Privilege
Gordon v The Irish Racehorse Trainers Association
(Approved) [2020] IEHC 425 (20 March 2020)
Judgment of Mr. Justice Bernard J. Barton in respect of the Ruling made on the 20th March 2020
1. This is the judgment of the Court on the Defendant’s application to have the Plaintiff’s case in a defamation suit withdrawn from the jury on all claims for insufficiency of evidence. The reader may find the background to the case set out in the judgement of the Court in Gordon v. The Irish Racehorse Trainers Association [2020] IEHC 363, to be of assistance in contextualising the application.
2. Written and oral submissions were made on the application and have been considered by the Court. What follows is not intended to be a comprehensive summary thereof but rather an attempt to encapsulate as briefly as possible the relevant contentions advanced. There are seven impugned statements, five of which have been met with a plea of qualified privilege. The statement of claim pleads express malice on the part of the Defendant. Suffice it to say that the principle ground advanced for withdrawing the case is that there is insufficient evidence upon which the Jury could find as a matter of probability that the Defendant was actuated by malice at the time of the relevant publications.
3. As to the other two statements, the alleged petition to have the Plaintiff removed as head of security of the Turf Club (the petition) and the article published in ‘The Irish Field’ on the 9th August 2014, ( the August 9th article) the contention advanced in relation to the former is that there is no evidence the petition existed let alone evidence of publication to the members of the Defendant association or horse trainers in general or otherwise and as to the latter that in giving the interview he did there is no evidence Noel Meade did so on behalf of or with the authority of the Defendant, furthermore, there is no evidence the article was understood to refer to the Plaintiff.
Preliminary Observations;
4. Given the issues which have arisen, I consider it necessary to make some preliminary observations concerning the pleadings pertinent to the subject application. The Plaintiff pleaded seven separate defamatory publications which he contends are interrelated and evidence a campaign by the Defendant to have him removed from his post as head of security. The Defendant contends that the Court should approach the application by taking each statement separately and test the evidence of malice, if any, against it. As mentioned already, the Defendant has chosen to meet the claims in respect of the first, second, fifth, sixth and seventh publications by pleading qualified privilege and in respect of the latter three by traversing the allegation of publication. The defence of justification/truth is not pleaded by way of defence to any of the impugned statements. For discussion on the general principles and test to be applied by the trial judge on the application to dismiss civil jury proceedings see Tracey and another v McDowell and others [2018] 446
Burden of Proof
5. The law requires the Defendant to carry the burden of proof in respect of the defence of qualified privilege and it continued to do so throughout the trial until Mr Harty interrupted Mr McDowell’s oral submissions to concede on behalf of the Plaintiff that the first, second, fifth, sixth and seventh statements were published on occasions of qualified privilege. It follows the only issue with which the Court is concerned on these statements is whether there is sufficient evidence of malice as pleaded. The Defendant’s written submissions were prepared in advance of the concession and have been read by the Court taking this concession into account.
6. In opening the defence case to the Jury, Mr McDowell explained the concept of proof and the burden carried, by the Defendant in respect of qualified privilege and by the Plaintiff in respect of malice and publication. The Jury was informed that provided the publication of a defamatory statement was on an occasion of qualified privilege the law afforded the Defendant a complete defence to the action in damages unless the Defendant was actuated by legal malice at the time of publication. As a consequence of the concession, Mr Harty fairly accepted the proposition advanced by Mr McDowell that the onus carried by the Plaintiff in relation to malice is a heavy one. Although the parties were ad idem in relation to the law to be applied by the Court, I consider it appropriate in the circumstances to refer briefly to a number of authorities and legal texts which were opened to the Court on the application.
The Law; Withdrawal / Leaving Issue of Malice to the Jury;
7. The issue of malice must be left to the jury where the trial judge is satisfied that the existence of malice as a matter of probability is an inference which the jury would be entitled to draw from the evidence. In reaching a conclusion as to whether the evidence supports the probability of malice the court is entitled to have regard to different pieces of evidence which appear to the trial judge to be interrelated. If it would be reasonable for the jury to hold as a matter of probability that any one of a number of instances or examples pointed to by the plaintiff in respect of one or more publications represents malice, the trial judge must allow the case to go to the jury. [emphasis added]
8. It follows that where none of the pieces of evidence or instances of malice pointed to by the plaintiff could reasonably be held as a matter of probability to amount to malice the case must be withdrawn because it would not be open to the jury to hold that the aggregate of a number of pieces or instances of evidence could amount to malice, no one of which could itself be held to be evidence of malice. The mere possibility of evidence of malice from several pieces or incidents of evidence cannot by reason of multiplicity alone render probable that which is merely possible. In brief, evidence of malice cannot be obtained from incidents or pieces of evidence no one of which is in itself evidence of malice
9. In this regard, the attention of the Court was drawn to the judgement of O’Byrne J., in the decision of the former Supreme Court in Kirkwood Hackett v. Tierney [1952] I.R. 185 approved by Finlay C.J., in Hynes-O’Sullivan v O’Driscoll [1988] I.R. 436 at 445, where he set out the test to be applied as follows
“This firstly was that a trial judge should leave an issue of malice to the jury only if he was satisfied that the evidence given was more consistent with the existence of malice than with its absence, or to put the matter in another but identical way, that the existence of malice as a matter of probability, was an inference which the jury would be entitled to draw from the evidence given. Secondly, that judgment appears to establish that, as was stated by O’Byrne J. at page 204 of the report, having cited the principle laid down by Lord Porter in Turner v. Metro Goldwyn Meyer Pictures Ltd. 1951 All. E.R. 449:
‘Applying the foregoing principle, which I consider to be sound in law, it is clear that you cannot get evidence of malice from a number of items of evidence, no one of which is in itself evidence of malice.’
I do not construe the second proposition as prohibiting a trial judge from having regard to different pieces of evidence which appear to him to be interrelated so as to reach a conclusion as to whether the evidence supports the probability of malice in the manner which I have indicated above. Rather, do I construe it as simply laying down a principle which may indeed be of more general application than merely to the question of a judge’s ruling concerning malice, that a number of separate items of evidence establishing a mere possibility of the existence of malice cannot by reason of their multiplicity alone convert that mere possibility into a probability.”
10. This statement of the law is particularly apposite to the contention advanced on behalf of the Defendant that the Court is required to consider each of the impugned statements separately and that the exercise undertaken by the Plaintiff in constructing a case by what was described as ‘a joining up of the dots’ was inappropriate and impermissible. Mr. Harty’s contention, however, was that the statements were interrelated, by which I understood him to mean they were not to be viewed in isolation but rather considered together having regard to the circumstances of the case and the sequence of events material thereto. In this context, the judgment of Henchy J. in Hynes-O’Sullivan v. O’Driscoll [1988] I.R. 436 at p.451 seems to me to be particularly on point:
“When a libel or slander action is tried with a jury it is for the judge to decide whether the evidence is such as would reasonably entitle the jury to hold, as a matter of probability, that the publication was actuated by malice, in the legal sense, on the part of the defendant. Where the plaintiff, on whom the onus of proving malice lies, points to a number of examples of malice in regard to the publication, the judge must allow the case to go to the jury if it would be reasonable for the jury to hold as a matter of probability that any one of those instances represents malice. However, if no one of the instances pointed to could reasonably be held by the jury to amount to malice, the case should be withdrawn from the jury because it would not be open to the jury to hold that a number of instances, no one of which could in itself be held to evidence malice, could in their aggregate amount to malice”.
11. Both parties referred the Court to the decision of the House of Lords in Horrocks v. Lowe [1975] A.C. 135 where the law in the context of qualified privilege was restated by Lord Diplock and with whom three other Law lords agreed. The following summary of the law as so stated, which I consider pertinent in the present context, is offered by Gately on Libel and Slander 12th ed. at para. 17. 3
“(1) Improper motives.
(a) There is some special reason of public policy for giving immunity in all cases of qualified privilege. If the maker of the statement uses the occasion for some other reason he loses the protection of the privilege.
(b) The defendant is entitled to be protected unless some dominant improper motive on his part is proved.”
12. I digress for a moment to observe that whereas malice is not defined for the purposes of the Defamation Act 2009 (the 2009 Act) neither is there a reference in the relevant statutory provisions to dominant motive vis a vie malice and qualified privilege. The omission in this context does not appear to have been the subject of any reported case in this jurisdiction, however, the significance and/or relevance of the presence of a dominant motive has certainly been questioned in England and Wales.
13. Returning to the summary
(1)(c)(i) states:
“The usual motive relied on is that of injuring the plaintiff but there may be others”
This is potentially significant in the circumstances of this case where the Plaintiff claims there was a campaign of defamation the purpose of was to have him removed as head of security for the Turf Club.
And finally, (c)(ii) states “Knowledge that a statement will injure the claimant does not destroy the privilege if the defendant was using the occasion for its proper purpose”.
(2) Absence of honest belief:
(a) If it can be proved that the defendant did not believe that what he published was true, that is generally conclusive evidence of express malice. ‘for no sense of duty or desire to protect his legitimate interests can justify a man in telling deliberate and injurious falsehoods of another’ the burden of proof, at least where conduct extraneous to the privileged occasion is not relied on, is not a light one.
(b) If the defendant publishes untrue matter recklessly without considering or caring whether it be true or not, he is treated as if he knew it to be false but carelessness, impulsiveness or irrationality in arriving at a belief is not to be equated with indifference to the truth”.
14. In my view, this statement has a particular application in circumstances where, as in this case, the Defendant adopted without questioning the beliefs of the Doyles and, to use field sports parlance, accepted the truth of what was being said “lock stock and barrel.”
Returning to the summary;
“(c) There are exceptional cases where a person may be under a duty to pass on defamatory reports made by another even if he believes them to be untrue. He is not then malicious.
(3) Positive belief
(a) Positive belief in the truth of what is published will usually protect the defendant unless he can be proved to have misused the occasion. Judges and juries should be slow to draw the inference that he has misused the occasion, and the defendant’s desire to use the occasion for its proper purpose must be shown to have played no significant part in his motives if malice is to be found.
(b) Where the defendant believes in the truth of what he has published and conduct extraneous to the privileged occasion is not relied on, the claimant can only succeed if he shows that the publication contains an irrelevant matter and that it can be inferred that the defendant did not believe it to be true or realised that it was irrelevant, and brought it in for some improper motive. Judges and jury should be slow to draw this inference too”.
