Privilege
Berber v Dunnes Stores Ltd
[2006] I.E.H.C. 327
Judgment of Miss Justice Laffoy delivered on 24th October, 2006.
The factual background
The plaintiff commenced his employment with the defendant as a trainee manager in April, 1980 when he was just short of nineteen years of age. Following his training he was employed as a store manager at various locations, Enniscorthy, Wexford and Bray. He moved from store management to buying in 1988. Thereafter until November, 2000 he was involved in various facets of buying, advancing from a trainee through the positions of Group footwear merchandiser and men’s footwear buyer and ultimately to men’s “ready-mades” buyer. It is common case that the senior managers and executives of the defendant viewed the plaintiff’s performance in his various roles positively and that it was expected that he would advance further within the business. On a management performance review in February, 2000 his performance was generally rated at the level of “effective contribution”. One matter, however, which was alluded to was the fact that he is colour-blind.
It is the plaintiff’s case that from March, 2000 onwards the attitude of senior managers and executives of the defendant towards him changed. That perception was engendered by the fact that, unlike previous years when as a buyer he spent as many as fifty days abroad sourcing and buying products, in the spring and summer of 2000 he went abroad only once on business, to a clothing show in Germany. It was also fuelled by an increased interest in the state of his health, which he perceived as unnecessary because of his attendance and work record. The plaintiff has suffered from Crohn’s disease since his late teens. In July, 2000 the reason ascribed for not sending the plaintiff on a buying trip to the Far East was the concern of the defendant’s Managing Director, Margaret Heffernan, that he might get ill because of his medical condition. The plaintiff’s evidence was that it was at that stage that he felt that the defendant was stopping him from doing his job and that he thought there was “something bizarre going on”. In the following month, August 2000, at the behest of Mrs. Heffernan, the plaintiff was requested to report to the defendant’s Human Resources department on his medical condition. In October, 2000 the plaintiff was informed by his departmental head, David McDermott, that he was to be transferred from buying back to store management. The plaintiff’s colour-blindness was adverted to in this context. Eventually, on 22nd November, 2000 the plaintiff was informed that he was to be moved to the defendant’s store in the ILAC Centre in Dublin as either department manager of menswear or ladies’ wear. This assignment was perceived by the plaintiff as a demotion. His response was to seek a meeting with Mrs. Heffernan.
That meeting was facilitated and it took place on 23rd November, 2000. The outcome of the meeting was that it was agreed that the plaintiff would go back into store management, that he would start in the defendant’s store in Blanchardstown Shopping Centre, which at the time was regarded as the defendant’s “flagship” store, that he would undergo training there with a view to “fast tracking” him through store management so that he could be appointed as store manager or a regional manager within six to twelve months. It was the plaintiff’s understanding that he would start work in Blanchardstown on 4th December, 2000 and that he would start in the ladies’ wear department. It is clear on the evidence that the plaintiff was unhappy about the change, but I am satisfied on the evidence that he was prepared to make the most of it. However, because of a series of unfortunate incidents, the plaintiff’s career with the defendant ended within six months.
The first of those incidents was that when the plaintiff arrived at work in the defendant’s head office in Stephen Street on 27th November, 2000 there was an email awaiting him directing him to report for duty that day in Blanchardstown. He was to take up a position in the homewares, not ladies’ wear, department. The plaintiff was upset by this direction, which he considered to be at variance with his agreement with Mrs. Heffernan. He tried to contact Mrs. Heffernan but she was not available. The evidence was that she had gone abroad. The plaintiff did not go to Blanchardstown. The next day he was contacted by John McNiffe, who was the director of store operations at the time. Mr. McNiffe’s evidence was that he had received a phone call from Mrs. Heffernan asking him to deal with the plaintiff. Mr. McNiffe and the plaintiff had three meetings. At the first, on 28th November, 2000, there was no resolution because Mr. McNiffe directed the plaintiff to go to Blanchardstown but the plaintiff would not agree to go until he had spoken with Mrs. Heffernan. The matter was left on the basis that the plaintiff would “sleep on it” and they would meet again the following day. There were two meetings on 29th November, 2000. At the first, that morning, the plaintiff maintained the position that he needed to speak to Mrs. Heffernan to clarify issues. The plaintiff had brought a statement which he read to Mr. McNiffe. Mr. McNiffe asked for a copy of the statement but the plaintiff refused to give it to him. Mr. McNiffe adjourned the meeting until 5 o’clock the same day. The plaintiff’s evidence was that Mr. McNiffe told him to have “another think” about what he was saying and this is consistent with Mr. McNiffe’s evidence. On the resumption of the meeting the plaintiff adopted the same position as he had adopted previously. Mr. McNiffe suspended him from work with pay because he would not go to Blanchardstown. Following his suspension, the plaintiff’s solicitors entered the fray on his behalf.
In their first letter dated 7th December, 2000 the plaintiff’s solicitors quoted the prepared statement which the plaintiff had read to Mr. McNiffe on 29th November, 2000, which was in the following terms:
“I have had the opportunity to give the matter further thought. Nothing has changed overnight. I would ask again that I have the opportunity to meet with Mrs. Heffernan before I go to Blanchardstown in that we can clarify some of the commitments or promises that she made to me to discuss some of the issues that have arisen since my meeting with her on 23rd November.
I am quite happy to go to Blanchardstown on the terms that I agreed, together with Mrs. Heffernan, in our one to one meeting last Thursday and I will adhere to those terms and I am quite happy to fulfil my part and carry out Mrs. Heffernan’s personal request to me regarding my change of direction within the company. Remember, that all I want is to be treated fairly and honourably after twenty years of service to the company.”
In their letter, the plaintiff’s solicitors threatened proceedings if the suspension was not lifted. Further, they alleged that the defendant’s conduct towards the plaintiff and the stress it had generated had resulted in him becoming ill and his doctor had certified his absence from work.
As I have stated, the plaintiff suffers from Crohn’s disease. He was first diagnosed in 1978 during an operation after he presented with acute appendicitis. At the operation he had a right hemicolectomy and afterwards he was put on medication. He did well. The plaintiff has been treated by Professor Colm O Morain, Consultant Gastroenterologist, since 1994. In 1995 there was a recurrence of his Crohn’s disease. Medication was prescribed and the plaintiff went into remission within three to six months. The plaintiff continued under the care of Professor O Morain who saw him regularly. By December, 1999 Professor O Morain recorded that the plaintiff was doing well and that, while he got intermittent symptoms, they were generally controlled. At that stage Professor O Morain planned to review the plaintiff again in six months. However, in the spring of 2000 the plaintiff had a flare up of his Crohn’s disease. He was reviewed by Professor O Morain on 22nd March, 2000, who reviewed him again on 3rd May, 2000 after a colonoscopy and again on 19th May, 2000 after a “barium meal follow through”, which showed a suspected loop bowel which was consistent with active Crohn’s disease. Professor O Morain put him on infusions of Infliximab. By August, 2000 Professor O Morain found that the plaintiff was dramatically better. By November his symptoms were beginning to recur. He had another infusion of Infliximab. However, when Professor O Morain reviewed him on 13th December, 2000 he recorded that unfortunately the plaintiff had been through an excessive amount of stress with his job, that he had ended up in a legal wrangle. Professor O Morain recorded that this had not contributed to his well-being. He certified the plaintiff as being unfit for work until 28th December, 2000.
The plaintiff’s absentee record in the years 1995 to 2000 mirrors the medical evidence. He missed only one day from work in the years 1995, 1996 and 1999. He had no absence in 1998. He was absent for five days in 1997 and for seven days in the year 2000 up to 21st November. That record clearly justifies Professor O Morain’s opinion that the plaintiff was very positive towards his work, towards life in general and towards his disease.
Returning to the chronology of events, the defendant’s solicitor’s response dated 12th December, 2000 to the plaintiff’s solicitor’s letter sought to justify Mr. McNiffe’s decision to suspend the plaintiff on the basis that the position adopted by the plaintiff at his meetings with Mr. McNiffe, his persistence in seeking to speak to Mrs. Heffernan and in refusing to explain his issues to Mr. McNiffe, was unreasonable. However, it stated that the defendant was prepared to overlook the incident provided the plaintiff reported for work in Blanchardstown as soon as his doctor certified him as being fit to return to work. The plaintiff reported for duty in Blanchardstown on 28th December, 2000. From this point onwards, practically everything of significance which occurred was recorded in the inter partes correspondence.
I have some general observations to make in relation to the evidence.
First, on the plaintiff’s side the only witness of fact was the plaintiff. On the defendant’s side the witnesses of fact were Conor Sills, who was the manager of the defendant’s store at Blanchardstown at the time, Tim O’Mahony, who was involved in human resources management for the defendant and who testified in relation to the preparation of a training plan in March, 2001 and professed little or no knowledge of anything else, and Mr. McNiffe. The defendants did not call any witness as to what transpired up to and at the meeting with Mrs. Heffernan on 23rd November, 2000.
Secondly, while there is very little conflict in relation to primary facts, there is huge conflict as to the inferences to be drawn from primary facts and, in particular, the motivation of the parties.
On the plaintiff’s side, in the first letter from the plaintiff’s solicitors, the letter of 7th December, 2000, no doubt on the basis of the plaintiff’s perception, the plaintiff’s solicitors attributed malign intent to Mrs. Heffernan in relation to the plaintiff’s career with the defendant and this allegation was persisted in up to and throughout the hearing. The suggestion was that Mrs. Heffernan was intent on ousting the plaintiff from his employment with the defendant and that she was motivated by jealousy of the plaintiff’s brother who in February, 2000 had had a very significant business success and whose subsequent philanthropy had been the subject of media attention. In their letter of 12th December, 2000 the defendant’s solicitors explained a comment made by Mrs. Heffernan on 23rd November, 2000, that the plaintiff did not need to work, as a lighthearted comment. I have no doubt, taking an overview of the evidence, that the comment was just friendly banter. I do not think it would be proper to draw any inference other than that Mrs. Heffernan was motivated by sound management considerations in deciding to transfer the plaintiff out of buying and back to store management. However, I believe that the plaintiff’s reaction, as manifested in his solicitors’ letter of 7th December, 2000, should have rung an alarm bell with the senior management of the defendant as regards the state of his health.
On the other side, the defendant suggested that the proper inference to be drawn from the plaintiff’s conduct is that he had no intention of making the transfer to Blanchardstown work and that he had an ulterior motive in acting as he did. Indeed, Mr. McNiffe’s evidence was that his perception at his very first meeting with the plaintiff on 28th November, 2000 was that he had his “own agenda”, that he wanted out and, as I understand it, Mr. McNiffe’s evidence was that the plaintiff was orchestrating a situation in which he could get a severance payment or compensation. From an early stage Mr. McNiffe was expressing his scepticism about the plaintiff’s motivation. In a letter of 12th January, 2001 he stated that he was very concerned that from the very outset the plaintiff had no real intention of giving the change a chance to work. I do not think it would be proper to draw the inference suggested by the defendant from the plaintiff’s conduct. The plaintiff wanted to stay in the employment of the defendant but he wanted to retain his position as a buyer. While he was not happy about the change to store management, he did agree to it. As I will detail later, some of his behaviour might be characterised as unreasonable, but I think that is attributable to the fact that his trust in the defendant’s senior management and executives had been shattered rather than to any grand design to leave the defendant with a severance package or compensation.
Thirdly, although the plaintiff’s solicitors were writing on his behalf to the defendant, during the six months following 7th December, 2000 the defendant’s responses from Mr. McNiffe were sent directly to the plaintiff at his home address, sometimes by courier and sometimes on Saturday. While I can understand the defendant’s position, that the plaintiff was still an employee and it was entitled to communicate directly with him, there is no doubt that the course adopted heightened the distrust of the plaintiff and increased the stress he was under.
While the plaintiff reported for work in Blanchardstown on 28th December, 2000, in fact he worked only for about four days at the branch before ceasing to work because of ill health. He contended that his treatment at Blanchardstown exacerbated his ill health. One complaint was that a document entitled “Drapery Management Analysis”, which, in effect, was the weekly duty roster for managers and, accordingly, widely circulated, included his name under the heading “new trainees”. This was characterised by the plaintiff’s solicitors, no doubt on the basis of the plaintiff’s perception, as humiliating, defamatory and vindictive. The plaintiff also complained that the personalised homewares training plan which was furnished to him on his arrival was appropriate to a newly-joined trainee and failed to take account of the plaintiff’s experience with the defendant for almost twenty-one years. These complaints were the subject of a letter of 11th January, 2000 from the plaintiff’s solicitors to the defendant in which it was alleged that the plaintiff’s reception at Blanchardstown was but a continuation of a course of treatment which began the previous February and which was designed to sideline him out of management and out of the defendant. An undertaking was sought that an appropriately devised training schedule to fast track the plaintiff to store management would be produced and implemented without delay and that the offending roster be withdrawn immediately and replaced with an appropriate description of the plaintiff.
The defendant’s response, which was a letter dated 12th January, 2001 from Mr. McNiffe, was that the plaintiff should have made his complaint in the first instance to his line manager, Mr. Sills, that the description in the roster was an oversight, and that the plaintiff had to give the training programme a chance to work and that that required a degree of flexibility on his part. The plaintiff was requested to return to work the following Monday. It was intimated that Mr. McNiffe would meet him shortly afterwards to go through any issues he had. However, the plaintiff was certified as unfit for work from then until 21st February, 2001. There was a consistent flow of correspondence both ways in the interim, each side sticking to the position which had been adopted.
On 21st February, 2001 the plaintiff’s solicitors advised the defendant that Professor O Morain had indicated that the plaintiff might return to work. However, as a precondition to returning, the plaintiff required confirmation in relation to the training programme and his future career path and he also required that an agreed communication would be distributed to all management and staff within Head Office and all stores to correct the misdescription in the roster. The defendant’s response, through Mr. McNiffe, was consistent with the line previously taken by the defendant: the plaintiff should raise any issues he had with his line manager, rather than resorting to solicitor’s correspondence; the description of him as a “new trainee” was a genuine mistake; and the plaintiff in his demands was continuing to move “the goalposts”. Once again the plaintiff was asked to report for work in Blanchardstown on 1st March, 20001.
Following further correspondence in a similar vein a meeting was held on 7th March, 2001 between the plaintiff, who was accompanied by a solicitor, and Mr. McNiffe, who was accompanied by the defendant’s solicitor. Following the meeting, on the same day, Mr. McNiffe, on behalf of the defendant, wrote to the plaintiff setting out the matters which had been agreed. This gave rise to disagreement as to what had been agreed, which led to another spate of correspondence. The points in issue before the plaintiff eventually returned to work in Blanchardstown were as follows:
(1) In the letter of 7th March, 2001 Mr. McNiffe stated as follows in relation to the plaintiff’s progression after the training period:
“As we stressed at the meeting and as I think was accepted by you, that the level you achieve will depend entirely on your performance. I believe that after you have completed your training programme that you should be capable of being assigned to a ‘number two’ position in a medium sized store graduating to the ‘number one’ position. In my estimation this will realistically take you approximately 18 months from the date that you start your training programme. That said, it is possible to do it in a shorter period but once again that is up to your performance. Should you perform to the expected level you should be in a position to become a store manager.”
The plaintiff’s solicitors took issue with the foregoing, suggesting that the defendant was resiling from Mrs. Heffernan’s agreement with the plaintiff that he would be fast tracked to a store manager or regional manager position within six to twelve months, that the eighteen-month period was new, and the graduation via a number two position to a number one position was also new. The defendant did not accept that argument and in a letter dated 16th March, 2001 from Mr. McNiffe it was stated as follows:
“The position of the company has been set out at length in correspondence, namely that your progression to senior store manager and the time it takes will depend on your performance. There is no point in guaranteeing that in twelve months’ time you will be ready to take on the role of a senior manager if you have not acquired the appropriate skills and experience …”
A similar line had been taken in a letter dated 8th March, 2001 from the defendant’s solicitors to the plaintiff’s solicitors. The plaintiff’s solicitors in a letter of 16th March, 2001 sought confirmation that the timeframe stipulated by Mrs. Heffernan, six to twelve months, would be adhered to. The defendant’s response, in a letter dated 20th March, 2001 from Mr. McNiffe, was that the basis of the plaintiff’s return to work would be as set out in his letter of 16th March and not on any other basis. In that letter Mr. McNiffe gave the plaintiff an ultimatum to return to work on the following Thursday; otherwise disciplinary action would be taken against him. The plaintiff’s solicitors’ final word on this point was that he was relying on the undertaking given to him by Mrs. Heffernan that the period within which he would be appointed to a senior store manager or regional manager position would be six to twelve months. In short, the parties never achieved consensus on this issue.
(2) A training programme was to be formulated by Mr. O’Mahony for the plaintiff following a meeting on the evening of 7th March, 2001 between the plaintiff and Mr. O’Mahony and Mr. Sills. In his letter of 7th March, 2001 Mr. McNiffe stated that it had been agreed that the final decision as to what should or should not be included in the training plan was with the defendant and that, while the plaintiff’s input would obviously be helpful in designing the programme, the defendant reserved the right to decide what should or should not be included in the programme. There was some delay in producing the programme, which was sent to the plaintiff on 14th March, 2001. The plaintiff’s solicitors raised some points in relation to the training programme in their letter of 20th March, 2001. Mr. McNiffe in his response, which was the letter of 20th March, 2001 in which he threatened disciplinary action, expressed exasperation and no inclination to accede to the points made by the plaintiff. In their next letter of 21st March, 2001 the plaintiff’s solicitors persisted. However, as in the case of the issue dealt with at (1) above, there was no further resolution of this issue before the plaintiff returned to work, Mr. McNiffe’s letter being the final letter in which this issue was addressed.
(3) In his letter dated 7th March, 2001 Mr. McNiffe recorded that it had been agreed that an announcement would be sent in internal mail in relation to rectifying the mistake in the roster in January and the text of the announcement was set out. There was delay in sending out the announcement and it was not in fact sent out until 23rd March, 2001. It was sent to department heads, store managers and regional managers of the defendant in this State. It was sent out in the name of Tony Candon, who was the head of textile operations. In a letter dated 10th April, 2001 addressed to the Managing Director of the defendant the plaintiff complained that the announcement was not in the terms agreed on 7th March, 2001 and that it had not been circulated as agreed. The plaintiff alleged that the defendant had acted in bad faith in unilaterally altering the announcement. He sought that the agreed announcement should be issued and circulated by email to all staff and management in the head office and by internal post to all stores in Northern Ireland, the United Kingdom and Spain. A further letter of complaint in relation to the content of the announcement and its circulation was sent by the plaintiff’s solicitors to the defendant’s solicitors on 1st May, 2001. Having compared the announcement in the form sent with the proposed text as set out in the letter of 7th March, 2001, I am of the view that the substance of the actual announcement was as agreed and I do not consider the variations made to be of significance, although I find it difficult to understand why the text was varied given the context in which the announcement was being made. The plaintiff expected the announcement to be made by Mr. McNiffe, and, having regard to the evidence, I think he was justified in that expectation. He was certainly justified in his expectation that circulation would be to all staff in head office by email and by internal post to all stores in Ireland, the U.K. and Spain, because Mr. McNiffe in his letter of 20th March, 2001 confirmed that that would be the case. Again, it is difficult to understand, given the context, why this agreement was not adhered to. Having said that, it seems to me that the objections he made were points on which the plaintiff might reasonably have yielded.
(4) Mr. McNiffe confirmed in his letter of 16th March, 2001 that he had assured the plaintiff at the meeting on 7th March, 2001 that his salary would not be reduced. In his letter of 7th March, 2001 Mr. McNiffe had indicated that he would contact the plaintiff the following week in relation to a decision on the plaintiff’s complaint that his Christmas bonus, which would have amounted to £1,500, was not paid the previous Christmas. This matter was never progressed.
The contention between the parties continued after the plaintiff returned to work in the Blanchardstown store at the end of April, 2001 and his solicitors continued to raise issues on his behalf with the defendant. As I have stated, the letter of 20th March, 2001 was the last letter from the defendant’s side and the plaintiff’s letter of 10th April, 2001 and his solicitor’s letter of 1st May, 2001 were not replied to. Under the agreement made on 7th March, 2001 a schedule of monthly meetings between Mr. Sills and Mr. McNiffe and the plaintiff, which were to take place at Blanchardstown at 5 p.m., presumably, to review progress, was agreed. On 9th May, 2001 the plaintiff’s solicitors wrote to the defendant’s solicitors complaining that the scheduled meeting due on 8th May had not taken place and complaining that that was a breach of the agreement. There was no response to that letter. It is not clear why. However, I think the defendant would have been justified in considering the complaint as unreasonable as at that stage the plaintiff had spent very little time working in the Blanchardstown store after the meeting of 7th March, 2001.
The plaintiff’s final day at work with the defendant was 15th May, 2001. By letter dated 30th May, 2001 to the Managing Director of the defendant, the plaintiff stated that he had been advised by his solicitors and counsel that the conduct of the defendant towards him amounted to a repudiation by the defendant of its obligations to him and that his contract of employment was therefore at an end. In the letter he specifically alluded to the meeting on 7th March, 2001 and stated that he had moved to the Blanchardstown store, which was part of the agreement. He complained that his letter of 10th April 2001 had not been replied to. He referred to a disagreement with Mr. Sills on 15th May, 2001 and asserted that Mr. Sills began to shout at him in an abusive verbal attack within the hearing of other management and staff, which was both offensive and humiliating to him. He also referred to the fact that Professor O Morain had advised him that in the interests of his health he must cease working in the environment immediately. Although issue was taken with the plaintiff’s assertion that he had honoured his part of the bargain in relation to moving to the Blanchardstown store, the defendant accepted the departure of the plaintiff and by letter dated 21st June, 2001 he was furnished with his P45 together with payment up to the date on which his letter of 30th May, 2001 was received by the defendant.
Mr. Sills, however, does not accept that he was verbally abusive to the plaintiff on 15th May, 2001, although he does agree that there was a disagreement between them, which resulted in both parties raising their voices. The source of the row was that the plaintiff was rostered for duty from 10 a.m. to 8.30 p.m., the “lock-up” shift, that day, but he believed that he was rostered for attendance from 8.30 a.m. to 6 p.m., and, in fact, he had attended at 8.30 a.m. During the morning Mr. Sills made it clear to him that he was rostered for the “lock-up” and Mr. Sills required him to attend until 8.30 p.m. The plaintiff said he could not do it. There was a dispute between the plaintiff and Mr. Sills about the roster. The plaintiff admitted in court that he was wrong; that he had looked at the roster for the previous week. There was a conflict as to whether the plaintiff admitted to Mr. Sills on the day that he had been mistaken. The plaintiff testified that he did. Mr. Sills testified that he did not and that the plaintiff accused him of having changed the roster. There is consensus that Mr. Sills made it clear to the plaintiff that he was the store manager and that the plaintiff’s riposte was that Mr. Sills could deal with his solicitor.
I infer from the evidence that that episode was merely the culmination of tension which had existed between the plaintiff and Mr. Sills from the moment the plaintiff set foot in the Blanchardstown store on 28th December, 2000. On his first day, the plaintiff was dressed in the type of casual attire that he wore while working as a buyer in head office. He was informed by Mr. Sills that the dress code for managers was a conservative coloured suit, formal footwear and such like. The plaintiff asked Mr. Sills to put that in writing and Mr. Sills wrote a letter on 29th December, 2000 setting out the dress code for managers in the Blanchardstown store. The plaintiff’s explanation of this was that he was on the defensive at that time because of all the different things that were happening to him. The plaintiff was only at work for four days at that time. During that period the issue of his description as a “new trainee” on the roster arose, but the plaintiff did not raise that with Mr. Sills.
In summary, the plaintiff’s attendance at work during the early part of 2000 was very limited. After being absent on sick leave the plaintiff returned to the Blanchardstown store towards the end of April, 2001. His evidence was that Mr. Sills raised with him the question of his absence on sick leave around 25th April, 2001. The plaintiff was on annual leave from 27th April, 2001 to 8th May, 2001. He was out on sick leave again on 11th and 12th May, 2001. He was notified by the Human Resources department by letter dated 17th May, 2001 that he had exceeded his paid sick leave allowance at the end of April, 2001 and that his absence on 11th and 12th May and any subsequent absenteeism would not be paid for by the defendant. He was reminded of the requirements in relation to applying for social welfare. However, before that the incident on 15th May, 2001 had occurred. Mr. Sills admitted that he raised his voice on that occasion and I believe he treated the plaintiff in a manner which was out of character for him. However, given the history of the plaintiff’s involvement in the Blanchardstown store and the particular circumstances which prevailed, that the plaintiff was in the wrong, that Mr. Sills was his superior and that Mr. Sills was told by the plaintiff that he could deal with his solicitor, I think Mr. Sills’ conduct was understandable, if not excusable.
