurisdiction. On the basis of the defence raised under s.18 of the 1961 Act, he concluded that the appellant’s case was “bound to fail”.
Case Law
30. There is considerable jurisprudence on this topic. In Lac Minerals v. Chevron Mineral Corporation, the High Court, 6th August, 1993, a judge acceding to an application to dismiss must be confident that, no matter what may arise on discovery or the trial of the action, the plaintiff’s claim cannot succeed. (Approved in Supermacs Ireland Limited v. Katesan (Naas) Limited [2000] IESC 17; [2004] I.R. 273, 277; Lawlor v. Ross [2001] IESC 110, at 9, per Finlay J.; Superwood Holdings Limited v. Ireland [2005] IEHC 232; [2005] 3 I.R. 398; AF v. SF [2007] 4 I.R. 326, 322; Salthill Properties Limited v. Royal Bank of Scotland Plc. [2009] IEHC 207, at 7). But a court will exercise caution if it considers a claim would admit of amendment which might “save” it and the action founded on it. (See Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425, at 438, McCarthy J., and see, generally, Civil Procedure in the Superior Courts, Fourth Edition, Delaney & McGrath, Chapter 16.12, et seq.). In particular, a claim will be struck out where, on admitted facts, or undisputed evidence, it is clearly unsustainable or bound to fail. (See DK v. King [1994] 1 I.R. 166; O’Neill v. Ryan [1993] ILRM 557, 561; Ennis v. Butterly [1996] 1 I.R. 426, 430). However, this may be a difficult test to satisfy, as it will be necessary for the moving party – defendant to establish that the plaintiff’s claim cannot succeed. A court should make clear whether it is exercising powers under the Rules, or under inherent jurisdiction.
A Balancing Process: First Consideration
31. As pointed out in Tracey v. McDowell in 2016, the High Court should carry out a balancing exercise, involving an assessment of two main points: first, the prior conduct of the litigant, and the explanation for non-attendance.
32. In an extreme case, a court will be justified in dismissing a case where there is an unexplained, or insufficiently explained, absence of a litigant. But, as alternatives, a court may also wish to consider whether a case will stand dismissed, unless a party complies with orders made by a court, or direct that an order be stayed until a particular date. Ancillary orders might comprise directions which are strictly time limited, or a striking out, or adjourning generally, with any application for re-entry to be entered by way of a notice of motion brought on cogent affidavit evidence with exhibits justifying what non-attendance and showing the case is at least arguable.
33. Since the time of the delivery of the judgments of this Court and the Court of Appeal cited earlier, the courts will now closely scrutinise applications for adjournment arising in circumstances such as these. Litigants should not assume that a court will simply adjourn a case in their absence. A court may make such orders as are in the interests of justice. A “bare minimum” medical report, or inadequate explanation, will not suffice as an explanation.
Second Consideration
34. As a second consideration, in situations such as this, a court may also consider the case itself with a view to determining whether or not the case can succeed? If a case simply cannot succeed, then, even if there is unexplained, or inadequately explained, non-attendance, a court may be justified in making whatever order is just; but should still bear in mind the principle of proportionality, that is, whether a more limited or nuanced order, rather than outright dismissal, might be justified. But, if a court does conclude that there is at least an “ arguable ” case, does not, of course, mean that an application to strike out in the absence of a litigant should be simply refused; rather, the duty is to assess what appropriate order should be made, having regard to the circumstances of the case. But it must be remembered that, at the extreme end of the spectrum, a court will retain the power to strike out or dismiss a claim outright for a failure of compliance, or unexplained non-attendance.
35. All litigants must understand that the same rules will apply to every party, whether they are represented or not. Cases will not be permitted to come to a halt, simply because litigants fail to appear, or fail adequately to explain their absence.
36. There is, too, a further consideration. Litigation involves the expenditure of time and money. In considering an application, either to strike out or re-enter, a court may make such order as to costs as shall be appropriate.
Assessment of this Case: A First Consideration
37. In this case, the evidence covering non-attendance and illness is similar to that to be found in the judgment delivered by Clarke C.J. in Tracey v. McDowell in 2016. But, additionally, there is another time consideration; that the events which now fall for consideration by this Court pre-dates the judgments of this Court in McDowell, and judgments of the Court of Appeal in Kildare County Council v. Gerard Reid [2018] IECA 370; and Hanrahan v. Gladney [2018] IECA 403). Each of these judgments lay renewed emphasis on the duty of a litigant to fully provide a court with the necessary information in the event of illness or indisposition. Seen in this context, the conduct of the appellant seen within the relevant timeframe was not so extreme as in itself to require that, ipso facto, the proceedings be dismissed outright. The President did have before him material which, albeit insufficient, sought to give some explanation as to the reasons for the appellant’s absence. It is necessary to consider the second test, that is, whether the case had any conceivable chance of success.
Assessment of this Case: Second Consideration
38. The second consideration must be whether this is an arguable case? Counsel for the respondents has put his case with force. He submitted that the President correctly held the defence of absolute privilege, pursuant to s.18 of the 1961 Act, and its successor, manifestly applied, and provided a complete defence to the claim. Counsel submits that the unchallenged evidence before the High Court included an affidavit from the relevant journalist, Tim Healy, which was to the effect that the publication was, in fact, contemporaneous report, which accurately described proceedings which had been publicly determined by a court in the jurisdiction.
39. Counsel points out that the President did not “strike out” the proceedings because of the appellant’s absence, but rather because he was satisfied that the proceedings were bound to fail, having regard to the “obvious” applicability of the then s.18 of the 1961 Act. He emphasises that, even now, the appellant has not ever sworn a replying affidavit, or engaged substantively with the matter of the application that these proceedings were bound to fail. Counsel submits that the only evidence before the court is that the report in the newspaper was fair and accurate . This is true, insofar as it goes. But these issues are not questions of evidence, but rather matters of law. There are a number of questions. These include:
(i) what is the extent of the protection afforded by s.18, or the common law; and more specifically:
(ii) Is the privilege absolute or qualified?
(iii) Is all the article covered by privilege?
40. While the Court has been referred to legal authorities, such as the High Court decision on the issue of privilege, Philpott v. Irish Examiner [2016] IEHC 62, Barrett J., I am not persuaded that the legal precedents entirely assist the case which counsel must make. The article in question said that the appellant had been “ convicted of assaulting ” a neighbour. At another point, it is said the judge granted leave to appeal, saying that, even though there was no penalty, “ the Probation Act was still a criminal conviction. ” But it is, at least, arguable s.1(1)(i) of the Probation of Offenders Act, 1907 provides that a District Court may, in certain circumstances, hold that it is “ inexpedient ” to proceed to a conviction, and may make orders without proceeding to conviction. Whether the report is, therefore, “fair or accurate” is, therefore, a point where, at least, an argument can be made. It cannot be sufficiently emphasised that this judgment does not purport to determine the law on the issue; there are many counter arguments, perhaps very strong ones.
41. It is sufficient to say that I think, on this occasion, the President erred when he decided simply to dismiss the case as having no chance of success. It is arguable that it has some chance of success, though I go no further. In the circumstances, the President should have given consideration to an order with lesser effect.
42. Under the Rules of the Superior Courts, as recently amended, this Court is entitled to substitute its own order for an erroneous High Court order. But I do not think this is an appropriate case to apply that rule. The legal issues in question are of some significance, and concern both the rights of these parties, but also, potentially, concern the broader rights of newspapers and other media to publish material contemporaneously or otherwise, with court proceedings. Additionally, there is the issue of the extent of the protection in this article, where the question of what was said in court, and the extent of privilege in that situation, also may arise. The parties are entitled to have these issues determined by a court of first instance.
An Observation
43. The law of defamation is legally quite complex. Mr. Tracey has some experience of the courts, though I go no further. He has chosen to represent himself in this case. As matters stand, he is entitled to make that choice, even in an area of legal complexity. But the legal issues which arise here may have application well beyond this case. The issue of press freedom is fundamental to a democratic society. The extent of legal protection for the media in coverage of court proceedings now goes beyond the scope of s.18 of the 1961 Act, and comes under s.17 of the Defamation Act, 2009. The meaning of the terms “fair and accurate” is a significant legal issue in this context, and generally, both to the public and the media. Whether the interests of justice, and the public interest, will best be served when a litigant in person is asked to argue an important and complex legal issue must be an open question, which itself may raise constitutional and ECHR issues.
44. The balance of justice requires that this important issue should be remitted to the High Court for determination in accordance with law. This judgment and the order proposed does not, in any sense, predetermine an outcome. The respondents remain entitled to remake their case on this notice of motion in the High Court. The appellant, in turn, is now well on notice of the case which the respondents wish to advance. The High Court may be asked to make orders and determinations not arising from the notice of motion. But what tilts the balance in this appeal is that the case is, in fact, not “doomed to fail”, although again I refrain from going any further. For the avoidance of any doubt, I should add that, if the application or order had been framed within the terms of Order 19, Rule 28, I would have reached the same conclusion.
45. The proceedings should not be allowed to linger further. The decision of the Court on this appeal is based on very narrow grounds, as outlined. I would, therefore, allow this appeal, for the reasons set out in this judgment.
Some general observations
46. I take the opportunity at the conclusion to make a number of more general observations, reflecting what is contained in the Rules of the Superior Courts, and in the jurisprudence of the courts. These observations are not some form of imposition, but express views on what is sometimes necessary in a common law system, to protect the rights of litigants and the public.
47. It needs reiteration and emphasis that the courts are entitled to take such steps as they are obliged under the Rules, the law, the Constitution and the ECHR, in order to protect the integrity of their own processes. But this duty also devolves on the parties to a case. Bringing legal proceedings imports duties, obligations, and consequences, as well as rights. First, the right includes a constitutional right of access to the courts. But there are, too, duties, and litigation is not a one-way or cost-free activity. Unsuccessful parties, be they plaintiffs or defendants, represented or unrepresented, may be obliged to face applications for costs which may be followed by the consequences of enforcement or execution of such orders. Parties incur costs in defending unmeritorious litigation. Second, only necessary parties should be sued in a legal proceeding. Parties who are joined unnecessarily should apply to be taken out of proceedings at the earliest opportunity. Third, as has been said before, the courts may assist litigants, whether represented or not, by requiring them to put their case succinctly in writing, and also, where necessary, ensuring compliance with strict time limits in making submissions or filing affidavits. Fourth, submissions, pleadings, or affidavits, which are prolix, verbose, or irrelevant to the issues in the case, should be struck out. Fifth, it is necessary to remember that, in a common law system, parties are not only entitled to, but should, make early applications to give effect to these duties. This should be done promptly. Parties should resist the temptation simply to let a case linger, or leave dealing with issues of this type to a time when a case may revive, at greater cost. Sixth, submissions should be addressed to the court in clear language. They should concern only legal issues which are recognised under the law of the State. Seventh, courts retain the power to strike out proceedings for abuse of process, which may generally arise in the form of vexatious, oppressive, or repeated litigation of the same issue under different guises. (See Riordan v. Ireland (No. 5) [2001] 4 I.R. 463). It follows, therefore, that a litigant, whether represented or not, who engages in repeated conduct in contravention of these Rules faces the possibility of a response from other parties, and a proportionate order from the courts. I take the opportunity to make these observations, not in the context of this case, but more generally in the light of some recent experience of cases coming before the courts.
Kevin Tracey v Irish Times Limited, Geraldine Kennedy and Eoin McVeigh
454/11
Supreme Court
30 July 2019
unreported
[2019] IESC 62
Mr. Justice John MacMenamin
July 30, 2019
JUDGMENT
1. On the 27th October 2011, the High Court, (Kearns P.), dismissed four defamation proceedings, along with two other cases which had been initiated by the appellant. The appellant appealed these orders. The appeals were originally brought to this Court. They were subsequently remitted to the Court of Appeal under the 33rd Amendment to the Constitution. Later, they were remitted back to this Court, pursuant to Article 64. On the 20th and 21st June, 2019, this Court dealt with this appeal, along with the other appeals brought by the appellant concerning similar High Court orders made on the same day. The six appeals, therefore, fall into two categories. The first group of four will be referred to simply as the “defamation appeals”. They arise from coverage of a District Court proceeding; the second group of just two, concern other forms of proceedings.
The Defamation Appeals
2. The defamation appeals are:
• Kevin Tracey v. Irish Times Limited, Geraldine Kennedy & Eoin McVeigh (High Court Record No. 2008/11101P, Supreme Court Appeal No. 454/2011). This concerned an article in the Irish Times.
• Kevin Tracey v. Independent Star Limited & Gerard Colleran (High Court Record No. 2008/11102P, Supreme Court Appeal No. 455/2011). This concerned an article in the Irish Daily Star.
• Kevin Tracey v. Independent Newspapers (Ireland) Limited, Gerry O’Regan, Stephen Rea and Tim Healy (High Court Record No. 2008/11103P, Supreme Court Appeal No. 456/2011). This concerned an article in the Evening Herald.
• Kevin Tracey v. Independent Newspapers (Ireland) Limited, Philip Molloy, Paul Dunne, Gerry O’Regan & Michael Denieffe (High Court Record No. 2008/11104P, Supreme Court Record No. 457/2011). This concerned an article in the Irish Independent.
For reference purposes, the other appeals are:
• Kevin Tracey & Anor. v. Ireland & Ors. (High Court Record No. 2009/11765P, Supreme Court Record No. 168/2012)
• Kevin Tracey & Anor. v. Crosbie & Ors. (High Court Record No. 2012/00397, Supreme Court Record No. 2012/396/12 and 392/12)
The Defamation Appeals: Context
3. All the articles in the defamation appeals were published on 17th September, 2004, the day after District Court proceedings in which the appellant was prosecuted for assault, but received the benefit of s.1(1)(i) of the Probation of Offenders Act, 1907. In each case, the defendants, who are now the respondents in this appeal, pleaded that the press coverage was privileged as being covered by s.18 of the Defamation Act, 1961, or the common law protection regarding contemporaneous reportage of court proceedings.
4. This judgment concerns the first of the defamation proceedings, where the Irish Times, Geraldine Kennedy and Eoin McVeigh are the respondents. It gives consideration to tests or principles applicable in a situation such as this. This judgment will be referred to in the other judgments delivered today as the “Irish Times judgment”.
The Irish Times Article
5. The Irish Times article was printed on an inside page of the newspaper on the 17th September, 2004. It was headed “Man guilty of assault took action against judge”. The appellant’s last name was incorrectly spelt throughout the article. The text of the article, some parts of which are now emphasised, read:
“A man who last year took a noise nuisance action against his neighbour, Circuit Court Judge Michael White, was yesterday convicted of assaulting another neighbour.
Kevin Treacey [sic], an engineer from Park Lane, Chapelizod, Dublin, was given the Probation Act because the assault, a push, was of a minor nature, Judge Michael Connellan ruled. In March last year, Mr. Treacey was ordered to pay €1,500 legal costs of an aborted noise nuisance action against White. Mr. Treacey had claimed he suffered nuisance from Judge White’s children playing their musical instruments.
He withdrew the complaint before it went to hearing, saying the nuisance had abated since the court case was initiated. He was ordered to pay the legal costs of the action because he failed to turn up in court to say he was doing so.
Yesterday’s case arose out of a dispute over local children playing football outside the Treacey home in April last year, shortly after the noise nuisance action had finished.
Dublin District Court heard Mr. Treacey went out three times to ask them to move away when the ball hit the wall of his house. The children, including two whose mother was the injured party, Mrs. Gabby Skinner, had to play on the street because there were young people drinking in the only other area available.
The ball eventually hit one of Mr. Treacey’s windows, and he went up and picked the ball up. Mrs. Skinner asked for the ball back, and during the confrontation she was pushed by Mr. Treacey, who denied touching her.
Judge Connellan said “As far as I am concerned, I am satisfied there was an assault on Mrs. Skinner, but it was of a very technical nature. The judge granted leave to appeal, saying that, even though there was no penalty, the Probation Act was still a criminal conviction.” (Emphasis added)
A question which arises later in this judgment is whether, arguably, the emphasised parts of the article may not be covered by the defence of privilege.