15. Again, in the context of the subject application, it was submitted by Mr. Harty that in determining whether or not the test had been met the Court was entitled to have regard to the interrelationship between the impugned statements as well as to material events and the behaviour of the Defendant up to and including the conduct of the trial extraneous to the occasions of privilege. He argued that in determining whether there was sufficient evidence which called into question the bona fides of the professed belief in the truth of the relevant statements and which thus went to malice, the Court was not confined to considering the statements themselves or evidence of malice which had been particularised.
16. In my view the following statement from Gatley at para. 17.5 under the heading “Matter believed to be true but purpose to injure”, is also potentially relevant to the question of malice in circumstances where, as here, the Plaintiff claims the Defendant engaged in a campaign against him:
“There is no doubt that Lord Diplock’s speech in Horrocks v. Lowe contemplates that even if the defendant firmly believes his statement to be true he is guilty of malice if his sole or dominant purpose is to harm the claimant.”
17. As stated earlier, in determining whether there is evidence which amounts to malice a distinction is to be made between behaviour on the part of a defendant consisting of indifference to the truth on the one hand, which is evidence of malice, and irrationality, carelessness, spite, or prejudice, to name but a few behaviours on the other, which generally are not. This topic is discussed and commented upon by Gatley at 17.17 and by Cox and McCullough at p. 527.
18. At para 17.18 Gately goes on the examine the question of unreasonableness in the context of claimed belief and failure to make available inquiries; the following extract merits repetition:
“All this is not to say that a defendant who asserts a belief that others find absurd will necessarily succeed in the defence of privilege, for the unreasonableness of the belief may lead the jury to reject his contention that he holds it. Similarly, failure to make available inquiries may be evidence from which it may be inferred that the defendant was consciously indifferent to the truth or falsity of the situation”. [emphasis added]
Now that again is a statement which, in my judgment, is material to the present application since it is the belief of the Defendant and not that of the Doyles which will be material to the deliberations of the Jury in the event the issue of malice is left to them.
19. Mr. McDowell impressed upon me by reference to a number of authorities, including Hennessy v. K-Tel (Ireland) (Supreme Court, unreported, 12th June 1997) the duty which lies on the trial judge on an application such as the present and the heavy burden carried by the Plaintiff with regard to the sufficiency of evidence of malice. I mentioned Hennessy as well as passages from the other authorities cited above to high light the requirements made of the Court in testing the evidence of malice and in determining the application.
20. By way of a footnote to this observation, Lord Diplock’s restatement of the law was recently the subject of a lengthy and comprehensive judgment by McGrath J. in Nolan v. Laurence Lounge Trading as Grace’s Pub [2018] IEHC 352. In the course of the judgement, he referred to the learned law lord’s statement of the law in the context of privilege on the nature of honest belief at para. 70, which has a particular resonance with the circumstances of this case and is worth repeating:
“…. what is required on the part of the defamer to entitle him to the protection of the privilege is a positive belief in the truth of what he published or, as it is generally though tautologously termed, ‘honest belief’. If he publishes untrue defamatory matter recklessly, without considering or caring whether it is true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in the protection of a legitimate interest the law must take them as it finds them.” [emphasis added]
Qualified Privilege; Consequences; Constitutional Rights
21. I would place emphasis on the requirement of “good faith” since it is not the fact of belief per se which is relevant but rather whether the belief was honestly held, or as it is sometimes said held bona fide at the time of publication, even though it transpires afterwards to have been mistaken. The law presumes malice and damage from the publication of a defamatory statement, however, once the entitlement to rely on a plea of privilege is established the legal presumption with respect to malice is displaced and a full defence afforded unless malice is proved as a fact by the party pleading same.
22. As mentioned earlier, the burden carried is a heavy one, and with good reason. Subject to the satisfaction of well-settled requirements, the defence of qualified privilege amounts to a vindication of the constitutional right to freedom of expression notwithstanding the defamatory nature of the statement is injurious to the claimant’s right to a good name also guaranteed under Article 40 of the Constitution;
No Plea of Truth/ Justification
23. The Defendant did not come to Court to stand over the Doyles’ contention that they were shown something quite different to the document which the Plaintiff says he produced at the time of the inspection, rather the case made is that the officers of the Defendant who subsequently became involved in the controversies originating in the inspection of Liz Doyle’s yard acted on the basis that they believed in the truth of what had been said to them at the time when the impugned statements were published.
Decision
The Plea of Malice; Particulars; Evidence to be Considered; Limitation
24. Ordinarily, malice is pleaded by way of a Reply to a Defence where privilege is pleaded on grounds the publication occurred on an occasion of privilege. However, in this suit, the allegation of malice is contained in the Statement of Claim, particulars of which are also set out, though not for all of the impugned statements. This omission was followed up by way of a notice for particulars. The Plaintiff delivered replies stating these were matters for evidence at the hearing of the action. And so, the matter lay until the action came to trial.
25. In the course of the submissions it became apparent that the parties disagreed on what evidence of malice, if any, the Court was entitled to take into consideration in determining the application. In this regard, the question which arose was whether the Court was confined to considering evidence of malice which had been pleaded and particularised, as contended by the Defendant, or evidence which also went to the pleas of malice in general, as argued by the Plaintiff
Conclusion
26. On this issue, I accept the submissions made on behalf of the Plaintiff. It would be wholly wrong, in my judgment, for the Court, or the jury as the case may be, to disregard evidence adduced in relation to a general plea of malice whether given in chief or obtained on cross-examination, that had not also been particularised in advance of the trial. To do otherwise would deprive the Plaintiff of the benefit of evidence going to the issue on which he carries the onus of proof
27. It may be trite, but a party cannot be expected to plead and particularise malice the existence of which was unknown at the time when the relevant pleading was delivered. The proposition is well illustrated by circumstances where evidence of malice material to a generalised but express plea emerges for the first time in the course of examination or cross-examination. In the event, it may transpire to be a matter of good fortune that a gift of evidence unknown at the commencement of the trial is handed to the party carrying the onus of proof on the issue.
28. To repeat what the Court stated when making rulings on previous applications herein, the purpose of pleadings is to define the issues between the parties. In this instance express malice, particularised in part, has been pleaded in the statement of claim. For the reasons given above I cannot accept as legally sound the proposition that the evidence of malice which the Court may consider on an application to withdraw the case from the Jury is limited or confined to evidence of malice pleaded in general but not been particularised. In my judgment, the appropriate course to be taken by the Court is to consider all of the evidence adduced and/or admitted in relation to the allegations of malice set out in the pleadings.
The Defendant’s Belief
29. The question of whether or not the Doyles and thus the Defendant had come to Court to stand over the truth of their statements was canvassed at some length during the trial in the course of the examination and cross-examination. As non-lawyers, the Doyles were no doubt puzzled by the controversy which arose from their assertion that the truth of what had transpired in the yard was not the basis upon the Defendant had chosen to meet the claim. Indeed, evidence given to this effect by Ms Doyle led to an application to have the defence of qualified privilege struck out but was refused for the reasons set out in the separate judgement of the Court herein, referred to earlier.
30. From the outset it was made clear to the jury by Mr McDowell that the Defendant had not come to Court, as would have been its right, to establish the truth of what the Doyles say they were shown in the yard rather what was material to their deliberations on the issue of malice was the Defendant’s belief in the truth at the time of publication. The belief steadfastly maintained by the Doyles throughout the trial was that the documents produced to them by the Plaintiff and by Mr Buckley were false/concocted and were quite different to the document proved in evidence by the Plaintiff which he said he had produced.
31. The Doyles’ view of these matters was adopted by the Defendant “lock stock and barrel” or to put it another way ‘at face value’. The evidence given by the officers of the Defendant in relation to this aspect of matters is that they accepted without question the truth of what they were told by the Doyles. In making a previous ruling the Court found that the belief of the Doyles and that of the Defendant’s witnesses on this issue was interrelated, a conclusion from which, all of the evidence having been given, the Court does not demur nor seek to modify in any way.
32. While the belief of the Doyles and the Defendant’s witnesses and thus the Defendant are interrelated, the belief which is material to the Jury’s considerations is the belief of the Defendant. In the event the issue of malice is left to the Jury, matters for their consideration will include (i) the professed belief in the truth of the defamatory statements held by the Defendant’s officers called as witnesses, (ii) the bona fides of their belief in the truth of the published statements and (iii) the attitude adopted to all of the information available to them concerning the matters in controversy prior to and at the time of the relevant publications and not just the information received from the Doyles.
33. Accordingly, with regard to the first, second and fifth statements, in particular, it is the belief of the Defendant rather than the Doyles which is relevant; for present purposes, this principally means the belief of Mr. Meade and Mr. Grassick. There was some criticism that the Court had not heard from Mr Halford, another officer of the Defendant who had been involved in the events giving rise to the proceedings, however, I consider it necessary to state that no negative inference is drawn from the fact that he was not called as a witness; there may well have been very good reasons for not doing so but about which I am unaware and the fact we did not hear from him has had no bearing upon the Court’s deliberations. With regard to the belief of the Defendant, the Court has the evidence of Mr. Meade and Mr. Grassick who, given their involvement in and knowledge of the matters in controversy, are well qualified to give evidence on the Defendant’s behalf in this matter.
34. Questions were properly put on cross-examination of the Plaintiff and the witnesses called on his behalf which involved matters of fact that could only be proved by calling the Doyles, an undertaking in this regard having been given by counsel. They gave evidence on behalf of the Defendant as did Mr. Meade and Mr. Grassick, neither of whom questioned what they were being told by the Doyles, rather their evidence is that they accepted and took at face value what was said about the matters in issue. The reason offered for this approach, particularly by Mr. Meade, was stated as a desire “to get justice for Liz”, a motive repeated many times during the trial with such regularity it was termed the Defendant’s ‘mantra’ by Mr. Harty. As far as he was concerned the Plaintiff was in the wrong and that was that.
Malice Subjective Test; Effect of Knowledge/Awareness of Falsity; Indifference;
35. The test to be applied in all instances to the determination of malice in the legal sense is subjective. Of particular relevance, but by no means only relevance, to the circumstances of the case is the law as to knowledge of falsity and indifference, is quite clear. Save in the exceptional circumstances referred to earlier by Lord Diplock, knowledge of falsity or an awareness thereof or of the likely falsity of a statement or indifference to the truth thereof is normally fatal to the defence of qualified privilege. [emphasis added]
36. However, as discussed previously, there is ample authority for the proposition that irrationality, negligence, carelessness, prejudice and impulsiveness are to be distinguished from indifference and do not alone establish malice. Depending on the circumstances, the fact that a defendant does not bother inquiring into something or makes a poor enquiry of itself is in general not sufficient evidence on which to find malice nor to draw an inference that the defendant used the occasion of the publication for an improper purpose or, put another way, abused the proper purpose of the occasion.