The plaintiff was out of work for a period of approximately eight months after he left the defendant’s employment. At the end of January, 2002 he was successful in obtaining a position as a buyer with another retail group on terms which, as regards his remuneration package, were no less favourable than the terms he enjoyed with the defendant. His evidence was that he started looking for new employment around October or November, 2001. The plaintiff’s work record since he left the defendant, when considered in the light of his medical problems, establishes beyond a shadow of a doubt that the plaintiff is not a malingerer.
The plaintiff’s claim
Against the foregoing factual background the plaintiff’s claim as pleaded and pursued falls to be considered under three headings:
(1) for breach of contract, the essence of this aspect of his claim being that the plaintiff was constructively and wrongfully dismissed by the defendant;
(2) for personal injuries, this aspect of his claim being formulated both in contract and in tort; and
(3) for defamation, as regards the incorrect description of the plaintiff as a “new trainee” in the roster.
I will deal with each head of claim separately.
Breach of contract
There was a certain element of consensus between the parties as to the terms on which the plaintiff was employed by the defendant. When his employment ceased the plaintiff was on a salary of IR£43,000, he was a participant in the defendant’s Group VHI scheme and he was a member of the defendant’s pension scheme. He was also entitled to the benefit of a company car. While the plaintiff claimed an entitlement to an annual bonus of £5,000 per annum, a Christmas bonus of £1,500 and annual salary reviews payable with effect from 1st January in each year, the defendant’s position was that the salary reviews and the bonus were at the discretion of the defendant.
The plaintiff’s contract of employment was not in writing. As regards the basis on which the defendant was entitled to move the plaintiff from one management function to another and from one work location to another, the defendant pleaded that it was a term of the plaintiff’s employment that he would be flexible and adaptable to change and that he would co-operate with the defendant and undertake such management functions as were assigned to him from time to time by the defendant. This aspect of his terms of employment was not directly addressed in the plaintiff’s statement of claim and I agree with counsel for the defendant that the nearest the plaintiff got to addressing it was the assertion that this was an express or an implied term of the plaintiff’s contract that, as a permanent and senior employee, he would have an opportunity of performing a demanding and rewarding role. In his closing submissions counsel for the plaintiff characterised the case made by the defendant as that it had an absolute right to deploy the plaintiff almost at will and submitted that that could not be so. He contended that redeployment had to be consensual and suggested that Mrs. Heffernan’s intervention in November 2000 was a recognition of this. Strangely, there was no evidence in relation to the application of the staff handbook to the plaintiff, although this document featured in one of the authorities relied on by the plaintiff, O’Byrne v. Dunnes Stores [2003] 14 E.L.R. 297. On the basis of the evidence which was adduced, I find that it was a term of the plaintiff’s contract of employment that the defendant acting reasonably could assign him from one work location to another and from one management function to another appropriate management function. The change of work location was not an issue for the plaintiff. What was an issue was that he wanted to stay in buying rather than be moved to store management. In my view, as a matter of contract, the defendant was entitled to transfer the plaintiff from buying to a suitable position in store management commensurate with his experience. The plaintiff agreed to the move proposed by Mrs. Heffernan on 23rd November, 2000.
The plaintiff has sought to set up what happened between the plaintiff and Mrs. Heffernan on 23rd November, 2000 as a free-standing agreement which the plaintiff was entitled to enforce. Counsel for the defendant, on the other hand, characterised what happened as a consultation process and asserted that the defendant had an absolute discretion to vary what was agreed during that process, for example, the start date of the new assignment or the department in which the new assignment would start, homewares rather than ladies’ wear. Neither position is correct. In my view what happened on 23rd November, 2000 must be interpreted in the context of a term which the defendant admits was implied in the defendant’s contract that both the employer and the employee would maintain mutual trust and confidence. While the plaintiff pleaded that it was a term of the plaintiff’s contract of employment that the defendant would “maintain mutual trust and confidence” I have no doubt that counsel for the plaintiff accepted that the implied term, to use a modern idiom, is a “two-way street”. But the plaintiff’s case is that the defendant was in breach of its obligation under the implied term.
That leads to consideration of how the implied term of mutual trust and confidence is breached. Both counsel for the plaintiff and counsel for the defendant referred to the speech of Lord Steyn in Mahmud v. B.C.C.I. [1997] ICR 606, when that matter was on appeal to the House of Lords. Counsel for the defendant referred to the passage from the speech at p. 622 in which Lord Steyn considered the correct approach to the question whether the implied obligation had been breached in which he stated:
“… given the existence of an obligation of trust and confidence, it is important to approach the question of a breach of that obligation correctly. Mr. Douglas Brodie of Edinburgh University, in his helpful article to which I have already referred put the matter succinctly, at pp. 121-122:
‘In assessing whether there has been a breach, it seems clear that what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Moreover, the impact will be assessed objectively.’
Both limbs of Mr. Brodie’s observations seem to me to reflect classic contract law principles and I will gratefully adopt this statement.”
Later, at p. 623, Lord Steyn stated:
“The implied obligation extends to any conduct by the employer likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee. It may well be, as the Court of Appeal observes, that the decided cases involved instances of conduct which might be described as ‘conduct involving rather more direct treatment of employees’. [1996] I.C.R. 406, 412. So be it. But Morritt L.J. held, at p. 411, that the obligation:
‘may be broken not only by an act directed at a particular employee but also by conduct which, when viewed objectively, is likely seriously to damage the relationship of employer and employee.’
That is the correct approach. The motives of the employer cannot be determinative, or even relevant, in judging the employees’ claims for damages for breach of the implied obligation. If conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”
The approach suggested by Lord Steyn, in my view, is also consonant with the approach adopted in this jurisdiction in applying the principles of the law of contract and I consider it to be the proper approach to adopt in this case. What is at issue here is the direct treatment of the plaintiff by his employer. While I did not have the benefit of the evidence of Mr. McDermottt or Mrs. Heffernan, I infer from the evidence as a whole that Mr. McDermottt and Mrs. Heffernan acted bona fide in deciding to move the plaintiff from buying back to store management. Rightly or wrongly, they were of the view that he could make a better contribution to the defendant’s business in store management than as a buyer. But I also infer that Mrs. Heffernan had a bona fide concern about the plaintiff’s health. The plaintiff worked in the same building as Mrs. Heffernan and the evidence indicates that their paths crossed occasionally. It is clear in the medical evidence that the plaintiff was unwell from March 2000 onwards. It must have been obvious to anyone who would meet him that he was unwell. Allied to this, he had an uncharacteristic number of absences because of illness during 2000. Viewing the treatment of the plaintiff up to and including 23rd November, 2000 objectively, in my view, appropriate steps were taken by the defendant to allay the plaintiff’s concerns in relation to the proposed move and to protect the employer and employee relationship. I infer that Mr. McDermottt or Mrs. Heffernan or both were subconsciously, if not consciously, aware of the plaintiff’s vulnerability at the time.
However, in my view, in his treatment of the plaintiff after 23rd November, 2000 Mr. McNiffe failed to have proper regard to the plaintiff’s medical condition and this applies, in particular, after the defendant was informed by the plaintiff’s solicitor’s letter of 7th December, 2000 of the effects of the stress generated by his suspension on the plaintiff. There is no doubt that, in the absence of knowledge as to his physical and mental condition, an objective assessment of some of the plaintiff’s conduct after 23rd November, 2001 would justify the conclusion that the plaintiff was being unreasonable, particularly, if the incident was viewed in isolation. Samples of such conduct are his refusal to share with Mr. McNiffe the issues which were troubling him and his insistence on speaking to Mrs. Heffernan on 28th and 29th November, 2000, his reaction to Mr. Sills’ instruction in relation to dress code on 28th December, 2000, and some of his requirements in relation to the training programme produced on 14th March, 2001, for example, his requirement that he should join Mr. Sills at all store and head office meetings.
Mr. McNiffe adopted an uncompromising stance with the plaintiff from the outset: the plaintiff was to attend for work in Blanchardstown or else he would be suspended. After the suspension was lifted Mr. McNiffe remained entrenched in the position that he would not deal with the plaintiff until he returned to work in the Blanchardstown store, even though the plaintiff was on sick leave and the defendant had been warned of the effect which the situation was having on the plaintiff’s health and well being and of the plaintiff’s perception of the defendant’s motivation. For three months the defendant did not yield despite repeated warnings that the situation was exacerbating the plaintiff’s medical condition. No doubt Mr. McNiffe’s stance was informed by his perception that the plaintiff never had any intention of allowing the move to Blanchardstown to work, a view which, in my view, was erroneous. On the evidence, it seems to me that Mr. McNiffe’s stance coupled with the unfortunate inclusion of the name of the plaintiff under the heading of “new trainee” on the roster in January, 2001 and the failure to supply him with a suitable training programme had the effect of ratcheting up the plaintiff’s suspicions that the defendant’s objective was to oust him from his employment.
As regards what happened after the meeting on 7th March, 2001, I am satisfied on the evidence that Mrs. Heffernan had mentioned a timeframe of six to twelve months for the plaintiff to achieve a store manager or a regional manager position. I am not impressed by the logic which the defendant asserted underpinned the extension of the timeframe from twelve months to eighteen months, but aside from that it should have been obvious that it was going to exacerbate the plaintiff’s distrust of the defendant. The delay in producing the training programme, which was about a week, would be inconsequential in the normal course of events. However, it was inevitably going to be of significance to the plaintiff because it was envisaged that he would have it before he returned to work. The insistence of the defendant that the plaintiff return to work before he got the new training programme and the threat of disciplinary action immediately after the St. Patrick’s Day bank holiday weekend was unnecessarily peremptory in the context of the delay. I have already expressed my surprise that the defendant did not adhere to its promise in relation to the announcement which was to address the mistake in the January roster.
In my view, the plaintiff’s submission that there was a series of breaches of contract on the part of the defendant and that the accumulation of those breaches resulted in a repudiation by the defendant of the plaintiff’s contract is not correct. The correct interpretation of what happened is that the manner in which the defendant dealt with the plaintiff in the knowledge of the precarious nature of his physical and psychological health viewed objectively amounted to oppressive conduct. It was likely to seriously damage their employer/employee relationship and it did so. Accordingly, the defendant breached its obligation to maintain the plaintiff’s trust and confidence.
As the defendant submitted, by reference to McDermottt on Contract Law (1st Edition at p. 1075), the test as to whether a breach of contract amounts to a repudiation is whether the breach goes to the root of the contract. A breach by an employer of its implied contractual obligation to maintain the trust and confidence of an employee is a breach which goes to the root of the contract. This was recognised by Lord Nicholls in Mahmud v. BCCI where the factual basis of the breach of the implied term was that the employer bank had conducted a dishonest and corrupt business. Lord Nicholl stated (at p. 610):
“… as a matter of legal analysis, the innocent employee’s entitlement to leave at once must derive from the bank being in breach of a term of the contract of employment which the employee is entitled to treat as a repudiation by the bank of its contractual obligations. That is the source of his right to step away from the contract forthwith.
In other words, and this is the necessary corollary of the employee’s right to leave at once, the bank was under an implied obligation to its employees not to conduct a dishonest or corrupt business. This implied obligation is not more than one particular aspect of the portmanteau, general obligation not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages.”
A singular feature of this case is that Professor O Morain considered why the plaintiff’s ill health was being prolonged and why he was not responding to treatment. He formed the view that the plaintiff’s work situation was detrimental to his health. He advised the plaintiff to get out of that environment. Professor O Morain was not challenged on his opinion or on the advice he gave. Both his opinion and his advice must be accepted as being correct and, in any event, the subsequent improvement in the plaintiff’s health is corroborative of this. Of course, Professor O Morain’s evidence does not tell us why the plaintiff’s work environment at the time was detrimental to his health. On an objective analysis of the evidence, it seems to me that the treatment of the plaintiff as being wilfully insubordinate against a background of twenty years of effective and loyal service to the defendant, and in circumstances in which it was known that the plaintiff was physically ill and suffering from stress, was what made the plaintiff’s continued employment with the defendant inimical to his health and wellbeing. The plaintiff was justified in leaving his employment forthwith on receiving Professor O Morain’s advice.
Accordingly, in my view, the defendant is entitled to the declaration he has claimed, that the defendant unlawfully repudiated his contract of employment. The other remedies he seeks for breach of contract are damages for wrongful dismissal and payment of arrears of wages and bonuses.
The measure of the damages to which the plaintiff is entitled for wrongful dismissal is the amount which he would have earned if his employment had continued for a period commensurate with the notice to which he was entitled under his contract with the defendant. There was no express agreement between the parties as to the length of notice of termination to which the plaintiff would be entitled on termination. Therefore, I think it appropriate to approach this aspect of the case in the manner in which a similar issue was approached by this Court (Costello P.) in Lyons v. M.F. Kent & Company (International) Limited (in liquidation) [1996] E.L.R. 103. Each case has to be viewed on its own facts and considered by reference to contemporary standards. The test is what period of notice is it reasonable to imply having regard to all of the circumstances of the case. Counsel for the plaintiff argued that at least six months, and possibly nine months, notice would have been reasonable in the circumstances of this case, whereas, counsel for the defendant suggested that three months’ notice would have been reasonable and pointed out, although conceding that it was not in any way determinative in this case, that the statutory period of notice would have been eight weeks. The relevant factors in this case are the plaintiff’s age in May 2001 (almost forty), the length of his service with the defendant (twenty-one years), his status and level of responsibility in the defendant’s business (at or approaching the upper end of middle management), and his prospects of re-employment, in particular, how long it would take to find suitable alternative employment. As it happens, the plaintiff was fortunate in that he was re-employed in a similar position to that which he left within three months of being in a position to seek alternative employment. Leaving aside the plaintiff’s medical condition, which I do not think is relevant to this aspect of the case, I think that from an objective standpoint three months’ notice would have been reasonable.
Counsel for the plaintiff submitted that the notice period could be extended if the court considered that the manner of dismissal and the circumstances surrounding it justified that approach, relying on the majority decision of the Canadian Supreme Court in Wallace v. United Grain Growers Limited 152 D.L.R. (4th) 1. Even if I was of the view that an Irish court should adopt the approach adopted by the Supreme Court of Canada in that case, I am not satisfied that the plaintiff has established deliberate bad faith or vindictiveness on the part of the defendant which would warrant extending the notice period. In any event, even if such conduct were present here, an issue would arise whether an Irish Court should be persuaded by the dissenting judgment in the Wallace case, which was delivered by McLachlin J., that as a matter of contract law reasonable notice is related to the prospect of re-employment and other wrongs must find their remedy elsewhere, as being more in line with contract law in this jurisdiction.
Accordingly, the damages to which the plaintiff is entitled for wrongful dismissal are to be measured on the basis of the loss of three months’ salary and a proportionate share of the annual bonus for 2001, which I am satisfied the plaintiff would have earned had he remained in employment with the defendant. In addition, the damages must include the annual bonus and the Christmas bonus for the year 2000, which I am satisfied the plaintiff earned but was not paid. For convenience, these sums will be quantified later.
Personal injuries claim
The plaintiff’s personal injury claim is founded both in contract and in tort. I consider that it is not necessary to distinguish between the two causes of action because, as the English High Court (Colman J.) pointed out in Walker v. Northumberland County Council [1995] 1 All ER 737 (at p. 759), “the scope of the duty of care owed to an employee to take reasonable care to provide a safe system of work is co-extensive with the scope of the implied term as to the employee’s safety in the contract of employment”, a statement which was approved of later by the Court of Appeal in Gogay v. Hertfordshire County Council [2000] IRLR 703. Moreover, as the plaintiff’s case is that he incurred a recognised psychiatric illness, not mere hurt, upset and injury to his feelings, in addition to physical injuries, as a result of the defendant’s breach of its duties to him, if the plaintiff has established his case, in my view, there can be no question but that he is entitled to general damages. It is not necessary, in my view, to resort to the type of reasoning on which the decision of the House of Lords in Eastwood v. Magnox Electric plc [2005] 1 AC 503 is founded to identify that the plaintiff has, in addition to his common law action for wrongful dismissal, a separate cause of action for damages for personal injuries.
In any event, counsel for the defendant accepted that it was open to the plaintiff to pursue his cause of action for damages for personal injuries, but submitted that the court should adopt the tests outlined by this Court (Clarke J.) in Maher v. Jabil Global Services Limited [2005] 16 E.L.R. 233 as the starting point of consideration of the issue of liability. Clarke J. (at p. 246) identified the following as the relevant questions:
“(a) has the plaintiff suffered an injury to his or her health as
opposed to what might be described as ordinary occupational stress,
(b) if so is that injury attributable to the workplace, and
(c) if so was the harm suffered to the particular employee concerned reasonably foreseeable in all the circumstances.”
I agree with counsel for the defendant that addressing those questions is the proper approach to the question of liability. However, before doing so, I propose considering the medical evidence.
Professor O Morain testified on behalf of the plaintiff and his contemporaneous reports were put in evidence. His testimony was that a recurrence of the symptoms of Crohn’s disease can recur after remission without any known precipitating factor, for example, workplace stress. In the plaintiff’s case, he was of the view that that stress in the workplace was not the cause of the recurrence of the plaintiff’s symptoms. However, he emphasised that stress may exacerbate the symptoms or result in the patient not responding to treatment as well as might be expected. Specifically in relation to his report of 13th December, 2000 to the plaintiff’s general practitioner, in which he stated that unfortunately since his previous review at the beginning of November the plaintiff had been “through an excessive amount of stress with his job” and had “ended up in a legal wrangle” which he was sure had “not contributed to his wellbeing”, he explained the context: at the time the plaintiff was on very powerful anti-inflammatory treatment, probably the most potent available and it would be normal to probe him about his working environment. It was in that context that stress came to the fore.
In my view, it is of particular significance that Professor O Morain contemporaneously identified workplace stress as a factor in the plaintiff’s condition. He did so as early as December, 2000. He did so again in a letter of 31st January, 2001 to the plaintiff’s solicitors, stating that he had no doubt that the recent wrangle had exacerbated the plaintiff’s symptoms and had resulted in the necessity to increase his medication. In a further report dated 25th April, 2001 he reiterated that the level of stress at work might well be exacerbating the plaintiff’s symptoms. Finally, in a letter of 31st May, 2001 to the plaintiff’s solicitors Professor O Morain confirmed the advice he had given to the plaintiff: that he was concerned about the deterioration of his health and that his work situation was not helping health wise and that the best approach would be for him to get out of that environment.
In July, 2004 the plaintiff was assessed by Dr. Paula McKay, Consultant Psychiatrist, in connection with these proceedings. Dr. McKay testified on behalf of the plaintiff and her reports dated respectively 23rd July, 2004 and 13th June, 2006 were put in evidence. Dr. McKay’s conclusions were that the history and clinical findings she had elicited would accord with the development of a psychological adjustment disorder, with features of anxiety, and possible features of depression. The disorder was likely to have been of moderate severity. Dr. McKay was of the view that the occurrence of that psychological disorder was likely to have contributed to symptom severity and, possibly, symptom duration in the plaintiff’s Crohn’s disease. She attributed the psychological disorder to workplace stress and noted that it had been resolved when the situational stressors, the workplace difficulties and the ensuing period of unemployment, had been resolved. She noted some re-emergence of symptoms in the weeks prior to her first assessment of the plaintiff, which she put down to the impending trial of these proceedings. Her opinion was that the disorder would not lead to any long-term psychological health difficulties for the plaintiff.
The plaintiff was also assessed around the same time, at the end of June, 2004, on behalf of the defendant by Dr. H.G. Kennedy, Consultant Forensic Psychiatrist, who testified and whose report dated 5th July, 2004 was put in evidence. In that report Dr. Kennedy recounted the plaintiff’s description of a period of emotional distress from November, 2000 until February, 2002, when he started a new job, which consisted mainly of anger, a normal reaction to stress. He opined that symptoms of sleep disturbance and hopelessness as described were suggestive of a depressive illness during the period. However, he obviously felt handicapped by not having any general practice notes recording depressive symptoms contemporaneously. Dr. Kennedy differed from Dr. McKay as to what caused what he described as the plaintiff’s “emotional reaction or depressive illness”. He thought it was most likely to have been caused by a prior deterioration of his Crohn’s disease, noting that pain, physical illness and high doses of steroid medication can all give rise to emotional disturbances and depressive illnesses. When testifying, Dr. Kennedy, while stating that he was in agreement with Dr. McKay about the symptoms which the plaintiff described, said that he had reservations about her diagnosis of an adjustment disorder, which he described as sitting in the same position in psychiatric nosology as a common cold vis-à-vis pneumonia and as being the absolutely least thing one can put a name to. He expressed doubts as to whether the evidence indicated that the plaintiff suffered a disorder in medical terms.
The plaintiff’s general practitioner at the time, Dr. Richard Harris, did not testify. However, in certifying the plaintiff unfit for work on 22nd January, 2001, Dr. Harris stated that he was “still suffering from bowel symptoms and stress-related problems”.
Returning to the questions posited by Clarke J. in Maher v. Jabil Global Services Limited as being the starting point of a determination of liability in this type of case, I hold as follows:
(a) The plaintiff has suffered an injury to his health, as opposed to mere ordinary occupational stress. I accept Dr. McKay’s diagnosis of adjustment disorder and that it constitutes an illness or injury. On the basis of Professor O Morain’s evidence, I find that that disorder exacerbated the plaintiff’s Crohn’s disease symptoms and hampered the treatment of those symptoms.
(b) The adjustment disorder, and the consequential impact on the plaintiff’s physical condition, was attributable to the manner in which the defendant dealt with the plaintiff after 23rd November, 2000. The history of the management of the plaintiff’s Crohn’s disease and the manner in which it has impacted on his life in general and on his working life in particular does not support the conclusion that the symptoms and treatment of his Crohn’s disease were the stressors which affected his mental health at the end of 2000 and into 2001. However, on the evidence, I am satisfied that, contrary to the plaintiff’s assertion, the flare up of his Crohn’s symptoms in March 2000 was not attributable to workplace stress. Moreover, I do not think that the unfortunate deterioration in the plaintiff’s symptoms in 2005 can be attributed either to the manner in which he was dealt with by the defendant after 23rd November, 2000 or to the fact that these proceedings were then pending.
(c) I have no doubt that the physical and psychological harm which the plaintiff suffered because of the stress generated by the manner in which he was dealt with by the defendant after 23rd November, 2000 was reasonably foreseeable. Not only that, the defendant was informed as early as 7th December, 2000 of the effect of the work related stress on the plaintiff’s health.
Aside from the factors which I have just considered, it was submitted on behalf of the defendant that the plaintiff had failed to demonstrate that the defendant was guilty of negligence or that it had been in breach of its duty of care to the plaintiff. In reliance on a passage in McMahon and Binchy on Law of Torts, which appears in the third edition (2000) at para 18.03, the defendant submitted that the duty of an employer towards an employee is to take reasonable care for the employee’s safety in all of the circumstances of the case and that the employer’s duty is not an unlimited one and that he is not an insurer. He will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances. That is undoubtedly a correct statement of the law. Applying it to the facts of this case I have no doubt that the factors which I have set out earlier as constituting a breach by the defendant of its obligation to maintain trust and confidence, which I do not consider it necessary to reiterate, also constitute conduct which falls short of what a reasonable and prudent employer would have done in the circumstances. Accordingly, I am satisfied that the defendant was in breach of its duty of care to the plaintiff.
As I have already stated, the plaintiff was out of work for eight months after leaving the defendant’s employment. I have held that, as a matter of contract law, three months notice would have constituted reasonable notice. I am satisfied that he is entitled to be compensated for his loss of income (salary and bonuses) for the remaining five months by way of special damages.
The assessment of general damages in this case must take account not only of the psychological symptoms which the plaintiff suffered as a result of the breach of duty but also the exacerbation and prolongation of his physical symptoms. However, on the evidence, the psychological symptoms endured for less than a year and a half and it must be assumed that the physical sequalae attributable to the psychological symptoms ceased around the same time. Allowing for the additional impact of these proceedings on the plaintiff, it seems to me that the proper measure of general damages is €40,000.
Quantification of damages for breach of contract/special damages
It is convenient to quantify the damages attributable to the plaintiff’s loss of income under both the breach of contract claim and the personal injuries claim by reference to the uncontradicted evidence of Mr. Brendan Lynch, actuary, who was called by the plaintiff. Accordingly, I adopt Mr. Lynch’s calculation of the loss (after appropriate tax and PRSI deductions) at €32,622.
Defamation claim
There was little focus on the defamation claim in the course of the hearing. Notwithstanding that, counsel for the plaintiff made it clear in replying to the defendant’s closing submissions that it was still part of the case.