6. The events described in this judgment, and the proceedings which followed, were initiated prior to the passing of the Defamation Act, 2009. They therefore fall to be considered under the terms of the Defamation Act, 1961. Section 17 of the Defamation Act, 2009 also contains a fuller provision. It is unnecessary to quote it. Although the publication in question took place on 17th September, 2004, the Irish Times proceedings were initiated on the 23rd December, 2008, more than four years afterwards. The appellant, who appears on his own behalf, pleaded that the article damaged him in his good name, and professional reputation. He sought damages under various headings. A statement of claim followed more than a year later, on the 3rd February, 2010. There, Mr. Tracey claimed that, as a result of the article, he had suffered psychological damage and trauma, and contended the article was actuated by malice.
7. But one plea in the statement of claim is relevant to this appeal; it was to the effect that, in fact, the District Court prosecution had actually been dismissed under the Probation of Offenders Act, 1907 on the 16th September, 2004. Thus, Mr. Tracey submits he was not “ convicted ” of the assault.
The Extent of the Legal Protection
8. Section 18 of the Defamation Act, 1961 provided:
“A fair and accurate report published in any newspaper or broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station within the State or in Northern Ireland of proceedings publicly heard before any court established by law and exercising judicial authority within the State or in Northern Ireland shall, if published or broadcast contemporaneously with such proceedings, be privileged. …” (Emphasis added)
9. But, as the leading textbooks point out, this section does not specifically set out whether the privilege provided by the section is absolute or qualified in nature. (See Cox and McCullough, “The Law of Defamation”, Clarus Press, 2014, Chapter 7-54; and also McMahon & Binchy, “Law of Torts”, 4th Edition, Bloomsbury 2013, Chapter 34.173). The extent to which this statutory provision was, or is, supplemented by a common law privilege is also an open question. (On this, generally, also see Hayward v. Hayward [1886] 34 Ch.D 198; and Gatley on Libel & Slander, 12th Edition, p.310 – 320).
10. Relying on s.18, the respondents in this appeal pleaded that the article contained a fair and accurate report of proceedings publicly heard in a court established by law, and exercising judicial authority within the State. They pleaded that the article was absolutely privileged, or, alternatively, was protected by qualified privilege. The form and extent of the protection provided by 1961 Act, and its application to this case, is obviously a legal issue of some significance.
The Defence
11. The defence, therefore, also contained a preliminary objection, to the effect that the action should be struck out on the basis that the claim was unsustainable, bound to fail, frivolous and vexatious. The respondents pleaded the statement of claim did not disclose any reasonable cause of action, and reserved the right to make application to have the proceedings struck out, either pursuant to the provisions of O.19, r.28 of the Rules of the Superior Courts, or the inherent jurisdiction of the Court.
Correspondence
12. Between the 3rd February, 2010 to the 18th November, 2010, there was active correspondence between Mr. Tracey, the respondents, and later their solicitors. In the course of this correspondence, Mr. Tracey claimed damages in the sum of €1,500,000. The basis of his claim for this very substantial sum is unclear.
13. After the respondents filed their defence on the 29th June, 2010, they brought a motion seeking to have the motion struck out, either under O.19, r.28, or, alternatively, pursuant to the inherent jurisdiction of the Court. The evidence is that, in the same month, Mr. Tracey fell ill. He did not ever swear a replying affidavit in the motion, or substantively engage with the contention that his proceedings were bound to fail. Mr. Tracey remained ill for a considerable period of time thereafter. There is no evidence to the contrary.
Adjournments
14. The motion came before the President of the High Court on the 4th May, 2011. The respondents sought the relief claimed in the notice of motion. But, on that occasion, Kearns P. acceded to an adjournment application made on behalf of Mr. Tracey by a person describing himself as a “McKenzie friend”, a Mr. Justin Morahan. The motions were adjourned peremptorily against the appellant for hearing on the 27th October, 2011. In adjourning the matter, Kearns P. made it entirely clear that, if there was to be any future application for an adjournment, there would have to be compelling medical evidence before the court.
The 27th October, 2011
15. On the 27th October, 2011, the appellant was not present in court. He was, however, again represented by Mr. Morahan, who applied for a further adjournment. Before the President were two medical reports, to the President, to the effect that Mr. Tracey was ill, and could not attend court. There was also an affidavit from the appellant’s wife, Karen Tracey, filed on the 19th October, 2011, deposing that her husband remained ill.
16. In a report furnished to this Court for the appeal, Kearns P. stated that he had regard to this material, in particular, a medical report dated the 19th August, 2011, from Dr. Sarah McDonnell, and a further report dated the 7th September, 2011 from the Royal Victoria Eye & Ear Hospital, as well as Ms. Tracey’s affidavit. Having considered this material, the President refused the application for a further adjournment. He then heard submissions from counsel for the respondents on the main questions in the motion to strike out the proceedings. Having heard submissions from counsel, Kearns J. ordered that these proceedings be dismissed on the grounds that the claim was bound to fail by reason of the protection contained in s.18 of the 1961 Act. The order was based on the inherent jurisdiction of the court.
17. Despite his illness, the appellant was in a position to file a detailed notice of appeal to this Court on the 29th November, 2011. The notice of appeal contained some matters which had no basis. There was an allegation of bias. The fact that Kearns P. had previously made strike out orders in other proceedings brought by Mr. Tracey was not relevant. There was no reason for the President to recuse himself. The mere fact that a judge has previously made an order, or orders, adverse to the interests of a party, on other occasions, does not indicate bias. Far more would be necessary; for example, that a judge had expressed strong or fixed views as to the truthfulness of evidence given by a party. The allegations of bias against the President should not have been made. Thereafter, the appeal remained before this Court for a considerable period of time. It was remitted, and then returned to this Court.
18. The questions now for this Court are whether the President erred in law in proceeding to hear the application in the absence of the appellant; and whether he then erred in dismissing the proceedings. These questions are interlinked. First it is necessary to consider some case law.
The Legal Background: Other Considerations
Tracey v. McDowell
19. The procedural issue before the Court in this appeal is not entirely without legal precedent. The facts bear some resemblance to the circumstances which obtained in the case of Tracey & Anor. v. McDowell & Anor [2016] IESC 44, (Clarke C.J., MacMenamin J., Charleton J.), (McDowell). That case concerned a decision by Kearns P. to dismiss six, quite separate, proceedings in which Mr. Tracey and his wife, Karen Tracey, were plaintiffs. Mr. and Ms. Tracey had commenced these earlier proceedings by issuing a plenary summons, wherein they claimed that between the 14th August, 1999 until on or about the 14th March, 2002, claiming they had been subjected to a conspiracy and collusion of malicious prosecution, and abuse of the legal process, including false summonses, prosecutions, fines, endorsement of licence, prison sentence, and assaults.
20. As in this case, a representative appeared in the High Court to apply for an adjournment. But the medical reports were terse and unspecific. Again, Kearns P. delivered a judicial warning as to the consequences of non-appearance. The medical reports furnished did not address the real questions which the Court had to determine, which included the likely duration of the illness, and the fact that the President had previously made a specific direction that further medical reports were to be in sufficient detail as to allow him to make a clear decision as to when the case might proceed. Kearns P. decided to dismiss the proceedings. Mr. Tracey had appealed these decisions.
21. Delivering judgment in the appeal in this Court, Clarke C.J. took the opportunity to reiterate that the courts retain the power to ensure that litigation is conducted in a timely fashion, an obligation deriving both from the inherent power of the courts themselves, and also arising from the necessity to comply with ECHR requisites. He held that such duties devolve on the State as a whole, and all of its organs of governance, including the courts. Thus, a failure to put in place and maintain a system which permits the timely resolution of proceedings in a Convention-compliant manner, may create a situation where the State becomes liable under the ECHR for delay, even in the context of the common law “party led” litigation system. Thus, the Chief Justice pointed out, there may well be cases where a significant or persistent failure to comply with express court orders, or directions, might justify dismissal as a proportionate consequence, as a result of major procedural non-compliance. (See paras. 5.5, 5.6 and 5.8 of Tracey v. McDowell [2016]). The Chief Justice went on to point out that, in considering applications such as these, the duty of a court is to take into account the rights and interests of all parties, rather than one party, and that to adjourn a case as a result of one party’s non-attendance has the potential to affect the rights of other parties well beyond the individual on whose health status a doctor may be required to report. The judgment emphasises that a court is required to balance all the rights involved, and that, in order to achieve this end, a court will often require more information than is sometimes proffered in order to enable it to carry out that task properly. (para. 6.4). Specifically, there should be full information on the likely length of any indisposition on the part of a litigant. On the subject of medical evidence, Clarke C.J. made clear:
“… a bald medical certificate stating that Mr. X or Ms. Y is unfit will frequently be of very little assistance to the court in balancing the rights and interests involved. The court will need to know just what it is that the person concerned can and cannot do, for how long that condition is likely to last, with what degree of confidence can a prognosis for recovery (or at least a sufficient recovery to allow the proceedings to continue) be made and any other matters which might reasonably influence the court’s judgement”. (para. 6.7).
He went on to point out that, in extreme cases, a doctor who is given full instructions by, or on behalf of a client, but who does not engage with those instructions in a sufficient way to provide the court with enough information to enable an appropriate assessment to be made, may himself or herself be required to attend court to fill in the gaps.
22. But to this I would add that it would first be necessary to clearly show that a proper full request had been made in a timely manner to the doctor concerned. A party who makes reasonable and timely efforts to ask a doctor setting out what was required should not suffer if a doctor does not furnish a report. But as a corollary, a party must show they made a timely application for that medical report setting out why exactly a person cannot attend, and for how long?
23. In this 2016 judgment, this Court accepted that the trial judge was entitled to conclude there had been a failure on the part of Mr. Tracey to comply with the previous directions of the court concerning the filing of an appropriate medical report. Clarke C.J. did note, however, that medical reports had been furnished, which did advance matters somewhat beyond the position which had pertained on the previous occasion. These identified the medical conditions from which Mr. Tracey was suffering. There was at least a form of report from a consultant (or the consultant’s registrar). But Clarke C.J. pointed out that the trial judge was nonetheless more than entitled to consider that the medical evidence was insufficiently detailed, and entitled to conclude there had been inordinate and inexcusable delay. (para. 7.4, 7.5 and 7.6).
24. Clarke C.J. then went on to pose the rhetorical question, as to whether a dismissal of each of the relevant proceedings, rather than some lesser measure, was within the range of proportionate responses which it was open to the court to take in all the circumstances? He pointed out that, in all such cases, the court is required to determine where the balance of justice lies. The factors which may be relevant to such a consideration may vary from one type of case to another. In doing so, a court will bear in mind whether there is prejudice to any particular party. (paras. 7.6 and 7.7). The judgment commented that, while the President’s description of Mr. Tracey as a “serial litigant”, while not perhaps an ideal way of putting it, it was nonetheless relevant to the point that Mr. Tracey’s experience of litigation allowed the court to require a higher standard of compliance from him than might be the case in respect of a litigant who had no litigation experience whatsoever. Bearing in mind this, and Mr. Tracey’s subsequent good attendance record, this Court determined that the appeals should be allowed, on the basis that the High Court order had not considered the issue of proportionality of the order, which was disproportionate in effect. This Court directed that the case, along with the others, should be remitted to the High Court.
Court of Appeal Jurisprudence
25. Subsequently, the Court of Appeal has also subsequently had to consider issues of this type. (See Hanrahan v. Gladney [2018] IECA 403, Irvine J., and Kildare County Council v. Gerard Reid, a judgment delivered by Peart J. [2018] IECA 370. Both these judgments make clear that litigants must now recognise that courts owe duties to all parties, rather than one; and that the courts will require clear and cogent medical evidence precisely identifying why the appellant cannot appear and conduct the case, the duration of indisposition for the purposes of an adjournment application. These are a necessary requirement whether a litigant appears in person or is represented.
26. The observations of the courts must be seen in a context where, on occasion, the courts have been left in a situation where some litigants, whether represented or unrepresented, seemed to think the mere proffering of any medical report might be sufficient to obtain an adjournment. That is a fundamental misconception. Subject to reasonableness, the courts are entitled to ensure that, under the Constitution and Convention, the business of litigation proceeds in an orderly fashion, even in circumstances where litigants do not attend. A court will also consider whether there is a pattern of non-attendance, or other conduct such as the late and unexplained discharge of legal advisors, and retainer of new ones. A court is entitled to draw its own conclusions from such conduct, and, if it decides to adjourn, to set clear conditions on the adjournment.
Tracey v. McDowell [2018] IESC 45
27. Tracey v. McDowell & Others [2018] IESC 45 is a slightly different case. There this Court had to consider whether the High Court judge, Hedigan J., had been correct in striking out Mr. Tracey’s proceedings against two out of a number of named defendants in difficult proceedings now before this Court. The application was brought under O.19, r.28 RSC 1986. The judgment of this Court upheld the High Court order in part, but reversed in part. It considered the case against each of the moving parties in the motion individually, and distinguished the circumstances. It held the case against one defendant should be struck out under the Rules, but that the case against the other defendant should be remitted back to the High Court for re-hearing. It is relevant to this appeal, in that it shows that, in order to make a just order, an appeal court, as well as looking at the fact of an adjournment, is also entitled to consider the substance or merits of the case which has been struck out.
A Range of Orders
28. The jurisprudence, therefore, establishes a spectrum of instances where, when appropriate, or on appeal, a court may simply remit a case to the High Court for consideration, or, alternatively, having considered the issue raised in the pleadings (O. 19, r.28), or by the case more generally , (inherent jurisdiction), make whatever order is appropriate.
29. It is well established that the jurisdiction of the courts to strike out proceedings falls under two general headings. First, under O.19, r.28, a court may direct a stay or dismiss an action where a statement of claim fails to disclose a reasonable cause of action. Similar considerations may apply where what is pleaded does not amount to a defence. Additionally, proceedings may be struck out if they are frivolous or vexatious. (c.f. the discussion in Tracey v. McDowell, cited earlier). The inherent jurisdiction of the Court to strike out proceedings involves a somewhat broader scope of inquiry, which is not confined to the pleadings. The jurisdiction is to be exercised sparingly, and only in clear cases. If, having considered the case, a court is satisfied that a plaintiff’s case must fail, then it is a proper exercise of its discretion to strike out or dismiss proceedings, the continued existence of which cannot be justified, and which may manifestly cause irrevocable damage to a defendant. The order in this case was based on inherent jurisdiction. On the basis of the defence raised under s.18 of the 1961 Act, he concluded that the appellant’s case was “bound to fail”.
Case Law
30. There is considerable jurisprudence on this topic. In Lac Minerals v. Chevron Mineral Corporation, the High Court, 6th August, 1993, a judge acceding to an application to dismiss must be confident that, no matter what may arise on discovery or the trial of the action, the plaintiff’s claim cannot succeed. (Approved in Supermacs Ireland Limited v. Katesan (Naas) Limited [2000] IESC 17; [2004] I.R. 273, 277; Lawlor v. Ross [2001] IESC 110, at 9, per Finlay J.; Superwood Holdings Limited v. Ireland [2005] IEHC 232; [2005] 3 I.R. 398; AF v. SF [2007] 4 I.R. 326, 322; Salthill Properties Limited v. Royal Bank of Scotland Plc. [2009] IEHC 207, at 7). But a court will exercise caution if it considers a claim would admit of amendment which might “save” it and the action founded on it. (See Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425, at 438, McCarthy J., and see, generally, Civil Procedure in the Superior Courts, Fourth Edition, Delaney & McGrath, Chapter 16.12, et seq.). In particular, a claim will be struck out where, on admitted facts, or undisputed evidence, it is clearly unsustainable or bound to fail. (See DK v. King [1994] 1 I.R. 166; O’Neill v. Ryan [1993] ILRM 557, 561; Ennis v. Butterly [1996] 1 I.R. 426, 430). However, this may be a difficult test to satisfy, as it will be necessary for the moving party – defendant to establish that the plaintiff’s claim cannot succeed. A court should make clear whether it is exercising powers under the Rules, or under inherent jurisdiction.