37. To this must be added the proviso that although in general absurdity or unreasonableness of belief do not constitute evidence of malice if either the nature of the absurdity or unreasonableness of the belief would lead a jury to reject the contention that the belief was held honestly malice may be inferred. In all circumstances, however, the absence of honesty or bona fides by the holder of the belief in the truth of the statement is generally fatal to the defence of qualified privilege is evidence from which malice may also be inferred.
Third Statement; August 9th Article
38. I shall return presently to the impugned statements in respect of which qualified privilege has been pleaded. Suffice it to say, these have been approached with a view to the Court being satisfied as to whether there is sufficient evidence, if accepted, upon which the Jury would be entitled to find malice as a matter of probability on the part of the Defendant. However, the August 9th article, to which there is no plea of privilege, is not subject to the considerations or constraints material to the statements in respect of which the plea has been raised because, to use Mr Harty’s words, it is sui generis. It follows that Mr Meade’s intention with regard to whom he was referring or intended to refer when giving the interview is not relevant, proof of malice as a fact not in these circumstances being required by law since if the statement is defamatory and is found to have been understood as referring to the Plaintiff malice is presumed.
39. In a letter dated the 8th October 2014, the late Mr Ward asserted that the August 9th article was published on an occasion of qualified privilege. Given the publication was to the world at large the Defendant, quite properly, did not pursue that line of defence but rather chose to meet the claim, as we have seen, by a plea the publication, if found to refer to the Plaintiff, (a fact also in issue), was not made by, on behalf of, or with the authority of the Defendant. The case made in this regard is that although Mr Meade had been invited to give the interview because of his position as chairman of the Defendant association, the views expressed by him and about which complaint is made were his opinions and not those of the Defendant.
40. While it was undoubtedly the case his position as chairman of the Company most likely explained the reason why he had been invited to give the interview, it was submitted that it did not follow he was speaking on behalf of or with the authority of the Defendant so as to render the Defendant vicariously liable for the impugned statement. Mr. McDowell gave a number of examples to illustrate the proposition which included the giving of interviews or the making of statements by the chairman of the Bar Council or the President of the Law Society that do not render the Bar Council or the Law Society, as the case may be, vicariously liable for a wrong unless the officeholders concerned were expressly authorised by their respective professional bodies.
41. Having considered the submissions and the statements of law on vicarious liability set out in Gatley 12th ed. at para. 8.30 et seq. it appears to me in this context that the language of ‘principle and agent’ rather than that of ‘master and servant’ is more appropriate to the circumstances of the case. Either way, however, where the issue of liability for the acts of others arises the question to be addressed is whether the author or publisher of the impugned statement was acting within the scope of express or ostensible authority or within the scope of employment.
42. The August 9th article was opened and read to the Jury on a number of occasions during the course of the trial. It is abundantly clear from my reading of it, as I think it would be to the Jury, that Mr. Meade spoke in the plural rather than in the singular person and that by doing so he held himself out as speaking on behalf of the association, a company limited by guarantee. Mr. Meade did not make it clear that the views he expressed were his personal opinions rather than those of the Defendant. The drawing a distinction by an officer of a company or unincorporated association between personal views and those of the company or association or by those holding public office is a common occurrence, particularly where the media is involved; indeed, the distinction is very often emphasised. No doubt there are a myriad of reasons why this might be so but counted amongst these must surely be the necessity to avoid the imposition of potential liability on others arising from what is said.
Conclusion; August 9th Article
43. In determining the issue as to whether Mr. Meade was expressing personal opinions or was speaking on behalf of the Defendant the Court is, of course, concerned with the circumstances of the case. As already mentioned earlier, in giving the interview Mr. Meade did not speak in the singular but rather used the plural “we” when addressing topics which are now the source of contention. It is quite clear that ‘we’ in this context meant the members of the Defendant association, racehorse trainers like himself. In this regard it was not suggested to Mr Meade, nor did he volunteer that he was speaking in a personal capacity rather than on behalf of the Defendant as a director and its chairman. In my judgment, it would be open to the jury to find the Article was understood by those who read it to be the views of Defendant on the matters about which Mr Meade spoke rather than his personal opinions alone.
44. This conclusion also gains traction from the quotation from of a statement issued by the committee of the Turf Club carried in the August 16th, 2014 edition of The Irish Field and published in response to Mr. Meade’s comments in the August 9th article which essentially portrayed his comments as having been made on behalf of the Defendant association. In particular, the article contains a passage which recognises that while Mr. Meade is entitled like everyone else to make comments of his own on racing matters, on this occasion, having chosen to speak in his capacity as chairman of the Defendant company, he had elevated the views expressed to an altogether different level, meaning he was expressing the position of the Defendant association and its members on these matters. That position could also be inferred from subsequent correspondence Indeed, it was only when the case came to the defence stage that the Defendant sought to distance itself from the remarks through the plea that the reported remarks were personal views which had not been made by, on behalf, or with the authority of the Defendant and thereby, to use a colloquial term adopted by counsel for the Plaintiff, “threw him under the bus”.
45. I am satisfied that the claim in respect of the August 9th article must be left to the Jury. Not only will they have the articles as evidence, but they will also have the statements contained in the letter dated the 8th October 2014. This letter was written on behalf of the Defendant by the late Mr. Frank Ward in response to the Plaintiff’s letter of claim dated 1st October 2014. Mr Ward went out of his way to deal expressly with the allegations that the remarks published in the August 9th article was part of a concerted campaign of defamation by the Defendant against the Plaintiff.
46. While the letter rejects the contention that the article could be construed in this way it is also made perfectly clear that Mr. Meade was entitled to express his opinion, “…in his capacity as chairman of the IRTA…”. There is no suggestion in the letter that Mr. Meade was not talking on behalf of or with the authority of the Defendant or that the Defendant was not legally liable for what was said, rather, the assertion made is that the article was published on an occasion of qualified privilege, and thus, protected by law.
Onus of Proof: Agency; Authority
47. The Plaintiff carries the onus of proof to establish on the balance of probabilities that Mr. Meade was authorised by and/or was acting on behalf of the Defendant when he gave the interview published the 9th August. An express allegation to this effect contained in the statement of claim is traversed by the defence. It was urged on the Court by Mr. Harty that in the circumstances of the case the onus of proof in respect of the allegation Mr Meade was speaking personally rests with the Defendant, however, I cannot accept that proposition. I cannot see from the circumstances any basis upon which the Court would be warranted in disregarding the ordinary requirement that he who alleges must prove, particularly in circumstances where there is an express traverse in the defence of the allegations made against the Defendant in respect of the August 9th article, accordingly, I reject the submission made on behalf of the Plaintiff in this regard.
48. I am satisfied, however, that there is evidence from which, if accepted, the Jury would be entitled to find that when Mr. Meade gave the interview in his capacity as chairman of the Defendant, he did so as its agent and was consequently acting on its behalf rather than expressing personal opinions at the time. It follows that if the Jury were also to find that the article was understood to refer to the Plaintiff – an issue on which he again carries the onus of proof – the Defendant would be vicariously liable as concurrent wrongdoer for the defamatory publication.
Conclusion; Identity
49. As stated earlier Mr. Meade’s intention as to whom he was referring when giving the interview, namely Mr. Louis Reardon, is not relevant. The question for the Jury on this question will be whether the impugned statement in the article was understood to refer to the Plaintiff. As to that, I am satisfied there is cogent evidence on which to found a conclusion that it did. Indeed, Liz Doyle gave evidence that she understood the remarks published in the article referred to the Plaintiff. Moreover, as she put it, everybody in the world of Irish horse racing knew what had happened in her yard.
Ruling
50. For the reasons set out above, I am satisfied, and the Court finds there is evidence which, if accepted, would entitle the jury to find (i) that when Mr Meade made the impugned statements he did so on behalf of the Defendant and (ii) that the impugned statements were understood to refer to the Plaintiff, all of which are matters of fact for the Jury. Accordingly, the application to withdraw the case in respect of the third statement is refused.
Fourth Statement; Petition to Remove the Plaintiff as Head of Security of the Turf Club
51. The petition is the fourth publication about which the Plaintiff complains. Considerable emphasis is placed on the creation and circulation of a petition by the Defendant the object of which was to have him removed as head of security for the Turf Club. In support of this contention Mr. Weld, Mr. Hickey and Mr. Egan were called as witnesses on his behalf. The evidence of Mr. Hickey and Mr. Egan was categorised by Mr. McDowell as nothing more or less than hearsay. There was no admissible evidence the alleged petition ever existed and any finding by the jury to that effect would be wholly wrong; in any event, there was no evidence of publication. Accordingly, he submitted the claim in respect of the petition should be withdrawn. At its high-water mark, all the Plaintiff had to go on to establish the case for a petition was the evidence of Mr. Hickey and Mr. Egan, which was nothing more than a repetition of what they say they were told by Mr. Weld.
52. I have looked carefully at the transcript of evidence on this as on other issues. Mr. Harty drew the attention of the Court to the response elicited from Mr Weld when it was put on cross-examination that Mr. Hickey and Mr. Egan had learned of the petition during telephone calls each had with him. Mr Weld did not deny the calls had been made; he just couldn’t be sure of the detail of what had transpired as it was over six years since same had occurred. I understood Mr Harty’s submission in this regard to be that without an express denial the Jury would be entitled to conclude that Mr. Weld told Mr. Egan and Mr. Hickey that he had been asked by the Defendant to sign a petition to have the Plaintiff removed from his position as head of security.
Conclusion; Fourth Statement; the Petition
53. Having completed the exercise of considering all of the evidence avialable in relation to the alleged petition I am satisfied that Mr. McDowell is correct in his submissions that there is no evidence wholly insufficient evidence to warrant a finding by the Jury on the balance of probabilities that the Defendant had drawn up a petition to remove the Plaintiff from his position, nor is there sufficient evidence to ground a finding of publication, the absence of which is, of course, fatal to a cause of action in defamation. As to that aspect of the matter, the allegation is that the petition was circulated to the members of the Defendant association and to horse trainers in Ireland generally, however, I am also satisfied, such ever occurred. At its high watermark, the case for the existence of the alleged petition, not to mention the matter of publication, is the existence of a draft letter with which Mr. Grassick sought the assistance of the late Mr. Ward, the final version containing the names of the Defendant’s executive committee.