In their submissions, counsel for the defendant submitted that the claim should fail on the ground that it had not been properly pleaded and on the ground that the evidence did not establish that the words alleged to be defamatory, the misdescription of the plaintiff as a “a new trainee” in the January roster, did not actually cause any damage to his reputation. Further, it was submitted that the defendant’s plea that the words were governed by an occasion of qualified privilege was not seriously contested.
The communication by Mr. Sills of the weekly duty roster to management personnel in the Blanchardstown store, in my view, was an occasion of qualified privilege. I accept Mr. Sills’ evidence that the roster sheet was fairly full when he came to insert the plaintiff’s name and that, in inserting it, he was not conscious of the implications of where he was inserting it and that there was no ill intent towards the plaintiff in putting his name under the heading of “new trainees”. I also accept Mr. Sills’ evidence that the other managers in the Blanchardstown branch were aware of the plaintiff’s status in the store.
Counsel for the plaintiff referred the court to the following passage from the judgment of Lord Slynn of Hedley in Spring v. Guardian Assurance Plc. [1994] ICR 596 (at p. 628):
“The policy reasons underlying the requirement that the defence of qualified privilege is only dislodged if express malice is established do not necessarily apply in regard to a claim in negligence. There may be other policy reasons in particular situations which should prevail. Thus, in relation to a reference given by an employer in respect of a former employee or a departing employee (and assuming no contractual obligation to take care in giving a reference) it is relevant to consider the changes which have taken place in the employer/employee relationship, with far greater duties imposed on the employer than in the past, whether by statute or by judicial decision, to care for the physical, financial and even psychological welfare of the employee.”
It was on the last sentence in that quotation that counsel for the plaintiff laid emphasis, urging the court to apply the sentiment expressed there. In view of the finding of lack of malice on the part of Mr. Sills, as the first sentence in the quotation indicates, the defence of qualified privilege defeats the plaintiff’s claim in defamation.
Accordingly, in my view, a case has not been made out that the defendant libelled the plaintiff and the claim for damages for defamation is dismissed.
Order
There will be a declaration that the defendant unlawfully repudiated the plaintiff’s contract of employment and there will be an award of damages in sum of €72,622.
Corrigan -v- Kevin P Kilrane and Company Solicitors
[2017] IEHC 488 (26 July 2017)
JUDGMENT of Mr. Justice Robert Eagar delivered on the 26th day of July, 2017
1. This is a judgment on the notice of motion in which the defendant seeks the following reliefs:-
(i) An order pursuant to the provision of O. 19, r. 28 of the Rules of the Superior Courts dismissing the above entitled proceedings on the grounds that the statement of claim discloses no reasonable cause of action against the defendant.
(ii) An order pursuant to s. 34(2) of the Defamation Act 2009, dismissing the above entitled proceedings on the grounds that the statement in respect of which the action was brought in the email of 25th November, 2015, is not reasonably capable of being found to have a defamatory meaning.
(iii) In the alterative, an order pursuant to the inherent jurisdiction of this Court dismissing the above entitled proceedings on the grounds that the proceedings are bound to fail.
(iv) In the alterative, an order pursuant to s. 14 of the Defamation Act 2009, ruling whether the statement in respect of which the action is brought is reasonably capable of bearing the imputations pleaded by the plaintiff and in the event that this Honourable Court rules that the statement is reasonably capable of bearing those imputations, a ruling as to whether these imputations are reasonably capable of bearing a defamatory meaning.
(v) Such further and other relief as this Court deems fit.
(vi) An order providing for the costs of the motion of the proceedings.
2. The notice of motion was grounded on the affidavit of Emma Brennan, a solicitor of Kevin P. Kilrane & Co. Solicitors. She says she makes this application in support of the application to dismiss the proceedings pursuant to s. 34 of the Defamation Act 2009, pursuant to the rules of the court and pursuant to court’s inherent jurisdiction. She refers to proceedings entitled Eamon Corrigan [plaintiff] v. Sean Corrigan and Eoin Corrigan [defendants] [2006 No. 64 S.P.].
3. The action involved the construction of the will dated 23rd September, 1997 of Christopher Corrigan, deceased, who died on 5th March, 2000. The plaintiff in those proceedings and the two defendants were the sons of the deceased. The plaintiff was a legal personal representative. Sean Corrigan was devised 21 acres to be held in trust “until there is an acquisition of my lands” in which case, the proceeds were to be divided equally between all of the children. Eoin Corrigan, the second named defendant was entitled to the residuary estate.
4. Difficulties arose in the construction of the bequest to Sean Corrigan and in particular what was meant by the ‘acquisition of the lands’. The plaintiff (the legal personal representative) brought the construction by special summons. The matter was determined by McGovern J. who delivered judgment on 2nd of November, 2007. In the course of his judgment, he stated:-
“I am satisfied that Clause 1 of the bequest contains a lack of clarity and that there is an ambiguity contained therein. I am also satisfied that the admission of extrinsic evidence is permissible in this case. There is extrinsic evidence to be found in the notes taken by the testator’s solicitor from taken instructions for the drafting of the will.”
He continued later in his judgment to say:-
“I am satisfied that the determining event specified in Clause 1 of the bequest is void for uncertainty and it follows therefore, that on this basis, the entire limitation and bequest fails.”
He further concluded that the farmlands fell into the residuary estate of the testator.
5. The plaintiff in these proceedings has indicated that the estate of his late father was substantial, and involved considerable sums of money.
6. The plaintiff in these proceedings served a notice of appeal on 6th December, 2007.
7. The plaintiff, who is a practising barrister was originally represented by Michael F. Butler & Co. Solicitors. Kevin P. Kilrane & Co. acted on behalf of Eoin Corrigan, and Groarke & Partners acted on behalf of Eamon Corrigan in those proceedings.
8. The proceedings in this present case relate to email correspondence sent by Emma Brennan, Solicitor, of Kevin P. Kilrane & Co. Solicitors which were sent to the plaintiff and to the Supreme Court office.
9. On 25th November, 2015, the plaintiff received an email from emma.brennan@kpk.ie to scorrigan@lawlibrary.ie. The said email was carbon copied to the supremecourt@courts.ie and contained the following:-
“Dear Sean
I refer to your below email of even date.
Just to clarify there is no uncertainty around our client’s booklet of pleadings. We were never served with a booklet of appeal as required in circumstances where this is your appeal and I have advised you, the appellant, of same. I await hearing with your book of appeal by return.
Regards
Emma Brennan.”
The Affidavit of Emma Brennan
10. Ms. Brennan stated that the action involved the construction of the will of the 23rd of December, 1997 of Christopher Corrigan deceased. She set out that the plaintiff and the two defendants were sons of the late Christopher Corrigan. She described the application being determined by McGovern J., who delivered judgment on the 2nd of November, 2007.
11. Ms. Brennan in her affidavit stated that the plaintiff served a notice of appeal on the 6th of December, 2007, however, the plaintiff did not progress the appeal. The personal representative, Eamon Corrigan, sought to expedite the appeal as the plaintiff remained in possession of the lands. At that time, Michael F. Butler & Co. acted for the plaintiff. Groarke & Partners wrote on behalf of Eamon Corrigan on the 12th of March, 2008 complaining that they had heard nothing since the service of the notice of appeal on the 5th of December, 2007 and asking whether the books of appeal had been lodged. A motion to dismiss the appeal was threatened unless the books were lodged within 21 days.
12. Michael F. Butler & Co. wrote on the 14th of March, 2008, stating there was a delay of 27 months in hearing Supreme Court appeals, so there was no prejudice in the delay in supplying the books.
13. On the 3rd of April, 2008, Michael F. Butler & Co. wrote to Groarke & Partners to say they had received their client’s specific written instructions to prepare the books of appeal and would revert with service in the normal way within the coming days. Groarke & Partners wrote on the 23rd of April, 2008, making complaint that unless the books of appeal were served on the 30th of May, 2008, an application would be made to strike out the appeal.
14. Ms. Brennan stated that the plaintiff in the proceedings asserts that a letter was sent by Michael F. Butler & Co. on the 3rd of May, 2008. She averred that this letter was never received in her office. She states that it was clear from other correspondence that the letter referred to by the plaintiff was a draft which was never sent. It could not have been sent because Michael F. Butler & Co. did not have a full set of pleadings from which they could prepare books of appeal at the time.
15. The letter which Ms. Brennan avers was never received by her office was said to be drafted in the following terms:-
“Re: Eamon Corrigan v. Sean Corrigan and Eoin (Owen) Corrigan Supreme Court Appeal
We refer to the above matter and enclose herewith the copy booklet of appeal with confirmation that the booklets have now been lodged in the Supreme Court office.
I kindly acknowledge receipt.
Yours faithfully
Michael F. Butler & Co.”
The content of this letter was sent by Michael F. Butler & Co. to the plaintiff on the 24th of November, 2015. However, Ms. Brennan said that Michael F. Butler & Co. could not have had a full set of pleadings from which they could prepare books of appeal and this is evidenced by the fact that Michael F. Butler & Co. wrote to Groarke & Partners on the 9th of May, 2008 stating:-
“I have partly prepared the books of appeal for lodging in the Supreme Court office. Unfortunately, my own papers are incomplete in that I have had to furnish some of same to George Brady for the hearing. Could I trouble you to make a complete set of the pleadings available to me, I will copy and return to you without delay.
My client is extremely anxious to ensure that the papers are lodged and that thereby obviate the need for any motion!!”
16. Groarke & Partners replied on the 12th of May, 2008 enclosing the book of pleadings as requested. On the 14th of May, 2008 Michael F. Butler & Co. wrote:-
“We are now lodging the books of appeal and enclose herewith a copy of the index to these books and you will note that additions (sic) thereto. We will, of course, however, furnish a fully paginated book to you in due course. We thank you for your courtesy (sic) afforded us.”
At the same time of sending an index to the books of appeal to Groarke & Partners, Michael F. Butler & Co. sent a letter of the 14th of May, 2008 to Kevin Kilrane & Co. stating “copy index of documentary books of appeal have now been lodged”, and they further stated that “we will furnish you with a fully paginated booklet in due course”.
17. Ms. Brennan states that Mr. Butler probably copied the pleadings received from Groarke & Partners, prepared indexes to the books of appeal, and sent the indexes to Groarke & Partners and to her firm under cover letter of the 14th of May, 2008. She states that their intention seemed to be to follow up with books of appeal. However, no further correspondence was received from Michael F. Butler & Co. – at some stage after the 14th of May, 2008 Michael F. Butler & Co. ceased acting for the plaintiff and the plaintiff then commenced acting for himself.
18. The appeal for the Supreme Court was listed for the 9th December, 2014 but had to be put back to the 26th January, 2015. Trish Cuddihy of the Supreme Court office sent an email on the 25th of November, 2015 to the plaintiff (Sean Corrigan) and Groarke & Partners and Kilrane & Co. The email stated:-
“Dear All,
I write to confirm recent telephone call you/your office in the above referenced matter – it is with regret that this matter will not now proceed for hearing on the 9th of December next. The appeal instead will be heard on the alternative date of Tuesday the 26th of January.
The matter will also be listed for call over in the Chief Justice’s case management list on Thursday the 14th of January – list commences at 10:00am.
Please note that this matter will not now be listed in the Chief Justice’s list tomorrow the 6th of November.
You might please revert if there is a difficulty with listing this matter for hearing on 26th of January next.
Regards
Trish Cuddihy
Supreme Court Office”
19. Ms. Brennan states that the plaintiff replied by email to Ms. Cuddihy, copied to Groarke & Partners and Kilrane & Co. in the following terms:-
“Dear Trish,
Further to our conversation this morning I will appear at the Supreme Court call over list on the 14th of January, 2016 after I have contacted Theresa Pilkington S.C. and James Dwyer S.C. regarding how long their oral submissions and replies on behalf of the respondents may take.
I would imagine that this appeal will take two days and most likely three because the legal arguments are considerably detailed with numerous authorities. I still await both respondents’ booklets of authorities, there is also some uncertainty as to the whereabouts of the second respondent’s book of pleadings. They can advise your office in this regard.
Yours Sincerely
Sean Corrigan”
20. On receipt of this email, Ms. Brennan replied to the plaintiff copied to Ms. Cuddihy of the Supreme Court office in an email on the following terms:-
“Dear Sean,
I refer to your below email of even date.
Just to clarify there is no uncertainty around our client’s book of pleadings. We were never served with an [sic] booklets of appeal as required in circumstances where this is your appeal and I have advised you the appellant of same.
I await hearing with your book appeal by return.
Regards,
Emma Brennan”
21. Ms. Brennan avers that she sent this email because she was concerned that Kilrane & Co. had not yet received books of appeal from the appellant and the appeal was due to be heard shortly. She said she copied the email to Ms. Cuddihy so that the Supreme Court office was not left with the impression that the books of appeal had been served.
22. She said that she received a further email some hours later from the plaintiff confirming that a letter on that date had been sent by document exchange to her office. The plaintiff followed with a letter of the 25th of November, 2015 in which he sought confirmation that first she had received his book of pleadings on the 3rd of May, 2008 and secondly, that she would retract the email sent to the Supreme Court office, in wording approved by the plaintiff. Enclosed with that letter was a letter from Michael F. Butler & Co. of the 24th of November, 2015. Mr. Butler states that he was surprised because he furnished a “copy of the book of appeal” on the 3rd of May, 2008 and that a copy of that booklet was also served on Groarke & Partners on same date “with such further copy directed to you at that time”.
23. However, Ms. Brennan avers as set forth above no such book of appeal was sent to Groarke & Partners. Mr. Butler did not have a full set of pleadings at the time.
24. The plaintiff followed up with letters dated the 25th and 27th of November and an initiating letter was sent on the 3rd of December, 2015.
25. Ms. Brennan said that she wrote on the 13th of April, 2016 to the plaintiff explaining that Michael F. Butler & Co. had promised to send books of appeal on the 14th of May, 2008, indicating that they could not have sent books of appeal on the 3rd of May, 2008. She asked the plaintiff to discontinue the proceedings. An application would have to be made to dismiss the proceedings for failure to disclose a reasonable cause of action. The plaintiff replied by complaining that he had been humiliated by the correspondence, before legal professionals and the Supreme Court office. These were people with whom he claimed that he had developed a trust worthy relationship as a plaintiff/appellant.
26. The plaintiff complained that he had been clearly identified as a legal practitioner by the correspondence and that he had been “publically discredited”. The plaintiff said that an application to dismiss would be opposed and that the procedure is now a matter for jury hearing following the ruling of the Court of Appeal in Lennon v. HSE [2015] IECA 92.
27. Ms. Brennan states that the defence was delivered on the 23rd of June, 2016 in which the defendant claimed inter alia the defence of qualified privilege.
The Plaintiff’s Claim
28. Ms. Brennan states that the statement of claim makes complaint that the defendant had engaged in “public chastisement of the plaintiff” which is “unwanted and unqualified – for in circumstances where it can only be characterised as humiliation of the plaintiff/appellant in front of the Supreme Court”.
29. Ms. Brennan says that she believes and is advised that the complaints made in the statement of claim are wholly misconceived. The plaintiff has not been defamed. There is no basis to his assertion that he is being “chastised or permanently undermined” or humiliated. Even if the court was to accept that the books of appeal were served by Michael F. Butler & Co. in 2008, which could not be the case, evidenced by the subsequent correspondence, this would not give rise to a cause of action.
30. She says and believes that the email published to Ms. Cuddihy was so published on an occasion of qualified privilege. The statement and email was made by the defendant to a person who had a duty to receive, or had an interest in receiving the information contained in the email. The defendant at all material times believed on reasonable grounds that the recipient of the email, in respect of which the complaint is made, had such duty or interest, such that the defendant had a corresponding duty to communicate, or an interest in communicating the information to that person. The defendant pleaded the defence of qualified privilege pursuant to s. 18 of the Defamation Act 2009.
31. In the alternative, a statement sent to the Supreme Court office as to the logistics of an appeal can be said to be made “in the course of proceedings”. As such, the statement will receive the benefit of absolute privilege under s. 17(2)(g) of the Defamation Act 2009.
32. Ms. Brennan says that the defendant is desirous of dealing with these proceedings as expeditiously as possible. The action is misconceived, and she respectively submits that it would be unfair and oppressive to require the defendant to defend this case by raising particulars, delivering a defence, seeking discovery and briefing counsels in circumstances where the plaintiff’s claim, taken at its height, disclosed no cause of action against the defendant and in the circumstances is bound to fail.
33. She then deals with the statement of claim in the proceedings of the plaintiff, which is set out below:
“(i) The plaintiff had mischievously stated in an email of even date that “there was some uncertainty as to the whereabouts of the defendant’s book of pleadings” when he knew the defendant had not served a book of pleadings.
(ii) The plaintiff set out to deceive and to all mislead the defendant.
(iii) The plaintiff set out to deceive and/or mislead the Supreme Court.
(iv) The plaintiff was dishonest and/or underhanded and should not be believed or trusted.
(v) The plaintiff was an unfit appellant in failing to deliver a book of pleadings to the plaintiff.
(vi) The plaintiff misrepresented the facts and was in default of his duty.
(vii) The plaintiff published a lie.
(viii) The plaintiff was an unfit person within his chosen professional.
(ix) The plaintiff was unprincipled.
(x) The plaintiff was dishonest.”
34. Ms. Brennan says that the email, the subject matter of these proceedings, is not capable of bearing these imputations.
35. On the 2nd of May, 2012 a motion on behalf of Eamon Corrigan was brought seeking to strike out the claim for want of prosecution on the grounds of inordinate and inexcusable delay in the appeal of the plaintiff in this case. On the 20th of April, 2012 the Supreme Court directed that unless a certificate of readiness was filed within two weeks from the 20th of April, 2012 the appeal would be struck out.
36. Prior to the establishment of the Court of Appeal in 2014, appeals and references to the Supreme Court were governed by O. 58 of the Rules of the Superior Courts. This is well known by all practitioners, in particular solicitors. Rule 11 and 12 of these Rules are particularly relevant:-
“11. All appeals to the Supreme Court shall be entered in the Office of the Registrar of the Supreme Court within seven days of service, or of the last service, if more than one, of the notice of appeal. The appellant shall lodge with the Registrar of the Supreme Court an attested copy of the judgement or order appealed from and shall leave with him a copy of the notice of appeal (indorsed with sufficient particulars of service) to be filed and as soon as the necessary papers are in order and ready such officer shall thereupon set down the appeal by entering the same in the proper list of appeals and it shall come on to be heard according to its order in such list, unless the Supreme Court shall otherwise direct.
12. The appellant shall without delay (this Court’s emphasis) lodge in the Office of the Registrar of the Supreme Court five books of appeal each containing copies of the pleadings and all other documents required for the hearing of the appeal with a sufficient index, a true copy of which index shall have been previously furnished to every other party affected by the appeal; provided that in any appeal within rule 2 three books of appeal shall be lodged initially, unless the court shall otherwise require.”Prior to the establishment of the Court of Appeal in 2014, the delays for hearing cases in the Supreme Court was consistently at a minimum of nearly three years. This is reflected in a letter written by Michael Butler, the plaintiff’s then solicitor, where he wrote saying that there was a delay of twenty-seven months in hearing Supreme Court appeals.
37. In the context of correspondence which passed between the three firms of solicitors in 2008, it is relevant to note:-
(1) Groarke & Partners wrote on behalf of Eamon Corrigan on the 12th of March, 2008 complaining that they had heard nothing since the service of the notice of appeal on the 5th of December, 2007 and they asked whether the books of appeal had been lodged.
(2) Michael Butler wrote on the 14th of March, 2008 stating that there was a delay of twenty-seven months in hearing Supreme Court appeals so there was no prejudice in the delay in supplying the books.
(3) On the 3rd of May, 2008 Michael Butler on behalf of the plaintiff wrote to Kevin Kilrane & Co. re: Eamon Corrigan v. Sean Corrigan and Eoin (Owen) Corrigan, Supreme Court appeal:-
“We refer to the above matter and enclose herewith copy booklet of appeal with confirmation that the booklets have now been lodged in the Supreme Court office. You might kindly acknowledge receipt.”
38. The court understands that a booklet of appeal is not a book of appeal, it refers to a list of documents.
Affidavit of Sean Corrigan
39. The plaintiff avers and he says that the defendant had no proper cause, duty or legitimate reason to send the email in question to the Supreme Court office. He further says and believes that the defendant either knew that the statements were not true or were reckless as to whether they were true or not. He says that “substantial truth” set out by the defendant in their defence is a term that he is not familiar with, and he does not believe the term could be allied to the defence of truth or honest opinion.
40. He further says that the impugned email was more than mere truculence or bad manners. The email sent was particularly dreadful as it implied that falsehoods were concocted by a legal practitioner. Later on the day of publication, he wrote to the defendant asking them to agree to retract the email. The defendant did not reply. He said that over the following days, he again wrote to the defendant asking them to agree a retraction. Eventually he sent an initiating letter by registered post on the 3rd of December, 2015. All of his communications to the defendant went unanswered until after he served his plenary summons on the 15th of December, 2015.
41. Ms. Brennan relies on genuine mistake, miscommunication, misunderstanding and a purported letter from his previous solicitors in 2008 as justification for the defendant’s behaviour. He emphasises that his cause of action only concerns the defamatory words published by the defendant on 25th November, 2015. Nevertheless, the plaintiff states that it now appears that since the 2008, the defendant neglected or failed to follow up on a misplaced booklet of pleadings with his previous solicitor. He said he was totally unaware of this until the defendant notified him of same on 19th November, 2015. He said he immediately wrote to his previous solicitors and they replied on 24th November, 2015. His previous solicitors categorically stated to him that they had furnished a book of pleadings to the defendant and they referred to other correspondence sent at the same time.
42. By letter dated 9th May, 2008, Messrs. Groarke Solicitors were written to by Michael Butler in the following terms:-
“I have partly prepared the books of appeal for lodging in the Supreme Court office. Unfortunately, my own papers are so incomplete that I had to furnish some to George Brady for the hearing. Could I trouble you to make a complete set of the pleadings available to me and I will copy and return to you without delay.
My clients are extremely anxious to ensure the papers are lodged and thereby obviate the need for any motion.”
43. It is quite clear to this Court that on 9th May, 2008, whatever had been purported to have been served on behalf of the appellant by Michael Butler was not a book of appeal.
44. On 14th May, 2008, Michael Butler wrote to the defendant’s solicitors stating that he enclosed “copy index, books of appeal have now been lodged” and stated “we will furnish you with a full paginated booklet in due course”. However, no further correspondence was received by the defendant from Michael Butler. Certainly there is no correspondence which the court has seen enclosing a copy of the book of appeal to Kevin Kilrane Solicitors in relation to the Supreme Court appeal.
Purported Defamation
45. The plaintiff states that he failed to understand why the defendant delivered an email containing false, disparaging statements to the Supreme Court office. He said that he believed that the words chosen in the email were calculated to harm him. They could not by any stretch of the imagination be upheld under the defence of absolute and/or qualified privilege. There were no serious concerns for the Supreme Court Office to address, in fact, the defendant was aware or should have been aware that the Supreme Court office could not interfere with the proceedings, other than to convey the defendant’s allegations to the Chief Justice. He states that if the matter were to go to a jury trial, in the aggravation of damages, a jury would have to consider whether or not the “defendant, for some obscure reason seize[d] upon the opportunity to maliciously libel him in a deliberate or negligent fashion while shutting their mind off to the truth”.
46. He said the jurisprudence in this area indicates that the jurisdiction of the High Court to strike out defamation proceedings is one to be exercised sparingly, with caution and only in clear cases where a plaintiff fails to show a reasonable cause of action. He says that he has a reasonable cause of action and he firmly believes that the defendant’s publication lowers in him the eyes of its recipient, the Supreme Court Office.
47. The plaintiff asks the court to be mindful of the following:-
(a) the status of the parties and recipients;
(b) the tone and choice of language used in the publication;
(c) the author’s failure to outline the facts as they knew them;
(d) the defendant’s refusal to deliver a reply to particulars which would advance his case;
(e) the nature and gravity of the allegations with regard to his livelihood;
(f) the vexatious reprimand in the publication which goes to show the author’s state of mind;
(g) the calculative effect of the publication that the allegations might be brought to the attention of the Chief Justice; and
(h) the extent of circulation, the importance of his professional reputation.
He asks the court to refuse the motion.
Discussion
48. The background to these proceedings relate to the estate of the father of the plaintiff. The deceased died on 5th March, 2000, having executed his last will and testament on 23rd September, 1997. The executor of the will, Eamon Corrigan, sought directions from the High Court which were heard by McGovern J. on 11th October, 2007 and judgment was then delivered on 2nd November, 2007.
49. The plaintiff in this case appealed the decision of McGovern J. It was suggested at the hearing of the motion that as a result of the decision of McGovern J., the plaintiff lost the benefit of a substantial bequest. The plaintiff appealed the order of McGovern J. by serving a notice of appeal on the Supreme Court on 6th December, 2007. The appeal was subsequently heard by the Supreme Court in January, 2016, with judgment delivered by Laffoy J. on behalf of the court on 5th October, 2016.