A Balancing Process: First Consideration
31. As pointed out in Tracey v. McDowell in 2016, the High Court should carry out a balancing exercise, involving an assessment of two main points: first, the prior conduct of the litigant, and the explanation for non-attendance.
32. In an extreme case, a court will be justified in dismissing a case where there is an unexplained, or insufficiently explained, absence of a litigant. But, as alternatives, a court may also wish to consider whether a case will stand dismissed, unless a party complies with orders made by a court, or direct that an order be stayed until a particular date. Ancillary orders might comprise directions which are strictly time limited, or a striking out, or adjourning generally, with any application for re-entry to be entered by way of a notice of motion brought on cogent affidavit evidence with exhibits justifying what non-attendance and showing the case is at least arguable.
33. Since the time of the delivery of the judgments of this Court and the Court of Appeal cited earlier, the courts will now closely scrutinise applications for adjournment arising in circumstances such as these. Litigants should not assume that a court will simply adjourn a case in their absence. A court may make such orders as are in the interests of justice. A “bare minimum” medical report, or inadequate explanation, will not suffice as an explanation.
Second Consideration
34. As a second consideration, in situations such as this, a court may also consider the case itself with a view to determining whether or not the case can succeed? If a case simply cannot succeed, then, even if there is unexplained, or inadequately explained, non-attendance, a court may be justified in making whatever order is just; but should still bear in mind the principle of proportionality, that is, whether a more limited or nuanced order, rather than outright dismissal, might be justified. But, if a court does conclude that there is at least an “ arguable ” case, does not, of course, mean that an application to strike out in the absence of a litigant should be simply refused; rather, the duty is to assess what appropriate order should be made, having regard to the circumstances of the case. But it must be remembered that, at the extreme end of the spectrum, a court will retain the power to strike out or dismiss a claim outright for a failure of compliance, or unexplained non-attendance.
35. All litigants must understand that the same rules will apply to every party, whether they are represented or not. Cases will not be permitted to come to a halt, simply because litigants fail to appear, or fail adequately to explain their absence.
36. There is, too, a further consideration. Litigation involves the expenditure of time and money. In considering an application, either to strike out or re-enter, a court may make such order as to costs as shall be appropriate.
Assessment of this Case: A First Consideration
37. In this case, the evidence covering non-attendance and illness is similar to that to be found in the judgment delivered by Clarke C.J. in Tracey v. McDowell in 2016. But, additionally, there is another time consideration; that the events which now fall for consideration by this Court pre-dates the judgments of this Court in McDowell, and judgments of the Court of Appeal in Kildare County Council v. Gerard Reid [2018] IECA 370; and Hanrahan v. Gladney [2018] IECA 403). Each of these judgments lay renewed emphasis on the duty of a litigant to fully provide a court with the necessary information in the event of illness or indisposition. Seen in this context, the conduct of the appellant seen within the relevant timeframe was not so extreme as in itself to require that, ipso facto, the proceedings be dismissed outright. The President did have before him material which, albeit insufficient, sought to give some explanation as to the reasons for the appellant’s absence. It is necessary to consider the second test, that is, whether the case had any conceivable chance of success.
Assessment of this Case: Second Consideration
38. The second consideration must be whether this is an arguable case? Counsel for the respondents has put his case with force. He submitted that the President correctly held the defence of absolute privilege, pursuant to s.18 of the 1961 Act, and its successor, manifestly applied, and provided a complete defence to the claim. Counsel submits that the unchallenged evidence before the High Court included an affidavit from the relevant journalist, Tim Healy, which was to the effect that the publication was, in fact, contemporaneous report, which accurately described proceedings which had been publicly determined by a court in the jurisdiction.
39. Counsel points out that the President did not “strike out” the proceedings because of the appellant’s absence, but rather because he was satisfied that the proceedings were bound to fail, having regard to the “obvious” applicability of the then s.18 of the 1961 Act. He emphasises that, even now, the appellant has not ever sworn a replying affidavit, or engaged substantively with the matter of the application that these proceedings were bound to fail. Counsel submits that the only evidence before the court is that the report in the newspaper was fair and accurate . This is true, insofar as it goes. But these issues are not questions of evidence, but rather matters of law. There are a number of questions. These include:
(i) what is the extent of the protection afforded by s.18, or the common law; and more specifically:
(ii) Is the privilege absolute or qualified?
(iii) Is all the article covered by privilege?
40. While the Court has been referred to legal authorities, such as the High Court decision on the issue of privilege, Philpott v. Irish Examiner [2016] IEHC 62, Barrett J., I am not persuaded that the legal precedents entirely assist the case which counsel must make. The article in question said that the appellant had been “ convicted of assaulting ” a neighbour. At another point, it is said the judge granted leave to appeal, saying that, even though there was no penalty, “ the Probation Act was still a criminal conviction. ” But it is, at least, arguable s.1(1)(i) of the Probation of Offenders Act, 1907 provides that a District Court may, in certain circumstances, hold that it is “ inexpedient ” to proceed to a conviction, and may make orders without proceeding to conviction. Whether the report is, therefore, “fair or accurate” is, therefore, a point where, at least, an argument can be made. It cannot be sufficiently emphasised that this judgment does not purport to determine the law on the issue; there are many counter arguments, perhaps very strong ones.
41. It is sufficient to say that I think, on this occasion, the President erred when he decided simply to dismiss the case as having no chance of success. It is arguable that it has some chance of success, though I go no further. In the circumstances, the President should have given consideration to an order with lesser effect.
42. Under the Rules of the Superior Courts, as recently amended, this Court is entitled to substitute its own order for an erroneous High Court order. But I do not think this is an appropriate case to apply that rule. The legal issues in question are of some significance, and concern both the rights of these parties, but also, potentially, concern the broader rights of newspapers and other media to publish material contemporaneously or otherwise, with court proceedings. Additionally, there is the issue of the extent of the protection in this article, where the question of what was said in court, and the extent of privilege in that situation, also may arise. The parties are entitled to have these issues determined by a court of first instance.
An Observation
43. The law of defamation is legally quite complex. Mr. Tracey has some experience of the courts, though I go no further. He has chosen to represent himself in this case. As matters stand, he is entitled to make that choice, even in an area of legal complexity. But the legal issues which arise here may have application well beyond this case. The issue of press freedom is fundamental to a democratic society. The extent of legal protection for the media in coverage of court proceedings now goes beyond the scope of s.18 of the 1961 Act, and comes under s.17 of the Defamation Act, 2009. The meaning of the terms “fair and accurate” is a significant legal issue in this context, and generally, both to the public and the media. Whether the interests of justice, and the public interest, will best be served when a litigant in person is asked to argue an important and complex legal issue must be an open question, which itself may raise constitutional and ECHR issues.
44. The balance of justice requires that this important issue should be remitted to the High Court for determination in accordance with law. This judgment and the order proposed does not, in any sense, predetermine an outcome. The respondents remain entitled to remake their case on this notice of motion in the High Court. The appellant, in turn, is now well on notice of the case which the respondents wish to advance. The High Court may be asked to make orders and determinations not arising from the notice of motion. But what tilts the balance in this appeal is that the case is, in fact, not “doomed to fail”, although again I refrain from going any further. For the avoidance of any doubt, I should add that, if the application or order had been framed within the terms of Order 19, Rule 28, I would have reached the same conclusion.
45. The proceedings should not be allowed to linger further. The decision of the Court on this appeal is based on very narrow grounds, as outlined. I would, therefore, allow this appeal, for the reasons set out in this judgment.
Some general observations
46. I take the opportunity at the conclusion to make a number of more general observations, reflecting what is contained in the Rules of the Superior Courts, and in the jurisprudence of the courts. These observations are not some form of imposition, but express views on what is sometimes necessary in a common law system, to protect the rights of litigants and the public.
47. It needs reiteration and emphasis that the courts are entitled to take such steps as they are obliged under the Rules, the law, the Constitution and the ECHR, in order to protect the integrity of their own processes. But this duty also devolves on the parties to a case. Bringing legal proceedings imports duties, obligations, and consequences, as well as rights. First, the right includes a constitutional right of access to the courts. But there are, too, duties, and litigation is not a one-way or cost-free activity. Unsuccessful parties, be they plaintiffs or defendants, represented or unrepresented, may be obliged to face applications for costs which may be followed by the consequences of enforcement or execution of such orders. Parties incur costs in defending unmeritorious litigation. Second, only necessary parties should be sued in a legal proceeding. Parties who are joined unnecessarily should apply to be taken out of proceedings at the earliest opportunity. Third, as has been said before, the courts may assist litigants, whether represented or not, by requiring them to put their case succinctly in writing, and also, where necessary, ensuring compliance with strict time limits in making submissions or filing affidavits. Fourth, submissions, pleadings, or affidavits, which are prolix, verbose, or irrelevant to the issues in the case, should be struck out. Fifth, it is necessary to remember that, in a common law system, parties are not only entitled to, but should, make early applications to give effect to these duties. This should be done promptly. Parties should resist the temptation simply to let a case linger, or leave dealing with issues of this type to a time when a case may revive, at greater cost. Sixth, submissions should be addressed to the court in clear language. They should concern only legal issues which are recognised under the law of the State. Seventh, courts retain the power to strike out proceedings for abuse of process, which may generally arise in the form of vexatious, oppressive, or repeated litigation of the same issue under different guises. (See Riordan v. Ireland (No. 5) [2001] 4 I.R. 463). It follows, therefore, that a litigant, whether represented or not, who engages in repeated conduct in contravention of these Rules faces the possibility of a response from other parties, and a proportionate order from the courts. I take the opportunity to make these observations, not in the context of this case, but more generally in the light of some recent experience of cases coming before the courts.
Lefroy v Burnside
Exchequer Division.
14 June 1879
[1879] 13 I.L.T.R 108
Palles C.B., Fitzgerald, Dowse BB.
Reports of the Inspectors of Irish Fisheries, and of Committees of the House of Commons are matters of public interest.
L. was the manager of the Queen’s Printing Office in Ireland, and was also on the literary staff of a newspaper, published in Dublin, called the “Freeman’s Journal,” and in the habit of contributing articles to it. In the latter capacity he wrote two articles giving publicity, the one to a Report of the Inspectors of Irish Fisheries, and the other to a Report of a Committee of the House of Commons upon the Board of Public Works in Ireland. Both these articles were published before the reports had been sent to any of the public journals. B. was the proprietor of a newspaper, also published in Dublin, called “Saunders’s Irish Daily News.” In this journal, subsequent to the publishing of the article written by L., an article appeared stating that copies of the official reports in question had been obtained by some surreptitious means from the office of the Government Printer; and that recently that office could be got at, and owing to laxity of administration, one particular newspaper could be accommodated with an advanced copy of forthcoming public documents. In an action of libel, in which L. was plaintiff and B. defendant, the plaintiff complained of this article as a libel referring to himself, and after setting it out in full in his statement of claim, averred that it attributed to him dishonesty, corruption, and fraud. The defendant pleaded a special defence, which alleged that before the publication complained of, publicity was given by the plaintiff through an article written by him in “The Freeman’s Journal,” to the reports mentioned, before they had been forwarded to the Press, or were procurable by the public; that these facts were matters of public interest, and that the publication complained of was only a fair and bona fide comment on those facts. The defence, also, averred as matter of fact that when publicity was so given to each of the reports mentioned, the Queen’s Printing Office had them for the purpose of being printed, and that the day before the article of the plaintiff in reference to the House of Commons Report was published the plaintiff had stated that it could not be procured by the Press, and would not be ready for *108 some time. There was a further statement in the defence of the belief of the defendant that the information enabling the articles of the plaintiff to be written, could only have been procured from the Queen’s Printing Office. On demurrer:
Held, that the statement of defence was bad, because the facts therein alleged did not afford ground for a reasonable inference that the plaintiff did supply the information by reason of which the articles in question were written.
Demurrer.—In an action for libel the statement of claim alleged that the plaintiff was the manager of the Queen’s Printing Office in Ireland, and the defendant was the proprietor of a newspaper called Saunders’s Irish Daily News, published in the city of Dublin. The plaintiff was also, while manager of the Queen’s Printing Office, a member of the literary staff of a newspaper called The Freeman’s Journal, which was likewise published in Dublin, and as such was in the habit from time to time of contributing leading articles to that newspaper. Before the time of the printing and publishing of the alleged libel the Inspectors of Irish Fisheries had made their report for the year 1877, and an article on that report had been written by the plaintiff and published in The Freeman’s Journal. A Committee of the House of Commons had, previous to the date of the the publication complained of, made a report upon the Board of Public Works in Ireland, and an article thereon also written by the plaintiff had been published in The Freeman’s Journal. Both these reports were printed in the Queen’s Printing Office in Ireland. On the 6th of July, 1878, the defendant printed and published in his newspaper an article which was set out in full in the statement of claim with the usual averments of falsity and malice. This article stated that a copy of the official report in question had been obtained by some surreptitious means from the office of the Government printer, that recently that office could be got at, and owing to laxity of administration, one particular newspaper could be accommodated with an advanced copy of forthcoming public documents; and that the publication of the Report on the Board of Works was also corruptly anticipated by the despatch of an advanced copy to the same contemporary. Several innuendoes were put upon the various statements in the alleged libel, the principal one being that the defendant meant that the plaintiff as manager of the Queen’s Printing Office in Ireland had acted improperly, dishonestly, and in a surreptitious, corrupt, and fraudulent manner, whereby the plaintiff was injured in his credit and reputation, and suffered the special damage that he had been obliged to discontinue contributing articles to The Freeman’s Journal, and to resign his literary connexion with that newspaper.
The statement of defence admitted the allegations of fact as regarded the status of the parties, but traversed the printing and publishing of the words set out and the defamatory sense imputed in the statement of claim. There were also pleas of no libel, and that the words complained of were not printed or published of or concerning the plaintiff, and a further special defence contained in the 13th paragraph of the statement of defence, which was as follows:—
“And for a further defence to each of the 6th and 7th paragraphs respectively, and which the defendant prays may be taken as pleaded distributively to each of the said paragraphs, the defendant admitting for the purpose of this defence and not otherwise, that he printed and published the words in the said paragraphs complained of, says that before and at the time of the publication of the words therein complained of, the plaintiff was manager of the Queen’s Printing Office in Ireland, and was also a member of the literary staff of the newspaper called The Freeman’s Journal, and was in the habit of contributing articles to the said Freeman’s Journal newspaper, and before the publication aforesaid, the Inspectors of Irish Fisheries had prepared their report for the year 1877, addressed to the Lord Lieutenant, and had sent the same to be printed at the Queen’s Printing Office aforesaid, of which the plaintiff was manager, and the defendant says that theretofore it had always been the custom that the Secretary of the Inspectors of Fisheries should send to each of the daily newspapers in Dublin (including the said Saunders’s Irish Daily News ) a copy of their reports so soon as same should be printed and returned from the Queen’s Printing Office. And before any copy of the report of the said Inspectors of Fisheries for the year 1877 had been sent by the said Secretary to the office of the said Saunders’s Irish Daily News, or any other Dublin newspaper, an article written by the plaintiff appeared in the columns of the said Freeman’s Journal commenting on the said report And afterwards before the publication of the words in the said paragraphs respectively complained of, the Secretary of the said Inspectors of Fisheries wrote a letter to the editor of the said Saunders’s Irish Daily News forwarding a copy of their report, and stating that although an article had appeared upon it in one of the Dublin journals, to wit, the Freeman’s Journal, some days previously, no copies had been forwarded to the Press from the office of the said Inspectors of Fisheries until the same evening on which said letter was written as aforesaid.