54. In fairness to Mr. Grassick, he accepted that people might well describe a letter with a list of names attached as a petition, though that was not a term he would have used to describe it. That said, he denied any knowledge of the alleged petition or that such ever existed when it was put to him that it did, moreover, it is clear from the letter which he had intended to have signed by the committee, and offered to Mr Weld for that purpose, that the objective was quite different to a call for the removal of the Plaintiff. I am satisfied and find as a fact if it is necessary to do so, that Mr. Weld made the telephone calls to Mr Egan and Mr Grassick during which he may well have described the letter as a petition, although in evidence he said he wasn’t sure what was meant by the term. He had been approached just before a race meeting but because of his commitments there he asked Mr. Grassick to come back to him on another occasion after other committee members had signed. Although I’m satisfied Mr. Grassick made some representation when he spoke to Mr Weld regarding the nature of the document he wanted to be signed, I’m also satisfied it was not a petition to have the Plaintiff removed as head of security.
55. Furthermore, there is no evidence Mr. Grassick told Mr. Weld, nor is there any evidence to support the proposition that Mr. Weld knew about a policy to try and have the Plaintiff removed from his position. It seems to me that what probably happened was that a conversation took place between Mr. Grassick and Mr. Weld during which he was asked to sign a letter by Mr Grassick which intended to have signed by all of the committee members and that as a result of that conversation Mr Weld probably described the letter as a petition during the subsequent phone calls he had with Mr. Egan and Mr. Hickey. I do not think the Jury would have any reason to doubt the evidence of Mr. Egan or Mr. Hickey about what they say they were told, however, I am quite satisfied on Mr. Grassick’s evidence and having seen a number of versions of the letter produced by him, that the document Mr Weld may have glimpsed at or that was described to him was not the alleged petition. Accordingly, the Court finds there is insufficient evidence upon which the Jury would be entitled to find that the Defendant drew up and published any such petition.
56. Finally, I am confirmed in coming to this conclusion by a forceful submission with regard to the discovery made on behalf of the Defendant, a task undertaken no doubt under the watchful eye of the late Mr Ward with whom this Court was very well acquainted. It must be immediately said in fairness to the Plaintiff that it was not suggested on his behalf the late Mr. Ward had failed to have the sworn affidavit drawn up properly. However, it was argued that a finding by the Court in the context of this application that there was evidence to support the existence of a petition would create precisely such an inference in circumstances where the alleged petition had been sought but not discovered. As it is the affidavit and the schedules thereto are quite clearly drawn up in accordance with the Rules of Court.
57. If a petition of the nature alleged by the Plaintiff existed it would have had to have been discovered and listed in the first schedule or if it had existed but had ceased to exist or had been lost it would have had to have been identified in the second schedule and an explanation given as to how it was destroyed or was otherwise came to be lost and no longer in the power and possession of the deponent. There is none such. It follows from the foregoing that the Plaintiff has failed to discharge the onus of proof with regard to the existence and publication of the alleged petition, accordingly, I accept the submissions made on behalf of the Defendant that there is insufficient evidence to warrant the fourth statement being left to the Jury.
58. In the interests of completeness, I should add the version of the letter drawn up by Mr Grassick with the assistance of the late Mr Ward, dated the 27th August, which was used to cross-examine the Plaintiff and the witnesses called on his behalf, was succeeded by a final version of the letter dated August 28th. This materialised later in the trial and, interestingly enough, contained the names of all of the Defendant’s executive committee. This was the version which Mr. Grassick intended to have signed by each of the committee members, however, he thought the better of this; the letter was neither signed nor circulated. Even if it had been, as stated earlier, it is clear from the text of the drafts and the final version that these do not constitute an attempt to have the Plaintiff removed from his office as head of security.
Ruling
59. For all these reasons the Court will accede to the application to withdraw the case in relation to the fourth statement from the Jury.
Fifth Publication; Meeting in the Keadeen Hotel
60. On the 15th August 2014, a meeting took place at the Keadeen Hotel, Newbridge Co. Kildare attended by the Doyles, representatives of the Turf Club, including Mr. Egan and the late Mr O’Byrne and by representatives of the Defendant, including Mr. Meade, Mr. Grassick and Mr. Halford. The essence of the case advanced by the Defendant in relation to this publication is that the meeting was arranged so that the Doyles could give their account of what had transpired in Liz Doyle’s yard. The Plaintiff complaint is that at the meeting he was defamed by allegations of misconduct in the execution of his duties at and by calls for his removal as head of security for the Turf Club. Leaving the defence of qualified privilege to the side for a moment, the position taken by the Defendant in relation to these allegations is that it did no more than facilitate the meeting which brings us to the matter of legal responsibility for publication.
The Law; Liability for Publication by those Arranging / Participating in Defamatory Publication;
61. The general rule at common law is that a person who creates or authors a defamatory statement (the originator) is liable for the publication provided there was an intention to publish or where there was a failure to take reasonable care to prevent publication. Where the publication was unintentional, the general rule is that liability will only arise where it is shown publication was reasonably foreseeable. The 2009 Act makes express provision for unintentional publication where the defamatory statement is misdirected. In this regard, section 6 (4) provides that no publication shall take place where the defamatory statement is published to a person other than the person to whom it relates provided the publication to the other was unintentional and it was not reasonably foreseeable publication to the person to whom the statement relates would result in publication to the other person. In my judgment, this provision is an augmentation of rather than replacement for the common law rule.
62. Subject to certain rules which developed to excuse mere distributors of liability, such as where a lack of knowledge of the defamatory nature of the statement is demonstrated and reasonable care was taken, the general rule at common law is that liability for publication extends to any person who participated in, secured or authorised the publication. See Watts v. Times Newspapers Ltd (Schilling & Lom (a firm), third party) [1997] QB 650 at 670 and Mahfouz v. Brisard [2005] EWHC 2304 at 11. However, provided certain criteria/ requirements are satisfied no liability will attach for innocent publication. In this regard, Section 27 of the 2009 Act provides for the defence of innocent publication in circumstances where the defendant is:
(i) not the author, editor or publisher of the statement,
(ii) reasonable care was taken in relation to the publication, and
(iii) there was no knowledge or reason to believe that what was done caused or contributed to the publication of a statement that would give rise to an action in defamation.
It follows from the rule at common law that if a person or persons arrange and/ or attend at a meeting for the purposes of enabling others to make statements concerning a third person about which they are aware or have reasonable grounds for believing will likely be made and such statements are published by others attending the meeting and such statements are proved to be defamatory, those arranging and/ or participating at the meeting are concurrent wrongdoers with the authors and publishers and are jointly and severally liable with them in damages.
63. The main reason proffered by the Defendant for arranging the meeting at the Keadeen Hotel was to try and get some sort of resolution to the issue/issues which had arisen. Of critical importance to the matter in hand, Mr. Meade and Mr. Grassick organised and attended the meeting in the knowledge and for the purpose of communicating to the representatives of the Turf Club, the Plaintiff’s employer, the complaints and grievances previously published by the Doyles. Having accepted without question the veracity of their accounts, Mr. Meade and Mr. Grassick were not only aware of what was likely to be said at the meeting, they condoned and supported it. On my view of the evidence, they were content that the Doyles should repeat what had been discussed in the late Mr. Ward’s office, including the content of witness statements and subsequent correspondence concerning the Plaintiff and his behaviour and that such should be published to those present at the meeting, including Mr Egan, chief executive of the Turf Club.
Conclusion; 5th Statement
64. As discussed earlier it was accepted on behalf of the Plaintiff that the publication of the impugned statements at the Keadeen Hotel was an occasion of qualified privilege. In the circumstances outlined above and having considered the available evidence on the issue I cannot accept the suggestion that an essential ingredient to sustain the plea in respect of which that defence was pleaded is missing, namely sufficient evidence of malice, accordingly, I reject the Defendant’s submissions in relation to the impugned statements published at the meeting in the Keadeen.
65. As with the first, second, sixth and seventh statements, the Defendant has not sought to defend the 5th publication on the grounds of truth but rather on the basis that the occasion was privileged. It follows that if the Jury find the statements made were published maliciously in the legal sense, as alleged by the Plaintiff, the Defendant will be robbed of the defence and rendered liable as a concurrent wrongdoer, notwithstanding the Doyles were not joined as parties.
Ruling
66. For the reasons aforesaid, the Court will refuse the application to withdraw the case in respect of the fifth statement from the Jury.
First, Second, Sixth and Seventh Statements
67. Insofar as the sixth and seventh publications are concerned, suffice it to say, having regard to the determination to be made in relation to the first and second publications, the Court accepts Mr Harty’s submission that these are interrelated in the sense set out in the judgments of the Supreme Court in Hynes-O’Sullivan referred to earlier; namely, the statements are interrelated and interconnected pieces of evidence which, when taken together and viewed in context, are capable of bearing the defamatory meanings pleaded by the Plaintiff.
Defamatory Meanings; Application for Ruling; Section 14 (1) 2009 Act
68. I digress here to observe that any party to defamation proceedings may make an application pursuant to s. 14 (1) of the 2009 Act for a ruling by the court: —
“(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and
(b) (where the court rules that that statement is reasonably capable of bearingthat imputation) as to whether that imputation is reasonably capable of bearing a defamatory meaning…”
Although subs 4 provides that the application may be brought at any time after the bringing of the action up to and including the trial, the appropriate course is to bring the application prior to trial where practicable and possible to do so in accordance with the practice direction set out in Ryanair v. Van Zwol and others [2017] IEHC 798 at para 29 et seq. It is also clear from the provisions of subs. 3 that whenever the application is made it must be brought by motion on notice and determined by a judge sitting alone, even if brought at the commencement of and/or during the course of a trial by jury.
69. It follows that if a party to proceedings intends to dispute an allegation or assertion that an impugned statement is reasonably capable of bearing the imputation/s pleaded by the Plaintiff, the appropriate course is to bring a motion for a ruling thereon as provided for by s. 14 (1). That no such application was made in this suit is entirely consistent with the chosen defences to the claim, particularly the pleas of qualified privilege, proceeding as they do, subject to other legal requirements as to proof being satisfied, on the premise that the impugned statements are capable of bearing the defamatory meanings attributed thereto by the Plaintiff. (the Plaintiff is on proof of various matters other than malice such as publication/authority/meaning in relation to some/all of the statements). It may be trite, nevertheless, there would be no point in raising a plea of qualified privilege to a statement which is factually correct/true.
70. The defence of privilege provided by law in certain circumstances is underpinned by public policy grounded in the State’s obligation to vindicate as best it may the fundamental rights of the citizen guaranteed by Article 40 of the Constitution, the prerequisite to the defence being the publication of a defamatory statement about another whose right to a good name is also guaranteed and represents an attempt where a conflict arises to strike a fair balance between competing constitutional rights.