50. On the 29th April, 2012 the Supreme Court heard a motion on behalf of Eamon Corrigan. The Supreme Court ordered that unless a certificate of readiness was filed within two weeks of that date, the appeal would be struck out.
51. It is also noted that at that time, counsel for Michael F. Butler & Co Solicitors sought and was granted leave to come off record on behalf of the Sean Corrigan.
52. The court is satisfied that Michael F. Butler & Co. sent correspondence to Messrs. Kevin Kilrane & Co. dated the 3rd May, 2008 enclosing what is described as “the copy booklet of appeal – the confirmation that the booklets have now been lodged in the Supreme Court office”. It appears to this Court that the ‘booklet of appeal’ Michael Butler referred to was an index and not a book of appeal. This is evidenced by the subsequent correspondence with Messrs. Groarke & Partners dated 3rd April, 2008, and the letter sent by Michael F. Butler & Co. to Groarke & Partners on 9th May, 2008 stating:
“I have partly prepared the books of appeal for lodging in the Supreme Court office. Unfortunately, my own papers are incomplete in that I have had furnished some of same to George Brady for the hearing. Could I trouble you to make complete set of the pleadings available to me and I will copy and return to you without delay.
My client is extremely anxious to ensure that the papers are lodged and therefore obviate the need for any motion!”
The court also notes correspondence sent from the defendants to the plaintiff in relation to the case dated the 19th November, 2015 saying:
“Dear Mr. Corrigan,
We refer to the above matter and previous correspondence herein.
We note we do not appear to have ever received an (sic) booklet of appeal from you in relation to this matter, we confirm we did indeed receive an index however you might kindly let us hear by return with the booklet.”
In responding correspondence, the plaintiff sent a letter to Kevin P. Kilrane & Co. Solicitors dated 20th November, 2015:
“Dear Sir,
Further to your correspondence of the 19th inst. which I received today my sincerest apology, I was not aware that Michael Butler & Co. of Main Street, Longford did not send you a booklet of appeal. They lodged my appeal and when I received your client’s legal submission, I was under the impression that you had a copy especially as your counsel did not raise any issues during the plaintiff’s motion to have my appeal struck out.
In any event I sincerely apologise and will forward a copy of this letter to Michael Butler & Co. and ask them to send on a book of appeal to you as they still hold my complete file and they prepared the index which you refer.”
By letter dated the 24th November, 2015 Michael F. Butler replied to the correspondence from the plaintiff:
“I must confess that I am more than surprised with the statement of Kevin P. Kilrane & Co. and attach a copy of my letter to them of 3rd May, 2008 which clearly furnished a copy of the booklet of appeal with confirmation that the same had been lodged. A copy of the booklet was also served on Groarke & Partners on the same date as the further copy directed to you at that time.”
53. The court is satisfied that the only documents that were furnished by letter of the 3rd May, 2008 were an index.
54. The court notes the emails of the 25th November, 2015, the first of which was from Patricia Cuddihy of the Supreme Court office. It was addressed to the plaintiff, Messrs. Groarke & Partners, and Kevin Kilrane and Company Solicitors, the defendants. The subject matter was the appeal in the Supreme Court Corrigan v. Corrigan.
“Dear All,
I write to confirm recent telephone call you/your office in the above referenced matter – it is with regret that this matter will not now proceed for hearing on the 9th of December next. The appeal instead will be heard on the alternative date of Tuesday the 26th of January.
The matter will also be listed for call over in the Chief Justice’s case management list on Thursday the 14th of January – list commences at 10:00am.
Please note that this matter will not now be listed in the Chief Justice’s list tomorrow the 6th of November.
You might please revert if there is a difficulty with listing this matter for hearing on 26th of January next.
Regards
Trish Cuddihy
Supreme Court Office”
The first response to that was from the plaintiff fourteen minutes later at 11.40.
“Dear Trish,
Further to our conversation this morning, I will appear at the Supreme Court call over list on the 14th of January, 2016 after I have contacted Theresa Pilkington S.C. and James Dwyer S.C. regarding how long their oral submissions and replies on behalf of the respondents may take.
I would imagine this appeal will take two days and most likely three because the legal arguments are considerably detailed with numerous authorities. I still await both respondents’ booklets of authorities, there is also some uncertainty as to the whereabouts of the second respondent’s book of pleadings, they can advise your office in this regard.
Yours sincerely,
Sean Corrigan.”
In answer to these emails at 11:53, the email, the subject matter of these proceedings was sent by Emma Brennan of Kevin Kilrane & Co. This was sent to the plaintiff carbon copied to the Supreme Court office.
“Dear Sean,
I refer to your below email of the even date. Just to clarify there is no uncertainty about our client’s booklet of pleadings. We were never served with an [sic] booklets of appeal as required in circumstances where this is your appeal and I have advised you the appellant of same.
I will await hearing with your book of appeal by return.
Regards
Emma Brennan.”
Decision
55. Section 6(2) of the Defamation Act 2009 states:-
“The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “defamation” shall be construed accordingly.”
56. There is no definition of defamation provided in legislation, however, Gatley, On Libel and Slander, 12th Edn. (2013) states as follows. ‘Defamatory’ implies a harm being caused to a person’s reputation, however:-
“there is no wholly satisfactory legal definition of the term. Three formulae have been particularly influential:-
(1) Would the imputation tend to lower the plaintiff in the estimation of right ` thinking members of society generally?
(2) Would the imputation tend to cause others to shun or avoid the claimant?
(3) Would the words tend to expose the claimant to “hatred, contempt or ridicule?”
57. Order 19, rule 28 of the Consolidated Superior Court Rules provides:-
“The court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”
58. Section 34(2) of the Defamation Act 2009 provides:-
“The court in a defamation action may, upon the application of the defendant, dismiss the action if it is satisfied that the statement in respect of which the action was brought is not reasonably capable of being found to have a defamatory meaning.”
59. Section 14 of the Defamation Act 2009 states:-
“(1) The court, in a defamation action, may give a ruling—
(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and
(b) (where the court rules that that statement is reasonably capable of bearing that imputation) as to whether that imputation is reasonably capable of bearing a defamatory meaning, upon an application being made to it in that behalf.
(2) Where a court rules under subsection (1) that—
(a) the statement in respect of which the action was brought is not reasonably capable of bearing the imputation pleaded by the plaintiff, or
(b) that any imputation so pleaded is not reasonably capable of bearing a defamatory meaning, it shall dismiss the action in so far only as it relates to the imputation concerned.”
60. The court also has regard to the decision of McCauley v. Aer Lingus Ltd., Frank Feeney & Serena Wyse [2014] 3 I.R. 383. In the course of that judgment Hedigan J. stated:-
“For the purposes of considering whether to accede to an application based on O. 19, r. 28, the court must proceed on the basis that the statements of fact contained in the pleadings sought to be struck out are true and can be proved by the party.”
61. The plaintiff’s central allegation is that the email sent by the defendant’s carbon copied to the Supreme Court Office on the 25th November, 2015 is defamatory.
62. The court is satisfied that there is nothing in the email of Emma Brennan sent at 11:53 on the 25th of November, that is any way defamatory of the plaintiff. At its highest, the email could be described as terse. Correspondence between parties after a lengthy appeals process can understandably at times be terse.
63. The court is satisfied that the plaintiff may genuinely have believed what Mr. Butler had informed him about the books of appeal, but Ms. Brennan’s email did not suggest that he was dishonest in asserting that belief.
64. Legal practitioners and litigants commonly dispute who sent what document to whom in the context of litigation, particularly after waiting for three or more years for an appeal to be heard.
65. In this case, the appeal had been initiated as far back as 2nd of November, 2007 to the appeal hearing in January 2016, a period of nine years. In this Court’s view the email does not carry any imputation that one or other of the parties is a liar, is dishonest or unprofessional, it just implies there is a disagreement between the parties as to who is in possession of what documents. In her affidavit, Ms. Brennan suggests that the imputations as pleaded are unreasonable and hyperbolic and the court agrees with this characterisation of the claims in this case.
66. Further s. 18(2) of the Defamation Act 2009 says:-
“Without prejudice to the generality of subsection (1), it shall, subject to section 19, be a defence to a defamation action for the defendant to prove that—
(a) the statement was published to a person or persons who—
(i) had a duty to receive, or interest in receiving, the information contained in the statement, or
(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and
(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.”
67. It is clear that Ms. Cuddihy of the Supreme Court office had a duty to receive the information contained in the email, in circumstances where she had initiated the email correspondence. It is clear that Ms. Brennan must have believed that she had a corresponding duty to communicate the information to such person or persons.
68. Section 19(1) of the Defamation Act 2009 provides:-
“In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that the defendant acted with malice.”
69. The court is satisfied that the onus is on the plaintiff to prove that the defendant acted with malice, and the court is satisfied that the plaintiff must fail in this action.
Summary
(1) The decision of the court is that the words contained in the email and the email from Ms. Brennan to the plaintiff and carbon copied to the Supreme Court office did not contain any information which was false and that what was stated in the email was true.
(2) The court is satisfied that defence of qualified privilege is established by the defendant in relation to the statement which is claimed to be defamatory.
Decision
70. The court will dismiss the proceedings on the grounds that the statement of claim discloses no reasonable cause of action against the defendant. The court also will dismiss the proceedings on the grounds that pursuant to s. 34(2) of the Defamation Act 2009 that the statement in respect of which the action was brought in the email of the 25th of November, 2015 is not reasonably capable of being found to have a defamatory meaning.
71. The court also finds that pursuant to s. 18(2) of the Defamation Act 2009 the court finds that the statement was published to a person (namely Trish Cuddihy of the Supreme Court office) who had a duty to receive or interest in receiving the information contained in the statement and that the defendant had a corresponding duty to communicate or interest in communicating the information to such person or persons.
Cagney v Bank of Ireland
[2017] IECA 75
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 10th day of March 2017
1. This judgment is given on a motion issued on 18th December, 2015 in which the applicant seeks an order extending the time to lodge an appeal against an order of the High Court (Hedigan J.) made on 8th May, 2015 and perfected on 26th May, 2015.
2. The proceedings in which the order of the High Court was made were defamation proceedings commenced by plenary summons on 17th July, 2012. The applicant claimed that the respondent (“the bank”) defamed him by causing certain entries to be made in the Irish Credit Bureau (“ICB”) record against his name, namely the letter “K” denoting that the applicant’s credit card account had been revoked by the bank and “L” denoting that the applicant had settled the said credit card account for less than the amount due or short. The bank delivered a full defence to the claim on 3rd May, 2013 in which it denied that it had defamed the applicant and pleaded inter alia that the said communications to the ICB were made on occasions of qualified privilege.
3. The proceedings were heard in the High Court before Hedigan J. and a jury on 6th and 7th May, 2015. The applicant was represented during the trial by solicitor and counsel.
4. At the end of the evidence counsel for the bank applied for the case to be withdrawn from the jury on the grounds that the publications complained of were made on occasions of qualified privilege. The trial judge, having heard submissions from counsel for the bank and counsel for the applicant, decided that there was no case to put to the jury and withdrew the case from the jury on 7th May, 2015. On that day he informed the parties and the jury of his decision and indicated that on the following morning, 8th May, 2015 he would give his reasons for his decision. On the 8th May, 2015 the trial judge delivered a written judgment Cagney v Bank of Ireland [2015] IEHC 288 setting out the reasons for his decision. He then made an order dismissing the applicant’s claim and awarding the costs in favour of the bank.
5. On 3rd October, 2015 the applicant applied to the bank for consent to the late filing of a notice of appeal. Consent was not forthcoming and the motion was issued on 18th December, 2015 and grounded upon an affidavit sworn by the applicant on 17th December, 2015. The applicant also lodged a draft notice of appeal.
6. In his grounding affidavit he sets out the reasons for which he seeks the extension of time to appeal as being:
“(a) I am a lay litigant and unfamiliar with court processes.
(b) I have significant health problem and I was not well enough to deal with my legal affairs in the immediate aftermath of the trial.
(c) It is in the interests of justice that I be allowed to appeal. There was a breach of my constitutional rights in the manner in which the trial was conducted and I have a bona fide appeal.”
7. In the draft notice of appeal the grounds identified are:
“(1) Right to [have] my action considered and determined by jury.
(2) The decision of [the trial judge] has infringed my constitutional rights.
(3) No DAR available.
(4) Bias perception in the case.”
8. A replying affidavit was sworn by Emer Lumsden, solicitor for the bank; a further affidavit was submitted by the applicant and there were written submissions. The outline written submissions of the bank refer to the principles in the case of Éire Continental Trading Company v. Clonmel Foods [1955] I.R. 170 to which the Court should have regard in determining this appeal. The criteria to be considered are:
1. Whether the applicant has shown that he had a bona fide intention to appeal formed within the permitted time.
2. Whether he has shown the existence of something in the nature of a mistake as to procedure.
3. Whether he has established that an arguable ground of appeal exists.
9. The applicant appeared in person and submitted that he had formed an intention to appeal within time and that this was evident from the fact that he had filed a motion in the High Court seeking a copy of the DAR on 18th May, 2015. He referred to his health difficulties but did not adduce any evidence of same. He submitted that the decision of the trial judge to withdraw the case from the jury was made without his knowledge or input. He submitted that the decision of the trial judge was made before 8th May and was available online on 7th May but that his judgment was not delivered in court until 8th May. He also submitted that he had roughly 8 cases before Hedigan J. and that the trial judge had ruled against him every time. He did not refer the Court to any specific cases but submitted that this was evidence of bias and prejudice against him. He referred in submission to the breach by the bank of his constitutional rights by reason of the publication in question and the removal of the case from the jury.
10. The submission of the bank was that the applicant had not satisfied any of the Éire Continental criteria and that an extension of time should not be granted.
11. This Court received at the hearing of the motion a copy of the stenographer’s transcript of the hearing before the trial judge and jury on 6th and 7th May. A stenographer was not present for approximately the first hour but that is not relevant to any issue which has to be considered on this motion. I have considered the transcript relevant to the submissions made.
Discussion and decision
12. I am prepared to accept that the applicant may have formed an intention to appeal when he sought the DAR by motion of 18th May, 2015. However even if that is so Dahmno proper explanation for the delay in lodging a notice of appeal. Whilst the applicant relies upon the fact that he is a lay litigant, the affidavit of Ms. Lumsden sets out multiple proceedings in which the applicant has been involved as a lay litigant and he must be considered to be an experienced lay litigant. He also relies upon what he states to have been a “significant health problem” but does not give any detail or provide evidence to support same. Again the affidavit of Ms. Lumsden sets out many times upon which the applicant appeared in courts in relation to other proceedings in the autumn of 2015. Even when he applied to the bank for consent in October, 2015 and was refused he still did not issue the motion until 18th December, 2015. For those reasons I could not be satisfied that he has established a factual basis for a mistake or other circumstances which would justify my forming the view that there existed something in the nature of a mistake or other justifiable reason for which he did not lodge a notice of appeal within 28 days from the perfection of the High Court order.
13. Notwithstanding, I have also considered whether Mr. Cagney has made out an arguable ground of appeal. I do not consider he has done so.
14. The decision of the trial judge to withdraw the case from the jury was made on 7th May, 2015 following submissions made to him by counsel for the bank and submissions made by counsel for the applicant. The trial judge announced his decision on that day and informed the jury of his decision. He also stated he would give his full reasons in a written judgment on the following morning. That approach cannot form the basis of an arguable ground of appeal.
15. The judgment delivered by the trial judge with his reasons sets out correctly and with care the applicable legal principles and then applies them to what were uncontested facts given in evidence.
16. The trial judge correctly stated that the jury decide the facts in any case submitted to them for their determination and as a general principle it is only when the judge is satisfied, on undisputed facts, no case in law exists, that he may withdraw the case from the jury. The trial judge correctly identified that the question of whether or not the occasion was one of qualified privilege such that a defence pursuant to s. 18 of the Defamation Act, 2009 exists is a question of law to be determined by the trial judge. There may be cases where the jury must decide any relevant facts in dispute before the judge can make that determination. This was not such a case.
17. The trial judge having considered s. 18 of the Defamation Act, 2009, relevant authorities and facts not in dispute concluded that the communications to the ICB were made on an occasion of qualified privilege. He also adverted to the fact that malice had not been pleaded by or on behalf of the applicant nor did he did not seek during the hearing to establish malice. The trial judge referred in his judgment to the fact that “the plaintiff himself said on a number of occasions that he did not know why the bank had communicated the information to the Irish Credit Bureau”. That is not in dispute and could not be having regard to the evidence in the transcript.
18. In the absence of malice the trial judge concluded correctly that no defamation could arise from the communications made on an occasion of qualified privilege.
19. Accordingly I have concluded that the applicant has not adduced any arguable grounds of appeal against the ruling of the trial judge and decision to withdraw the case from the jury. He has not made out any arguable ground that any constitutional right was interfered with by the ruling.
20. I would add that a submission that the trial judge had ruled against the applicant on a number of other occasions in other proceedings (if that happened) could not form an arguable ground of appeal in relation to alleged bias of the trial judge. Again the transcript of the hearing does not disclose any arguable ground in relation to an allegation of bias of the trial judge.
21. For those reasons I refuse the application for an extension of time to appeal.
Kirkwood Hackett v. Tierney.
[1952] IR 190
Supreme Court.
MAGUIRE C.J. :
18. May
This is an action for slander. The questions which arise on appeal are whether the occasion was privileged, whether there was evidence of malice, whether the trial Judge was wrong in directing the jury that the burden of proving that he had an honest belief in the truth of the words spoken by him was on the defendant, whether there was evidence of the absence of such honest belief, whether the findings of the jury of malice and the absence of honest belief were against the evidence and the weight of the evidence, and whether the damages are excessive.
The case is an important one, both by reason of the position of the defendant and the issues involved.
The plaintiff was a student of architecture at University College, Dublin, of which College the defendant is the President. The plaintiff had served with distinction during the late war with the British Royal Air Force. He had been granted an award by the British Ministry of Education to enable him to pursue a full-time course of studies at the College leading to a degree in architecture. The award consisted of the payment of fees and a maintenance grant of £334 per annum. The award had been received by him during the years 1946-47 and 1947-48. In accordance with the arrangement between the College and the British Ministry of Education a draft in favour of the plaintiff for the sum of £134 6s. 8d. was received by the Registrar of the College about the middle of September, 1948. This was to be an instalment of the grant for the year 1948-49. The plaintiff, had, however, failed to pass the second University examination in architecture. The Registrar of the College deemed it his duty to report this fact to the Ministry of Education, and in doing so he pointed out that by reason of his failure to pass the examination, the plaintiff’s course would be interrupted for one year. He, furthermore, informed the Secretary to the Ministry that he was holding the draft or paying order to await his advice whether it was proposed to continue the grant.
On the 15th Octoberand before a reply had been received by the Registrarthe plaintiff, although he was aware that his failure to pass his examination for the second year in architecture created a difficulty in the way of his proceeding with his studies for the third year, called at the office of the College for the draft. Unaware of the decision of the Registrar a clerical assistant handed it out to him. He thereupon made an entry on his student’s card indicating that he was to attend classes in third year architecture and paid the full fees for the year, viz., £28. The defendant, having learned what had happened, sent for the plaintiff with whom he had an interview later that day at which Mr. O’Connell, the Secretary and Bursar of the College, at the request of the President was also present. It is alleged by the plaintiff
that in the course of this interview the defendant charged him with having obtained the draft by false pretences. This is the slander complained of in this action.
The defendant in his defence denies having spoken or published the words attributed to him, denies that they had the meaning alleged, and pleads privilege.
At the close of the plaintiff’s case counsel for the plaintiff pointed out that it was clear from the case adumbrated in cross-examination and in counsel’s opening address for the defence that the defendant was going to deny that he spoke the words complained of and submitted that in these circumstances he was not entitled to rely upon the plea of privilege. This amounted to an application that the defence of privilege be struck out. The trial Judge refused the application. At the close of the evidence defendant’s counsel asked for a ruling that the occasion was privileged. Mr. Casey, now the Attorney General, repeated his earlier submission and contended that in view of the defendant’s denial in his evidence that he spoke the words attributed to him he was not entitled to ask for this ruling.
The learned trial Judge, however, ruled that the occasion was privileged. The jury found that the words were spoken and published, that they were defamatory, that they meant that the plaintiff had committed the criminal offence of obtaining money by false pretences, that the defendant had not an honest belief in the truth of the words spoken, that there was malice, and assessed damages at £750. Judgment was accordingly entered for the plaintiff.
The first, and in my view, the main, question for consideration is the question raised by the plaintiff in his cross-appeal, viz., whether the learned trial Judge should have ruled that the occasion was privileged.
As regards what constitutes a privileged occasion it is only necessary to quote what was said by Parke B. in Toogood v. Spyring (1):”In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another . . . and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society.” “This passage,” says Lindley L.J. in Stuart v.Bell (1), “has been frequently quoted and always with approval.”
The basis of the claim of privilege is motive. As stated in Gately on Libel and Slander, 2nd edition, p. 214:”The law rightly makes the motive of the defendant the indispensable test of liability.”
The onus is on the defendant to establish by evidence that the occasion was privileged. The question whether he has succeeded in this is entirely for the trial Judge.
The plaintiff contends that a defendant who denies the use of the words attributed to him cannot fall back on the defence of privilege because the two defences are inconsistent. The Judge, it is urged, cannot find that the motive for speaking the words was a proper one if the defendant says he did not speak, or, in a case of libel, write, the words of which complaint is made. To this it is answered, first of all, that a defendant may plead inconsistent defences. But it is answered although he may do so the position is altered when it comes to the trial of the action when the plaintiff is entitled to know what is the defence which is to be relied upon.
The defendant, furthermore, as I understand his argument, contends that although he denied speaking the words alleged there were a number of answers given by him from which the trial Judge can find that he showed that he had an honest belief that the plaintiff had obtained the draft by false pretences and that he admitted using language which in substance charged the plaintiff with having done so. It is submitted that from this and from the circumstances that he made the communication only to the Secretary and Bursar of the College it can be found that he had a proper motive in making the charge.
I do not consider that the evidence can be looked at in this way. Dr. Tierney’s attitude is first made clear in the letter from his Solicitors of the 20th November, 1948, where it is stated:”Our client emphatically denies that he made any such accusation against your client.”
In cross-examination of the plaintiff it was put to him that the defendant would swear that he did not use the words attributed to him. Again and again throughout his evidence Dr. Tierney denies having spoken them. He did, however, allow that he might have used the words, “false pretences,” but he denied using them in the context or with the meaning alleged by the plaintiff. He agreed that he believed that the plaintiff had wrongly obtained the draft and that he (the plaintiff) knew that he was not entitled to it. Asked (at Q. 1207):”Did you say to him, ‘You have obtained the cheque under false pretences’?”, his answer was “No.” Again (at Q. 1210) he was asked:”Did you use the words, ‘You have obtained this draft under false pretences’?”, his answer was “No, I did not use that type of statement at all.” At Q. 1141 he was asked:”But there is one matter you claim to be absolutely sure about and that is that you made no allegations against Mr. Kirkwood Hackett that he had obtained the draft by false pretences?”Answer: “Yes, absolutely clear.” At Q. 2078, Dr. Tierney, having accepted that he believed that the plaintiff was not entitled to the grant, said:”There is a difference between believing that a certain thing has happened and making a charge about it.” It seems to me that by these answers the defendant raised the straight issue, whether the words were or were not spoken. Furthermore, this was the main and substantial issue on which the case was fought. To my mind it is difficult to see in these circumstances how the question of privilege could arise. No case exactly in point has been cited to help.
This absence of authority is relied upon by both sides as showing that their respective contentions are elementary and obvious. Counsel for the plaintiff, however, rely upon a passage in the speech of Lord Bramwell in Capital and Counties Bank v. Henty (1). In that case the defendants sent a circular to numbers of their customers to the following effect:”Henty & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the” Bank. The Bank brought an action for libel with an innuendo that the circular imputed insolvency. The defendants admitted publication, denied that it was a libel and pleaded privilege. At the trial the question of libel or no libel was left by Lord Coleridge to the jury with a direction that the circular, if under the circumstances libellous, was published on a privileged occasion unless there was express malice. The jury failed to agree and were discharged. On a motion by the defendants to enter judgment for them the Common Pleas Division held that the circular was capable of the meaning alleged and that the case should go again to the jury. The Court also considered that the direction that the occasion was privileged was correct. The Court of Appeal (Cotton, and Brett L.JJ., Thesiger L.J. dissenting), reversing this decision, held that there was no evidence that the circular was defamatory and even if there was such evidence the circular was issued on a privileged occasion and there was no evidence of malice. The House of Lords, Lord Penzance dissenting, affirmed the decision of the Court of Appeal that on their natural meaning the words were not libellous and that the evidence failed to show that the circular had a libellous tendency and that there was no case to go to the jury. They did not express an opinion on the question of privilege. Lord Selbourne appears to have considered that the document would possess privilege if bona fide sent to the persons to whom it was addressed “for the purpose appearing on the face of it” and that to deprive it of that privilege”one of two things is necessary,either the defendants should be shewn to have sent it for some ulterior purpose not covered by that privilge . . . or it must be shewn properly to bear the libellous meaning imputed to it.” This is not very clear, but it seems to mean that privilege would not protect the circular with the innuendo. Lord Penzance accepts the view of the trial Judge that the occasion was privileged. Lord Blackburn also touches on the question of privilege, saying that he thought there was evidence that the defendants “did not send the circular because they had resolved to take no cheques, but resolved to take no cheques in order that they might send the circular. And if that was found by a jury to be the fact, I think they could not shelter themselves from the consequences of publishing the letter, if it was a libel, by an occasion which they sought.”