“And the defendant further says that before the publication of the words in said paragraphs respectively complained of, a certain Committee of the House of Commons, appointed for that purpose, had made a report upon the Board of Public Works, Ireland; and the said report had been sent forward to the Queen’s Printing Office in Ireland to be printed, and a few copies had been printed to be laid on the table of the House of Commons, and a messenger was sent from the office of one of the Dublin journals, namely, The Irish Times newspaper, to the said Queen’s Printing Office in Ireland, to inquire if a copy of the said last-mentioned report could be then procured, or if not when same could be procured, and the plaintiff informed said messenger that said report could not then be procured, and that it would not be ready for some time.
“And the defendant further says that on the day the said messenger had been so informed as aforesaid by the plaintiff, and before a copy of the said last-mentioned report was procurable by the Press or the public, and before same was in the hands of members of the House of Commons, an article appeared in The Freeman’s Journal, written by the plaintiff, commenting on the said report, and referring to extracts from said report given elsewhere in the said newspaper, and also purporting to give an abstract of its contents. And the defendant further says that the publicity given to the report of the said Inspectors of Fisheries by means of the said article, written by the plaintiff, as herein before mentioned, in the said Freeman’s Journal, before the said report had been forwarded to any of the public journals from the office of the said Inspectors of Fisheries, and the publicity given to the said report upon the Board of Public Works by means of the said article written by the plaintiff, and which appeared, as hereinbefore mentioned, in the The Freeman’s Journal, before a copy of the said last-mentioned report was *109 procurable by the Press or the public, or before the same was in the hands of the members of the House of Commons, were respectively matters of public interest, and formed, before the publication of the words complained of, the subject of discussion in the public journals; and the defendant believing that the information enabling the said article to be written, could only have been procured from the said Queen’s Printing Office, printed and published the words in the said paragraphs respectively complained of, and the same were a fair and bona fide comment upon the matters aforesaid, under the circumstances hereinbefore mentioned; and said words were printed and published bona fide and without malice, for the benefit of the public and not otherwise, and the defendant when he published the said words complained of, believed them to be true.”
To this defence the plaintiff demurred on the ground that the matters therein alleged did not disclose any privilege on the part of the defendant to print and publish the words complained of, or any of them, and that there was no privilege shown thereby on the part of the defendant to publish the words in the defamatory sense imputed; that it was not alleged in the defence, nor did it appear therefrom by necessary implication, that a copy of the report of the Inspectors of Fisheries was not procurable, and had not been procured in a regular and proper manner by or from the person by whom the article upon that report had been written, or that such copy had not been that used by the person by whom the article was written, and consequently, that the defendant was not privileged to print and publish of the plaintiff the defamatory matter complained of, so far as the same had reference to the report and the article in The Freeman’s Journal thereon; that in order to entitle the defendant to the privilege claimed, it was necessary that he should have believed that the information enabling each of the articles in The Freeman’s Journal to be written was procured from the Queen’s Printing Office by means of some improper use made by the plaintiff of his position therein; that it was not stated in the defence, nor did it appear there-from by necessary implication, that the charges of misconduct made against the plaintiff in the words complained of, were, prior to the printing and publication, investigated by any person or persons whose duty it was to make an investigation, and that in order to entitle the defendant to the privilege claimed, it was necessary that the charges should have been so investigated and declared found to be proved against the plaintiff; and further, that in order to entitle the defendant to the privilege claimed, it was necessary that he should have made such inquiry or investigation before printing and publishing the words complained of.
Houston and James Murphy, Q.C., in support of the demurrer.—The defence does not say what is the matter of public interest. A matter of public interest is a matter of public importance, whereas here the defendant’s own case only amounts to this, that it was a matter of public curiosity, and therefore wholly fails as a plea of privilege. A charge is not to be made against a public official until that charge has been investigated by the proper tribunal: Purcell v. Sowler, 1 C. P. D. 781; on app. 2 C. P. D. 215.1 A privilege did not exist because local administration is not a matter of public importance.
Palles, C.B.
[You cannot introduce a substantive statement of fact as a fair comment. Dowse, B.—It has been ruled that you cannot attribute corrupt or unworthy motives to a man under a plea of fair comment.]
It is not even alleged in this plea that the plaintiff wrote an article on the strength of the corruptly procured report, and it would be necessary to state that in order to sustain the defence.
Molloy and Porter, Q.C., contra.—The Queen’s Printing Office is a public office, and therefore anything connected with it is a matter of public importance; it is a matter that concerns the public. Moreover, all reports of the Houses of Parliament are of public interest, and according to 3 & 4 Vic., cap. 9, sec. 2, these reports are not to be restricted. The reports must be made public: 5 & 6 Vic., cap. 106, sec. 112. The premature publicity of papers laid before the House of Commons is also a matter of public interest. Here we have a special report made by a Committee of the House of Commons to the Lord Lieutenant, and its contents are made public by The Freeman’s Journal before other newspapers were in possession of it; this is surely a matter that concerns the public, and if so, has not a journalist a right to comment on it? In Purcell v. Sowler (ubi sup.) it was held that the administration of a workhouse was a matter of public interest. Also an appointment to a public office has been held to be a matter of public importance: Turnbull v. Bird, 2 F. & F. 508.
Dowse, B.
[The difficulty I am under in this case is that it has been laid down that attributing corrupt motives is not a fair comment. This now being the law, when all the facts of this case come before a jury, will they not show that the plea is a bad one as one of fair comment? It is only an argumentative traverse of malice.]
Assuming the facts stated in the plea to be true, there is nothing in this article written on those facts which transcends the right of fair comment.
Palles, C.B.
[In Popham v. Pickburn, 7 H. & N. 891, it was held that the libel was a statement of fact, and not a comment on a state of facts. This seems to me to be a similar case.]
Even if the inference of fact was untrue, it was a fair comment under the particular circumstances.
Dowse, B.
[Does your plea amount to this, that the article is a fair and bona fide comment on the plaintiff’s conduct in relation to the facts, not your version of them?]
Yes. As to the question of public interest, various facts of much less importance than those of the present case have been held to be of public interest, and comments upon them privileged: Davis v. Duncan, L. R. 9 C. P. 396; Kelly v. Tinling, L. R. 1 Q. B. 699.2
James Murphy, Q.C., in reply—The libel is an inference of fact; it is not only a comment on a state of facts.
Fitzgerald, B.
[The plaintiff had the means of doing an act, he had an interest in doing it, and as a matter of fact the act was done—does not that raise a presumption that he did the act; and may not a fair comment consist in this, that the defendant states in his plea facts which he must prove, and from those facts he infers that the plaintiff acted as he states in the article?]
If the state of facts alleged are consistent with the innocence of the plaintiff, the defendant would not be justified in drawing the inference of his guilt. I may *110 have had an opportunity of committing a crime, but without stating that a crime was committed my guilt could not be inferred. The defendant does not allege misconduct by stating, in the plea, that the plaintiff was the person who took the document.
Palles, C.B.
[If a jury might have drawn that inference, why may not the defendant have drawn it?]
Because something would have to be shown inconsistent with the plaintiff’s innocence. The comment is a charge of misconduct, and no grounds have been shown for that charge. The statement of one fact cannot be excused as a fair comment on another fact.
Cur. adv. vult.
Palles, C.B.—This case comes before us upon a demurrer to the statement of defence in an action for libel. The plaintiff was the manager of the Queen’s Printing Office, and was on the literary staff of The Freeman’s Journal, and in the habit of contributing articles to it. The imputation in the libel is that he dishonestly or corruptly supplied to that newspaper information acquired by him as manager of the Queen’s Printing Office. The plea in substance avers that before the publication complained of, publicity was given by the plaintiff through an article written by him in The Freeman’s Journal to a report of the Inspectors of Fisheries, before it had been forwarded to any of the public journals from the office of the Inspectors of Fisheries. It also avers that publicity was given by the plaintiff through an article written by him in the same newspaper to a report of a Committee of the House of Commons before a copy of that report was procurable by the public, and before it was in the hands of members of the House of Commons. These matters the defendant relies on as being matters of public interest. We assume that they are so; and if the defendant is right in saying that the publication complained of is only a fair and bona fide comment on those facts, then, upon the assumption I have made, the defence is good. The defence further shows, as matter of fact, that when publicity was so given to each of those reports, the Queen’s Printing Office had the reports for the purpose of being printed, and that upon the day before the article of the plaintiff in reference to the House of Commons Report, the plaintiff informed a messenger who had been sent to the Queen’s Printing Office by another Dublin newspaper for a copy of that report, that it could not be then procured, and would not be ready for some time. The defence, also, contains a statement of the belief of the defendant that the information enabling the said articles to be written could only have been procured from the Queen’s Printing Office. These matters, together with a statement that the plaintiff was manager of the Queen’s Printing Office, and on the literary staff of The Freeman’s Journal, are the material averments of fact in the defence. That a fair and bona fide comment on a matter of public interest is an excuse of what otherwise would be a defamatory publication is admitted. The very statement, however, of this rule assumes the matters of fact commented upon to be, somehow or other, ascertained. It does not mean that a man may invent facts, and comment on the facts so invented, in what would be a fair and bona fide manner on the supposition that the facts were true.
Setting apart all question of form, the questions which would be raised at the trial by such a defence must necessarily be—first, the existence of a certain state of facts; secondly, whether the publication sought to be excused is a fair and bona fide comment upon such existing facts. If the facts, as a comment upon which the publication is sought to be excused, do not exist, the foundation of the plea fails. In the present case the defence sets forth, and in my opinion properly sets forth, in detail the several matters of fact upon which the alleged libel is said to be a comment, and the only question for us is whether that publication can be a fair comment upon the matter so averred in the plea. If it might be so it is for the jury, not for us, to say whether it in fact was so. Now, as I have already observed, the imputation to be justified is, that the plaintiff dishonestly, or corruptly, supplied to a newspaper information acquired by him as a manager of the Queen’s Printing Office. Leaving out the qualifications “dishonestly” or “corruptly,” as clearly comment, the allegation of fact to be excused is, that the plaintiff supplied the information. The defence contains no allegation that he did supply it. There is an allegation of the defendant’s belief that the information could only have been procured from the Queen’s Printing Office, but there is not even an allegation of fact—as distinguished from belief—that the information could only have been so procured. If, therefore, the charge of supplying the information can be excused under the defence, it can be so only by taking that charge as part of the comment. It was contended, during the argument, that the statement of one fact cannot be excused as fair comment upon another fact. That proposition is, in my opinion, far too wide, and I cannot concur in it, but I think that when a matter of fact is to be excused as comment upon another fact, the fact alleged, and sought to be excused, must be a reasonable inference from the facts alleged, and upon which it is a comment. Whether the fact averred be capable of being reasonably inferred from such other facts is a matter of law, just as on the trial of an indictment it is for the judge to say whether the guilt of the prisoner can be reasonably inferred from the facts proved. If not it is his duty to withdraw the case from the jury, and direct a verdict of not guilty. If, then, from the facts alleged in the defence—viz., the position of the plaintiff; the publicity given by him to the reports, and the answer given by him to the messenger, it can reasonably be inferred that he did supply the information, then, but not otherwise, the defence is good. I am unable to arrive at the conclusion that any such inference can reasonably be drawn. I can see nothing that would make it a fair inference, unless the fact of a man having the means of committing a crime, and that crime being in fact committed, will warrant the inference that he who had the means was the criminal. In my opinion, therefore, the defence is bad.
I think it unnecessary to refer to the cases which were cited during the argument. The principle of law seems to be admitted—the only question is as to its application to the allegations in the defence before us.
Fitzgerald and Dowse, BB., concurred.
Murphy v Times Newspaper Limited
[1996] IR 169
Hamilton C.J.
16th May 1996
I agree with the judgment which is about to be delivered by Barrington J.
O’Flaherty J.
I also agree with the judgment which is about to be delivered by Barrington J.
Barrington J.
These appeals arise in two defamation actions which were heard jointly before Lynch J. and a jury on the 20th, 21st, 22nd, 23rd, 27th and 28th March, 1990.
The two plaintiffs are brothers. Thomas Murphy resides at Ballybinaby, Dundalk in the County of Louth on a farm which straddles the border with County Armagh. Patrick Murphy lives nearby on a farm at Cornonagh, Crosmaglen in the County of Armagh. He also farms at Ballybinaby.
The first defendant is the publisher and proprietor of “The Sunday Times” which has a large circulation in the United Kingdom and in Ireland. The second defendant is the editor of this newspaper. The third, fourth, fifth and sixth defendants are journalists attached to the newspaper who together wrote the article complained of in these proceedings. This article appeared in the issue of the Sunday Times for the 30th June, 1985 under the title “Portrait of a Check-in Terrorist”.
Inset at the top of the said article is a paragraph in bold print containing the following words – “Last week the police announced that they had discovered an IRA plan to plant bombs in twelve seaside resorts. They detained over a score of people and appeared to have destroyed one of the Provisional IRA’s active service units. But the triumph has a dark side: there are more of these units. How are they created and how are they destroyed? A report by Andrew Hogg, Barrie Penrose and Chris Ryder”.
The article itself, having dealt with an abortive attempt to blow up a hotel in London by a terrorist who had “checked in” as a guest proceeded as follows:
“In Ireland itself the planning of mainland campaigns is surrounded now by a more tightly knit security. The IRA’s army council last February appointed a farmer in the Republic, called ‘Slab’ Murphy (which is not his real name) to be it’s Operations Commander for the whole of Northern Ireland. He has no conviction for terrorist activities and this, plus the fact that he is on the other side of the border makes him a security headache hard to cure.
Murphy is likely to have had to sanction certain key Provisionals travelling to Britain to take part in this summer’s planned bombing campaign. It would have been a task made easier to keep secret by the fact that his farm is close to the small town of Dundalk where IRA men on the run can gain sanctuary in ‘safe houses’.”
It would appear that the plaintiffs’ father was known as “Slab” Murphy to distinguish him from other Murphys who lived in the area and it would appear that his three sons were known collectively as “The Slab Murphys” and individually as “Slab Murphy”. The plaintiffs therefore claimed that the article was understood to refer to each of them individually and that it was grossly defamatory.
Procedure
The defendants original defence to each of the plaintiffs’ claims was a traverse in which each of the plaintiffs was put on proof of all of his allegations. However by letter dated the 13th February, 1990, the defendants, pursuant to O. 36, r. 36 of the Rules of the Superior Courts, 1986, served a notice in mitigation of damages in each case. These notices were in identical terms and read as follows:
“Take notice that at the trial of this action the defendants intend to give evidence of the following matters with a view to mitigation of damages:
(1) That the plaintiff is a man of worthless reputation and character,
(2) That the plaintiff is a man of violence,
(3) That the plaintiff, in April 1989, was involved in an attack on Customs Officers engaged in the investigation of smuggling of hydro-carbon fuels.”
That was the state of the pleadings when the matter came on for hearing before Gannon J. and a jury in February, 1990. During the course of that trial the defendants applied to amend their defences to plead justification. Gannon J. granted this application on terms that the defendants should pay the entire cost of the actions up to the date of the amendments.
Subsequently on the 23rd February, 1990, the defendants delivered their amended defences which were identical in each action.
At paragraph 8 of their amended defences the defendants pleaded as follows:
“If the description Slab Murphy is applied to the plaintiff, which is denied, the words complained of are true in substance and in fact insofar as they assert that the plaintiff was a prominent member of the Provisional IRA.”
At paragraph 11 of their amended defences the defendants pleaded as follows:
“The defendants plead in mitigation of damages that the plaintiff was and was known to be at all material times actively supportive of the Provisional IRA.”
It will be noted that the plea of justification raised by the defendants was a plea of partial justification only. They did not attempt to justify the suggestion contained in the article that Slab Murphy was the organiser of a campaign of mass murder of innocent civilians at twelve seaside resorts in England.
However, at the trial, the subject matter of the present appeal, counsel for the plaintiffs submitted that the substantial defence of the defendants was now justification and that therefore the defendants should lead with their evidence on justification after the plaintiffs had given formal evidence of publication and that the article was understood to refer to them. Lynch J. rejected this application on the basis that it would be too confusing for the jury to hear the plaintiffs first, then the defendants and finally the plaintiffs in rebuttal.