71. Returning to the sixth and seventh statements, although these consist of separate instances or occasions of publication the interrelationship with pre-existing events, in particular with the events giving rise to the first second and fifth statements, warrants the Court in considering the statements together. This approach is consistent with the Court’s conclusion that all of the evidence which goes to establishing malice as pleaded is to be considered, including the behaviour of the Defendant up to and during the trial of the action.
72. In taking this approach I am cognisant of the statement by the Chief Justice in Hynes-O’Sullivan referred to earlier that evidence of malice cannot be obtained from a number of items of evidence no one of which is in itself evidence of malice. While the remaining statements taken individually are clearly capable of bearing the meanings attributed to them by the Plaintiff, the question for determination by the Court is whether there is evidence from which, if accepted, a reasonable jury would be entitled to draw inferences and find as a matter of probability malice in the legal sense on the part of the Defendant at the time of the alleged publications.
Circumstances; First and Second Publications; Analysis
73. It is the first and second publications and the events which gave rise to them which the Plaintiff claims led to the subsequent occasions of publication about which complaint is made. It is not intended to summarise the evidence relating to the earlier publications; the background may be found in the previous judgement of the Court referred to earlier. So far as the Defendant’s belief in the truth of these statements is concerned I am satisfied from my perusal of the transcripts the Jury could be left in no doubt but that the Defendant adopted the belief of the Doyles as its own and did so without inquiry; there is no evidence the officers questioned what they were being told in any way.
74. The law as to what is required to found malice in this circumstance has been set out earlier. It is generally unnecessary to embark on inquiry unless what is being said and/ or other available information calls into question the correctness of the impugned statement or an enquiry is otherwise called for in the circumstances since the presence of any one of these factors or a combination thereof impacts directly on the bona fides of the professed belief in the truth of the publication. While unreasonableness of belief in the truth per se is generally insufficient, the nature of the unreasonableness may lead a jury to reject the assertion that the belief is held bona fide and to infer malice. Similarly, a failure to make available enquires may be evidence from which a jury could infer that the Defendant was consciously indifferent to the truth or falsity of the relevant statement.
75. This is not to be taken as an attempt to depart in any way from the statements of the law referred to earlier regarding the distinction to be drawn between recklessness/indifference to the truth on the one hand and, behaviours such as carelessness, impulsiveness, irrationality, prejudice, or stubbornness in coming to a positive belief on the other. Rather, what is material here is whether there were circumstances which called for an enquiry and or there was information available to the officers of the Defendant involved in these events which called into question what was being said and consequently went to the formation and honesty of the belief which the Defendant held at the time of the relevant publications. That, it seems to me, is a material consideration to the Court’s deliberations because it is the kind of evidence which is necessary if the Plaintiff is to have any prospect of discharging the heavy burden of establishing as a matter of probability malice on the part of the Defendant.
76. Mindful that behaviour of a defendant up to and including trial may also warrant an inference by the jury of improper motive, the very latest point at which, in my judgment, there was available information which called into question the truth of what was being asserted by the Doyles was at the meeting in the Keadeen Hotel on the 15th August 2014. On the evidence given by Mr. Egan, there was a patent conflict between the accounts given by the Doyles on the one hand and the position of the Turf Club on the other, particularly with regard to the nature and content of the documentation produced at the time of the inspection. Not for the first time, Denis Egan admitted having been the author of Liz Doyle’s name on the bank lodgement docket.
77. As it is, I am satisfied this particular fact amongst others was apparent at an earlier point in time; I shall return to this presently. On Mr. Egan’s evidence, both sides set out their respective positions at the meeting, especially with regard to what had transpired in the yard and associated events. According to Mr Egan, the copy of the lodgement docket given to Mr. Buckley to show Liz Doyle at Fairyhouse races a few days following the inspection was produced at the meeting [reference in the transcript of the ruling to the production of the lodgement docket/book of evidence rather than to this document is accidental/ mistaken] The Doyles maintained this document was materially different to the document which they contended had been produced by the Plaintiff in Liz Doyle’s yard. Under cross-examination, Mr Egan said he had always admitted to having written the name “Liz Doyle?” on the document produced by the Plaintiff and by Mr Buckley and that he had made that admission on a number of occasions, including on the 15th April 2014 in the course of a telephone conversation with Avril Doyle as well as at the meeting in the Keadeen Hotel.
78. Although the Defendant’s officers knew there were conflicting versions as to what documentation had been produced and that it was Mr. Egan who admitted to having written the name “Liz Doyle?” on the copy of the bank lodgement and no one else, on the evidence of Mr. Meade and Mr. Grassick their position irrespective of which version is correct is that they wanted ‘justice for Liz’ and that as far as Mr. Meade, in particular, was concerned, the Plaintiff was and remained wrongdoer. While I have said that any doubt about the conflict arising from the respective positions and the factual basis for the assertions made by the Doyles in so far as these involved the Plaintiff would have been abolished by the time of the meeting at the Keadeen, as mentioned already I am satisfied from a perusal of the evidence the signs of critical factual conflict were apparent at the time of the meeting in the late Mr. Ward’s office, being the occasion of the first publication. Apart from the discussion on foot of which Mr. Ward wrote the letter of the 12th June, 2014 that contains the second impugned statement, there were emails containing accounts relevant thereto from Avril Doyle, Barry Murphy and Liz Doyle, all dated June 5th 2014.
79. Taking the evidence of the Doyles at face value, it was clarified for the jury that when reference was made in these e-mails to Mr Egan denying responsibility for the documentation which they maintained had been produced by the Plaintiff in the yard, it was accepted, significantly in my view, and it was understood at the time of the meeting that Mr. Egan was not denying responsibility for writing Liz Doyle’s name on the document produced by Mr Buckley, or to put it another way he was accepting responsibility for doing so; either way, the Plaintiff wasn’t the author.
80. Leaving aside the contest as it then was over what had transpired in the yard and why it should be noted that the letter of the 12th June 2014 did not contain an allegation the Plaintiff had written ‘Liz Doyle?’ on the lodgement docket produced in the yard. Indeed, the defence expressly pleaded that there was no necessity to allege in the Particulars of Malice that the Defendant was “well aware” at the time of the inspection that the Plaintiff had not written her name on the bank lodgement. Rather, the allegation made is that the Plaintiff uttered the words complained of for the purposes of entrapping Liz Doyle in circumstances where her name having been found on a lodgement docket was untrue. The inference which may, however, be drawn from this is that the Plaintiff knew the truth about this matter when he made the statement at the inspection that her name had been found on a bank lodgement used in the prosecution of Mr Hughes. Indeed, in this regard, Avril Doyle stated in evidence that the Plaintiff’s behaviour was reprehensible, unlawful and illegal, hugely serious allegations against anybody, never mind a former police superintendent and head of security of the Turf Club.
81. Whatever about these assertions, if the issue is left to the jury the evidence which they will have is that Mr Egan wrote the name “Liz Doyle?” on the copy of the lodgement docket contained in his copy of the book of evidence, that he subsequently gave his copy to the Plaintiff without alerting him to authorship of the entry and similarly with the copy he gave Mr Buckley, who added a circle on his copy around Liz Doyle’s name. Whatever the contest and versions of events the allegations made against the Plaintiff, including those that he had acted unlawfully, illegally, improperly and was guilty of reprehensible conduct are without foundation. His corroborated evidence is that it was only after the inspection that he became aware Liz Doyle’s name had not been written on the original lodgement docket contained in his copy of the book of evidence and that her name had been written in subsequently by Mr Egan. While there may have been a legitimate complaint against the Turf Club there was none such against the Plaintiff in this regard.
82. This begs the question as to why, depending on which evidence of what transpired in Mr. Ward’s office the jury accepts, ( there is a conflict between the accounts given by the Defendant’s witnesses in this regard) Mr. Egan and Mr. Buckley were not put in the firing line especially as the uncontroverted evidence is that it was the entry made by Mr. Egan on the lodgement docket which set off the chain of events which gave rise to these proceedings. I should add for completeness that in subsequent correspondence the late Mr. Ward adopted the position that the Plaintiff’s lack of awareness as to the how, when, where and why Liz Doyle’s name came to be written on the lodgement docket, was irrelevant. In my view his lack of awareness is very relevant, particularly having regard to the seriousness of the charge made in the letter of June 12th. Having regard to the passages on the law cited earlier I am satisfied there is ample evidence extraneous to the impugned statements which is material to the matters under consideration and relevant to the issues in the action.
83. The sixth and seventh defamatory statements, when considered with the surviving statements, are in one sense examples of evidence extraneous to the earlier statements which will fall for consideration by the Jury in the context of the overall charge against the Defendant that it was engaged in a campaign against the Plaintiff. Evidence to that effect may be obtained from the statements themselves as well as from relevant extraneous evidence. At the route of the question which the Court has posed for itself is whether there was information available and there were circumstances material to a level of awareness which calls into question the bona fides of the Defendant’s belief in the truth of the impugned statements at the time of publication and if so whether the adoption of the Doyles beliefs without question and or the failure to make available enquiries amounts to recklessness in the legal sense and/or indifference to the truth. I am satisfied there is evidence if accepted by the jury, which would warrant reaching just such a conclusion. Furthermore, lest there should be any doubt about it, the Court finds that the information and circumstances material to awareness as aforesaid first arose at the meeting in Frank Ward’s office.
Conclusion; First, Second, Sixth and Seventh statements
84. As the trial judge, my function is clear, namely, to be satisfied that there is evidence which, if accepted, would entitle the jury to find on the balance of probabilities that there was malice on the part of the Defendant at the time of publication of the relevant statements; I am satisfied that there is sufficient evidence. As stated earlier at the core of the Plaintiff’s case, evidenced by the impugned statements and the events to which they refer, is a campaign by the Defendant to have him removed from his office as head of security. In my judgment, it would almost certainly be open to the jury to reach a conclusion that there was a campaign at the very least to ‘clip the Plaintiff’s wings’ to the point of neutralising or rendering nugatory his interaction with the members of the Defendant association, particularly in the context of yard inspections.
85. Notwithstanding the nature of the complaints following the inspection which, on the evidence of Avril Doyle at least, implicated Mr Egan and Mr Buckley in a conspiracy with the Plaintiff, he was the only person singled out by the Defendant as the focus for attention, a fact from which the jury would be entitled to draw a further inference that the object of the complaint the Plaintiff rather than the Turf Club. In the event, if the Jury were to accept the evidence available to them on these matters and make findings of malice in relation to all or any of the surviving statements such conclusions would amount to an abuse of the occasion or occasions of publication in respect of which the plea of qualified privilege has been raised which the law does not permit.
Ruling
86. For all these reasons the application to withdraw the case in respect of the first, second, sixth and seventh statements from the jury is refused and the Court will so order.