The passage in Lord Bramwell’s speech upon which Mr. Casey relies is at pp. 793 and 794. Having agreed that the words were harmless in themselves, he says:”If I am wrong in the above, and if the inference, or an inference, to be drawn from the words used is the imputation of insolvency to the plaintiffs. . . I think there is no defence on the ground of privilege. I think that that follows from the defendants’ own contention. They say that they did not believe the plaintiffs to be insolvent, and had no intention to say so, and that if that is the inference to be drawn from their language, their language is wrong. But they have no privilege to use wrong language. They have only a right to say what they believe. It may be by mistake that they have said what they do not believe, but for that mistake they are liable.”
It will be observed that in this case certain of the Judges held that the defence of privilege was open. It is not clear whether the point taken by Lord Bramwell was raised in the argument. It can hardly have been, as it is not adverted to in the earlier judgments. As it was unnecessary to decide the point it may be said that the view of Lord Bramwell was obiter. I am, however, of the opinion that Lord Bramwell’s reasoning is sound. If he be right in his opinion that a defendant who makes the case that he did not hold the view attributed to him by an innuendo and did not intend to make the imputation it contained cannot claim privilege for the words used if they be held defamatory by reason of the innuendo, a fortiori a defendant who denies the use of words which are attributed to him cannot claim privilege for these words if he be held to have used them. At the stage in the trial where the judge is asked to rule the occasion privileged a defendant must be taken as saying:”I used these words in discharge of a duty, in exercise of a right, or by reason of the existence of a common interest with those to whom they were spoken. Because of this I was entitled to speak my mind freely. I only made use of the opportunity given me to say what I believed to be true.” The protection of privilege can only be given when all these conditions are fulfilled. It is contended, however, that an occasion is privileged if the relationship between the speaker and those to whom words are spoken be such that freedom of speaking is allowed. It cannot, however, in my view, be correct that merely because the conditions are such that freedom to speak what is believed is allowed, however criminatory it may be, a ruling that the occasion is privileged should be made, even though the defendant repudiates the words alleged to have been spoken. The judge no less than the jury is concerned with motive of the speaker. If the defendant resolutely protests that he did not use the words attributed to him or intend to make the imputation of which complaint is made I cannot see how a judge can rule that he spoke them in discharge of a duty, in the exercise of a right, or to safeguard his interest.
Looking at the matter in another way, I understand that an application for a ruling that an occasion was privileged can only be made where there is a communication around which it is sought to throw the protection which such a ruling gives. In such a case the judge must surely know what is the communication which it is sought to protect. How can a defendant ask protection for words which he repudiates unless it be allowed that the judge’s ruling is a ruling that there was what Mr. Casey calls an occasion, in the abstract, that is, one in which any statement which a defendant is found to have made is protected unless malice be shown?
If we consider what is admittedly an extreme case, the effect of holding that a defendant can have protection for words he denies using becomes clear. Suppose it is alleged against a defendant that in giving a character to a servant in circumstances which would protect, as privileged, anything he said, provided he believed in its truth, he is alleged to have said that the servant was dishonest. In evidence, he denies the use of these words and states he had no ground for thinking that the plaintiff was dishonest. It seems to me inconsistent with such a denial that he should claim that the occasion was privileged. A ruling in his favour would give him the benefit of a presumption that he believed in the charge alleged to be made and was not guilty of malice and would throw on the defendant the onus of displacing these presumptions. This would surely be an unfortunate result and one which in my view the law can hardly allow.
In Whiteley v. Adams (1) Erle C.J. says:”. . . if the circumstances bring the judge to the opinion that the communication was made in the discharge of some social or moral duty, or on the ground of an interest in the party making it or receiving it, then, if the words pass in the honest belief on the part of the person writing or uttering them, he is bound to hold that the action fails.”
I ask, how can a judge hold, no matter what the circumstances are, that “words pass in the honest belief on the part of the person” uttering them if, as in this case, he denies speaking them. Yet, if the defendant is right, that is what the trial Judge should have done in this case. It seems to me clear that when a defendant makes the speaking or writing of the words attributed to him an issue for the jury he is not entitled to fall back upon a plea of privilege.
In my opinion, the trial Judge in this case should have declined to rule the occasion privileged.
The ground that the answers to the first two questions were against the evidence and the weight of evidence was not pressed and, indeed, was unsustainable.
I need not consider any other questions, save that of damages. In this type of action where the words are actionable per se it is difficult to apply any rule to test whether the amount arrived at by a jury is excessive. Damages in such cases are peculiarly the province of the Jury.
I would dismiss this appeal.
MURNAGHAN J. :
I agree with the judgment which Mr. Justice O’Byrne is about to deliver.
O’BYRNE J. :
This is an action for damages for slander. The plaintiff is a student of University College, Dublin, and the defendant is President of the said College. The words complained of are alleged to have been spoken in the President’s room in the said College at an interview on the 15th October, 1948, at which there were present the plaintiff, the defendant and Mr. Augustine J. O’Connell, Secretary and Bursar of the said College. The learned trial Judge ruled that the occasion upon which the words were alleged to have been spoken, was a privileged occasion and the jury found that the words were spoken, that they were defamatory in imputing that the plaintiff had committed the criminal offence of obtaining money by false pretences, that the defendant had not an honest belief in the truth of the words, and that the words were spoken and published maliciously and the jury assessed damages at the sum of £750. Judgment was entered for the plaintiff for this amount and for the costs of the action.
Against the judgment so entered, the defendant appeals on the ground that there was no evidence of malice and that the trial Judge, having ruled that the occasion was privileged, should have directed the jury to find for the defendant. The plaintiff has served a cross-notice of appeal in which he alleges that the trial Judge misdirected himself in law in ruling that the occasion was privileged and he asks that the said ruling should be set aside by this Court.
I propose to deal, first, with the question whether the trial Judge was right in ruling that the occasion, upon which the words were spoken, was a privileged occasion. The test for determining whether privilege exists was stated by me in this Court in my judgment in Reilly v. Gill and Others (1) in the following words:
“It is settled law that an occasion is privileged when the person who makes the communication has an interest or a duty to make it to the person to whom he does, in fact, make it and the person to whom he makes it has a corresponding interest or duty to receive it. The duty referred to need not be a legal duty; it may be a moral or social duty and of perfect or imperfect obligation. The doctrine of privilege is based partly upon matters of presumption and partly upon considerations of the convenience and welfare of society as a whole. Where a communication is made by some person in the discharge of some social or moral duty or on the ground of a common interest between the party making and the party receiving it, it is inexpedient that the person making the communication should be answerable in damages, where he acts in good faith and honestly believes in the truth of the communication. Want of good faith on the part of the person making the communication destroys the privilege and, on this question, the belief or state of mind of such person is of paramount importance. The question, however, as to whether the occasion is privileged depends on the admitted or proved facts in each particular case and does not depend upon the state of mind of the person making the communication.”
In the letter, dated the 4th February, 1947, from the British Ministry of Education to the plaintiff, informing him that an award had been made to him for the purpose of pursuing a full-time course in architecture and obtaining a degree, it is stated that “the award is tenable subject to satisfactory attendance, conduct and progress, until the end of Autumn Term, 1951, or for such shorter period as may be determined in the light of the reports of your progress.”This clearly contemplated a five-year course and made no allowance for the plaintiff losing a year by failing to pass the annual examination or otherwise. The payment drafts were forwarded, not to the plaintiff, but to the College, and in the letter to the College it is stated that “In the case of students whose progress and conduct have not been satisfactory, the payment of drafts should not be issued but should be returned to the Ministry together with a statement of the reasons for non-issue.”
Instead of returning the draft in accordance with the foregoing direction the Registrar of the College, at the direction of the defendant, wrote to the Ministry for directions. This letter was written on the 12th October, 1948, and no reply had been received on the 16th October, when plaintiff obtained the draft from an official in the office of the College.
As soon as the withdrawal of the draft was reported to him, the defendant directed that the plaintiff should come to his office as soon as possible, and the plaintiff did come to the President’s office the same afternoon. He was accompanied by Mr. O’Connell, the Secretary and Bursar of the College, who attended at the request of the defendant. It was at this meeting that the defamatory words were spoken and the publication, relied upon by the plaintiff, was the publication to Mr. O’Connell. It now becomes necessary to consider the position of the defendant and of Mr. O’Connell and their respective rights and duties with reference to the subject-matter of the discussion, viz., the circumstances in which the draft was taken from the College and the steps which should be taken with a view to its recovery.
The defendant is the President of the College and, under the Charter, he is the head and chief officer of the College. The Charter provides that the correspondence of the College is to be conducted under his direction and it is further provided that the President shall exercise a constant supervision over all departments of the College and shall direct his particular attention to the maintenance of order and discipline in the College.
Mr. O’Connell was Secretary and Bursar of the College. It was part of his duty, under the Charter, to take general charge of the buildings and property of the College, to act as Secretary to the Governing Body and its Committees and to carry out all such directions, in respect of administrative matters, as he might receive from the President. The Charter further provides that he shall observe due secrecy with respect to all official matters and that he shall sign a declaration that he will perform the duties prescribed for him.
In view of the functions so assigned I am of opinion that it was not only the right but that it was the duty, of the President to make full inquiry into the circumstances in which the draft was removed from the College and with reference to the steps which should be taken with a view to having the draft returned to the custody of the College. The words were spoken in the course of this inquiry and were, in my opinion, germane to the inquiry.
Had Mr. O’Connell a corresponding duty, or interest, in receiving the communication? In my opinion he clearly had. The draft had been sent to, and was in the custody of, the College and the College, as custodian, had a special property therein. Under the Charter, Mr. O’Connell was bound to take general charge of all the property of the College, including the said draft, and he was bound to carry out the directions of the President in respect of administrative matters. In my view, Mr. O’Connell had a special interest and duty in connection with the draft. As the custodian of the property of the College the draft had been removed from his custody and it was his duty, under the Charter, to take such steps as the President might direct with a view to its recovery. For this purpose it was clearly his right to receive the fullest information as to the circumstances in which the draft had been removed.
It was contended that the communication should have been made, if at all, to the Registrar of the College, who had conducted the correspondence with the Ministry of Education. In my opinion, there is no substance in this contention. Under the statute, the functions of the Registrar are mainly, if not altogether, academic and he is bound, under the direction of the President, to carry on the correspondence of the College, but only in so far as it relates to academic matters. Correspondence between the College and the Ministry of Education, with reference to the scheme and the position of students thereunder, may well have been regarded as purely academic; but, when the draft was improperly removed from the College, the circumstances in which it was removed and the steps to be taken with a view to its recovery were, in my opinion, strictly administrative matters, in connection with which the President properly called on the services of the Secretary and Bursar.
It is, however, contended that no person is entitled to claim privilege in respect of alleged defamatory words unless he admits that the words were spoken and that, inasmuch as the defendant denied the speaking of the words, he was not entitled to a ruling that the occasion was privileged. There is a strange absence of authority on this matter and this absence of authority is relied upon by both parties in support of their respective contentions.
In my opinion, the plaintiff’s contention is not well-founded. The question whether an occasion is privileged depends upon the admitted or proved circumstances surrounding the alleged communication and I see no reason, in principle or on authority, for limiting this to cases in which the defendant admits the speaking of the words.
The plaintiff strongly relied upon a passage in the judgment of Lord Bramwell in the case of Capital and Counties Bank v.Henty (1). The passage occurs at the end of the judgment (at pp. 793 and 794) and is as follows:”If I am wrong in the above, and if the inference, or an inference, to be drawn from the words used is the imputation of insolvency to the plaintiffs, and if the action is otherwise maintainable, I think there is no defence on the ground of privilege. I think that that follows from the defendants’ own contention. They say that they did not believe the plaintiffs to be insolvent, and had no intention to say so, and that if that is the inference to be drawn from their language, their language is wrong. But they have no privilege to use wrong language. They have only a right to say what they believe. It may be by mistake that they have said what they do not believe, but for that mistake they are liable.”
It will be seen that in the foregoing passage, the learned Lord is lot purporting to consider or deal with the question whether the occasion was privileged. He is dealing with a case where the defendant speaks defamatory words regarding the plaintiff and does not believe in the truth of the charge. He says that “they have only a right to say what they believe.” I take this to mean, not that the occasion was not privileged, but that the communication was not privileged and that it was not privileged because the making of a false and defamatory charge, without believing in its truth, is clear evidence of malice. The imaginary case with which Lord Bramwell is dealing differs fundamentally from the present case in which it is clear from the evidence of the defendant that he did believe in the truth of the charge and there is no evidence to the contrary.
Various cases were put to counsel in the course of the argument showing the inconvenience, and possible injustice, which would be involved in yielding to the argument of the plaintiff’s counsel. Take the following: defamatory words are alleged to have been spoken by a married woman with reference to a former servant and to a prospective employer who has applied to her for a character. It is a classic example of privileged occasion. The lady’s husband is sued for his wife’s tort. He was not present at the interview and does not know what happened. His wife denies having spoken the words attributed to her. Is the husband, in such circumstances, to be deprived of the plea of privilege so as to throw upon the plaintiff the onus of proving malice? To deprive him of relying on such plea seems to me to be opposed to the whole basis of the law of privilege and would limit the defence, in such a case, in a manner in which, so far, it has not been limited.
So far I have dealt with the case on the basis that there was a categorical denial of the speaking of the words complained of. That is not the present case.
It is true that in portions of his evidence the defendant does emphatically deny having used the words attributed to him; but it would be unreal to concentrate on these portions of his evidence without regard to the remainder.
He prefaces his evidence by saying that he does not pretend to have an accurate verbal recollection of everything that was said. He points out that he had no idea for a month after the interview that any serious consequences were likely to arise and that, therefore, his recollection at best dates from a month after the interview. In his account of the interview he says that he explained to the plaintiff that a rather serious mistake bad been made in the College office which might involve the College in some difficulty with the British Ministry of Education and that he went on to point out in a friendly, but serious, way that the defendant’s action in taking the draft might easily have a serious construction put upon it. He says he never used the words,”You took that draft under false pretences”; but he says that he would not like to swear positively that he did not say that the plaintiff might possibly be accused of having taken the draft under false pretences. Later on, he says that he was not prepared to swear that he did not use the words, “false pretences,” in warning the plaintiff that a serious view might possibly be taken of his action; but he says that he did not accuse him of having taken the draft under false pretences. Later he is asked (Q. 1164):”And you may have used in some context, but not the context alleged, the words, ‘false pretences’?” Answer:”I could not swear that I had not used them.” There are many other answers to the same effect and I am of opinion that, on the defendant’s evidence alone, it would be fairly open to the jury to find, as a fact, that the defendant did speak the words complained of or words to, substantially, the same effect. That is the reason that I consider the present case far removed from the simple case where a defendant swears that he did not speak the words and yet claims privilege for them.
For all these reasons I am of opinion that the learned trial Judge was right in his ruling that the occasion was privileged. The question then arises whether there was evidence, proper to be submitted to the jury, that the defendant was actuated by malicethat is, malice in fact.
Malice may be defined as a wrong or improper motive or feeling existing in the mind of the defendant at the time of the publication and actuating that publication. It is not sufficient to show that the defendant acted rashly, improvidently or stupidly so long as he acted in good faith. It must be shown that he acted from an indirect and improper motive. The state of mind of the defendant is the cardinal consideration and the point of time, at which that state of mind is to be ascertained, is the moment when the words are spoken and published.
There is no suggestion of any ill-will or enmity existing between the plaintiff and the defendant prior to the 15th October, 1948. The defendant had met the plaintiff on only two occasions prior to the said date and on these occasions the relations between them seem to have been most friendly.
In this case a number of matters, some of them rather trivial, are relied upon as evidence of malice. In such a case I am of opinion that the proper method of considering the evidence is that laid down by Lord Porter in delivering the opinion of the House of Lords in Turner v. Metro-Goldwyn-Mayer Pictures, Ltd. (1). Lord Porter says (at p. 84):”The onus of establishing the existence of malice was on the plaintiff. Each piece of evidence must be regarded separately, and, even if there were several instances where a favourable attitude was shown, one case tending to establish malice would be sufficient evidence on which a jury could find for the plaintiff. If, however, on a careful analysis of each particular instance of alleged malice, the result was to leave the mind in doubt, that piece of evidence was valueless as an instance of malice, whether it stood alone or was combined with a number of similar instances.”
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.
It is alleged that, prior to the interview of the 15th October, at which the defamatory words were spoken, the defendant had not made any, or sufficient, inquiry into the circumstances. There is no substance in this allegation. Prior to the interview, the defendant had received reports from Miss McLoughlin, secretary to the President and Registrar of the College, and from the Secretary, Mr. O’Connell. The defendant was personally aware of the position of the plaintiff in the College and knew that, under the arrangement with the Ministry of Education, he was not entitled to the draft. Indeed, the latter point was scarcely denied by the plaintiff in his evidence. He admits that he had had an interview, on the morning of the 15th October, with Professor Downes, Professor of Architecture, and that the latter told him that he did not think he (the plaintiff) could get another supplemental examination and that the Professor also told him that the regulations precluded the plaintiff from going on to the third year. The plaintiff, according to his own evidence, thereupon said to Professor Downes: “This looks like I will lose the grant.” Later on, he says that the Professor told him that he would not get a supplemental, that he knew he could not go on to the third year and that he stood to lose the grant. In view of all this I am of opinion that there is no foundation for the allegation that the defendant did not make sufficient inquiry before the interview. It follows that there is no evidence of malice arising from the failure to make such inquiry.
It is said that the defendant was aggressive and that he exhibited annoyance at the interview. The only reason for the allegation of aggressiveness seems to be that, according to the plaintiff’s evidence, the defendant was walking up and down during the interview, though counsel for the plaintiff did not rely on this matter during the argument before us. It may be that the defendant was annoyed and there seems to have been reasonable grounds for such annoyance. I am, however, clearly of opinion that this is not evidence of malice within the meaning of the authorities.
It is also alleged that the plaintiff was given no opportunity to explain his action. It is to be noted that the plaintiff, in his evidence, did not make any complaint on this ground and it also appears from the evidence, and the findings, that most of the words, and all the material words, spoken by the defendant were in the nature of questions to which the plaintiff was called on to reply, if he could do so. Having regard to the plaintiff’s own evidence it is difficult to see what explanation he could offer. In my view, there is no substance in this allegation.
It is also contended that the refusal of the defendant to give the plaintiff an interview and to discuss his financial position is evidence of malice. If, as seems to be the fact, the plaintiff was not entitled to remove the draft, it is difficult to see why the demand for its return should be complicated by discussions as to the plaintiff’s financial position. This may have been a matter for anxious consideration by the plaintiff; but I cannot see how the refusal of the defendant to embark upon such inquiry is evidence of malice. The plaintiff undoubtedly sought an interview with the defendant on the 19th October; but, according to the plaintiff’s evidence (Qq. 243 and 246), this request was in the form of a demand. It is not surprising that such a demand from a student to the President of the College was was refused.
The plaintiff further contends that the defendant’s denial of the speaking of the words complained of shows that the words were spoken from some indirect and improper motive and is evidence of malice. I have already dealt with this matter in considering the question of privilege. There was a denial by the defendant of the precise words attributed to him, but the defendant does not deny speaking words which are substantially to the same effect and which would certainly bear the defamatory meaning of which the plaintiff complains. Having regard to the entire of the defendant’s testimony, I am satisfied that it does not contain any evidence of malice on the ground alleged.
In the course of his evidence the plaintiff swore that, at the interview of the 15th October, the defendant stated that, if the draft were not returned, the defendant would have to review the plaintiff’s position in the University. It is alleged that this was a threat of expulsion and is evidence of malice. I cannot accept this contention. What could be more proper than a consideration and review of the plaintiff’s position in the College in view of what had taken place?
The plaintiff also relies upon the fact that Mr. O’Connell interviewed the manager of the plaintiff’s Bank on the morning of the 16th October. Assuming that this interview took place with the concurrence, or on the direction, of the defendant (of which there is considerable doubt) I fail to see how it is any evidence of malice. At the interview of the 15th October, the plaintiff agreed to get the draft back and, in his letter written on the morning of the 16th October to Miss McLoughlin, the plaintiff suggested that the Ministry of Education should be notified so that payment of the draft could be stopped. In approaching the Bank, Mr. O’Connell was trying to assist the plaintiff in his efforts to get the draft back and this course was much less drastic than that suggested by the plaintiff in his letter to Miss McLoughlin. I do not understand how it can be suggested that this is any evidence of malice.
In support of his contention that there was evidence of malice, the plaintiff mainly relied upon certain letters written by or on behalf of the defendant.
The first letter is one of the 18th October, 1948, from the Registrar of the College to the Ministry of Education, informing them about the taking of the draft from the College and that the plaintiff had undertaken to recover the draft and hand it back to the College; but had so far failed to do so. It is alleged that this is not a true statement of the facts. In my view, the letter contains a bald statement of the facts and is true in every particular.
The next letter to which it is necessary to refer is one of the 27th October, from the Ministry of Education to the Registrar of the College, stating that the award to the plaintiff would be continued for the current term and requesting that a special report, with the recommendation of the School, should be forwarded to the Ministry at the end of the term. The plaintiff complains that the contents of this letter were not communicated to him. I know of no reason why this should have been done. The Ministry was seeking a confidential report with reference to the position and progress of the plaintiff and the whole matter was obviously one of confidence between the Ministry and the College.
In reply to the foregoing, the Registrar wrote to the Ministry a letter, dated the 29th October. In this letter the Registrar sets out the position of the plaintiff in the College and does so with strict accuracy. I can see no ground of objection to this letter and know of no reason why its contents should have been communicated to the plaintiff.
The letter upon which most reliance was placed by the plaintiff was a letter, dated the 11th February, 1949, from the defendant to the Ministry of Education. This was written in reply to a letter from the Ministry to the Registrar of the College, dated the 26th January, 1949. That letter is to the following effect:
“I write with reference to the award under the Further Education and Training Scheme held by Mr. Kirkwood Hackett who has been studying architecture at University College.
Mr. Hackett’s award was suspended following his examination failures in the Summer and Autumn Terms, 1948.
As you will know, it is not the Ministry’s normal policy to continue an award after an examination failure, unless there are extenuating circumstances to account for it or it is felt that the failure does not indicate the student’s real ability. I should be glad to know whether, in the light of the work which this student has done during the Autumn Term last and the first part of the present term, you are prepared to make a special recommendation on his behalf for the continuation of his award. If you are prepared to make such a recommendation, would you also say by what date this student is now expected to complete his course for the qualification of A.R.I.B.A.”
Before considering the reply to that letter it is material to state that this action had been instituted by originating summons issued on the 7th January, 1949.
The defendant’s letter of the 11th February, 1949, is as follows:
“Dear Sir,
Please accept my apologies for the delay in answering your enquiry of the 26th January, addressed to the Registrar.
The case of Mr. W. B. Kirkwood Hackett has been rendered singularly difficult by his own recent actions. As you are a ware he has failed twice in his Second Architecture in the subject of Archaeology. He applied for, and was given, permission to re-attend lectures in this subject, but has not done so. Until he has completed this subject, at his Second Architecture, regulations forbid his proceeding with lectures for his Third Year. Although he should have been aware of this regulation he came to the College office, signed a form, and paid for his Third Architecture Course; and, at the same time, withdrew your pay order for £134 6s. 8d. which was intended to cover that Course. As soon as my attention was drawn to his action, I interviewed Mr. Hackett and requested him to arrange for the return of the pay order to the College pending your decision as to whether or not he should be permitted to draw it. This he undertook, but failed, to do. Some time later I was informed that he proposed to take a slander action against me, his allegation being that I had stated, in the presence of the Secretary of the College, that he had got his grant from you under false pretences. In due course a summons for alleged slander arrived, and the case is still pending. Beyond a complete and absolute denial of this allegation I do not propose to comment on Mr. Hackett’s conduct as the matter is sub judice.