The verdict
At the conclusion of the proceedings the jury in the Thomas Murphy case answered the questions on the issue paper as follows:
“(1) Did the words complained of refer and were they understood by reasonable people to refer to Thomas Murphy? Answer: Yes.
(2) Did the words complained of mean and were they understood by reasonable people to mean that:
(a) Thomas Murphy was a prominent figure in the Provisional IRA, an unlawful organisation and an organisation associated in the public mind with unlawful violence, brutality and murder? Answer: Yes.
(b) Thomas Murphy planned murder and the bombing of property? Answer: Yes.
(c) Thomas Murphy was prepared to sanction, plan and countenance the bombing of twelve seaside resorts in Britain? Answer: Yes.
(d) Thomas Murphy sought, planned, sanctioned and aimed to cause indiscriminate slaughter at twelve seaside resorts in Britain? Answer: Yes.
(3) If you answer “yes” to question one and “yes” to paragraph (a) and/or (b) of question 2 are such words and meanings in question 2(a) and/or (b) true in substance and in fact that is to say:
(a) Thomas Murphy was a prominent figure in the Provisional IRA, an unlawful organisation and an organisation associated in the public mind with unlawful violence, brutality and murder? Answer: Yes.
(b) Thomas Murphy planned murder and the bombing of property. Answer: Yes (please note that if you answer “yes” to either part of this question then no damages are to be awarded in respect of the words and meaning so found to be true irrespective of the answers to any of the other questions in this issue paper).
(4) If you answer “yes” to question one and “yes” to any part of question two was Thomas Murphy:
(a) Actively supportive of the Provisional IRA? Answer: Yes.
(b) A man of worthless character. Answer: Yes.
(c) A man of violence. Answer: Yes.
(5) If you answer “yes” to question one and “yes” to any part of question two then assess damages (if any) for Thomas Murphy having regard first to your answer to question three above: secondly to your answer to question four above: and thirdly to the whole of the evidence in and the conduct of the case in general. Answer: Nil.”
On this basis the learned trial judge dismissed Thomas Murphy’s case and awarded the costs to the defendants.
In Patrick Murphy’s case the questions on the issue paper were the same and the answers to questions one and two were the same. The answers to question three however were different and were as follows:
(3) If you answer yes to question one and yes to paragraph (a) and/or (b) of question two are such words and meanings in question 2(a) and/or (b) true in substance and in fact that is to say:
(a) Patrick Murphy was a prominent figure in the provisional IRA, an unlawful organisation and an organisation associated in the public mind with unlawful violence brutality and murder? Answer: No.
(b) Patrick Murphy planned murder and the bombing of property. Answer: No (please note that if you answer “yes” to either part of this question then no damages are to be awarded in respect of the words and meanings so found to be true irrespective of the answers to any of the other questions in this issue paper).
(4) If you answer “yes” to question one and “yes” to any part of question two was Patrick Murphy:
(a) Actively supportive of the Provisional IRA? Answer: Yes.
(b) A man of worthless character. Answer: Yes.
(c) A man of violence. Answer: No.
(5) If you answer “yes” to question one and “yes” to any part of question two then assess damages (if any) for Patrick Murphy having regard first to your answer to question three above: secondly to your answers to question four above: and thirdly to the whole of the evidence in and the conduct of the case in general: Answer: £15,000.00.
On the basis of the answer to these questions the learned trial judge entered judgment for Patrick Murphy against the defendants in the sum of £15,000 and costs.
Legal issues
The defendants, as was their right, ran two parallel defences in this case. The first was based on partial justification and was concerned with the quality of the plaintiffs as human beings. The defendants suggested that the plaintiffs were men of violence and members or supporters of the Provisional IRA. The second was concerned with the plaintiffs’ reputation or standing in the community and suggested that the plaintiffs’ reputation or standing in the community was so low that the article did them little or no damage. Both defences are concerned with questions of fact and once evidence was properly adduced in support of either defence the jury was entitled to consider it. The problem is that evidence which would support the conclusion that a man had a bad reputation in the community would not necessarily support, or even be admissible to support, a plea of justification.
To put the matter in the simplest of terms a lay witness might make three statements concerning a doctor. He might say:
(1) He is a very good doctor.
(2) He has the reputation of being a very good doctor.
(3) In my opinion he is a very good doctor.
The first two statements both purport to be statements of fact and may either be true or false. But the second statement is not admissible in evidence as proof of the first statement and the third statement is purely subjective and is not proof of anything.
Witnesses called to give evidence as to a person’s standing in the community are sometimes asked their own opinion of the man. This is fairly harmless as the witness would hardly come to court unless he shared what he claimed was the general view of the man’s standing in the community.
A number of the plaintiffs’ witnesses (including a retired S.D.L.P. County Councillor, the secretary of the local football club, the local teacher, the local veterinary surgeon and a priest) testified not only to the plaintiffs’ standing in the local community but also gave their own opinion concerning them. The local T.D., Mr. Brendan McGahon, called by the defendants, swore that the plaintiffs had the reputation of having links with the Provisional IRA and made quite clear that that was his opinion also.
Inspector Trenty, of the Garda Siochana , was unable to say what the standing of the plaintiffs was with their neighbours but stated that members of the Gardaà were satisfied that they were engaged in subversive activity on behalf of the Provisional IRA.
Brigadier Peter Morton was called to give evidence in the absence of the jury as to the light in which the plaintiffs were seen by a British Army Unit serving on the border. Mr. McKenna, on behalf of the plaintiffs, objected to Brigadier Morton giving evidence to the jury on the basis that his evidence was no more than opinion evidence based on hearsay. The trial judge, ruling against Mr. McKenna, made the following significant statement:
“Objection is taken on behalf of the plaintiffs, to the evidence of the witness, Brigadier Peter Morton, on the basis that his evidence is no more than hearsay. It is submitted that he can give no evidence of solid facts and the only evidence he has given is evidence of opinion, and it is submitted that opinion evidence is admissible only by a properly qualified expert to give his opinion on the facts which have been proved. This seems to me to miss the point so far as the nature of the defamation action is concerned. Such an action relates to an injury to reputation. Reputation is no more or no less than the opinion of other people regarding the plaintiffs. They do not have to be experts. On the contrary it is the opinion of ordinary reasonable people or, as is often said, of right thinking people regarding the plaintiffs.”
It is not, of course, correct to say that:
“Reputation is no more or no less than the opinion of other people regarding the plaintiffs.”
A man’s reputation is a fact which rests on the opinion of other people concerning him but is not the same as that opinion. It is quite clear from the learned trial judge’s comment elsewhere that he appreciated this distinction. But whether the jury appreciated the difference between a witness’s opinion of the plaintiffs (which was not or should not have been an issue at all), the reputation of the plaintiffs (put in issue by the plea in mitigation) and the quality of the plaintiffs as human beings (put in issue by the plea of justification) is a troubling question to which I shall return again.
Grounds of appeal
The plaintiff, Thomas Murphy, appealed against the decision in his case. Both parties appealed against the decision in Patrick Murphy’s case. As however the two cases were heard together and as Thomas Murphy’s appeal raises the more difficult questions I shall deal with it first.
The order of the evidence
The plaintiff’s first specific complaint is that the trial judge ought to have required the defendants to lead their evidence on justification and mitigation immediately after the plaintiffs had given evidence that the article had been published and that it referred to them. Looking at the matter now with the wisdom of hindsight there is some force in this submission. It would certainly have made it easier to segregate evidence of specific fact from evidence of general reputation.
Mr. McKenna, however, also submits that it would have prevented the cross examination of the plaintiffs from becoming what he described as “a lethal cocktail” of cross-examination as to credit, cross examination as to mitigation and cross-examination as to justification. For instance Patrick Murphy was cross examined as to his brother Thomas having been detained under s. 30 of the Offences Against the State Act, 1939. In the course of the cross-examination he was asked the following questions [Book Two of the transcript, page 64]
“Q586 He never mentioned to you the fact that he was questioned in relation to a number of murders that had taken place, did he?
Q587 Did you ever hear of the murder of a Mr. John McNulty?
Q588 What did you know about that?
Q589 How was he killed?
Q590 Now, you have told me you knew about the murder of Mr. McNulty?
Q591 And do you know why he was killed?
Q592 And do you know how he was killed?
Q593 Did your brother Frank ever mention to you or rather your brother Tom, ever mention to you that the Guards in Dundalk asked him about that?”
When the defence ultimately led their evidence it emerged that the arrest of Thomas Murphy under s. 30 of the Offences Against the State Act, 1939, had taken place sometime prior to the murder of Mr. McNulty so that Thomas could not have been questioned by the Gardaà about that murder.
Mr. McKenna submits that these questions, which were both damaging and non-probative, would not have been asked had the defendants been told to lead their evidence on justification first. It can also be blamed however, on a mistake in counsel’s instructions. But the real point is that the order in which the parties should lead their evidence was a matter for the trial judge’s discretion. [See Gatley on Libel, 8th Ed., paragraph 1335]. The trial judge chose the course which he thought best in the circumstances. He thought it would be confusing for the jury to hear the plaintiffs first, then the defendants and then the plaintiffs in rebuttal on the justification and mitigation issues. It appears to me that he was entitled to take that view.
Admission of certain evidence
Mr. McKenna also complains that the defendants were permitted to adduce what he describes as “opinion” evidence from witnesses who were not experts and of the difficulties which resulted for him in attempting to cross examine these witnesses.
One must set this problem in context. A major issue in the case was the general reputation of the plaintiffs. They had adduced evidence to show their reputation in the local community. It appears to me that Mr. Sutton was entitled to adduce evidence of their reputation with the security forces on both sides of the border with a view to presenting an alternative picture of their general reputation.
A man’s reputation may be based on specific actions which are easily ascertained. It may also be based on hearsay and rumour or on a combination of all three. Cross-examining a witness who gives evidence as to reputation is therefore a hazardous business as the cross-examiner may, unwittingly, induce the witness to give answers which are based merely on gossip and rumour.
No doubt for that reason Mr. McKenna, in his cross examination of Brigadier Morton before the jury, demanded a “hard fact” on which the Brigadier based his assertion that the plaintiffs were members of the Provisional IRA. Brigadier Morton replied [in his answer to question 198, book 5 of the transcript] as follows – “I will give you one example. There was an explosion of a radio controlled device on a road. That is it was set off by radio control which means line of sight, the observer has to see the explosion. That occurred and there was a subsequent incident connected with it in which there was another radio controlled series of explosions. The only place from which the bomb, in that second incident, could be seen was from the Murphy’s farm area. Now I still cannot prove that the Murphys were involved in that incident but the supposition was so strong that I have no doubt whatsoever in my mind that they were”.
At a later stage into the cross-examination [in answer to question 208] the Brigadier, referring to a group of his men hiding in an observation post near the border said – “. . . eight men fired at them from the other side of the border using high velocity rifles. In that incident, they thought, amongst themselves, they recognised Thomas Murphy but . . . the distance was so great that absolute definitive identification could not be made and, in other incidents, similar situations to that, the terrorists on those occasions wore masks, again making identification impossible.”
One cannot blame either the trial judge or counsel for the fact that the two passages quoted got before the jury. But the important point is that they do not constitute evidence, that the plaintiffs or either of them were members of the Provisional IRA. So far as that issue is concerned the first passage quoted is not proof and the second passage quoted is not evidence at all. It was vitally important that the trial judge should have pointed out this fact in his charge to the jury.
The judge’s charge
As previously pointed out this was an extremely complex case in which issues touching questions of partial justification, issues touching questions of reputation and issues touching questions of mitigation jostled with one another. The issues of justification and mitigation turned upon disputed questions of fact which the jury had to resolve. The issue of general reputation was also an issue of fact which the jury had to resolve. Mr. Sutton, for the defendants, has pointed out that evidence admitted under the head of reputation was properly before the jury even though it might not have been admitted if the jury was concerned only with the questions of justification. This is quite so. But the evidence did not change its nature simply because it got before the jury on the question of reputation Even if the jury were satisfied that Thomas Murphy had the reputation of being a man of violence and a member of the Provisional IRA that did not prove that he was a man of violence or a member of the Provisional IRA nor was it even an issue which the jury was entitled to take into consideration in deciding whether he was a man of violence or a member of the Provisional IRA. A fortiori, if, under the heading of reputation, evidence crept in which was merely opinion evidence or based on hearsay it was essential that the jury should have been told that this evidence was of no value and that they should attach no weight to it.
Unfortunately the judge’s charge made no attempt to distinguish between evidence which was relevant to the issues of justification and mitigation, evidence which was relevant to the issue of reputation, and evidence of mere opinion or hearsay which was of no value at all. In this respect it appears to me that the charge of the learned trial judge was defective and that Mr. McKenna’s criticism of the judge’s rulings on admissibility is more effective when directed against the charge itself.
The customs issue
On the 7th April, 1989, a fracas took place at the border on the Murphys’ farm between the Murphy brothers and some customs officers. This incident arose out of the Murphys’ alleged smuggling activities and, in itself, had no direct bearing with their alleged membership of the IRA. It had, however, a sinister undertone in that one of the customs officers stated that Patrick Murphy had threatened, towards the end of the incident, to get a motor car to bring the customs officers to Crossmaglen “to be fixed” [Transcript, book 4, p. 48, question 396].
Mr. McKenna complains that the trial judge invited the jury to use this incident, which, Mr. McKenna asserts was peripheral to the main dispute between the parties as a touchstone by which the jury could decide which side in this bitterly disputed case was telling the truth. Mr. McKenna complains moreover that the trial judge let it be known that he, the trial judge, believed the customs officers and thereby, in effect, invited the jury to decide the whole case in favour of the defendants. Mr. McKenna’s immediate reaction, at the trial, was, when raising a requisition in relation to the judge’s handling of the customs incident to state”I’m afraid, my Lord, I regard this trial as nearly irretrievably destroyed”.[Transcript, book 6, page 70.]
The customs officers’ evidence was that they were visiting the Murphy farm in the course of their duties as customs officers when their car was set upon by the Murphy brothers. The Murphys, on the other hand, said that they did not know that the car contained customs officers but assumed that the men in it were dangerous intruders. Commenting on the two rival versions of what happened on this occasion the learned trial judge, in the course of his charge, said [see transcript, book 6, page 63]
“Now, as I say, I am going to make some comments about this and I want to repeat you are not in the least bound by my comments or anything I say. I merely comment on it, hopefully, for your assistance. If it doesn’t appeal to you, you reject it. Patrick Murphy says he got a telephone call that a car was down at the complex acting suspiciously, down at the Northern complex. This man who telephoned him was a man, he says, named Larrigan and then he says they heard the car go by. He heard the car go by and he followed it. I can’t understand why, if the car had been acting suspiciously down in the complex and obviously had come out of the complex again, if it was to be seen go by and heard go by the mother’s house, why would they go back again to the complex, having been there, and having come out of it and gone off in the Dundalk direction. It doesn’t make sense to me. Thomas Murphy says he arrived after the telephone call from Larrigan saying that a car, a suspicious car, was down at the Northern complex and that Patrick Murphy set off not to go to the complex but to go to his own house, his bungalow, and that when he went up there he shouted that the car was up there and the car then came back again and went by from south to north. This is the same point, if the car was down in the complex it obviously had come back out of the complex and what was it doing and why would it go back again into the complex. Wouldn’t they be back halfway to Dundalk but that’s the way it is. Who is Mr. Larrigan? We do not know. What did he see or did he telephone? We have not heard from him and one other point that I am puzzled about, and that’s the breaking of the driver’s window. What Patrick Murphy said was that, in his answer to his own counsel, he said the gate swung back and knocked the driver’s window out of the car and, in cross examination, he said he went to the window and gave it a tap and it fell out, the gate hit the window. He didn’t carry a concrete block or break the window but in cross examination of Mr. Colgan it was put to Mr. Colgan and accepted that when he went and rammed the gate he succeeded in opening it to such an extent that he didn’t have to go over any part of the gate. In fact, it was put to him that the gate was on ramshackle old wooden posts, as indeed are probably the majority of farm gates in this country, and if it was on ramshackle old posts, I am sure some of you have country associations, you would always have to lift the toe of the gate to open it, because it hangs down on the ground and you would have to lift the toe of the gate to close it because it still hangs down on the ground so how on earth the gate could have swung back to break the car, the driver’s window, I can’t see but maybe you can. Moreover, it was put to him and accepted when he gave the evidence, put to Mr. Colgan in cross examination, as to knocking the gate right out of the way, he said, yes, he did. In fact the gate came off it’s hinges and shot across the road and he agreed he didn’t have to cross over the gate with the wheels of the car at all and that was accepted as a reasonable explanation as to why he didn’t have to cross the gate at all with the wheels of his car and if the gate was lying flat on the far side of the road I find it hard to see how the gate swung back and, concurrently with Mr. Murphy tapping the window, succeeded in crashing into it and breaking it. Now these are questions of fact, hard fact, as distinct from opinion as to whether they are good, bad or indifferent people. You are not in the least bound by the views which I think I have made pretty obvious that I have regarding this aspect of the case. You will make your own mind up and you needn’t have the slightest worry if you disagree with me. I couldn’t care less. I wouldn’t be in the least offended but you know my views and I have put that to you because that’s a hard issue of fact, contradictory evidence of hard facts and one or other set, one or other side is lying. If the customs men are lying then they must have been suborned by the Sunday Times and that’s an appalling state of affairs. If it’s the Murphys are lying then how much reliance can you place upon their evidence that they are not members of the IRA and not in this, that or the other. It’s a matter – it may be a straw in the wind – but it’s a matter for you, ladies and gentlemen, to decide the facts and to answer the questions on the issue paper as you, in your wisdom, your collective wisdom, think fit.”