Result: The application that the case be withdrawn in respect of the first, second, sixth and seventh publication was refused and the application that the case be withdrawn in respect of the fifth publication be withdrawn was acceded to.
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.
M’Keogh v. O’Brien Moran.
Hanna J. [1927] IR 348
HANNA J. :
9 March
This case involves an important question as to the limitations on the rights of a solicitor to send defamatory communications on behalf of a client to a third party. I heard the case on the conclusion of Nolan v. M’Keogh , and, for the purposes of convenience and expedition, I was assumed to have judicial notice of a few explanatory facts proven therein.
In the village of Killaloe there are two medical practitioners: Dr. M’Keogh, the plaintiff herein, and Dr. Holmes, whose name was frequently mentioned. They do not speak to each other, and I am satisfied that there is a good deal of enmity between them. It arose out of an unfortunate circumstance in 1910, when the brother of Dr. Holmes was, on the petition of the plaintiff, removed from the position of dispensary doctor for the district, and disqualified for five years, on the ground that he had obtained the position by bribery. At that time Dr. M’Keogh was a candidate, but was not resident in the neighbourhood.
The Board of Poor Law Guardians who had elected the disqualified Dr. Holmes filled the position by electing his brother, who has figured in this case. After a lapse of ten years, in 1920, Dr. M’Keogh came back to the district, having been appointed Medical Officer of Health of Portroe, which adjoins and borders on Killaloe, being separated from it by the Shannon. Living so near, it is not surprising that during the passing years there have been unpleasant incidents that accentuated the unfriendly feelings. Another leading character in this drama is an elderly midwife, certified to practise in the district of Portroe, named Nurse Nolan. I am satisfied that she has a good practice among humble people, who can pay her moderate charges, and also among the “red ticket” dispensary patients. In her practice she was associated for a few years past mainly with Dr. Holmes, but, for reasons which will appear, she did not practise much with Dr. M’Keogh. She was compared with that famous nurse of fiction, Sairey Gamp, but she had none of that lady’s bibulous habits. Nevertheless, just as Mrs. Harris was alleged to say, “Bring in Sairey,” I think it is clear that in recent years Nurse Nolan would recommend Dr. Holmes to her patients. The plaintiff, Dr. M’Keogh, had not a large midwifery practice. It is probably true that, to use Dr. Holmes’s unfortunate word about him, he was “funky” of midwifery cases. He had been trained in the National Maternity Hospital, Holles Street, and I am satisfied that he was, almost to a fault, particular about cleanliness of the nurse and care of the patient. In his favour must be mentioned the evidence of Dr. Reginald Whyte in the previous casethat a doctor in such cases could not be too careful. From 1920 he had been engaged in about a dozen cases with Nurse Nolan. He had complained to her several times of her uncleanliness. I need not go into particulars. I do not think she then bore him any real ill-will. She had only a tolerant and genial contempt for his scruples. There was no improvement. He refused to attend cases with her. In the end of 1925 he threatened to report her. He complained informally about her to Dr. M’Cormack, the Medical Inspector of the Department of Local Government and Public Health, in November. Another case of puerperal fever occurred in December, and he, after communicating with Dr. M’Cormack, sent a formal report to the Department in the following terms:
“Killaloe, Co. Glare, 16th January, 1926.
SIRI beg to intimate to you that Mrs. Nolan, midwife, Ballina, Killaloe (Portroe Dispensary District), shows remarkable want of cleanliness when conducting her cases. There were at least two cases of puerperal fever during the past eight months in the above district.
Your obedient servant, H. V. M’Keogh, M.O., Portroe Dispensary District.”
After some correspondence between the Department and Dr. M’Keogh, they finally informed him, on the 12th February, that the matter had been referred to the Tipperary (North Riding) County Council, as Local Supervising Authority under the Midwives (Ireland) Act, 1918. The Tipperary (North Riding) County Council transmitted a copy of the letter from the Department and a copy of the complaint to the North Tipperary Board of Health. This letter and report were read at their meeting on the 18th February, and appeared in the press on the 20th February. Nurse Nolan stated that the first intimation she had of the charge was reading it in the “Nenagh Guardian.”
The report of the 16th January and its sequelae have occupied the Court for several days in the disposal of the two actions which have arisen out of it. The first action was one brought by Nurse Nolan against Dr. M’Keogh for damages for libel. His defence was that the occasion was privileged, inasmuch as he sent the report about the nurse bona fide, without malice, in the discharge of his duty as Medical Officer of Health, and that he believed the statements to be true. In that case Dr. Holmes was the principal witness for the nurse. The jury found a verdict for Dr. M’Keogh, and with their decision I agreed. The second action arising out of the report is the present one brought by Dr. M’Keogh against Mr. Hugh O’Brien Moran in respect of defamatory statements contained in a letter written by Mr. Moran, while acting as solicitor for Nurse Nolan, to the secretary of the North Tipperary County Council. Mr. Moran was at the time a solicitor in practice; recently he has been appointed Registrar to the Circuit Court of Limerick.
Now, it is very vital to consider the circumstances under which Mr. Moran was retained, and the sources of his information. He did not know Nurse Nolan prior to the proceedings. He knew both the doctors. His father had acted for the Holmes’ interest in the 1910 trouble, the year in which he was admitted a solicitor. He stated that he had forgotten this fact, and was not aware of the relations between the doctors, as he had removed from Killaloe to Limerick before Dr. M’Keogh had come to the district, in 1920. On the 22nd February Nurse Nolan came into Mr. Moran’s office in Limerick, and handed him the newspaper of the 20th February, and a letter from Dr. Holmes, dated the 21st, in the following terms:
“Killaloe, 21/2/’26.
MY DEAR MORAN
I advised Mrs. Nolan to consult you. A serious report has been made about her by Dr. M’Keogh to the Local Government Department, stating she was dirty, and had no knowledge of her business, and caused puerperal fever in two cases which she attended last year. This has found its way into the press, and
will do the nurse serious harm in her profession. Now, the whole cause of the trouble is trade jealousy. The old nurse and I practically do all the midwifery in the district, and she is the district nurse in M’Keogh’s district; he is apparently endeavouring by this means to get her dismissed by the Local Government Department. I am prepared to certify that his statements are false, and I am in a better position to judge of her work than he is. He is basing his accusations entirely upon hearsay evidence, as the nurse and he do not work together, and he is not in a position to judge of her work. If the nurse was as bad as he says, it is an extraordinary thing that she is called in in practically every case, whereas his services are not requisitioned at all, and that is where the rub comes in. He appears to me to have laid himself open for an action. Do the best you can for the old nurse. She is a real good sort.
Yours sincerely
P. J. HOLMES.
P.S.M’Keogh attended two cases two years ago, and both died of puerperal fever, showing that such things can occur even in his capable hands.”
Now this statement in the postscript I find to be, in fact, untrue. Mr. Moran’s evidence is that he sent for Dr. Holmes, interviewed him on the 24th, and examined into the details of the charges, and believed the statements of the nurse and Dr. Holmes to be true, and that the charges were based on the private spite of Dr. M’Keogh. I find that the only professional disparagement made in those interviews upon Dr. M’Keogh was that the nurse said he was “on the rough side” with his patients, and that Dr. Holmes only gave the name of one patient of Dr. M’Keogh, a Mrs. Roger Keily, whom he stated was one of Dr. M’Keogh’s first patients, and alleged had died of puerperal fever.
Having had these interviews, Mr. Moran wrote two letters on that daythe first, to the Department, denying in emphatic language the charges made against his client, and stating they were due to private spite; he also asked for a copy of the complaint, as she intended to take action against Dr. M’Keogh; the second letter was to Dr. M’Keogh, denying the charges, asking for particulars of the two cases alleged against Nurse Nolan, but omitting any reference to the allegation that he had acted under private spite. Both these letters were, in my judgment, carefully and properly worded in the interests of his client, and no complaint can be made as to their contents. The Department replied on the 27th inst, that the matter had been transferred to the Tipperary (North Riding) County Council, as Local Supervising authority under the Midwives (Ir.) Act, 1918, for investigation. Dr. M’Keogh replied on the 2nd March, stating that he had occasion in the past to reprimand and warn the nurse for want of cleanliness; that he had refused to attend a case where she was nurse; that he regretted having had to send the report, but he had conceived it his duty to do so.
Mr. Moran states that he saw his client next on the 2nd March, showed her the letters, and was instructed to write to the County Council. He did not write that day, but on the following day, the 3rd. He had a visit from Dr. Holmes on the 3rd, and I find as a fact that he wrote the letter after this interview with Dr. Holmes. I am further of opinion, on the evidence, that the nurse wanted the letter sent to the press, in reply to the report in the press and the statement of the chairman that she should be warned, but that Mr. Moran thought that such a course would not be advisable. I find, however, that he wrote the letter to the County Council with the knowledge that it would be read at their meeting, and would, more than likely, get into the press and to the public. Mr. Moran dictated the letter himself, and signed it personally. With what object was the letter written, judging from its contents, and apart from the evidence of the witness? It states, in fact, that it is written to obtain a copy of the report from the County Council. That was a proper object. From its contents, it was further written so as to place before the Council, as strongly as possible, Nurse Nolan’s answer to the complaint. This was also within his right as her solicitor, as was the intimation that she intended to take proceedings against Dr. M’Keogh. These objects were all within the privilege of the occasion, based on his duty to his client. I am of opinion that there is nothing in the strong language used on these topics to take the letter out of the protection given to privileged documents.
But the main argument in this case has turned upon the fact that, the letter contained a separate and an unequivocal charge against Dr. M’Keogh of being himself guilty of professional negligence, incompetency, or unfitness. The words in which the charge is couched are: “She will be able to prove when the time comes that there was greater reason for complaint against Dr. M’Keogh in his treatment of his patients than there was against her”a very damaging statement to make, with the knowledge that it might go broadcast through the countryside. It was made in this letter for the first time. In neither action has any attempt been made to justify it. I have no hesitation in finding that it was without foundation. I have dealt with the particulars upon which Mr. Moran sought to justify his belief that it was true. I can only say he was very easily satisfied. I have no doubt that it was inspired by the long-borne enmity and desire for revenge of Dr. Holmes. I am not satisfied that the old nurse ever, in fact, made, or desired to make, this charge against the doctor. I asked Mr. Moran why he introduced this charge. His answer was that “It was more or less from the point of view that people in glass-houses should not throw stones”a remarkable answer. Shorn of metaphors,
it means that the charge was deliberately made to disparage the doctor professionally. Was that within the privilege?