Mr. Hackett’s summons was accompanied by another from a student also enjoying a grant from you, Mr. Liam D. Graham. This latter summons was issued against University College for alleged breach of contract. Mr. Graham had failed very badly in his First Agricultural Science Examination and did not present himself for a supplemental, and had been informed that he could no longer be accepted as a student of the College. Both these summonses were served by the same solicitor.”
It is contended that this letter shows pique, bad temper and malice on the part of the defendant. The greater portion of that letter consists of a statement of facts and it has not been suggested that these facts have been stated otherwise than with strict accuracy. I agree that it shows a certain amount of pique and, possibly, bad temper. To what is that due? It seems clear from the history of the case and the contents of the letter, that it is due to the two actions which had been instituted against the defendant.
As I have already stated, in considering the question of the existence or absence of malice, the cardinal consideration is the state of the defendant’s mind and the point of time, at which that state of mind is to be ascertained, is the moment when the words were spoken. Proceeding on this basis, can it be said that the foregoing letter is evidence of malicethat is, evidence from which a jury would be entitled to find, as a fact, that, when he spoke the words complained of, the defendant was actuated by some wrong improper or indirect motive? In my opinion, it certainly is not. A period of almost four months had elapsed between the speaking of the words and the writing of the letter and many things had happened in the meantime, including, in particular, the institution of this action. It is not sufficient that the letter should be consistent with the existence of such a motive. To enable the plaintiff to succeed, the letter must be more consistent with the existence of such a motive than with its absence, and, having regard to the lapse of time and the various events that happened in the interval, I am of opinion that it is not more consistent with the existence of such a motive, so as to constitute evidence of malice.
Other matters of a trivial nature were mentioned and relied upon; but I do not consider it necessary to deal with them in detail.
In the result, I am of opinion that there was no evidence to justify the jury in holding that the words were spoken and published maliciously and that accordingly the answer to the fifth question should be set aside.
In reply to the fourth question the jury found that the defendant had not an honest belief in the truth of the words spoken by him. The absence of an honest belief in the truth of the words is clear evidence of malice and, if this finding stood, the finding of malice should also stand. In my opinion, it cannot stand. In charging the jury the trial Judge told them that the onus of proof on this matter rested on the defendant. This direction was clearly wrong. The onus of proof rested upon the plaintiff and the plaintiff produced no evidence to discharge that onus. Accordingly the answer by the jury to this question must be set aside.
For all these reasons I am of opinion that the judgment entered for the plaintiff should be set aside and that judgment should be entered for the defendant.
BLACK J.:
In considering the ten grounds in the defendant’s notice of appeal which challenge specific findings of the jury I think it best to begin by separating the wheat from the chaff. By the chaff I mean the two grounds, numbers 8 and 9, which complain that the jury’s findings that the defendant spoke and published of the plaintiff the words complained of were against evidence and the weight of evidence. It is no wonder that they were relegated to the end of the list of grounds; for if they were regarded seriously one would have expected them to be numbered 1 and 2 instead of 7 and 8. I should not have thought it worth while to mention them, treating them as mere pleading formalities, had we not been actually asked in the argument gravely to uphold them.
The finding that the defendant so spoke the words complained of was certainly against the defendant’s evidence, but it was in full accord with the plaintiff’s evidence. I always understood that in a direct conflict of testimony between two interested witnesses, it was the exclusive function of the jury which saw and heard both to decide finally upon which side the weight lay. But, now five Judges, who neither saw nor heard either witness, are asked to declare that the jury, who saw and heard both, ought to have believed the defendant and disbelieved the plaintiff. The only ground I could imagine for that contention would be that the defendant is a gentleman of high status and the plaintiff is only a young student who, in spite of his military exploits for which a British Ministry is handsomely rewarding him, is still in a humble and obscure position. People abound, of course who, through sycophancy in the case of some and caste-snobbery in the case of others, would consider it a kind of lèse-majesté to accept in any circumstances the word of an unknown student in preference to that of an academic dignitary; but no such theory is accepted by the law. Yet, this much I think must be admitted, that whether the jury was right or wrong in its estimate of the conflicting testimonya matter upon which I could have no opinion whatever without having seen and heard the witnessesit is at least to this jury’s credit that it was above any of that contemptible favouritism of an individual because of his position in life, which mean souls not infrequently display. It is true that the only other witness present, Mr. O’Connell, said he had no recollection of hearing the impugned words uttered; but, the value of his evidence on this point is hardly increased by the fact that when asked to tell what he heard, his answer consisted of exactly 106 words, having repeated which, he added:”I think that concluded the interview.” Now, the defendant himself stated that the interview lasted 10 or 15 minutes during which he did practically all the talking; so that if Mr. O’Connell could only remember 106 words, the jury could hardly have been impressed by the adequacy of his hearing or his recollection. If, then, any Court that had not seen the witnesses were to presume to challenge the jury’s finding that this defendant spoke the defamatory words, we might as well abolish the system of trial by jury altogether and proclaim as henceforth worthless the seeing and hearing of witnesses in open Court, which our law has long regarded as of indispensable value in the determination of credibility. Whatever stands or falls in this case, there is one feature of it that is ineffaceable, and that is that a jury of the city of Dublin, bound by its oath, has found that the words complained of were in fact spoken by the defendant. And here, not to shirk what I deem the duty of frankness, I must plainly dissent from a view that has been stated to the effect that “a categorical denial of the speaking of the words . . . is not the present case.” It is true that the defendant said he could not swear that he did not use the words, “false pretences.” He, therefore, did not deny using those words. But, those words did not constitute the slander complained of. The words complained of were, “Don’t you realise that you have obtained this cheque by false pretences?” and that clear accusation the defendant denied as categorically as any man could deny anything. He did not merely say he did not recollect making that accusation. He swore positively that he did not make it, and the jury found that he did make it. They may well have thought that he had persuaded himself in good faith that he did not make it, but however that may be, they found that he made it and that finding is impregnable.
Such being the position I must now proceed on the unchallengeable basis that the defendant spoke and published the words complained of, of and concerning the plaintiff. The next finding of the jury was that the words so spoken were defamatory of the plaintiff. That finding has not been questioned, nor could it be; for the words were manifestly defamatory. The same applies to the third finding that the words meant that the plaintiff had committed a criminal offence. Having got this far, none could dispute that an actionable slander has been established without more, unless the occasion was privileged, in which case the plaintiff must prove express malice. The learned trial Judge ruled that the occasion was privileged, and this ruling has been challenged by the plaintiff in a cross-notice of appeal. I must, therefore, next decide whether or not this ruling was justified.
The law is clear as to what is necessary to make the occasion privileged. The defendant must have either a duty to make, or an interest in making, the defamatory communication to the party to whom he makes it, and the latter party must have either an interest or a duty in having the communication made to him: Harrison v. Bush (1); James v. Baird (2); Hebditch v. MacIlwaine (3). That this reciprocity of either interest or duty must exist is beyond doubt; what is often not beyond doubt is whether it does exist or not. Differences amongst judges on the latter point have been remarkable. The English Court of Common Pleas was evenly divided on the point in Coxhead v.Richards (4), and again in Bennett v. Deacon (5). Then, in Stuart v. Bell (6), there was a tripartite division of opinion on the point: Lindley L.J. thought that the defendant had the necessary duty, but not an interest; Kay L.J. thought he had both a duty and an interest; while Lopes L.J.
held that he had neither duty nor interest. Such cases illustrate the frequent uncertainty of the issue in question.
In the present case, if the College Bursar and Secretary, Mr. O’Connell, to whom the words were published, had an interest in hearing, or a duty to hear, them, I feel no doubt that the defendant would have had a duty to speak, and an interest in speaking, them to Mr. O’Connell. A mere general interest, in my opinion, would not do. The interest must be a particular, as distinct from a general, interest, such as all the public, or a section of it, might have in a piece of spicy news, or even such as the professors and students of the College might have in common in being warned that there was a black sheep in the fold. I dealt with this particular point and the authorities relating to it somewhat fully in my humble judgment in Reilly v. Gill and Others (1). I believe that what I said on the point in that judgment represents the law, and I shall not repeat it now.
The question, then, is had the Bursar and Secretary any particular interest in receiving the impugned communication from the defendant? He does not seem to have had any duty to perform in connection with the drafts sent by the British Ministry. They were sent, not to him, but to the Registrar, who conducted the correspondence regarding them with the Ministry, and had them in his custody; for they were kept in his office and handed out to the recipients by his lady secretary. The Bursar’s concern was with fees due to the College, and these drafts did not represent such fees. On the other hand, it was part of the prescribed duty of Mr. O’Connell in his capacity of Secretary to assist the Registrar in carrying on the College correspondence and to carry out such directions as he might receive from the President (the defendant). I think he must be regarded as in a sense a general assistant of the President and, in the matter of correspondence, even of the Registrar. In view of his special working relations just stated with the President and the Registrar, involving service and confidence, I think it might reasonably be held that he had a particular, as distinct from a merely general, interest, in being told that a named student had obtained by false pretences from the Registrar’s subordinate a draft temporarily in the Registrar’s custody. Accordingly, I cannot say that the trial Judge could not reasonably hold that the occasion on which the impugned communication was made by the defendant to Mr. O’Connell, the Secretary, was a privileged occasion. I must, therefore, agree that the plaintiff’s cross-appeal fails
The result, then, is that in order to succeed the plaintiff had to prove express malice, and the jury found that the defendant spoke and published the words maliciously. In the second and third grounds of the defendant’s appeal he complains that there was no evidence of malice, and that the trial Judge was wrong in leaving that issue to the jury, and, of course, that the jury’s finding of malice cannot stand. The learned trial Judge, who, I infer from the transcript, cannot be accused of any lack of solicitude to protect the defendant from anything that seemed to him to transgress the limits of fairness, felt unable to hold that there was no evidence of malice. The question thus raised is:”Was there any evidence of malice?”
In dealing with this question we must, I apprehend, act upon the assumption that the jury may have accepted in its entirety the plaintiff’s account of the interview with the defendant at which the impugned words were spoken. The jury was entitled to accept that account, and, if they did, they must have believed that during the interview the defendant was pacing backwards and forwards across the office and that his manner was, in the plaintiff’s words,”very aggressive,” while the defendant admitted that from the beginning of the interview he was annoyed with the plaintiff. From all this I should think it a very reasonable conclusion if the jury inferred that the defendant was in a state of anger, and especially if, as is possible, they thought his demeanour and tone in the witness box were those of a naturally irascible man. As to this, I hold the following proposition to be legally incontestable: it was enunciated by Lord Esher M.R. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1) and was an almostverbatim repetition of what was said in Clark v. Molyneux (2).He said:”If a person from anger or some other wrong motive has allowed his mind to get into such a state as to make him cast aspersions on other people, reckless whether they are true or false, it has been held, and I think rightly held, that a jury is justified in finding that he has abused the occasion.” Now, malice is simply a wrong motive, and, if Lord Esher is right, anger may be a motive of uttering a slander, and further if it is the motive, it is a wrong motive, and, therefore, a malicious motive. Hence, it was very material that there should be evidence that the defendant was in an angry state when he spoke the words; for to establish that he was in an angry state was to establish the presence of a possible motive, which, if it was the motive, would show malice. Anger, of course, is not necessarily malice, and if an angry man utters a slander it does not follow that his motive in doing so was to gratify his anger. But, the motive may have been to gratify his anger, and, in trying to decide whether it was or not, the jury must first make up its mind whether the slanderer was angry at all or not. If, therefore, the jury concluded that this defendant was in a state of anger, as on the plaintiff’s evidence I think they well might, it would follow that the defendant was in a state which is often the sole motive for the uttering of a slander, and which, therefore, might have been the defendant’s motive for doing so. Further, anger is a frequent cause of recklessness, both in act and word, and so, if the jury found the presence of anger, they thereby found a frequent cause of recklessness, and if the slanderous statement was purely reckless, it would exactly fit into Lord Esher’s exposition of words spoken maliciously. It is not that proof of anger is proof of malice or even of recklessness, but if there is something else which is evidence of malice, and the jury have to decide whether they think it is sufficient evidence of malice or not, I think Lord Esher would have been surprised if it were suggested that the proof of anger was not a material consideration which a jury might properly take into account in making up their mind as to whether the evidence they had of malice probably indicated malice or probably did not or was equally consistent with malice or no malice. Anger, in this case, was therefore no mere cipher, which being multiplied or added to other things can never be more than a cipher. It was thus, in my opinion, quite incomparable with the individually valueless pieces of evidence to which Lord Porter referred in Turner v.Metro-Goldwyn-Mayer Pictures, Ltd. (1).
Now, if the defendant’s anger had no other effect than to cause him to form a too hasty opinion that what he said was true, the cases show that this would not amount to malice. But, if the anger made him reckless, in Lord Esher’s sense of that term, so that he did not really think at all upon the grounds of supposed truth, in which case he could have no real belief either way as to whether it was true or not, then the slander would be malicious. I think this is implicit in the plain words of Lord Esher above quoted, and I think they are well supported and good law.
Next, I think it would be reasonable to expect that the President of a great College, unless he were so angry as to be rendered reckless, would not make public a charge of a serious criminal offence against a humble student without first giving the accused party a fail opportunity to vindicate himself if he could, such as the law accords to the worst criminals orindeed, without a full inquiry. I agree with Mr. Justice O’Byrne that the President’s duty was to make full inquiry into the circumstances in which the draft was removed, and, I would add, into the student’s explanation of his part in that removal, but I regret I am wholly unable to agree that “the words were spoken in the course of that inquiry.” This would imply that the interview at which the words were spoken was in reality a genuine investigation into the student’s suspected culpability. I cannot help wondering what would be thought of a magisterial investigation if the accused person was a young student and he was privately closeted with the magistrate and a coadjutor, and the magistrateeven if he were one of the old unpaid lay justices of the peaceopened the “investigation” by asking the accused if he did not realise that he had committed the crime of which he was suspected. What would be thought if he then went through the proceedings pacing up and down on the Bench, and making a speech of ten or fifteen minutes duration in a very aggressive manner, there being no evidence that he asked the accused a single question calculated to elicit from him any explanation or defence, except the opening one couched in the form of an accusation, “Don’t you realise that you committed the crime?” while the accused, according to his own testimony (later accepted by the jury), merely denied the accusation? Yet that would be exactly what happened at this interview at which the impugned words were spoken. I emphatically disagree with the view that “most of the words, and all the material words, were in the nature of questions to which the plaintiff was called on to reply.” The defendant himself does not suggest that most of the words at the interview were in the nature of questions. I have re-read his whole account of the interview, and I think the only questions he claims to have asked the plaintiff were these:Did he take the draft from the office? Was he not aware that he was not entitled to do it? And would he get the draft back? I see no foundation even in the defendant’s own account for saying that most of the words were in the nature of questions or that any questions were asked at all, beyond the few I have mentioned, or any attempt made to find out whether the plaintiff obtained the draft innocently or culpably. On the other hand, if the plaintiff’s account is correct, as the jury seem to have thought, the only question asked throughout remotely inviting an exculpatory answer was a direct accusation disguised in the form of a question. The plaintiff says he denied the accusation and that his denial was immediately followed by a demand for the return of the draft and a ten minutes’ address, during which the defendant admits that the plaintiff said practically nothing, and the transcript does not suggest that he was invited to say anything, except to promise to try to get the draft back. The whole business is suggestive to me of a third degree operation, except that its whole object seems to have been to recover the missing draft and not at all to find out whether the accused party might not possibly have obtained it innocently.
I come now to the defendant’s letter of the 11th February, 1949, to the British Ministry. It is vital to note what preceded it. On the 27th of the previous October the British Ministry had informed the College Registrar that the plaintiff’s draft would “be allowed to continue for the current term.” That was the very draft which he was accused of having got by false pretences. Yet, the Ministry had previously been told that he had got that draft from the College in error and had failed to return it. The Ministry had also been told that his course had been “interrupted for a period of one year” through his failure in one subject in his second-year course. So that his sin, if such it was, in obtaining that draft and in failing in one subject in his examination and losing a year, had all been condoned by the Ministry. So far as they were concerned there was no more complaint about that draft. The only question was as to whether future drafts would be continued, and on the 26th January, 1949, the Ministry wrote that they would not be continued unless they got a report that the student’s failure “did not indicate his real ability,” and they asked whether the College would make a recommendation for the continuance of the drafts in the light of his work in the autumn and following terms. The defendant replied to that in this letter of the 11th February, 1949, and what does he tell the British Ministry? He tells them that the plaintiff has not attended lectures on the subject in which he failed, and that, although he was given permission to re-attend these lectures. What would the British Ministry naturally think this meant? What could they think, or what would any intelligent being not versed in the College regulations think, except that the plaintiff had been given the favour of permission to re-attend lectures in the subject in which he had failed and had not chosen to avail himself of that favour? From this what could the British Ministry think but that this meant culpable and ungrateful laxity in the pursuit of the object for which they extended him their generosity, namely, the passing of his examinations and the obtaining of his degree in architecture. I think the words could not fail to convey that impression, and yet it would have been a false impression. Why? Because on the 4th January, 1949, the defendant’s solicitors had informed the plaintiff’s solicitors on the defendant’s behalf that the plaintiff need not “take further lectures in order to qualify to take the examination again.” If that intimation had been added to the statement that the plaintiff had been given permission to re-attend lectures, but had not done so, the Ministry would at once have seen that his not having re-attended was quite probably due to his having been told that he need not do so, but could work for his examination and take it without re-attending lectures. They would thus have been relieved of the false impression I have mentionedan impression highly calculated to lead them to withdraw their benefactions to the plaintiff’s great loss. In my opinion, the jury might quite reasonably have believed that a man of the defendant’s status and high intelligence would probably not have failed to see that it would create a false impression on the Ministry to tell them that the plaintiff was given permission to re-attend lectures and had failed to do so, without also telling them that the plaintiff did not need to attend these lectures in order to qualify for his examination and that he had been expressly so advised by his (the defendant’s) solicitors. If the jury took that view, they might well believe that the defendant’s omission to prevent the false impression in question, so injurious to the plaintiff (although aware that what he wrote would convey it), was deliberate and done to injure the plaintiff, or, in other words, malicious. It seems to me very reasonably open to the jury to construe what the defendant wrote and his omission to add the simple truth that would have made it harmless as evidence of an intent to injure the plaintiff and, therefore, as evidence of malice. That is the first sting in the letter of the 11th February; but there was another. The defendant then informed the Ministry that the plaintiff had got hold of the old October draft. This was quite unnecessary, for the Ministry had known that already for many months and had condoned it; but, the defendant for some reason thought right to remind the Ministry of it once again, and the jury may reasonably have believed that this piece of supererogation could not have been intended to benefit the plaintiff or to give any useful information to the Ministry, since they knew it all long previously. The defendant then went on to say of this old October draft that the plaintiff had been requested to return it and that “this he undertook and failed to do.” I am sure I do not know what impression that would convey to the British Ministry but that the plaintiff had given a firm promise to return the draft and had culpably broken his word. Yet, what was the truth? According to the defendant himself, in cross-examination, what the plaintiff did was to say that he “was willing to try to get it back.” This is confirmed by the evidence of Mr. O’Connell, the College Secretary. He said that the defendant told the plaintiff that he “should do his best to recover the draft from the Bank” and that “this Mr. Kirkwood Hackett undertook to try to do.” Thus, both the defendant and his chief witness swore that what the plaintiff undertook to do was to try to get the draft back. Further, they knew that he had in fact honoured this undertaking by going to the Bank early the very next morning and doing his best to get the draft back. An undertaking to try to get a thing back is very different from a firm undertaking to get it back, which suggests that it can be done, and when it is accompanied by a complaint that it was not done, it implies bad faith; whereas if the Ministry had been told the simple truth that the man only undertook to try to get the draft back, and that he did his best, and failed, stating the reasons why he failed, the Ministry would not have been left under any false impression of bad faith, which the incorrect statement that “he undertook to get it back and failed to do so” would most naturally convey. Here, again, the misleading statement that the plaintiff undertook to get the draft back may have been due to pure thoughtlessness, but the jury may reasonably have believed that a man of the defendant’s ability would have been less likely to make such a blunder by accident than by design. Of that the jury were better judges than this Court could be; for they had the advantage of seeing and hearing the defendant which we have not. In my opinion, both these statements in the letter of the 11th February are distinctly statements from which an inference of a malicious design could reasonably be drawn, and, therefore, constitute evidence of malice. I should add, though every lawyer would understand it, but laymen might not, that I am not saying that I would myself infer malice from these statements or, indeed, from anything else in the case. Not having seen the witnesses, I express no opinion upon that either way. I merely say that if others who did see and hear the witnesses did infer malice, I find it utterly impossible to hold that such an inference would not be reasonably open.
When senior counsel for the defendant (then Attorney General) was near the end of his reply, without having dealt in that reply with this vital letter, I thought well to ask him directly if he wished to say anything about this letter as alleged evidence of malice. The reply I got was that there must be common sense upon the Bench. Now, the trial Judge thought there was evidence of malice; otherwise he would not have left it to the jury. The jury not only thought there was such evidence, but they found that there actually was malice; and I, myself, plainly thought that this letter at least might be evidence of malice, seeing that I put the question. I took counsel’s answer to mean that in his view the jury, the learned trial Judge, and I, myself, must all alike be bereft of common sense if they and I had the misfortune to differ from him as to the implications of that letter. The only comment I permit myself to make on that method of meeting a query is that it always produces in my mind the precisely opposite effect to that presumably intended. The inference I drew from it was that the deliberate omission to accept my invitation to analyse this letter and defend it from the possible implication of malice was that this could not be done satisfactorily. Indeed, from the start of the case down to this very moment I have not heard even attempted any argumentative analysis of this letter tending to show why the statements I have analysed are not at least possible evidence of malice. Instead, the then Attorney General, following my question, proceeded to argue that if the letter of the 11th February was evidence of malice on that date, his opponents had not given any evidence to show that there had been malice four months previously, on the 15th October.
It may be that the jury were wrong in connecting supposed malice in February with the same party’s state of mind the previous October. I do not know, and it is not within our province to say whether we think they were wrong or not. What we have to say is whether they could reasonably connect the two, and in my opinion it is well settled law that they were entitled to connect the two, if they believed that the two were connected. It is so well settled that two quotations will suffice. The first is from Odgers on Libel and Slander, 4th ed., at p. 326, as follows:”The plaintiff has to show what was in the defendant’s mind at the time of the publication, and of that no doubt the defendant’s acts and words on that occasion are the best evidence. But if plaintiff can prove that at any other time, before orafter, defendant had any ill-feeling against him, that is some evidence that the ill-feeling existed also at the date of publication.” I wish to italicise the words, “or after.” Later, Odgers says that “Any other words written or spoken . . . either before or after those sued on, or even after the commencement
of the action, are admissible to show the animus of the defendant.” Next, Gatley on Libel and Slander, 3rd ed., at p. 650:”Again, malice can be shown by the general conduct of the defendant . . . down to the trial of the action, and also by his demeanour and attitude towards the plaintiff at the trial.” Then there is Lord Denman C.J. in Simpson v.Robinson (1):”Malice proved to exist at the time of the trial, but connected with the subject matter of it, may well be believed to have existed at the time of speaking the words”; and, again, Lord Tenterden C.J. in Taylor v.Willans (2):”But the conduct of a party in a late period of a cause is a material circumstance, from which his motives at an earlier period may be inferred.” Of course, there may be some new law on all this nowadays; but I have not been referred to it and am not aware of it, so I can only go by the old law of which I am aware. Malice on the 11th February is, therefore, evidence of malice between the same parties on the 15th October. The jury may be wrong in connecting the two, but it is not our province to substitute our view for theirs. It suffices that it was within their right to connect the two, and, if it was, we cannot touch their finding. The above authorities speak for themselves. The only attempted answer to this that I have heard is that malice on the 11th February could be independently explained by provocation given after the words were spoken on the 15th October, namely, by the launching of the present action. This seems to introduce a new doctrine by way of qualifying that laid down by the above authorities, namely, that if one can find any new cause sufficient to actuate malice on the later occasion, it is no longer permissible for a jury to infer from that malice between the same parties on the earlier occasion. In other words, the right laid down in so many authorities to connect a proved motive on the later occasion with the state of mind existing between the same parties on an earlier occasion only exists where no new cause for malice on the later occasion can be discovered. The authorities which lay down the right in question do not qualify it in any such way, and I have neither found nor been referred to any later authority which does. I think that anyone who puts forward such a qualification should at least produce some authority for it; until this is done I claim the right to reject this seemingly new-fangled qualification. I am satisfied that both the learned trial Judge and the jury were right in their view that there was evidence from which malice could (I do not say should) reasonably be inferred in this case. If there were nothing more, the verdict would in my judgment be unassailable. But, there was something more. Before the question on malice was left, the Judge left another question, “Had the defendant an honest belief in the truth of the words spoken by him?”There was nothing wrong with that question; it was calculated to help on the issue of malice; and the jury answered it that the defendant had not such an honest belief. But, now comes the debacle.