A number of comments might be made on the passage quoted from the judge’s charge. First of all there is no doubt whatsoever that the judge was perfectly entitled to comment on any question of fact in the case for the benefit of the jury. Secondly, it is not correct to suggest that the judge usurped the jury’s function. He bent over backwards to make clear to the jury that they were in no way bound by his comments on the facts. It could be argued that, having made this customs incident into the touchstone by which the jury should decide which side to believe in this bitterly fought case, the trial judge might have been more prudent not to reveal his own view as to who was telling the truth. Nevertheless, having regard to the fact that the judge made so clear that the issue to be decided was one for the jury and not for him one could not say that he had in any way usurped the functions of the jury.
Unfortunately the passage quoted raises two further problems – the first concerns the trial judge’s description of the gate. It will recall to any person familiar with Irish country life a picture of a gate on ramshackle old wooden posts the toe of which needs to be lifted before the gate can be opened. Unfortunately there is no evidence that the gate in the present case was such a gate. The learned trial judge says that it was put to Mr. Colgan in cross examination that the gate in the present case was such a gate. Undoubtedly the questions of country gates in general and this gate in particular came up for discussion in the course of Mr. Colgan’s cross examination [see Transcript, book 4, pp. 64 and 65] but Mr. Colgan never said, or accepted, that the gate in the present case was of the kind described by the learned trial judge.
Mr. McKenna raised a requisition on this point at the conclusion of the judge’s charge but the matter was not put right.
This question of the nature of the gate related to a contingent possibility in a peripheral affair in this case. Nevertheless, once the trial judge had suggested that the jury should use this incident to test which of the two sides was telling the truth, it became central to the case and therefore it became essential that the judge’s recapitulation of the facts for the benefit of the jury should be totally accurate.
The second matter in the passage quoted which gives rise to concern is the following sentence – “If it’s the Murphys are Lying then how much reliance can you place upon their evidence that they are not members of the IRA and not in this, that or the other.”
Elsewhere in his charge the learned trial judge had made clear that the onus of proof was on the defendants to establish their various allegations that the plaintiffs were smugglers, men of violence, members of the Provisional IRA etc. But it is necessary to recall that this was a case in which the credit of the plaintiffs was put in issue from beginning to end. They had been subjected to the most severe cross examination as to credit and the trial judge was now turning the customs issue into a credit issue also. In these circumstances the jury might well conclude that if they disbelieved the plaintiffs’ version of the customs incident and did not accept their various denials, that they should find for the defendants on these particular issues. To have done so on that basis would, however, have been wrong. The purpose of cross examination as to credit is to undermine the credibility of a particular witness so that a jury will be slow to accept either his assertions or his denials. But the fact that a dishonest witness denies something is not evidence that what he denies is true. As Scrutton L.J. put the matter in Hobbs v. C.J. Tinling & Co. Ltd. [1929] 2 K.B. 1, at p. 21:
“If by cross examination to credit you prove that a man’s oath cannot be relied on, and he has sworn he did not go to Rome on the 1st May, you do not, therefore, prove that he did go to Rome on the 1st May; there is simply no evidence on the subject.”
This whole question of credit and the effect of cross examination as to credit is one on which the trial judge should have given the jury some guidance in the circumstances of the present case. It is not that what the learned trial judge said to the jury in the sentence quoted is a misstatement of the law but rather that it is an insufficient statement to guide the jury in the complex circumstances of the present case.
For these reasons I consider that the trial was unsatisfactory and I would direct a new trial.
The case of Patrick Murphy
As previously indicated both parties appealed against the decision of the High Court in Patrick Murphy’s case. At the hearing of the appeal both parties confined themselves to the issue of damages – Mr. McKenna submitting that the damages of £15,000 awarded to Patrick Murphy were grossly inadequate and Mr. Sutton submitting that having regard to the whole of the jury’s verdict, Patrick Murphy should have received no damages at all, and that his case should, therefore have been dismissed.
The jury had found that Patrick Murphy was not a prominent figure in the Provisional IRA and that he was not involved in the planning of murder and the bombing of property. They found that he was actively supportive of the Provisional IRA but that he was not a man of violence. On the other hand in answer to the question as to whether he was “a man of worthless character” they had answered “yes”.
Mr. McKenna submitted that once the jury had found that Patrick Murphy was not a man of violence they should have awarded him very heavy damages for being branded by the defendants as a man who was prepared to plan the mass murder of innocent citizens at twelve seaside resorts in England. Mr. Sutton, on the other hand, submitted that once the jury had found Patrick Murphy to be a man of worthless character they should have awarded him no damages at all.
Both these submissions carry weight and it appears to me that the fundamental problem lies with the questions which the jury was asked to answer – in particular the question as to whether Patrick Murphy was a man of worthless character.
It appears to me to be unacceptable to ask any jury to decide that a fellow citizen is a man of “worthless” character. Moreover, the phrase is ambiguous in more ways than one. At one time the word “character” was used as equivalent to “reputation”. Nowadays it is more often used to mean “disposition” and to refer to a man’s quality as a human being. The jury, however, must have taken the view that even though Patrick Murphy was a man of damaged reputation he was not a man of violence and that his reputation must therefore have been further damaged by his being branded as a man who planned the mass murder of innocent people.
Nevertheless, if we send the case back merely for the assessment of damages on the basis of the present questions, any verdict which the jury arrives at will be open to the kind of criticism made by Mr. McKenna or by Mr. Sutton or by both of them.
The only way out of this dilemma appears to me to be to regard the trial of Patrick Murphy as being also unsatisfactory and to direct a new trial in his case also.
John Reynolds v Elio Malocco trading as ‘Patrick’, Declan Murray, Frank White and Peter Laur and by order Fanville Ltd
1998 No. 12905P
High Court
11 December 1998
[1999] 1 I.L.R.M. 289
(Kelly J)
11 December 1998
KELLY J
delivered his judgment on 11 December 1998 saying:
Introduction
The plaintiff seeks an interlocutory injunction restraining the defendants and each of them from in any manner or fashion howsoever publishing, disseminating or circulating an article intituled ‘Operation Night-Cap Causes John Reynolds Sleepless Nights As Cops Raid Club’. The article in question is contained in the first issue of a new magazine called ‘Patrick’.
The plaintiff is a company director who is involved in the running of two nightclubs one called ‘Pod’ and the other ‘Red Box’, both of which carry on business in Dublin.
The first named defendant describes himself in his affidavit as a journalist and is described in the body of the magazine as its editor. The second named defendant has no existence but is the first of two purported authors of the article in question. At the hearing it emerged that the name Declan Murray is a pseudonym for the first named defendant Elio Malocco.
The third named defendant has no existence either even though he purports to be the second author of the article in question. The name Frank White is a pseudonym for a gentleman called Luciano Magliocco who is a relation of Elio Malocco.
Little information is available as to the fourth named defendant. He is described in the magazine under the heading ‘Publisher’s Letter’ as the publisher with an address given simply as ‘London’. He is also described in the body of the magazine as ‘the boss’. His address in the plenary summons is given as Foxrock Post Office Dublin. Notwithstanding his assertion in the body of the magazine to be its publisher, it emerged in the course of the hearing that a company called Fanville Ltd holds itself out to be such publisher and indeed the owner of the magazine.
Fanville Ltd is a limited liability company which was formed on 20 January 1998. It has two directors, one of whom is Margarret Magliocco and the other is Colette Kerr. It has a paid up capital of £2. Both issued shares are owned by a *292 limited company. Ms Kerr appeared before me and indicated that she was the secretary of Fanville Ltd. She also swore an affidavit on behalf of that company. However, in light of the decision of the Supreme Court in Battle v. Irish Art Promotion Centre Ltd [1968] IR 252 I was obliged to rule that she could not appear on behalf of the limited liability company. She accepted my ruling and took no further part in the proceedings.
Mr Elio Malocco appeared personally as did Luciano Magliocco under the pseudonym Frank White. Mr Laur was not represented.
The article
The article to which exception is taken by the plaintiff commences at p. 31 of the magazine and concludes at p. 33. Apart from the heading which I have already reproduced in the first paragraph of this judgment, the other parts of the article in respect of which complaint is made read as follows:
Pod and U2’s Kitchen Nightclubs Among 12 Dublin Nightclubs and Late-Night Bars Stung By Undercover Gardai Buying Illegal Drugs. So Far, Up To 30 People Arrested In Various Clubs And Pubs
Gay bachelor John Reynolds is feeling far from gay these days. The face synonymous with what was once one of Dublin’s top nightclubs, the POD, is in big trouble. PATRICK magazine can exclusively reveal that the POD nightclub has been visited by undercover gardaí who have bought drugs there not once but on several occasions. Efforts were made by our journalists to contact Reynolds and give him an opportunity to speak about the drugs problem, but through his spokes-person he declined to comment. During the summer Reynolds approached two journalists from PATRICK in the POD who were working on this story and told them to leave his club — that he did not want their ‘type’ there.
This is not Reynolds’ first brush with the law but the difficulties he faces now are far more serious. Should the gardaí proceed with the prosecution and be successful Reynolds would be banned from holding a licence or operating a nightclub for five years. The gay bachelor, who is featured regularly in the tabloid gossip columns where the names of his latest model girlfriends are plugged, is seriously worried. The consequences of a successful prosecution by the National Drugs Unit for the Porsche-driving Reynolds could be devastating. Not only would he personally be banned but the POD would lose its existing licence and would no longer be able to operate as a nightclub. Furthermore, according to sources close to him, Reynolds is concerned that, if convicted, other business interests he has might also suffer, particularly if the banks were to call in their loans. But it would not be the first time that a nightclub owner was jailed if it came to that. In 1995 a Donegal nightclub owner was convicted and imprisoned for three years and fined £10,000 for allowing drugs to be sold on his premises where raves were a regular feature ….
*293
However, it remains to be seen if any premises are to be closed down or any licensees jailed. Cynics believe that no club owners would ever be jailed and those club owners who are directly involved in drugs will continue for some time to make vast profits from allowing their venues to be used as drug havens. They claim that the people who will have the full force of the law brought down to bear on them will be the drug buyers.
Despite ‘Operation Nightcap’ drugs continue to be widely available in several of Dublin’s top nightspots. There are complaints that the gardaí are dragging their feet on the matter and effectively allowing certain club owners to continue to profit from the sale of illegal drugs on their premises.
In October this year two undercover investigative journalists from PATRICK magazine had no difficulty in purchasing cocaine, ecstasy and cannabis in Lillies Bordello, the Kitchen Nightclub, the POD, the RED BOX and Bruxelles near the Westbury Hotel. It is unlikely that the owners of these clubs knew of these dealings as they have all adopted additional security measures to prevent these transactions. The journalists were able to ascertain the names of the drug dealers. When the journalists returned one week later drugs were still available in all five venues but there was a noticeable increase in club security. Maybe the message is finally getting across.
On the first page of the article there is a photograph of the plaintiff in the company of a woman whose face has been excised from the picture. It bears the legend ‘Reynolds continues to run the POD’. On the third page of the article there is a photograph of the plaintiff’s Porsche motor car. This picture bears the legend ‘Reynolds enjoys the high life’.
The plaintiff complains that the above extracts defame him in two respects. He says that the words in the natural and ordinary meaning or by innuendo allege (a) that he has been charged with permitting the sale of drugs in his nightclubs and/or that he permits the sale of drugs on the premises and is benefiting therefrom. Alternatively, he is turning a blind eye to the sale of drugs on his premises and (b) that he is a homosexual.
Mr Malocco contends that in so far as the first of these complaints is concerned the words do not bear the meanings ascribed to them. If they do, he says that he will plead justification at the trial of the action. In so far as the second complaint is concerned he says that the words do not bear the meaning contended for. He has stated in open court that the plaintiff is not a homosexual nor did he ever intend to allege such.
The plaintiff says that the libel is so serious that it is a case in which the court ought to intervene by the grant of an injunction. Without such injunction it is said the plaintiff will suffer loss which is incapable of being compensated in damages.
The defendants say there should be no injunction because there is no libel and even if there is one concerning the drugs their intended plea of justification is fatal to the plaintiff’s case.
I will shortly have to consider these contentions but before doing so it is necessary to deal with the principles applicable to the grant of interlocutory injunctions in cases of this type.
The legal principles applicable
The Judicature (Ireland) Act 1877 confers jurisdiction on the High Court to grant injunctions in all cases where it appears just and convenient to do so, and on such terms as the court sees fit. O. 50, r. 6 of the Rules of the Superior Courts authorises the grant of interlocutory injunctions.
The exercise of this power by the court has been the subject of numerous court decisions and it is possible to divine from these the relevant principles which the court applies in deciding to grant or withhold interlocutory injunctive relief.
In an ordinary case the court considers whether the plaintiff has raised a fair or serious issue to be determined at the trial of the action. If it considers that such a question has been raised it goes on to decide whether damages would adequately compensate the plaintiff in respect of any loss or damage which may be suffered as a result of the activity which is sought to be enjoined. If it decides that damages would not be an adequate remedy it then proceeds to consider whether on the balance of convenience an injunction should be granted or not. (See the decision of the Supreme Court in Campus Oil Ltd v. Minister for Industry and Energy (No. 2) [1983] IR 88; [1984] ILRM 25 and the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd [1975] AC 396).
These principles have a wide but not a universal application. In a small number of cases special rules which are not encompassed by these principles apply. One such type of case arises in the field of contracts of employment. Normally courts will not grant an injunction to restrain breaches of covenant in a contract of employment if that would amount to indirect specific performance of such a contract or would perpetuate a relationship based on mutual trust which no longer exists. Another exception to the general principles which I have already described arises in cases of the type in suit.
A plaintiff in an action such as this, in order to obtain an interlocutory injunction must show not merely that he has raised a serious issue concerning the words complained of but that there is no doubt but that they are defamatory. Furthermore, if the defendant intends to plead justification or any other recognised defence, normally an injunction of this type will be refused.
The jurisdiction to grant interlocutory injunctions to restrain publication of defamatory statements has been described as one ‘of a delicate nature’ which ‘ought only to be exercised in the clearest cases’ (see the judgment of Lord *295 Esher MR in Coulson v. Coulson (1887) 3 TLR 846).