This letter was read at the meeting of the County Board of Health on April 2nd, but the wise editor of the “Nenagh Guardian” omitted the charge against Dr. M’Keogh. Dr. M’Keogh saw what was published of the letter in the press of the 3rd April, and made up his mind to take action upon it. He took advice; but only after obtaining a complete copy of the letter from the Board, in the month of May, did he bring this action.
The pleadings have been amended in accordance with the consent.
A few words are necessary as to the privilege granted by the law to the legal profession. In respect of words spoken in Court, an advocate, whether solicitor or counsel, has absolute immunity from action, even though the defamatory words have been spoken with actual malice, but it must be always remembered that such advocate is subject to the jurisdiction of the Court in which he practises, before which he may be brought on a charge in the nature of contempt of Court for having made an irrelevant, false charge maliciously, and without reasonable foundation. If the Court be of opinion that he acted with malice, he can be appropriately punished. This is laid down by Mansfield C.J., in Skinner’s Case (1). It is approved of as being the common law by Fry L.J., in Munster v. Lamb (2).The advocate is also amenable to the disciplinary body of his own profession.
The privilege that is claimed for a solicitor sending communications from his office on behalf of a client, after due and careful consideration as to their contents, is different from that of the advocate, open to the distraction and excitement of Court. The advocate’s privilege is absolute. The solicitor’s is based on the principles well established in law: that, where a person has a duty to discharge, he shall have a qualified protection in the exercise of the duty. In this case there was, without doubt, a duty on Mr. Moran to make Nurse Nolan’s case as fully or as forcibly as he thought right to the County Board of Health, who had a corresponding duty to receive same. In making her case, he is entitled to do and write everything reasonably necessary, or incidental to, the discharge of his duty. With particular reference to solicitors, the general principle has been differently expressed in reference to the particular facts. In Baker v. Carrick (3), the defendant was a solicitor instructed by clients, who alleged that they were creditors of the plaintiff, to take the necessary steps to secure payment of their debt, and see that its recovery was not put in jeopardy. He served a notice on auctioneers, who were selling the plaintiff’s property, cautioning them against parting with the proceeds; stating that
the plaintiff had committed an act of bankruptcy, upon which an order in bankruptcy might be made against him. The Court of Appeal, in setting aside the finding of the jury for the plaintiff, and entering judgment for the defendant, accepted the view of the law expressed by Lopes L.J., at p. 841: “It is the duty of the solicitor to do all that he can to protect the interests of his client; and, in my opinion, he stands in the same position with regard to privilege as that in which his client would stand in the case of a similar action against him.”That case turned, not on excess of privilege, but on whether privilege existed or not. In the same volume of the Reports (at p. 842), we find the case of Boxsius v. Goblet Frères (1)where the action was brought against a solicitor, and it was alleged that the privilege did not cover the publication of the defamatory matter to clerks by dictation and copying. It was held there that the solicitor was entitled to follow the necessary and usual course of business without losing the protection of privilege. Lopes L.J. used the words: “If a communication made by the solicitor to a third party is reasonably necessary and usual in the discharge of his duty to his client, and in the interest of the client, the occasion is privileged.” These two cases are merely particular applications of the general principle. In replying to a charge made against him, a private individual is privileged in law to write anything reasonably necessary, or incidental to, or fairly arising out of, the charge or his defence thereto, so long as he is not actuated by express malice in making defamatory statements. The same protection is extended to a solicitor. It is in the public interest that such a privilege should not be unduly curtailed or extended. Some solicitors write letters that are forcible, but courteous; others do not. Having regard to their profession, caution, and training, the foregoing principles have always, however, been found ample for the complete discharge of their duty.
It is also clearly established that a privileged occasion may not be used for irrelevant defamation. One part of a communication may be within the protection, and another not. It is also settled that the fact that a charge has been made against a defendant to which there is a duty to reply does not include within the protection of the privilege thereby occasioned a right to make a counter-charge of a defamatory character irrelevant thereto. This was laid down by the Exchequer Court in this country in Murphy v. Halpin (2), presided over by Baron FitzGerald. The Court refused to extend the principle of O’Donoghue v. Hussey (3), which protected a defendant in alleging, in his reply to a charge by the plaintiff, that the plaintiff was not a person to be believed, and giving instances of previous misstatements made by him. In M’Quire v.”Western Morning News” (4), Collins M.R., in dealing with the qualified privilege of fair comment, said: “The comment, in order to be within the protection of the privilege, had to be fairthat is, not such as to disclose in itself actual malice. It also had to be relevant; otherwise it was never within it, and the Judge could hold as a matter of law that the privilege did not extend to it . . .; and in such cases the only defence was truth.”These words are in point. In Warren v. Warren (1), the plaintiff and defendant were jointly interested in property, of which C. was the manager. The defendant wrote to C. a letter, principally about the property, and the conduct of the plaintiff with reference thereto, but containing a charge against the plaintiff as to his conduct towards his mother and aunt. Baron Parke and the other members of the Court held that the reference to the plaintiff’s conduct to his mother and aunt was not within the privilege. In Huntly v. Ward (2), the plaintiff’s attorney having at his desire written to the defendant demanding payment of an alleged debt, the latter sent a letter to the attorney containing gross imputations on the plaintiff’s character, unconnected with the charge made against him. The Court held that, it was not a privileged communication, notwithstanding that the jury found that it was written bona fide, and without malice. In Nevill v. Fine Arts and General Insurance Co. (3), Lord Esher enunciates the principle as follows, at p. 170: “There may be an excess of the privilege in the sense that something has been published which is not within the privileged occasion at all, because it can have no reference to it . . .” “But when there is only an excessive statement having reference to the privileged occasion, and which, therefore, comes within it, then the only way in which the excess is material is as being evidence of malice.” In Adam v. Ward (4), the facts, shortly, were that the plaintiff, Major Adam, who had been an officer in a cavalry regiment, and was a member of Parliament, in a speech in the House of Commons, falsely charged his former commanding officer with sending confidential reports to Headquarters on officers under his command containing wilful and deliberate misstatements. The general referred the matter to the Army Council, and at their direction the defendant, as their secretary, wrote a letter to the general vindicating him, and containing defamatory statements about the plaintiff. He also sent it to the press for publication. The main purport of the letter was that, in the opinion of the Army Council, the general had been unbiassed in the matter; and, in support of that view, referred to the fact that when Major Adam had been called upon to retire, the general had intervened on his behalf. The latter statement was relied upon by the plaintiff as being extraneous to the privilege, and not protected. The jury at the trial, before Darling J., found in favour of the plaintiff. The Court of Appeal directed judgment to be entered for the defendant, on the ground that the whole document was protected by privilege, and that there was no evidence of malice. This was affirmed by the House of Lords, who took the view that there was no extraneous matter, and gave several tests by which that could be determined. Lord Finlay L.C., at p. 318, said: “The privilege extends only to a communication upon the subject with respect to which privilege exists, and it does not extend to a communication upon any other extraneous matter which the defendant may have made at the same time.” At p. 319, he said: “It has been said that their observations as to Major Adam were not relevant to the vindicationof Major-General Scobell, and that privilege does not extend to this portion of the letter. These observations appear to me to be distinctly relevant.” Lord Loreburn said: “Anything that is not relevant and pertinent to the discharge of the duty, or the exercise of the right, or the safeguarding of the interest which creates the privilege, will not be protected. To say that foreign matter will not be protected is another way of saying the same thing. The facts of different cases vary infinitely, and I do not think that the principle can be put more definitely than by saying that, the Judge has to consider the nature of the duty, or right, or interest, and to rule whether or not the defendant has published something beyond what was germane and reasonably appropriateto the occasion.”
The law is, therefore, clear. The solicitor, in corresponding with third parties, is in no better position than his client. He is not free to write everything his client may suggest or state. He cannot be made the conduit pipe for every defamatory allegation of a chagrined or malignant litigant. He is bound to apply a plain and simple test, based on fair-play, and exclude from his letter anything defamatory that is not relevant to the occasion. This is, in no sense that I can imagine, a restriction upon a solicitor in the conduct of his business for his clients. It has been acted upon by generations of the profession. It is true that at times “the best parry is a thrust,” but the thrust must be according to the rules of the game.
Let us now consider the actual statement upon which the trial turned. “She (Nurse Nolan) will be able to prove when the time comes that there was greater reason for complaint against Dr. M’Keogh in the treatment of his patients than there was against her.” In my opinion, having heard the evidence of Mr. Moran, this was intended as a counter charge, or attack, on Dr. M’Keogh, and not relevant to the occasion. It is in general terms, unconfined to any class of patient. There may be cases in which an accused person may inculpate his accuser in order to more effectually exculpate himself, but (see O’Donoghue v. Hussey (1)) if he desires to do so to a third party, he requires an appropriate privilege. In my judgment, this went beyond the reasonable limits of self-defence. The occasion was abused. It was not made as a defence to the Ministry of Public Health; it was not made in the letter to Dr. M’Keogh; I find that it was untrue, and emanated from the private malignity Of the rival doctor, who has acted unworthily in this matter. The only explanation that I can find for its inclusion in the letter by Mr. Moran is the opinion I formed from his evidence, that, though deliberately done, he did not realise the seriousness of his action, and inserted it without due consideration, having regard to the fact that it was being communicated to a third party, and would probably, as he expected, appear in the press. I rule, therefore, that this statement was an independent and extraneous matter, unconnected with, and not reasonably relevant to, the purposes of the letter, which purposes properly confer privilege on the other portions, though they are strongly worded. As there has been no suggestion of express malice, it is unnecessary to consider the effect of the language used within the privilege, as indicated in some of the cases.
I rule, therefore, that the occasion of the writing of the letter was privileged; and that all the letter, with the exception of the charge against the plaintiff, is protected by the privilege, and that there is no evidence of express malice.
As regards the portion that is outside the privilege, I find that it is untrue in fact. This entitles the plaintiff, Dr. M’Keogh, to a verdict.
On the question of the amount of damages, I do not think that the falling off in his practice has been due to this part of Mr. Moran’s letter. I am aware, from the other case, of the professional storm that has been for over a year in the district. I am sure that the people take sides, and the plaintiff may have lost patients. His counsel stated that the plaintiff was more anxious to restore his good name than get damages. I must give damages beyond a merely nominal amount. I measure them at £25, for which I give judgment and give the necessary certificate for High Court costs, and for discovery of documents and interrogatories.
Sevenoaks v Latimer
King’s Bench Division.
27 November 1919
[1920] 54 I.L.T.R 11
Gibson, Kenny, Samuels JJ.
Gibson, J.