After the jury had retired to consider their verdict, Mr. Casey (now Attorney General), leading counsel for the plaintiff, made certain requisitions and inter alia asked the learned Judge to tell the jury that the onus of proof that the defendant had an honest belief in the truth of the words lay upon him, the defendant, and he informed the learned Judge that authority for this theory was to be found in the second edition of Gatley on Libel and Slander, at p. 700. In actual fact no such gross misstatement of elementary law is to be found either in the second edition or in any other edition of the work of that most learned author, though in his third edition the exact contrary is several times stated in the clearest terms. Unfortunately, the learned trial Judge, thus misled, yielded to the request so made, and after recalling the jury told them that on the question, “Had the defendant an honest belief in the truth of the words?”he was ruling that the burden of proof of that was on the defendant. During the whole course of the case as presented in this Court no explanation was forthcoming as to how that non-existent quotation came to be attributed to the late Dr. Gatley; but, from the moment that the trial Judge gave the said direction to the jury on the burden of proof any verdict they might return for the plaintiff was already doomed in advance. That was the very misdirection which was one of the causes of the verdict being set aside by the Court of Appeal in Clark v. Molyneux (1), and was the sole cause of the verdict being set aside by the Privy Council in Jenoure v. Delmège (2). It is, therefore, clear that the verdict in this case must be set aside upon the same ground. As, however, in my judgment there was clear evidence from which malice could be inferred, I hold that we have no right to give judgment for the defendant. The proper, and only proper, order, as it seems to me, is that made by the English Court of Appeal and the Privy Council, respectively, in the cases I have just quoted. It is noteworthy that in Clark v.Molyneux (1) the whole Court of Appeal thought that even if there was no evidence of malice, as Brett and Cotton L.JJ. held to be the case, a verdict should not be entered for the defendant, but that the proper order was for a new trial. However that may be, since I am satisfied that there is evidence of malice in this case, as the learned trial Judge thought also, the only possible order on that basis is for a new trial, and in my judgment any other order would be wrong.
As to damages, my first impression was that the award of £750 was excessive, and excessive to such an extent as to warrant interference by this Court. But, bearing in mind the fact that a charge of obtaining money by false pretences made by the head of a great college against a student is capable of being a black mark against him for the rest of his life, I should not, on reflection, be prepared to set aside the verdict on that ground, if there were no other. As Lord Atkin said in Ley v. Hamilton (1):”It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation.” Also, it must not be forgotten that the defendant here has not attempted to justify the slander. The law requires people who want to stand over the truth of their allegations to have the courage to plead justification, and that this defendant has not done. The trial Judge told the jury that the damages ought to be remedial, not punitive and not vindictive. This might be construed as a direction that punitive damages could not legally be given. So construed, it would be a misdirection. The jury probably intended the damages to be punitive and they were within their rights in giving punitive damages. Also they probably took into account in aggravation of damages the high status of the defendant, which they were also entitled to do.
One point remains. The Chief Justice considers that once the defendant denies that he used the impugned words, he cannot rely in Court on a plea that the occasion was privileged. If that is right, it means in effect that the verdict here must be upheld. I regret I am unable to accept that view, and in deference to the Chief Justice I think I should state why. He is impressed by a quotation from Lord Bramwell’s speech in Capital and Counties Bank v.Henty (2). Even if I thought Lord Bramwell had supported that view I should think he did it per incuriam; but. I do not think he did support it. What he said in his final paragraph was that if the defendants did not believe in the truth of their innuendo they could not rely on a plea that the occasion was privileged. If they published language with an innuendo which they did not believe their unbelief would destroy the privilege of the occasion. I do not think Lord Bramwell said or meant that if they did believe that the words alleged, if used, would have been true, they could not at the trial contend, in the alternative, that if the jury found they did use the words alleged, the occasion was privileged. The standard forms of pleadings in various works provide a form for pleading that the words were never spoken, and, alternatively, that if they were, they were spoken on a privileged occasion. I do not see why a defendant should not be allowed to put forward a similar alternative contention at the trial. Suppose that A and B were separately sued for uttering the same slander, and both would have had the same interest or duty in making the communication, if they in fact made it, the recipient of it in each case having an interest in hearing it. Suppose that A remembered that he used the words and admitted that he did, but relied solely on the occasion being privileged, he would get off scot free unless there was malice; whereas if B honestly forgot that he used the words and, in the firm belief that he did not, denied their use, and if the jury found that he did use the words, but perhaps fully believed that he had forgotten that he did so, it would seem unjust that he should have to pay full damages, because he could not rely on the occasion having been privileged, and that he should be punished solely because he had a bad memory. I can well understand the Chief Justice’s difficulty about Lord Bramwell’s language, because what Lord Bramwell said earlier in his second last paragraph appears to me obscure. In this he contemplates a case of defendants being interested to say what they have saidthat is, he is thinking of the occasion being privileged, and their saying what they had a right to say, by reason of the privileged occasion. Then he adds that if they had such right, their motive would be immaterial and they might do what they did, though out of anger or malice. As malice always destroys qualified privilege arising solely out of a privileged occasion I find it difficult to follow this passage of Lord Bramwell, but I have only had time to read the passage hastily and I may easily have confused its meaning. At any rate, I do not think the paragraph supports the view taken by the Chief Justice, and, if it did, I should consider it only obiter and should not fee obliged to act upon it.
For the reasons I have elaborated it is my opinion that the only proper order to make on this appeal would be an order for a new trial.
HAUGH J. :
I also agree with the judgment which has been delivered by Mr. Justice O’Byrne.
Noel Looney v. The Governor and Company of the Bank of Ireland and Breda Morey
[1996] 1 IR 158
[1994 No. 3913P]
High Court 3rd November 1995
Murphy J.
3rd November 1995
This is a motion by the defendants, that is to say, the Governor and Company of the Bank of Ireland and Breda Morey in which an order is claimed against the plaintiff, Noel Looney, pursuant to O. 19, r. 28 of the Rules of the Superior Courts, 1986, that the statement of claim in these proceedings be struck out on the grounds that it discloses no reasonable cause of action and is frivolous and vexatious and an order pursuant to O. 19, r. 28 aforesaid that the plaintiff’s claim herein be dismissed accordingly.
The plaintiff’s claim in this matter in fact arises out of earlier proceedings in which the first defendant was plaintiff and a Mr. Cornelius Murphy and Josephine Murphy were defendants (Record No. 1992 No. 781S Ct 5). In the earlier action which appears to have been a mortgage suit brought by the Bank of Ireland against Cornelius and Josephine Murphy, various motions had been brought with a view to obtaining possession of the premises from the defendant Murphys. In the course of those proceedings, an affidavit was sworn by Breda Morey who is a defendant in the present action. In one of the affidavits sworn by her on the 2nd May, 1994, and filed on the 5th May of that year she said at paragraph 3 thereof and I quote it in full as follows (indeed I quote by reference to an affidavit sworn by her subsequently) but the quotation is as follows:
“Later that same day, the 10th November, 1993, I received a telephone call from an auctioneer who I knew. He told me he had Mr. Murphy and also a Mr. Looney from the Family Farm Home Protection Society with him. He said that Mr. Murphy was in a distressed state and that it would not be safe for me to meet him and I was to avoid them at all costs. He told me that they were repeating my name and seemed to be threatening me and claiming I had broken into Mr. Murphy’s premises and that any further intervention would be met with great resistance and that I was to watch out”.
That was, as I say, paragraph 3 of the affidavit sworn by Ms. Breda Morey on the 2nd May, 1994.
In the present proceedings, the plaintiff claimed damages against the defendants for damages for the libel and defamation published in the affidavit or affidavits sworn by the second defendant herein in the earlier proceedings against the Murphys.
The basis of the present motion is that such an action cannot be sustained because the statement made by the second defendant in her affidavit, whether true or false, enjoys absolute privilege. That is the contention on behalf of the applicant, the defendants in the present case. There is no doubt that this has always been regarded as the law in this country. One may take one brief sentence confirming that proposition from Kennedy v. Hilliard (1859) 10 Ir. Com. Law Rep. 195 from the judgment of Pigot C.B. at the end of p. 200 where he says:
“I take the following propositions, as to the points with which they deal, to state correctly the law in reference to immunity, on the one hand, and liability on the other, of a party making a false and defamatory imputation, written or spoken, to the injury of another. First; for what is stated by a party on his own behalf, or a witness in giving evidence in the ordinary course of a judicial proceeding, there is absolute immunity from liability to an action for libel or slander.”
If that is good law then indeed the plaintiff’s claim in the present case must fail and I would have really no option but to strike out this claim in fairness both to the defendants and to the plaintiff because there could be no purpose in proceeding further with it.
It is contended that this doctrine of absolute privilege in relation to matters said in the course of judicial proceedings derived from the royal prerogative and is not carried forward into the Irish Constitution and that such authorities as exist in support of that proposition should be reviewed and indeed discarded.
The plaintiff argues, understandably, that his good name has been damaged and there is on the record of the court an implicit criticism of him and a suggestion that he was engaged or prepared to engage in criminal activities. He says that this was and is damaging to him and that he is entitled to have his good name cleared. He is of course on sound ground in saying that the Constitution of Ireland, 1937, does guarantee to every citizen his good name and the means to vindicate it. On the other hand there is the inevitable difficulty in reconciling one constitutional right with another. In particular, in the present instance one has to reconcile the right of every citizen to have access to the courts and to appropriate legal process (which so often involves calling of witnesses to give evidence as to their recollection of events which have taken place concerning and in relation to the matters in issue) with the right of others to be protected against any abuse of their rights which might be involved or occur by reason of the evidence given on behalf of the parties.
At no stage, as far as I am aware, has it ever been doubted or questioned in any jurisdiction that there is absolute privilege in relation to matters in issue in legal proceedings. Such debate as has arisen has concerned matters, or the extension of privilege to matters, which are notn directly in issue. The question has been posed from time to time whether absolute privilege extends to such peripheral matters or matters which it transpires subsequently are not directly on point to the matters in issue in the proceedings. What the authorities have established I believe is that it would be impossible and impracticable to confine the evidence of witnesses to matters which were directly in issue between the parties. If witnesses were to be protected only within that limited and often ill-defined area they could not give their evidence without fear of exposing themselves to potential liability – either civil or criminal.
In my view it is the law of this country that because of that difficulty and the requirement of the public to have an appropriate forum, that is to say, the judicial process, in which to ventilate their grievances and obtain a judicial decision that it is necessary and essential to grant absolute privilege to witnesses not merely in respect of evidence given by them relating directly to matters clearly in issue, but also matters which might be understood to be in issue or relevant directly or indirectly to such matters.
I would agree, though it does not appear to have been dealt with in any of the authorities opened to me, and I believe the plaintiff is correct in saying, that the courts would have the duty to ensure as far as practicable that legal proceedings are not abused to the detriment of persons who are not parties to the proceedings. If a witness was to take advantage of his position and of the absolute privilege which he enjoyed, to digress from the proceedings in hand and make a wholly irrelevant and completely unwarranted attack on the good name or reputation of another citizen who did not have a chance of defending himself, this is a matter which could and should be dealt with by the trial judge. In my view such an abuse of the legal process would constitute a contempt of court and be punishable accordingly. In that way and at least to that extent the rights of an outsider could be protected. To say, as the plaintiff does, that the right to pursue an action for defamation subsists notwithstanding the privilege conferred on witnesses is to my mind mistaken. That privilege derives from the necessity of affording to witnesses the opportunity of giving their evidence freely and fearlessly. It does not derive from the royal prerogative. It derives from the very nature of the judicial process and the independent judiciary created by our Constitution.
As I say, I do not believe that innocent parties are wholly without remedy but the remedy is not one of civil process for defamation. It has reliance upon the experience of the judges and their duty in general to protect parties who are unfairly, unjustly and unnecessarily attacked in the course of judicial process.
In my view the proceedings by the plaintiff cannot be sustained and must be struck out. Having said that and in no way taking from that conclusion, it seems to me that it would not be unfair or inappropriate to afford the plaintiff an opportunity of lodging an affidavit – a very brief affidavit – in the proceedings by the defendants herein against the Murphys putting on record his short but emphatic denial that he in any way threatened or intended to threaten the second defendant herein. It would be a simple matter for the plaintiff to swear an affidavit referring to the affidavit of the second defendant herein and in particular paragraph 3 thereof and simply saying that he did not at any stage threaten her or claim that she had broken into Mr. Murphy’s premises. That would put the record right insofar as the plaintiff is concerned. I see no objection to that course and I would be prepared to give whatever liberty is necessary to enable such an affidavit to be put on the file even at this stage.
Raymond Stringer and Louis Murray v. The Irish Times Ltd.
[1987 No. 10963P; 1987 No. 10964P]
High Court 2nd February 1993
I
Carney J.
2nd February 1993
I have considered the submissions made and the authorities opened. Mr. Condon rightly urges caution in relation to placing reliance on Gatley on Libel and Slander by reason of the developing divergence between the law of Ireland and that of England and Wales. Nevertheless I am satisfied that Irish law in relation to the matter now in issue is correctly stated inGatley (8th ed.) para. 624 in the following terms:”
“624. Publication of contents of documents not brought up in open court.
Privilege will, of course attach to the publication in a newspaper of a document read out in open court and filed as an exhibit in an action or to a fair and accurate statement of the contents of such document, but privilege will not, semble, attach to the publication in a newspaper of the contents of pleadings, affidavits, or other papers filed in civil proceedings and not brought up in open court. ‘It would be carrying privilege farther than we feel prepared to carry it, to say that, by the easy means of entitling and filing a statement of claim in a cause, a sufficient foundation may be laid for scattering any libel broadcast with impunity’. The same rule applies to the publication of the contents of documents filed in pending criminal proceedings, and not brought up in open court. The fact that the public is bound to become aware of the contents of the documents at the trial does not justify their prior dissemination on the ground of public interest. ‘The reasons underlying the common law rule as to qualified privilege make it entirely logical to draw a line between what took place in open court and that which is done out of court by one party alone’.”
Mr. Condon submits that a constitutional privilege can be identified in Article 34 of the Constitution. Article 34, sub-s. 1 provides:”
“Justice shall be administered in courts established by law by Judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”
I am satisfied that the earliest point in time at which privilege founded on this Article could arise is when a judge becomes involved in some substantial way, which point has not been reached in the instant case. The preliminary administrative or office stage of litigation does not appear to have been considered in relation to the civil courts in Ireland but was considered on the criminal side in In the Matter of Paul Singer (1960) 97 I.L.T.R. 130 atp. 138:”
“There remains the objection that the procedure adopted of allowing the officers of the Circuit Court and the Chief State Solicitor’s Office to arrange for the putting of the appellant upon trial as revealed in the affidavits is contrary to the Constitution inasmuch as the decisions to be taken in connection with these matters amount to the administration of justice which by Article 34 can only be done in court and only by Judges. The submission appears to be as understood by the High Court that the date for the trial of the applicant should be fixed in open court in presence of the applicant. As pointed out by the President of the High Court in his judgment the order in which cases are to be tried in the High Court has always been arranged in the first instance by the Court Registrar in consultation with the Judge who is to preside. This work is purely administrative and, while necessary as a preliminary towards preparing for a sitting of the Court, is not in any sense the administration of justice referred to in Article 34, sub-s. 1 of the Constitution.”
Mr. Condon’s argument would involve the logical consequence that anybody could be defamed with impunity by the expenditure of the current price of the stamp duty on a plenary summons. Mr. Condon, to maintain that argument, has had to append a saver or qualification that an action could be founded on material being wrongly used. This is such a loose and vague situation that it would not be consistent with the clear provisions of Article 40 relating to the obligation of the laws to vindicate the good name of every citizen.
Reliance has been placed on In re R. Ltd. [1989] I.R. 126. This case was in the first instance concerned with hearings before Johnson J. and Costello J. and in the second place any references to pleadings was in the special context of the purpose of s. 205 of the Companies Act, 1963. As Finlay C.J. said at p. 131 of the report:”
“10. Whilst in other contexts the phrase contained in the sub-section, namely, ‘the hearing of proceedings’ might well appropriately be confined to the giving of oral evidence or the reading of affidavits in court, it seems to me that the stated purpose of the sub-section which is to attempt to protect the legitimate interests of a company from serious prejudice arising from the disclosure of certain information, makes it necessary to construe that phrase, namely, ‘the hearing of the proceedings’ in a wider sense. It should, in my view, be construed as including in an appropriate case the originating documents and further pleadings, affidavits, and documents exhibited, as well as oral testimony.”
I hold that the privilege contended for does not apply and strike out paragraph 6 of the defence.
Doyle v Canty,
[2005] I.E.H.C. 234, Herbert JJUDGMENT of Mr. Justice Herbert delivered on the 24th June, 2005
On 23rd January, 2002, Mr. Seamus Dooley, County Manager of the County of Wexford wrote to the Secretary of An Bord Pleanála asking it to treat an appeal to the Bord by Odette Canty, wife of the defendant, in relation to a proposed development at Trinity Street, Wexford, as vexatious pursuant to the provisions of s. 14 of the Planning Act, 1992. Mr. Dooley contended that the appeal was “simply part of a general campaign against commercial developments in Wexford”. On the same day, 23rd January, 2002, an article appeared in a local newspaper which stated that “in a letter sent to the Bord the Council is seeking that the 11th hour appeal against the development by Odette Canty be disregarded”. It quoted the County Manager, Mr. Seamus Dooley, as stating “there is provision in the legislation for the Bord to do this and we’re asking them to do that”. On 6th February, 2002, a local newspaper, referring to what it described as a “last minute objection by Odette Canty”, stated that “Director of Services Adrian Doyle said that the County Manager sent a letter last week to An Bord Pleanála urging the Bord to disregard the objection”. On 17th April, 2002, Odette Canty wrote to Mr. Dooley stating that she had read that day in the Wexford People Newspaper that he had described what she insisted was “a legitimate and well researched appeal… as frivolous…” On 2nd May, 2002, Odette Canty further wrote to Mr. Dooley referring to a Spill-Clean Site Assessment Report dated 7th and 8th January, 2002, and citing the following passage from that report:-
“The main concern is for the very high levels of Gasoline Range Organics (G.R.O.) and Benzene, Toluene, Ethyl-Benzene and Xylene which exceed the Dutch Intervention Value…”
and referring to the potential health hazard to current and future occupants of [the development]. On 3rd May, 2002, Mr. P. Collins, Town Clerk of Wexford Borough Council wrote to Duchas stating that it had come to the attention of the Council that there were possibly unauthorised works being carried out at No. 79 South Main St., Wexford, which was a protected structure under the Local Importance List, and enclosing a report by Mr. T. Miller, a planning inspector, dated 13th February, 2002. In that report Mr. Miller stated that he had inspected the premises of Oliver Canty with Mr. Dick Conway on Friday, 9th February, 2002. He concludes his report as follows:-
“It is impossible to be sure of the actual situation without inspecting Canty’s premises but given Andy Doyle’s comments and Mrs. Canty’s reaction I think it is unlikely that Cantys are carrying out renovation with the intention of opening a pub at South Main St.”
By a letter dated 11th July, 2002, Louise O’Rourke, Acting Town Clerk of Wexford Borough Council, wrote to Oliver Canty informing him that in making a proposed Reference pursuant to s. 5(4) of the Planning and Development Act, 2000 to An Bord Pleanála, the Council proposed to bring to the attention of An Bord Pleanála in deciding the matter, the following:-
“(i) Change of use.
(ii) Protected status of the frontage of the premises and its subsequent alteration without planning permission.
(iii) Possible recent alterations to the boundary of the site”.
By letter dated 15th July, 2002, Oliver Canty wrote to Mr. P. Collins, Town Clerk of Wexford Borough Council stating, inter alia, as follows:-
“[As] already stated repeatedly and with supporting documentation…[this]…was a licensed premises and shop since before 1919…and no planning application has ever been made…to change the use of licensed premises and shop…even though the 7 day Publican’s Licence was extinguished in 1964.
The upper façade and shopfront of our property, 79 South Main Street, Wexford are listed for protection and no alterations have ever taken place during our 12 year ownership or indeed since the 19th century and accordingly this statement is false.
The premises, has been vandalised as a result of spurious claims by the County Manager – leaked to and published in the Wexford People Newspaper…. in relation to a legitimate appeal by my wife Odette….”
In that letter, Mr. Canty also refers to the newspaper article of 23rd January, 2002, the newspaper article of 6th February, 2002, and the letter of 17th April, 2002, which I have already cited in this judgment.
It is noticeable that despite the alleged concern regarding unauthorised alterations to No. 79 South Main St., Wexford, which probably resulted in the inspection of the premises by Planning Inspector T. Miller on 9th February, 2002, Wexford Borough Council took no action for three months. Then despite the conclusion reached by Mr. Miller, Mr. P. Collins, the Town Clerk, sent the letter of 3rd May, 2002, to Duchas. No evidence was given to the Court of any further investigation on behalf of Wexford Borough Council or Wexford County Council after Mr. Miller’s report of 13th February, 2002. On the balance of probabilities I conclude that it was not mere coincidence, as was claimed in evidence by Mr. P. Collins, that the letter was sent to Duchas on 3rd May, 2002, the same date as the letter of 2nd May, 2002, from Odette Canty was accepted as having reached Mr. Seamus Dooley, Wexford County Manager. Despite the conclusion reached by Planning Inspector T. Miller in his report of 13th February, 2002, and regardless of the letter from Oliver Canty to Mr. P. Collins dated 15th July, 2002, the Council still sent the letter of 11th July, 2002, with the allegations of unauthorised development at No. 79 South Main St., Wexford, to the Secretary of An Bord Pleanála on 17th July, 2002. In my judgment considered in the light of the matters to which I have already adverted, this letter of 17th July, 2002, to An Bord Pleanála and the letter of 3rd May, 2002, to Duchas can only be regarded as a deliberate attempt on the part of someone in Wexford Borough Council or in Wexford County Council to discredit the defendant, Oliver Canty, and his wife, Odette Canty, in the eyes of An Bord Pleanála and Duchas.
During the course of the case, Mr. Canty stated that he was not alleging that the plaintiff was involved in any way with the letter to Duchas dated 3rd May, 2002, but only with the letter of 11th July, 2002, (sent to An Bord Pleanála on 17th July, 2002). The letter to An Bord Pleanála was signed by Mr. P. Collins, Town Clerk of Wexford Borough Council, and enclosed a photograph of a bar interior which Mr. Canty told the Court, and in respect of which there was no evidence to the contrary, was not a protected structure and had been sold by him in October, 1992, after extensive advertising in the news media, including in the local newspapers. Mr. P. Collins, having endeavoured to suggest that the alleged unauthorised alterations, referred to in the letters to Duchas and An Bord Pleanála were the removal of a brass rail inside the window No. 79 South Main St., Wexford and the removal of railings across the outside of the window, was obliged by the weight of the evidence to accept that the accusation of unauthorised planning development by the defendant, Oliver Canty, was inaccurate and should not have been made to Duchas or to An Bord Pleanála. Mr. P. Collins told the court that he could not recall who had told him that the railings had been removed and he accepted that there was no evidence that they had in fact been removed. On 22nd November, 2002, he recalled that he had written to An Bord Pleanála stating that the railings had been “reinstated”.
In the letter of 2nd September, 2002, which the plaintiff, Mr. Adrian Doyle, alleges was defamatory of him and which was addressed by Mr. Oliver Canty to Mr. Martin Cullen, T.D., then Minister for the Environment and Local Government, and a copy sent to Mr. Seamus Dooley, County Manager Wexford County Council, Mr. Oliver Canty asserted that “there is no doubt that the architect of this false and unfounded allegation is Mr. Adrian Doyle, Director of Planning, Wexford County Council and Manager Wexford Borough Council”. Mr. Patrick Collins and Mr. Adrian Doyle both accepted in evidence that Mr. P. Collins had mentioned to Mr. Doyle, “in passing”, that he had sent the Reference pursuant to
s. 5(4) of the Planning and Development Act, 2000, to An Bord Pleanála rising out of Mr. Canty’s application to Wexford Borough Council. Mr. P. Collins gave evidence that he had been appointed Town Clerk of Wexford County-Borough in June, 2002, having held the post of Acting Town Clerk since November, 2001. He recalled that in November, 2001, Mr. Don Curtin, who had held the post of Town Clerk, had been seconded to other important Local Government work. Mr. P. Collins told the court that all the ground work in relation to what the Planning Department of Wexford Borough Council perceived as an application by Oliver Canty for a Declaration under s. 5(1) of the Planning and Development Act, 2000, and the Council’s consequent reference to An Bord Pleanála under s. 5(4) of that Act of 2000, was done by Mr. Tony Nolan, a Senior Staff Officer in the Housing, Planning and Environment Department and Anne Shannon, an Acting Assistant Staff Officer. In evidence, Mr. Doyle told the Court that he had nothing to do with either of these applications under s. 5 of the Planning and Development Act, 2000. He told the court that he had no input at all into them and had no input at all into the allegations in the letter of 3rd May, 2002, to Duchas and 17th July, 2002, to An Bord Pleanála.