That approach was expressly approved by the Supreme Court in Sinclair v. Gogarty [1937] IR 377. In the course of his judgment Sullivan CJ with whom all four other members of the court agreed said (at p. 384):
The principle upon which the court should act in considering such applications was stated by Lord Esher MR in Coulson v. Coulson and his statement of the principle was approved of and adopted by the Court of Appeal in Bonnard v. Perryman [1891] 2 Ch 269. The principle is this, that an interlocutory injunction should only be granted in the clearest cases where any jury would say that the matter complained of was libellous, and where if the jury did not so find the court would set aside the verdict as unreasonable.
The reason for the reluctance on the part of the courts to grant interlocutory injunctions in cases of this sort is grounded in the importance attached to the right of free speech. This has been the position from at least as far back as the decision in Bonnard v. Perryman where Lord Coleridge said (at p. 284):
The importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.
The sentiments expressed by Lord Coleridge have been heeded by the courts and nowadays are fortified by the provisions of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Lord Coleridge went on to say (at p. 284):
The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed ….
It is therefore clear that the first matter which I must enquire into is whether or not the plaintiff’s complaints are made out with the degree of clarity required so as to enable me to conclude that the words complained of are undoubtedly defamatory.
If I so conclude in favour of the plaintiff, I then have to consider whether, in the light of the defendants’ stated intention to plead justification concerning the drug dealing allegation, an injunction can be granted at all.
The reason why I have to consider this aspect of the matter arises because of the decision in Bonnard v. Perryman. As I have already pointed out, the deci *296 sion in that case was approved by the Supreme Court in Sinclair v. Gogarty. The rule established by that decision is that where a defendant in a libel action intends to plead justification, a court will not grant an interlocutory injunction to restrain publication of the statement complained of.
The question then arises as to whether a bald statement of intent to plead justification is sufficient to debar a plaintiff who might otherwise be entitled to an injunction from such relief. If it is, then the plaintiff’s application in respect to the drug dealing activities must be doomed to failure. Counsel on behalf of the plaintiff urges me not to adopt this approach but rather to conduct an examination of the defendants’ evidence so as to establish whether the plea of justification has any substance or prospect of success.
There appear to be two conflicting decisions in this jurisdiction as to the proper approach to take on this topic.
On the one hand there is the decision in Gallagher v. Tuohy (1924) 58 ILTR 134 where the matter complained of consisted of a circular containing defamatory statements concerning the plaintiff in his business capacity. Murnaghan J stated:
The question I have to decide is whether an order should be made restraining the defendants from repeating statements which they allege to be true and provable. Against the granting of such an order the authority of Bonnard v. Perryman has been cited to me, and that authority has not been controverted by the plaintiff. The effect of that decision seems to be reasonably clear. The court should not readily restrain the publication of any matter which is not obviously a libel. I would have no difficulty at all in deciding that the statement was defamatory but for the plea of justification. That plea having been raised, it seems to me that I cannot prejudge the issue and decide that the plea of justification is erroneous. That would be the effect of the injunction sought.
On the other hand, the decision of the Supreme Court in Cullen v. Stanley [1926] IR 73 demonstrates a different approach. There the plaintiff sought an interlocutory injunction to restrain the publication of statements by the defendants to the effect that he had acted as ‘scab’ on the occasion of a bakers’ strike. The plaintiff deposed that the statements were absolutely false and that he believed the publication was for the purpose of prejudicing his position as a candidate in an election. One of the defendants submitted an affidavit stating that all the allegations were true, and that he would prove this at trial. The Supreme Court nonetheless granted an interlocutory injunction. O’Connor J referred to the argument of the defendant to the effect that the rule in Bonnard v. Perryman automatically precluded the grant of an interlocutory injunction once the defence of justification was raised. He said (at pp. 84–85):
I do not think that the Court of Appeal intended to lay down a rule which should be rigidly applied to every case, because the judgment of Coleridge CJ wound *297 up with the observation that, on the whole, the court thought that it was wiser in that case as is generally, and in all but exceptional cases, must be, to abstain from interference until the trial of the plea of justification.
The judge then examined the detailed affidavit of the plaintiff, which he contrasted with the ‘baldest affidavit’ of the defendant. He held that on the evidence before that court there was nothing to support the plea of justification.
Of these two approaches I prefer the latter. I do not think that a rule which permits a defendant to in effect oust the ability of this Court to intervene by way of injunction in an appropriate case by the simple expedient of expressing an intention to plead justification at the trial of the action is consistent with the obligations imposed on the court under the Constitution. Furthermore, the application of such a rigid rule, without an ability on the part of the court to ascertain whether the plea of justification had any substance or not, would provide a happy hunting ground for unscrupulous defamers.
I am therefore satisfied that it is open to the court to examine the evidence adduced by the defendant in support of the justification plea so as to ascertain whether it has any substance or prospect of success.
I turn now to consider the complaints made by the plaintiff.
The drug dealing allegations
In looking at these allegations I note that the plaintiff accepts that he, together with 19 other nightclub operators in the Greater Dublin Area, has received notification from the police concerning drug activity and conduct relating to drugs on his club premises.
I have carefully read and re-read the parts of the article in respect of which complaint is made under this heading. Mr Malocco contends that in their natural and ordinary meaning the words in question do not allege any criminal activity on the part of the plaintiff. In that regard I believe him to be correct. Even if I am wrong on that and the words do, in their natural and ordinary meaning, make such allegations, they certainly do not do so with the degree of clarity required to enable me to say that the words are without doubt defamatory of and concerning the plaintiff.
I therefore must now turn to the contention of the plaintiff to the effect that by innuendo the words complained of amount to allegations of the wrong-doing alleged. The plaintiff’s counsel says that that is the clear inference which is to be drawn from the article. Amongst other things he says that whilst the article purports to deal with drugs in clubs (as is apparent from the cover of the magazine) in fact it is directed almost exclusively at the plaintiff. A fair reading of the article supports this contention. The article speaks of the plaintiff being ‘in big trouble’. It alleges that his premises has been visited by the police who bought drugs there on several occasions. It speaks about this not being the plain *298 tiff’s first brush with the law, but of him now facing difficulties which are ‘far more serious’. It alleges that the plaintiff ‘is seriously worried’. It speaks of the consequences for him of a successful prosecution. It then resorts to a device frequently used by journalists of citing anonymous ‘sources close to’ the plaintiff, and indicating that the plaintiff is concerned that ‘if convicted’ other business interests he has might also suffer. In the same paragraph it goes on to point out that it would not be the first time that a nightclub owner was jailed. It then deals with a Donegal owner who was imprisoned for three years for allowing drugs to be sold on his premises.
Later in the article it speaks about it remaining to be seen if any premises are to be closed down or licensees jailed. In the same paragraph it mentions that cynics believe that no club owners will ever be jailed and that those club owners who are directly involved in drugs will continue for some time to make vast profits from allowing their venues to be used as drug havens. This paragraph is juxtaposed close to the photograph of the plaintiff’s car where it speaks of him enjoying ‘the high life’.
True it is that the article then goes on to say that it is unlikely that the owners of these clubs knew of these particular drug dealings as they have all adopted additional security measures to prevent the transactions in question. That statement comes in the final paragraph of the article.
I have come to the conclusion that looking at the parts of the article which are complained of as a whole, there is present an innuendo to the effect contended for by the plaintiff. Furthermore I am of the view that such an innuendo is clear and that in the absence of a successful plea of justification a jury would say that the matter complained of was libellous. If they did so I do not believe that the Supreme Court would set aside the verdict as unreasonable. If the jury did not do so its decision would be likely to be set aside. I do not think that the inclusion of a single sentence in the final paragraph of the article would have much prospect of neutralising the sting contained in the remainder of it.
It seems to me that the article is carefully written so as to avoid making the direct allegation of criminal wrong-doing whilst at the same time creating in the mind of the reader a clear impression that the plaintiff has connived at the use of his premises for drug dealing with considerable gain to himself.
If, of course, the defendants can satisfy me that they have a prospect of success in their plea of justification then there can be no question of an injunction being granted in favour of the plaintiff.
Apart of the stated intention to plead justification what admissible evidence is there to support that plea? I refer to ‘admissible evidence’ because earlier in the hearing I struck out portions of the defendants’ principal replying affidavit together with the affidavit of Luciano Magliocco pursuant to O. 40, r.12 of the Rules of the Superior Courts because of the scandalous material contained in them.
*299
Having examined the remaining portions of the affidavit evidence it seems to me that the only real evidence which could amount to justification is that contained in paragraph 15 of the first named defendant’s affidavit. He says:
I say and believe that between January and June 1998, I have personally witnessed drugs being sold openly in both of these premises to young people. I say that I witnessed men and women who were dressed in the uniform of the club observing these drug dealings. I say that on the four occasions I was present myself I also witnessed the plaintiff John Reynolds moving around the club and mixing with people.
I do not think that that averment goes anywhere near demonstrating the existence of an arguable prospect of making out the defence of justification.
The allegation of homosexuality
Throughout the article the plaintiff is referred to on a number of occasions as a ‘gay bachelor’. He says that in its natural and ordinary meaning, the word gay is nowadays taken as meaning homosexual. He says that that is clearly defamatory of and concerning him and on this aspect of the matter it is to be noted that the defendants disavow any intention to plead justification. On the contrary they accept that the plaintiff is not homosexual but say that they never alleged that he was. In support of this contention they make a number of arguments which I will deal with in turn.
First, they say that the term ‘gay’ is an adjective used to describe a person’s demeanour as in ‘lively, cheerful, vivacious, light-hearted, fond of pleasure and gaiety’. Had this argument been made 30 years ago it would probably have succeeded. But it is an absurd proposition to put to the court in 1998.
Language is a living thing and words can change their meaning over the years. Sometimes the primary meaning of a word will undergo subtle or even profound changes. On other occasions the word may acquire a secondary meaning which it did not formerly have. The word ‘gay’ falls into the second category. Over the last 30 years or so it has come to be synonymous with homosexuals and homosexual activity. One would have to be resident on the moon not to be aware of this. Not merely has it acquired this secondary meaning but it has in fact eclipsed the primary meaning so that nowadays one rarely hears the term used other than denoting homosexuals or homosexual activity. I reject the defendants’ contention that the word is confined to the meanings asserted by them which I have reproduced in parenthesis above.
The next contention is that the use of the word ‘gay’ (as an adjective) qualifying the noun ‘bachelor’, is a term in common use to refer to men who are happily unmarried. The defendants contend that when the term ‘gay bachelor’ is used it never indicates that the person is a homosexual. Again it seems to me *300 that this argument could be made with telling force had this case occurred in 1968 rather than 1998. It is true that the term ‘gay bachelor’ or ‘bachelor gay’ may still be used with slightly more frequency than the word ‘gay’ in its original meaning. Nonetheless it seems to me that nowadays the term has practically fallen out of use largely because of the secondary meaning of the word ‘gay’. I therefore reject the contention made by the defendants that this term could not be defamatory.
The next contention made by Mr Malocco is to the effect that even if he is wrong in these contentions to allege of a person that he or she is ‘gay’ is not harmful to reputation. Mr Malocco says ‘homosexuality is an accepted part of Irish life and the days are long gone when homosexuals were simple tolerated; they are now accepted and integrated into the fabric of Irish life like other minorities and this magazine fully endorses that reality’. Mr Cooney SC for the plaintiff says that this argument holds no water. He says that an allegation of being gay is an allegation of deviant sexual practice which many people in Irish society find repellent. He therefore argues that it is clearly defamatory.
No cases were cited by either side in support of the conflicting positions which they argue for. My own researches have however discovered a decision of the Court of Appeal in England which is of assistance. In R. v. Bishop [1975] 1 QB 274 that court had to consider a case where a defendant was tried at first instance on a charge involving theft from a bedroom. In evidence he explained the presence of his fingerprints in the room by saying that he had had a homosexual relationship with a prosecution witness, which that witness had denied. The prosecution sought leave to ask the defendant questions tending to show that he had been convicted of offences other than that charged because the nature and conduct of the defence was such as to involve imputations on the character of the witness for the prosecution within s. 1(f)(II) of the Criminal Evidence Act 1898. The defendant objected on the grounds that, in view of s. 1(1) of the Sexual Offences Act 1967, an allegation that a man was a homosexual or practised homosexuality was not an imputation on his character within s. 1(f)(II) of the 1898 Act, and in any event the allegation had been made for the purpose of explaining the defendant’s presence in the room and not for that of discrediting the testimony of the prosecution witness. The objection was rejected, questions about the defendant’s previous convictions were asked, and he was convicted. He appealed to the Court of Appeal on the grounds that his objections to the evidence of his previous convictions had been wrongly rejected.
That court (Stephenson LJ; MacKenna and O’Connor JJ) dismissed the appeal. The court held that the character of a witness was impugned by an allegation of homosexual conduct made against him and an imputation of homosexual immorality against a witness might reflect on his reliability, generally or in the witness box. The court also held that a defendant who made such an attack but disclaimed the intention to discredit the testimony of the witness nevertheless *301 was still subject to the risk of cross-examination as to his own record. In the course of delivering the judgment of the court Stephenson LJ said (at p. 281):
Mr Bate submitted that in these progressive (or permissive) days it was no longer an imputation on a man’s character to say of him that he was a homosexual or that he practised homosexuality. Since 1967, when s. 1 of the Sexual Offences Act 1967 became law, it was no longer an offence to commit a homosexual act with another man of full age in private. No reasonable person would now think the worse of a man who committed such acts: he might not wish to associate with him but he would not condemn him. We think that this argument goes too far and that the gap between what is declared by Parliament to be illegal and punishable and what the common man or woman still regards as immoral or wrong is not wide enough to support it. We respectfully agree with the opinion of Lord Reid in R. v. Knuller (Publishing, Printing and Promotion) Ltd [1973] AC 435 at p. 457:
that ‘there is a material difference between merely exempting certain conduct from criminal penalties and making it lawful in the full sense’, and with him we read the Act of 1967 as saying that even though homosexual acts between consenting adults in private may be corrupting, if people choose to corrupt themselves in this way, that is their affair and the law will not interfere. If Mr Price were to sue the defendant in respect of his allegation if repeated outside a court of law, we venture to think that a submission that the words were incapable of a defamatory meaning would be bound to fail and a jury would generally be likely to find them defamatory.
Whilst this last statement is very much on point in respect of the issue that I have to deal with here it is of course a statement made obiter. Nonetheless it does appear to me to represent the legal position in England and in my view it also represents the legal position in Ireland.
Quite apart from the decision which I have just cited it does not appear to me to be sound to suggest that merely because an activity is no longer prohibited by the criminal law an allegation of engaging in such activity cannot be defamatory. The commission of adultery is not a criminal offence but nobody could seriously suggest that an allegation of adultery could not be defamatory. Similarly, to lie is not a criminal offence, but again can it be seriously suggested that to call a person a liar is not defamatory?
I reject the defendants’ contentions in this regard. The defendants do however say that the photograph of the plaintiff with a woman (albeit with her face blocked out) on his arm, and the suggestion that the plaintiff is ‘featured regularly in the tabloid gossip columns where the names of his latest model girlfriends are plugged’ makes it plain that no allegation of homosexuality is being made. I do not agree. It seems to me that it would be perfectly open to a jury to hold that the use of the word ‘gay’ in relation to the plaintiff either in its natural *302 or ordinary meaning or by innuendo was an allegation of homosexuality. A jury would be entitled to find in the plaintiff’s favour in that regard and if they did it does not appear to me that their verdict could be regarded as perverse. I do not think that the sting is removed by the reference to the appearance of the plaintiff in the tabloid gossip columns or the photograph which accompanies the article.
As there is no plea of justification in respect of this complaint it follows that the plaintiff has made out a sufficiently strong case in my view to satisfy the test required for the grant of an interlocutory injunction.
Having so concluded it does not automatically follow that an injunction should be granted.
The discretion
The grant of injunctive relief is always discretionary. In the present case I now have to consider, having found in favour of the plaintiff in respect of the complaints concerning the libels alleged, whether or not an injunction ought to be granted.
This is ‘a jurisdiction of a delicate nature’ and the court must be circumspect to ensure that it does not unnecessarily interfere with the right of freedom of expression.