In view of the circumstances of the litigants in this case, neither of whom is very wealthy, we think it better to dispose of it at once, and so avoid the expense of another day’s hearing. I do not intend to discuss the facts in detail, nor to express any opinion of my own on the merits of the litigation, or the findings of the jury. Much of the evidence on both sides I view with the greatest suspicion. What we have to consider is whether on questions properly left to the jury there was evidence fit for their consideration. The action was of an unusual character. The facts lie within a narrow compass. A Postal Order for 18s. was stolen in the course of post; how it was stolen does not appear. It is alleged that the plaintiff on the 26th September, 1918, went into the Post Office at Ballinamallard and cashed the stolen Order. How he could have got it I am unable to imagine; for he was, about this time, usually in a far away hospital. On this particular day he might have been out, but this was disproved by plaintiff’s witnesses, if not mistaken as to date. He came into the Post Office, according to the defendant, in uniform. Sevenoaks is a man of striking proportions, 6 feet 3 inches in height, and of remarkable appearance. According to the defendant, he gave the Postmaster particulars of himself and his movements; that he had been in hospital or was coming out of hospital; that he believed his father was fairly well now, but that he was not coming from home and that it was nearly two years since he saw him—all particulars fixing his identity. The plaintiff had been away for some time at the war, and the defendant at first could not recall him to his mind, but after he had signed the name “C. Sevenoaks” he did remember him, and the conversation identified him beyond all doubt. The Postal Order at that time had not on it the name of the payee, or the name of the Post Office where it was to be cashed. It was signed in the presence of the young woman of the staff with the name “C. Sevenoaks,” and afterwards the daughter of the defendant, then coming in, filled in the formal particulars of the name of the Post Office and that of the payee. That was an irregularity according to Post Office regulations, but an irregularity to which I do not attach much importance. The Order was sent on in due course to the Head Office, where it was known that the Postal Order had been misappropriated and paid in Ballinamallard to a wrong payee. Inquiries were instituted and as a result the plaintiff, who was under suspicion, was invited in Tipperary to sign his name for the purpose of comparison. In the circumstances the Post Office Authorites thought it right and proper that the Postmaster at Ballinamallard should give some explanation, or institute some inquiry, and accordingly Latimer did so. He did so with the knowledge that the person whom he saw with his own eyes, in uniform, had denied that he was in the Post Office at all that day, and alleged that the statement made by the Postmaster was wholly erroneous. I am not going to read the words which are complained of as slanderous; they are not quite the same in the pleadings as those found in the evidence of the steward, but the words substantially come to this: Latimer, who had made up his mind that the plaintiff’s story that he was not in the Office on the 26th September was untrue, went to the steward of Colonel Richardson under whom Sevenoaks had been before the war an assistant butler, for the purpose of ascertaining whether or not the statement made by Sevenoaks was true or false, and to corroborate his own version that the plaintiff was guilty. Of course he was guilty if he had been in the office on the 26th September and cashed the Order, and afterwards denied it. The defendant commenced with an inquiry, which in my opinion was legitimate, as to when the plaintiff came home; he used to come home from time to time, and he might have come from the hospital; he might have been staying at or near Ballinamallard without having returned permanently there. The position of Magee was this: he was a Land Steward, he had no connection whatever with Latimer, and had no authority whatever over the soldier. It was not alleged that his master’s money had been stolen; the only reason for the inquiry from him was that he would be likely to know if, and when, the plaintiff had come back, and if he could have cashed the Order on the 26th September, 1918. Unfortunately, the defendant went further, and practically used language which imputed that the plaintiff had cashed this stolen Order, that he (the defendant) had no doubt he did so, and describing how he paid it into his own hand on the 26th September. The dialogue about being in hospital and the other particulars might be relied on as making mistaken identity impossible. Magee, the steward, said he would look into his books, and having looked into them he found that the first time that he *13 could fix the return of the plaintiff to Ballinamallard was the 5th October. On the 20th November the defendant, having received that information from Magee, stuck to his original story, and said “I couldn’t be mistaken.” From that time to the present moment he has adhered to his narrative, and insisted that he could not have been mistaken. The case coming on for trial before a jury, the defendant, not unnaturally if he believed that he was not mistaken, filed a justification. The jury have found that the plaintiff, who examined several hospital witnesses to establish an alibi, was not in Ballinamallard on the 26th September; that, therefore, he could not have cashed the Order and got the money; that the defendant did not honestly believe that the plaintiff was the payee, and that the defendant was animated by malice. The serious issue is the want of belief; if he did not honestly believe, that would be almost conclusive that he acted maliciously. The theory suggested by Serjeant Sullivan is that there being this unpleasantness about paying a man who was not the proper payee, the defendant had to make some kind of case to justify his action, and the suggestion is that this being a Post Office theft, and the money having been paid by the Ballinamallard Post Office, to someone without proper credentials, it was put on Sevenoaks who was away and would not be there to answer—in other words that there had been a fabrication from the beginning—a tremendous issue to go to a jury. It may be that the jury, in their anxiety to absolve the plaintiff, have overlooked the serious imputation which their verdict puts on the defendant. I will now deal with the question of law. In my opinion, having regard to the fact that the defendant is positive that the plaintiff was present in the Office on the 26th September, and that he could not be mistaken, when there was evidence that the plaintiff was not there and the jury so find, it is a legitimate inference from that finding that the defendant did not believe what he said. If Latimer was not so positive that it was Sevenoaks who was there, and had not persisted to the end that he could not be mistaken, the case might have assumed a different character as to mistake of identity. But, unfortunately for the defendant, the plaintiff is a man of remarkable physique, and the circumstances of the transaction are such that the defendant could hardly be mistaken, so that either Sevenoaks would be guilty, or Latimer would be lying. I do not say that this is my conclusion, but that is a view which might be presented to a jury. If Latimer did not honestly believe that the payee was Sevenoaks he was acting maliciously. If I was trying the case I would have asked the jury if the defendant was consciously lying. If put in that form they possibly might not find he was. Now comes the question of privilege. I do not know if my colleagues agree with me, but my conception of the law is this: there is all the difference in the world between applying to a confidential friend, to a solicitor, or to an officer of the law, and going to a man in the street—a man with no duty. There was no duty as between the steward and the defendant. It was, as I have said, perfectly legitimate for the defendant to inquire of Sevenoak’s whereabouts, but the moment he supplemented his inquiry with a charge—the charge that the plaintiff was the guilty man, that, in effect, he got illicitly the proceeds of a stolen Postal Order—the extension of the law of privilege to such a state of circumstances could not be tolerated. You can, as I have said, go to a solicitor, to a policeman, or to a person in authority, but not to a man in the street for the purpose of communicating your conviction of a man’s guilt. The statement here was addressed only to Magee, but suppose it was addressed to the village publican: if the inquirer can go to the publican, and the publican to the baker, where is the matter to stop? No such instance of the extension of the law of privileged occasion is known to our law, that you can go to anyone, make a charge, and when mistaken say it was a privileged occasion. Officers of the law can do it, and they often prosecute a man who is innocent. Failure of the prosecution does not involve any responsibility. If a theft is supposed to have been committed, the matter ought to be put in the hands of the Crown Solicitor, and not in the hands of a man like Latimer, who cannot be supposed to know the law. The protection of privileged communication did not attach under the circumstances. I have great sympathy with the parties to this litigation; I am sorry for the defendant, but I am not in a position to say that there was not evidence to go to the jury. I express no opinion of my own on the findings of the jury; the case is mysterious.
Kenny, J.
I concur with my brother Gibson that this verdict and judgment cannot be disturbed. I may say that up to a certain point in the argument my inclination was in favour of the defendant, and I was led to that state of mind by reason of the alibi evidence, much of which, like my colleague, I distrusted. However that may be, a plea of privileged occasion has been filed. To dis *14 place privilege it is necessary to establish express malice. Now, the learned judge who tried the case left two questions to the jury as to malice—Nos. 6 and 7 in the Registrar’s Certificate. No. 6 reads: “Did the plaintiff cash the said Postal Order at Ballinamallard Post Office on the 26th September, 1918?” Answer, “No.” The meaning of this is that the plaintiff was not in Ballinamallard Post Office on the day the Postmaster swore he was. No. 7 is: “Did the defendant when he spoke said words do so bona fide and honestly believing them to be true?” Answer, “No.” He did not. These answers are challenged by the defendant on the ground, as far as No. 7 is concerned, that there was no evidence to support it. I think there was evidence to support it. As to the question of privilege, I do not dissent from my brother Gibson at all. The law as to privileged occasion, and as to excess in the words spoken, is as laid down by him; but here it was open to the jury to say, as between the two stories, which was the true one. They came to the conclusion that the story of the plaintiff was the true one, and that he was not in the Post Office on the 26th September. The defendant did not try to establish any case of a mistake having been made. He did not suggest that there was another person like the plaintiff. There was no such case before the jury. At the trial the case from beginning to end was, that the man was a man of remarkable appearance, and of big physique, that he did come into the Post Office on the 26th September, that it could not have been anyone else, and that when he came in he signed his name to the Order, and was paid 18s. over the counter. On the evidence, and there was evidence fit for their consideration, the jury have found that the plaintiff’s story was true and the defendant’s untrue. In my opinion, having found that they were at liberty to find that the defendant did not honestly believe that the plaintiff was the man who cashed the Postal Order in the Ballinamallard Post Office on the 26th September, 1918.
Samuels, J.
I have, with great diffidence, having regard to the views of my colleagues, to express my opinion as to the question of privilege raised in this case. I think there was a duty on the Postmaster, Latimer, to make these inquiries. He says himself that he “received a communication about the Postal Order from the Post Office Authorities, and I proceeded to make inquiries with regard to the Postal Order to answer the queries put to me by the Department.” Acting as an agent of the Department he goes to a man who it is admitted on the evidence would know the habits of the plaintiff, and make inquiries. The steward looks up his books and gives the information. Now, it was argued by Serjeant Sullivan in the course of his able argument, that up to a certain point in the inquiries everything was perfectly legitimate, but the defendant went on to say that the reason for his inquiries was that there was a case against the plaintiff, and it is contended that in that way privilege was exceeded, and the whole matter was then at large. I am of opinion that the whole conversation was on a privileged occasion, and that there was nothing said to take it out of the protection of a privileged occasion. But then there is a question, on the serious point of malice, whether there was a case to go to the jury. I do think there was evidence, and on this branch of the case I concur with my brothers Gibson and Kenny as to the necessity for the case going to the jury. Whatever view I may take of the verdict given, there was evidence upon which the jury might come to the conclusion that they did. In my opinion it was entirely a jury question. In the circumstances I concur in the general conclusion, but cannot agree with my colleagues on the question of privilege.
The Motion was dismissed with costs.