I would not wish to set out in a hard and fast manner the factors which the court should or could take into account in the exercise of this discretion. It is sufficient if I identify one item of particular importance which affects me in the exercise of my discretion in this case.
If I refuse the plaintiff this injunction, it is clear that the article will be published and the plaintiff will be left to his remedy in damages at a trial to be held at some time in the future. Damages are the normal remedy for defamation and injunctions are not. Nothing in this judgment should be taken to dilute that approach. In the present case, however, the question arises as to what damages the plaintiff would be likely to recover against the defendants at trial.
The first named defendant, has, on his own admission, recently completed a lengthy prison sentence imposed for offences of dishonesty. He formerly practised as a solicitor but that option is no longer open to him. There is uncontroverted evidence that he has unsatisfied judgments against him for a sum of money in excess of £40,000. It is also uncontroverted that he has other outstanding liabilities arising from the period when he practised as a solicitor. It seems to me, as a matter of probability, that the prospects of the plaintiff ever recovering other than a paper judgment against Mr Malocco are remote.
From the information that emerged at the hearing on Monday and Tuesday of this week, Messrs Murray and White do not exist.
There remains the curious figure of Mr Laur. He did not appear either personally or through counsel. Whilst in the magazine he gives his address as ‘London’, the only address to which the proceedings could be directed was at Foxrock *303 Post Office. He describes himself as being the magazine’s publisher yet we now know that the publisher is Fanville Ltd, the added defendant. It seems to me that the shadowy figure of Mr Laur is unlikely to prove to be any better prospect for the recovery of damages than Mr Malocco.
Finally, there is Fanville Ltd. This two pound company with both shares held by another limited liability company seems unlikely to make any judgment which the plaintiff may obtain against it any less hollow than the judgment against the other defendants.
In these circumstances I am quite satisfied that my discretion must be exercised in favour of granting an injunction rather than refusing it. To refuse it would be to consign the plaintiff to a trial where damages would be an inadequate remedy because of the virtual impossibility of ever recovering any sum awarded.
Conclusion
It follows that the plaintiff is entitled to interlocutory relief and I therefore grant until trial an order restraining the defendants and each of them, their servants or agents or any person acting in concert with them or any person with notice of the making of this order from in any manner or fashion howsoever publishing of or concerning the plaintiff an article entitled ‘Operation Night-Cap Causes John Reynolds Sleepless Nights As Cops Raid Club’ or any matter contained therein defamatory of the plaintiff’s reputation.
Leech v Independent Newspapers (Ireland) Ltd
[2007] IEHC 223 (27 June 2007)
Judgment of Mr. Justice Charleton given on the 27th day of June, 2007 (Ruling in the course of a trial)
My ruling on this, I think, should be given straightaway, because the jury is waiting and the parties are anxious to proceed with the case and that is the right position to adopt in those circumstances.
There are a number of issues I have to decide, but the first thing that I want to say is that I am dealing with an application that is very, very early on in the course of the case where I have not heard a screed of evidence. And secondly, I am dealing with an application in circumstances where my view at the moment, subject to any legal argument in the future, is that it is not up to me to decide this case. I have to step back, ensure that the trial is conducted properly and allow the jury to decide this case as to its facts.
Is there such a thing as a public interest defence? In my view, there is. The test as to qualified privilege involves a situation where a party has an interest in receiving information and another party has a duty to pass that information on to them. The classic case, which is often repeated in many of the textbooks, is that one has visitors to one’s house, or one’s business, and one knows that one’s employee has a dubious reputation and one comes to the conclusion, perhaps wrongly, that he or she may steal and so the person informs his or her guests that the employee is a thief. Now, as it turns out, the information you have as to a dubious reputation is incorrect, the employee is not a thief and he or she takes a defamation action against you in relation to what you have said. In those circumstances, because you have a duty in protecting those who come into your home, or into your business premises, and because your guests have an interest in relation to receiving that information with a view to their own protection, a situation of privilege arises.
In Reynolds v Sunday Times Newspapers [2002] 2 AC 127 HL, that was developed so that an issue arose as to whether there was such a thing as a general interest in the public in favour of them receiving information, albeit incorrect. And it seems to me that, yes, there is. The public have an interest in many matters, as opposed merely to being interested in matters. Being interested in matters, it seems to me, would refer to matters which are merely titillating or salacious or gossipy. Matters which are of public interest, on the other hand, have to be matters which affect the public in terms of the governance of the country, their safety, their security, and their right to judge their public representatives fairly on the basis of real information. That is not an exhaustive list. I could not possibly formulate an exhaustive list, even if I had time to reserve judgment in this case.
In Reynolds, a number of tests were set out by Lord Nichols, which tests are helpfully set out at paragraph 14.83 of Gatley on Libel and Slander (10th edition, London, 2004). These are:
1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff’s side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.
And at the end of those, he says the following:
“The list is not exhaustive. The weight to be given to these and to any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to [and here I would substitute the words ‘a public interest defence’] is a matter for the judge. This is established practice and it seems to me to be sound. A balancing operation is better carried out by the judge in a reasoned judgment rather than by the jury. Over time, a valuable corpus of case law will be built up”.
Since that time, as can happen and certainly has happened in England in relation to other areas of law, it seems that errors have been made by people referring to the ten separate indicia of the existence of public interest and by indicating that if one or other of them is absent, or if a decision as to fact might go against a newspaper in relation to one or other, that the entire defence is destroyed. I note with interest the judgment of the Court of Appeal of England and Wales in Jameel and Another v Wall Street Journal Europe Sprl [2005] QB 904 and I note, in particular, that the reporter in the All England Law Reports, at [2006] 4 All ER at 1279, when the matter went to the House of Lords, has managed to summarise a large number of judgments in the House of Lords down into what, it seems to me, is a cogent principle which, in the context of a jury case, where I as trial judge may have to instruct a jury as to what the law is and allow them to decide the issue or to formulate questions for them based on this test, is both simple, straightforward and easily understood.
I think in this context that any reference to the principle from which this is derived, namely ordinary qualified privilege, arising in private circumstances, is, as Lord Hofmann says, not necessarily helpful. It seems to me that one aspect of the test for qualified privilege, which is the issue of malice, is probably replaced in the test for a public interest defence, as set out in the head-note of the Jameel case, with another test which involves the issue of professional conduct by the reporting journalist or other party.
Therefore, I would rule that a public interest defence can arise where the subject matter of a publication, be it an article or radio or television report, considered as a whole, was a matter of public interest. As I previously indicated in this ruling, I would rule as well that there is a professional duty on the part of journalists to both seek out information that is of public interest and to impart it to the public and that while that is a matter of for professional skill and training, that it is also a matter of responsibility. And once a public interest is established in terms of the information the subject matter of the article, there is a second test to be met, which is as to whether on the evidence the steps taken to gather and publish the information were responsible and fair. The question may need to be put as to whether a newspaper, or a television channel or radio channel, on the evidence behaved fairly and responsibly in gathering and publishing the information. And that may indeed take into account some of the tests set out by Lord Nichols in the Reynolds case. In particular no. 8, whether the article contained the gist of the Plaintiff’s side of the story, and whether the Plaintiff was contacted for comment.
I also agree that, as a third aspect of the test, that in considering whether there was fair and responsible conduct that the decision-maker, be it the court or the jury – that has yet to be decided in this case – has to have regard to the practical realities of news gathering. In that regard, I note what Lord Nichols says at paragraph 6 of the tests that he sets out, that urgency can be a matter of importance in news reporting, which is, of course, dealing with a perishable commodity.
Now, given that the public interest defence exists, on that ruling which I have just given, and given that it is up to me to decide whether it is to be put before this jury, the next issue is this: is this now a case where a public interest defence can be raised? The answer to that, to be perfectly frank about it, is that I do not know because I have not yet heard the evidence. My natural inclination is against shutting off persons who come to court from making the case which they wish to make, whether they are a plaintiff or a defendant.
But in circumstances where we have only started the case and where long experience indicates that many defences are put forward in all kinds of cases on a basis that is tenuous or perhaps irresponsible, and where many plaintiffs make allegations which are tenuous or exaggerated, I feel that the right thing to do in this case is to follow the ordinary course of an ordinary trial judge doing an ordinary case, which this is, and that is to hear the evidence and to listen to it and, in due course, to deal with an application as to whether a public interest defence has been properly raised in accordance with the test already set out. And that is what I am going to do before speeches are made to the jury in this case.
Now, the last matter in issue is this: What is the scope of the material in relation to which each side are entitled to rely on? Many articles were written concerning the plaintiff and her dealings with the Minister for the Environment prior to the article in question that is the subject matter of the statement of claim in this case. I must say that in that regard I am very heavily influenced by the statement in Television New Zealand -v- Ah Koy [2002] 2 NZLR 616, in which it was stated that there was a principle of isolating damages. That was explained as confining damage in a defamation action to that resulting from the words published by the defendant on a particular occasion while excluding evidence of damage to reputation caused by other publications. It seems to me that it is correct that what you do in any case is to confine your inquiry in relation to what is alleged on the pleadings and what the response is. Notwithstanding my natural inclination to allow people to make the case that they wish to make, it would be irresponsible of me to allow the Plaintiff to refer to a number of other newspaper articles, in respect of many of which she is, I am told, claiming damages. But having said that, it may be that the public interest defence can only be made out in circumstances where a genuine public interest is established, perhaps on cross-examination. And that may give scope to re-visit this issue by way of re-examination. If that happens, I will consider the matter at that time.
Then finally, I note that it is argued that particulars ought to have been given in relation to the public interest defence as pleaded in this case. It seems to me, insofar as this ruling may establish a precedent, that that is correct. A public interest defence, if pleaded, should be particularised in reference to the overall test, which I have approved, as set out in Jameel and, if necessary, with reference to the individual points set out helpfully by Lord Nichols in Reynolds. But these are not necessarily determinative. I do not know whether it was a matter of tactics, or what it was a matter of, but I note that the pleadings in this case were extensively followed by Notices For Particulars and by Replies to Particulars and I am told by the parties, and I accept it, that no Notice for Particulars was raised in relation to paragraph 7, which was the public interest defence. That being so, I do not think it is right in these circumstances to now require Mr. McCullough SC, counsel for the defendant, to formulate particulars and to be stuck with that formulation in the course of the case on his feet on the second day of the trial. The reality of the way that most cases work, and always have worked over the course of the last 25 years, is that people get a fair warning of what the nature of the case is and what the defence is. They may raise particulars if they wish. Notwithstanding the ruling that I have made earlier on, it seems to me that the right thing to do is to see what the course of the case is and to see whether, in those circumstances, any such defence as the public interest defence to this article arises on the evidence. But I am not shutting out any defence that the defendant wishes to make, either by reason of particulars or otherwise. That defence has been pleaded. But at the end of the day, I retain the responsibility of seeing whether or not a defence has been correctly raised on the evidence, as similarly I retain the responsibility of seeing whether or not a Plaintiff has a case which is fit to go before a jury. And I propose, therefore, to do this thing the old-fashioned way and to rely on those principles.
That is my ruling.
Second issue before the court. At the close of evidence, at which the plaintiff alone gave evidence and no evidence was called for the defence, an application was made by the defendant to the court that the court rule that the public interest defence was made out and that the plaintiff’s case should be withdrawn from the jury.
Judgment of Mr. Justice Charleton delivered on the 27th day of June, 2007. (Ruling in the course of a trial)
Well, this is, in effect, an application to stop the trial. It is an application which assumes that I have the responsibility of deciding whether there is a public interest defence, on the evidence in this case. When I made my ruling yesterday in relation to whether or not there was a public interest defence, I said that there were two aspects to it; firstly, a matter of public interest in respect of which a journalist, in pursuit of their duty to inform the public in relation to matters that were of interest to them, reports on a story, and secondly, that the manner in reporting the story was professional and responsible.
Now, I don’t accept that in this country it would be right for me to decide these issues, and to, in effect, overturn the statute, which requires a jury trial of this defamation matter, by making a ruling. I can, of course, make a ruling in relation to whether or not the Plaintiff has made out a case. She clearly has made out a case of libel sufficient to be considered by the jury, and I am equally entitled to make a ruling as to whether a defence arises on the evidence that is fit to be considered by the jury. If this defence were to be put by the court, it would be put to the jury as a matter of fact, and appropriate questions related to the tests based on the two aspects of Jameel, would be put to them.
Now, the issue I have to decide, it seems to me now, is whether or not there is evidence to go before the jury based on that public interest defence. As to the first test, whether there is a public interest, I am looking at the article as a whole, and there clearly was an interest in the public in considering whether or not their money was being spent correctly, in relation to public relations services being provided to the State, and whether or not there was corruption in public life. But all of that is not an issue in this case because it is accepted on both sides here that what was published by RTÉ was incorrect. The residual aspect of public interest that is urged is this; as to whether or not a newspaper report about the national news broadcaster Radio Telefís Éireann, in running a programme which doesn’t have a 10 second, or a 20 second gap, or whatever happens in some other countries, and which was made subject of a very nasty piece of black mischief by a man who has only been identified in this court as Norman, and which then had to apologise for it, and had to issue a press statement about it could, in those circumstances, be considered to be doing something that the public had a genuine interest in.
On the argument presented to me, it seems to me that, literally just about, that that test is met; for what happens on the national broadcaster is, in a small country as we are, a matter of importance, the manner in which they deal with their broadcasts is a matter of importance. The fact that they had apparently, if they did, made a mess by not having a ten second gap, is a matter of importance, and although it is not a matter of high importance, such as the matters discussed in relation to some of the English cases in relation to international terrorism, it nonetheless is a matter of sufficient importance to be of public interest.
The second aspect of the case though is this, and that is whether or not there was fair, professional, and responsible journalism? The ruling that I made yesterday indicates that once a public interest is established in terms of the subject matter of the article , that there is a second test which has to be met, which is as to whether or not, on the evidence, the steps taken by those who published the information were responsible and fair? Now, I can sense, in reading the English case law, that there is a very strong tension between those who believe that the Reynolds defence should never have been established, and those who believe that the press are the eyes and ears of the public before the State, the Fourth Estate as used to be said, and therefore should have a special defence which, in effect, establishes in their favour.
I am looking at this on the basis that this defence evolved from the ordinary qualified privilege defence, whereby you have to establish two things; an occasion of privilege, and the absence of malice. Maliciously publishing a defamatory matter on an occasion of qualified privilege, in the traditional sense, destroys the defence: for instance if you believe that the statement you make about someone on such an occasion is not true. The malice is presumed in libel, but the absence of malice in ordinary and traditional qualified privilege was, it seems to me, transmuted into a test of responsible and fair journalism. There could be circumstances, I don’t know, where it might be possible to establish that on, as in this case, the plaintiff’s case alone and without calling evidence in defence, but in looking at the indicia for the public interest defence, without taking them as being actual tablets of stone, and asking myself the question; ‘ what would a responsible journalist have said to themselves’: they would say ‘well, is this true before I publish it, that there was a lewd relationship between a Minister of Government and a professional person hired to do responsible work?’. They might ask ‘would I be correct in saying that the source of the information, which is a malicious person, possibly even a mad man, who rings up a live programme, could be relied on? Could I take any steps to verify the information? Should I not ring the Plaintiff, and should I not put her side of the story?’ On all of those, the matter fails.
I don’t think that I would find it right to say that in circumstances where a man who may or may not exist, I don’t know Mr. Frank Khan, who is down as having written this article, that he should be called into the witness box and publicly pilloried. However, I am struck very strongly by the fact that the plaintiff had to come here and give evidence. It is difficult, and it is embarrassing. It is always difficult, and in this circumstance perhaps a little more so then usual to come to court and to have to give evidence. If there is actually an issue as to malice transmuted, which I hold that there is, into the second test for public interest privilege of responsible and professional journalism in establishing the Reynolds test, then in order to establish it, the reality is that whoever took these decisions, be it the journalist, the editor and the sub-editor, have to be here to establish it. And therefore, in the circumstances of there being no evidence as to this, the defence of public interest will not to be put before the jury.
That is my ruling.