In the letter of 2nd September, 2002, Mr. Canty stated that Mr. Adrian Doyle believed that he, Mr. Canty, was solely responsible for the refusal by An Bord Pleanála in January, 2002, of a planning permission for a three story apartment development from which Mr. Adrian Doyle stood to make a substantial financial gain. He claimed that the application was fronted by Mr. Raymond Doyle who described himself on the application form as the overall landowner in order to conceal the interest of Mr. Adrian Doyle who held a quarter shareholding in the lands in question. Mr. Canty in the letter submitted to the Minister for the Environment and Local Government submitted that Mr. Adrian Doyle should not be allowed to abuse his office in order to settle a score in such a manner. Mr. Canty told this court that, on the facts of what had occurred, he honestly believed that what he had written in this letter was true and that it was reasonable for him to have held this belief, particularly in the light of the article in the newspaper on 6th February, 2002.
Mr. Adrian Doyle told the court that he and his brothers, Fergus, Raymond and Bernard, had purchased their father’s residence at 103 Corish Park, Wexford by public auction on 3rd November, 1999. He gave evidence that their father was then elderly and the proceeds of sale were necessary to provide him with residential nursing care. Mr. Adrian Doyle told the court that his brother Raymond had persuaded him and his other brothers that they should purchase the property themselves in equal shares. By a Declaration dated 30th November, 2000, made pursuant to the requirements of s. 32 of the Local Government (Planning and Development) Act, 1976, and stamped received by the Office of the Secretary of Wexford County Council on 5th December, 2000, he, Adrian Doyle, declared that he had an estate or interest in land situated in the area of the Planning Authority, namely, “one quarter share in site at Newtown Road, Wexford, (formerly owned by my father Patrick Doyle)”. Mr. Doyle gave evidence, which I accept, that he also furnished a memorandum to the County Manager of the County of Wexford dated 7th December, 2000, enclosing a copy of this Declaration. For whatever reason, a copy of this Declaration, or even a note to indicate that such a Declaration had been made, was not placed on the Planning File when Mr. Raymond Doyle applied for Planning Permission in respect of the Newtown Road property, which application was stamped “received” by Wexford County Council Planning Section on 22nd June, 2001.
In answer to question No. 9 on the Planning Application Form, “applicant’s interest in land/structure”, Mr. Raymond Doyle entered “owner”. In answer to question No. 13(a), “if applicant is not the owner, state name and address of owner”, Mr. Raymond Doyle answered “the applicant is owner”. In answer to question No. 13(b), “name and address of overall landowner”, Mr. Raymond Doyle answered “applicant is owner”. In my judgment, these answers were seriously misleading and, in the context of Mr. Adrian Doyle’s then position as Manager of Wexford Borough Council and Director of Planning, Wexford County Council, disturbingly so. I note that, in a letter dated 12th November, 2001, the Secretary of Wexford County Council, Mr. J. Pierce, wrote to Mr. Oliver Canty stating that a matter had been referred to Mr. Adrian Doyle, “Director of Services, Planning and Development”, for his attention. These answers on the Planning Application form were further seriously misleading having regard to the fact that Part (ii), “Ownership of Land, Registry Folio 14096 County of Wexford”, was not altered to show any change in ownership from Patrick Doyle until 5th October, 2001, even though on the evidence of Mr. Adrian Doyle that auction had taken place on 3rd November, 1999. Mr. Adrian Doyle told the court that he did not see this application before it was lodged. He said that the application was made by his brother, Raymond Doyle. He told the court that, having purchased his quarter interest in the lands, he left all development matters to his brother Raymond who is a businessman and his brother Bernard who is an accountant and had no involvement at all in seeking or obtaining the grant of planning permission for the development of the lands at Newtown Road, Wexford.
I accept the evidence of Mr. Canty, as corroborated by his letter dated 11th September, 2002, to the Secretary of An Bord Pleanála, that he became interested in this proposed development as a result of requests for help from local residents, including Mr. John Campbell and Ms. Anne Gallagher. Mr. Canty told the court that he had carried out a search in the Land Registry and the relevant Folio indicated that the land was not owned by Mr. Raymond Doyle as stated in the planning application but by Mr. Patrick Doyle. I do not accept that Mr. Canty was or ought reasonably to have been aware of the public auction on 3rd November, 1999, or of the results of that auction. Mr. Canty considered that the normal average period taken by Wexford County Council in processing a planning application of the type of commercial development sought by Mr. Raymond Doyle was 28 weeks and not 4 weeks. This appears in his letter dated 11th September, 2002, to the Secretary of An Bord Pleanála.
By letter dated 12th August, 2004, admitted into evidence, Mr. Canty informed the Chairman of the Tribunal of Inquiry into Planning Matters and Payments, that he had examined the planning records of Wexford County Council from July, 1996 to June, 2001, and, that out of 15,000 planning applications, had, “failed to find one other similar commercial development that had been decided at such speed, four weeks, indeed the norm for a single house development is 7 weeks according to the records…”. Mr. Adrian Doyle gave evidence that in the year 2001, 3,591 planning applications were decided of which 85 were decided in four weeks or less, 113 in 5 weeks and 2,098 in 2 months. He said that he considered that the reasons the application by his brother Mr. Raymond Doyle had been determined so promptly was because his brother and his agents, Reid Associates, Planning and Development Consultants, had extensive discussions with officers of the Planning Department of Wexford County Council on at least two occasions prior to the submission of the application for a grant of planning permission. He did not state when or how he learned of these discussions.
I am satisfied on the evidence that the majority of objectors to the proposed development at Newtown Road, Wexford were, as alleged by Mr. Canty, taken unawares by the rapid determination of this application for a grant of planning permission so that four important objections were submitted after the 20th July, 2001, the application having been stamped “received” on 21st June, 2001. Mr. Adrian Doyle told the court that the planning authority was lawfully entitled to determine the application after the expiry of two weeks.
Mr. Canty told the court that, when he wrote to Mr. Dooley, County Manager for the County of Wexford on 13th August, 2001, stating, what he believed was the truth, that “Mr. Adrian Doyle has quite clearly tried to conceal the true owner of the lands for the proposed development when this planning application was rushed through the planning process…”, the County Manager did not reply advising him that Mr. Adrian Doyle had formally completed, and had additionally sent to him, a copy of a Declaration of Interest on the 7th December, 2000.
The Submission of Reid Associates, Planning and Development Consultants for Mr. Raymond Doyle, dated 18th September, 2001, responding to third party appeals from Oliver Canty, Newtown Court Residents Association, Slaney View Residents Association and Fernogue Heights Residents, under the title “Procedural Issues”, states as follows:-
“Applicants have questioned the applicant’s interest in the property. The applicant Ray Doyle has sufficient legal interest in the property and as indicated on the planning application form is the owner of the said property.
Adrian Doyle made the relevant declaration, in respect of his position in the public service and this application was decided at arms length and the planning decision reflected the planning officer’s report and recommendations in respect of the development”.
The first paragraph of this submission is clearly incorrect and misleading: Ray Doyle was only a part and, as against his three brothers, a minority owner. Taken together these paragraphs are capable of being seriously misleading and do not fully and properly set out the true picture. However, be that as it may, Mr. Adrian Doyle gave evidence that An Bord Pleanála was obliged to send a copy of this Submission to Mr. Canty and to the other Third Party Objectors and that Mr. Canty must thereafter have been alerted to the interest of Mr. Adrian Doyle in the land. Nonetheless, the Plaintiff claims that in this letter of 2nd September, 2002, the second letter claimed to be defamatory of Mr. Adrian Doyle, Mr. Canty persisted in wrongfully alleging that “Mr. Raymond Doyle described himself in the application form and publicity [sic] as the overall landowner in order to conceal the interest of Mr. Adrian Doyle, a quarter shareholder in the lands”. In my judgment, an honest and fair member of the public could not take these words, either in their natural and ordinary meaning or by way of innuendo, as repeating and republishing the statement in the letter of 13th August, 2001, that Mr. Adrian Doyle was fully aware of the misdescription by Mr. Ray Doyle at the time he completed the form, and quite clearly tried to conceal the true owner of the lands. In the previous sentence of the letter of 2nd September, 2002, the defendant, referring to Mr. Adrian Doyle, alludes to “the site….which he and his three brothers own equally on Newtown Road, Wexford.”
On 14th January, 2002, An Bord Pleanála refused permission for the development proposed by Mr. Raymond Doyle. Whether Mr. Oliver Canty learned of the interest of Mr. Adrian Doyle in the lands in the manner suggested by Mr. Adrian Doyle or, solely or partly by reference to the Land Registry Folio which was revised on 5th October, 2001, to show the change in ownership, appears to me to be irrelevant. I accept his evidence that there was no statutory declaration of interest by Mr. Adrian Doyle on any of the planning files inspected by him. It was admitted on behalf of the plaintiff that the Declaration of Interest had been kept on a different file in the office of the County Secretary and was not available to the public.
I find that the altercation which took place on 3rd November, 2000, and which resulted in the defendant being asked by members of An Garda Síochána to leave the office of the then accountant to Wexford Borough Council was a direct result of there being no proper facilities available to members of the public where they could, properly and with some degree of comfort, examine the public planning files. In my judgment, this situation was altogether contrary to the intentions of the legislature in framing the Planning Code which demands a high degree of transparency in all matters to do with the granting or refusal of planning permission. It undoubtedly imposed a totally unacceptable strain on Mr. Patrick Collins, in whose office and on whose already heavily encumbered desk, Mr. Canty would have been obliged to examine the planning files unless he chose to do so sitting on the floor. I find that as a direct result of tensions generated by this grossly unacceptable situation, one word had borrowed another and Mr. P. Collins felt constrained to seek the assistance of An Garda Síochána. I accept the evidence of Mr. P. Collins, having had a full opportunity of carefully observing Mr. Canty’s demeanour in Court, that Mr. Canty became very forceful and voluble so that his behaviour appeared threatening and intimidating. I am satisfied, on the evidence, that Mr. Canty’s obsessive pursuit of answers and his very confrontational manner of address had caused members of the Planning Office staff to feel threatened and had resulted in Mr. P. Collins being designated to handle all further queries of any sort coming from Mr. Canty or his wife.
Mr. Canty did not deny that he accused Mr. P. Collins of having lied to him in some letter which was neither identified nor produced before the court. Mr. P. Collins accepted that he did not ask for any details of this alleged letter but told a member of An Garda Síochána that Mr. Canty had accused him of lying. I accept Mr. Canty’s response to this was to say “then sue me”. Despite the existence of a contemporaneous note signed by Mr. P. Collins on 9th November, 2000, I am satisfied that Mr. Canty has a much more detailed and accurate recollection of what transpired at this stormy meeting. I find that a compulsive attention to minute detail is a feature of Mr. Canty’s personality and I accept that the summoning of An Garda Síochána helped to imprint those details further on his mind. The court can only deprecate a situation where a member of the public, exercising a lawful and most important right to consult a planning file, is left with the choice of spreading it over the papers and the computer terminal on the desk of a very busy senior local government officer while that officer is trying to work, or of using the office floor. I find that this was the only alternative which Mr. P. Collins could offer to Mr. Canty, with scarcely surprising expressions of outrage on Mr. Canty’s part. In my judgment, even though probably unintentional, this lack of proper facilities in fact amounted to a constructive denial of the right of a member of the public to inspect the planning records of Wexford Borough Council.
I accept Mr. Canty’s explanation for serving a Witness Summons on Mr. P. Collins at his private residence at 8.30pm on Monday 15th January, 2002. I am satisfied on the evidence that the case to which it referred was listed for hearing before Wexford District Court on 22nd January, 2002. Mr. Canty told me, and I accept his evidence, that he had to serve the Witness Summons on Mr. P. Collins personally and at the earliest possible opportunity. I accept his evidence that he and his wife, Odette, waited near Mr. P. Collin’s house for several hours until they saw his car turning into the driveway. I totally understand Mr. P. Collin’s feelings of exasperation at what he, I accept, considered to be a gross invasion of the privacy of his home and total harassment on the part of Mr. Canty and, in the circumstances, his use of forthright and somewhat undiplomatic language was hardly surprising. Mr. Canty told me, and I accept, that his only purpose was to ensure that Mr. P. Collins would attend the court bringing with him the indicated Rate Books for the year 2000. This sort of blinkered and insensitive approach is entirely in keeping with Mr. Canty’s obsessional attitude to matters which I have had ample opportunity of observing during the course of this hearing. I am quite satisfied on the evidence that Mr. Canty was not in any way watching or besetting Mr. P. Collins, his family or his residence.
I find on the evidence that Oliver and Odette Canty sold the rear portion of No. 79 South Main St., Wexford to Andrew Doyle and Patrick Doyle, who are unrelated to the plaintiff, and, by Indenture made 29th day of February, 2000, assigned the same to the purchasers. It was not disputed between the parties that the premises had been licensed for the sale of intoxicating liquor at least as far back as 1919. I accept Mr. Canty’s evidence that they had sold the intoxicating liquor licence in 1994, or thereabouts, and having extensively advertised it for sale, had sold in October, 1992, the very fine interior bar set up, – which is shown in a photograph of circa. 1970, produced in evidence. Thereafter, the retail area of the premises appears to have been used as a grocery and newsagent business with the business name, “A.M.-P.M.”. I accept the evidence of Mr. Canty that, on or about 17th June, 2002, he decided that he would purchase an appropriate intoxicating liquor licence and set up an off-licence business with a small public bar in the premises which had lain vacant and unused since December, 2000.
With this in mind he sought from the Wexford Borough Council, the appropriate Planning Authority, confirmation of his opinion that a grant of planning permission was not required. The Planning Authority, correctly in my judgment, regarded this communication as a request for a Declaration pursuant to the provisions of s. 5(1) of the Planning and Development Act, 2002, and requested payment of the prescribed fee of €80. Mr. Canty insisted that a Declaration under the section was unnecessary and declined to pay the prescribed fee. By a letter, admitted into evidence and dated 8th July, 2002, Wexford Borough Council informed Mr. Canty that they continued to regard his request as an application for a Declaration under s. 5(1) of the Act of 2002, and were not in a position to consider the same until such time as the prescribed fee was received by them. An inter-office Memorandum of 5th July, 2002, admitted into evidence, establishes that Wexford Borough Council had decided not to make the decision themselves but to refer the matter to An Bord Pleanála pursuant to the provisions of s. 5(4) of the Act of 2002, and to pay the prescribed fee of €150, while continuing to insist that Mr. Canty pay the fee of €80 prescribed by the Act for a s. 5(1) Declaration. In my judgment, having regard to the extremely strained relations between the Planning Authority and Mr. Oliver Canty and the consequent likelihood that he would not accept a ruling by the Planning Authority that planning permission was required for the indicated work, this was a lawful and wholly understandable procedure for Wexford Borough Council have adopted. I reject the suggestion contained in the letter dated 15th July, 2002, from Mr. Canty to Mr. P. Collins, then Town Clerk of Wexford Borough Council that this reference to An Bord Pleanála was “purely a vexatious and stalling tactic by Wexford Borough Council to prevent us from earning a livelihood from our premises, 79 South Main St. Wexford”. It was accepted in cross-examination by Mr. P. Collins and Mr. Adrian Doyle that this was a very unusual course for Wexford Borough Council to have adopted but I accept the bona fides of the Planning Authority in so doing in the special circumstances to which I have just adverted.
I am not satisfied that a fair and reasonable member of the public would consider the words complained of in the letters dated 13th August, 2001, and 2nd September, 2002, as identified at the hearing of this action, in their natural and ordinary meaning, or by way of real innuendo, as having the meanings pleaded at para. 4 sub paras. (a), (c), (d), (e) and (f) and at para. 5 sub paras. (a), (c), (d), (e), (f), and (g) of the Indorsement of Claim.
I am quite satisfied that the words are not, in their natural and ordinary meaning or considered in the particular context of the letters of 13th August, 2001, and 2nd September, 2002, and the enclosures in the latter, capable of bearing the meaning that Mr. Adrian Doyle falsely, corruptly and in breach of his duty of public office, involved himself in the application for a grant of planning permission for the development of the lands at Newtown Road, Wexford; attempted to pervert the normal planning process in relation to these lands for personal financial gain; had the planning application rushed through the planning process, and was therefore dishonest and corrupt as a public official.
There is no suggestion on the face of either letter that Mr. Adrian Doyle actually participated in any way whatsoever in processing this particular planning application, or was in anyway instrumental in having the decision to grant planning permission “rushed through the planning process”. In my judgment, the only meaning which a fair and reasonable member of the public could attribute to the words as written and in their particular context, was that Mr. Adrian Doyle knowingly went along with a misstatement which he knew was being made by his brother as to the ownership of the lands, in order to conceal from the public the very important information that he, the Director of Services, Planning and Economic Development, for the relevant planning area was personally involved in the application which was then submitted and granted with great expedition despite a recent refusal by An Bord Pleanála of a grant of planning permission for a similar type of development in the immediate locality. This is the “abuse of office” clearly referred to and, in my judgment, no reasonable and fair member of the public could consider the words, used either in their natural and ordinary meaning or by way of innuendo, as having any other meaning.
The letter dated 13th August, 2001, written by Oliver Canty was addressed to Mr. Seamus Dooley, County Manager, Wexford County Council, County Hall, Wexford and was copied to the following persons:-
Mr. James J. O’Connor, M.J. O’Connor and Company Solicitors
Mr. Noel Dempsey, T.D. Minister for the Environment and Local Government, and,
Mr. Adrian Doyle, Director of Services, Planning and Economic Development.
At the hearing of this action the parts of the particular letter alleged to be defamatory of the plaintiff were identified as follows:-
“Mr. Adrian Doyle was fully aware when his brother Mr. Ray Doyle completed his application form for a proposed development on their father’s lands that his claim to own the lands concerned was false.
Mr. Adrian Doyle quite clearly tried to conceal the true owner of the lands for the proposed development when this planning application was rushed through the planning process and no account has been taken of the fact that An Bord Pleanála refused permission in March, 2001 for a three-storey apartment development on a site on Newtown Road, close to this proposed development.
As Wexford County Manager I am calling on you to suspend Mr. Adrian Doyle from his duty forthwith and to carry out an immediate investigation into this clear abuse of office by Mr. Adrian Doyle, Director of Services, Planning and Economic Development, Wexford County Council.”
I find that the words in the first paragraph above referred to are a statement of fact and not a comment. Mr. Adrian Doyle told the court that he did not see this application before it was lodged, or at all, as he had left all development matters to his brothers, Raymond and Bernard. In the absence of any contrary evidence, as distinct from mere supposition, it would not be open to a jury to find that his evidence in this regard was untrue, even if it was open to them to conclude on the balance of probability, in the light of the totality of the evidence, that it was altogether unlikely that Mr. Adrian Doyle never saw the application prior to 13th August, 2001. The defence of fair comment does not extend to cover misstatements of fact, however bona fide made and therefore in my judgment could not apply to these words.
I find that a reasonable member of the public in the light of all the circumstances of this case would understand the words, “Mr. Adrian Doyle has quite clearly tried to conceal the true owner of the lands for the proposed development when this planning application was rushed through the planning process…” to be a comment, a statement of opinion, but not of fact. On the facts stated in the letter, that Mr. Adrian Doyle was Director of Services, Planning and Economic Development of Wexford County Council and that, “The applicant on the completed application form is Mr. Ray Doyle, Glenview, Punchestown Road, Punchestown, Co. Kildare” and the applicant is stated as the owner of the lands for the proposed development. I have examined the records in the Land Registry and the Registered Owner of the lands for the proposed development is Mr. Patrick Doyle, father of Mr. Adrian Doyle I am satisfied that the comment is logically connected with these stated facts, which are sufficient to warrant it, and were true as of 13th August, 2001. I find that an honest and fair member of the public could, in all the circumstances of this case, have bona fide held such a view. I find that the comment was a criticism of Mr. Adrian Doyle, not mere invective and, expressed the real and genuine opinion of the defendant.
I am quite satisfied that Mr. Oliver Canty did not and could not reasonably have known of the Statutory Declaration of Interest made by Mr. Adrian Doyle on 30th November, 2000, which was held on a private file in the office of the County Secretary, without anything appearing on the public planning files, which I am satisfied on the evidence were minutely scrutinised by Mr. Canty, to give any indication of its existence. I find that Mr. Seamus Dooley, the County Manager of the County of Wexford, could readily have informed Mr. Canty of its existence or of the existence of the communication to him by Mr. Adrian Doyle notifying him of the interest of Mr. Adrian Doyle in the lands, but chose instead not to respond to the defendant’s letter of 13th August, 2001.
Insofar as the comment imputes a dishonourable motive to Mr. Adrian Doyle in doing what it alleges, I find that the comment was reasonable as well as fair. In my judgment, it is an inference which a fair minded person might draw from the stated facts. It has been long since decided that the administration of local affairs by local authorities is a matter of “public interest”. In my judgment this must clearly include the processing of an application for a grant of planning permission “which might be of the greatest importance to the particular district and so may concern the public in general.”
I am not satisfied that the final paragraph of this letter, categorising the alleged conduct of Mr. Adrian Doyle as a “clear abuse of public office” and calling upon the County Manager for the County of Wexford to suspend him from duty forthwith and to carry out an immediate investigation into this alleged abuse of office by him, renders the comment malicious. I find that the sanctions sought against Mr. Adrian Doyle were relevant and proportionate to the alleged offence and are not indicative of any ill will, spite or other improper motive on the part of Mr. Canty in making the comment. In my judgment this comment is entitled to the protection of the defence of fair comment.
I find that the defendant has established that both the statement of fact and the statement of opinion were made “on 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” – (See: Adam v. Ward [1917] A.C. 309 at 334). I find that Mr. Canty in volunteering this communication had a legitimate duty in fact to make the communication and had an honest belief that what he stated was true. In Gatley, on Libel and Slander (8th Edition), it is stated as follows:-
“…it is the duty of everyone in the interests of public efficiency and good order to bring any misconduct or neglect of duty on the part of a public officer or employee or any public abuse to the notice of the proper authority for investigation.
It must be made in good faith to the person or body who has the power to remove, punish or reprimand the offender or merely to inquire into the subject matter of the complaint without a power to discipline or give redress.
Any citizen who bona fide believes that a wrong has been done has the right and duty to bring the alleged fact to the attention of the proper authority for investigation. The question is whether the party to whom the complaint is made has an interest, social or moral in the complaint.”
I find on the evidence that Mr. Canty honestly believed that Mr. Noel Dempsey, Mr. Seamus Dooley and Mr. James J. O’Connor had such an interest. However, this is not sufficient to ground the defence of qualified privilege; Mr. Canty has to establish that each of these persons actually had such a legitimate interest in receiving the letter of 13th August, 2001. It was accepted by counsel for the plaintiff and, in my judgment correctly so, that Mr. Dempsey and Mr. Dooley had the vital reciprocal interest in receiving this letter. However, it was strongly contended that Mr. James J. O’Connor, Solicitor, had no such interest, regardless of what Mr. Canty might have honestly believed, and the publication to him was therefore an excessive communication so that no occasion of qualified privilege arose at all. (See: Hynes-O’Sullivan v. O’Driscoll [1988] I.R. 436) Alternatively, counsel for the plaintiff argued that the sending of the copy of the letter of 13th August, 2001, to Mr. James J. O’Connor, who it was alleged had no interest or duty in receiving it, was proof of actual malice, – an indirect purpose or motive misusing the occasion, – on the part of Mr. Canty which defeats his defence of qualified privilege.
It is clear from the evidence that the plaintiff assumed that the letter of 13th August, 2001, was copied to Mr. James J. O’Connor as principal of the firm of M.J. O’Connor and Company, Solicitors, Wexford, because that firm acted on behalf of Wexford County Council, a fact well known to Mr. Canty. However, Mr. Canty gave evidence, and I fully accept his evidence, that he copied the letter to Mr. O’Connor solely because, in conducting his search in the Land Registry, he noted on Part II of Folio 14096, opposite the entry at No: 2., “4th March, 1966 no., 1942-11-65 Patrick Doyle of 103 Corish Park, Wexford is full owner” an entry in the margin which recorded that the Land Certificate had been issued to M.J. O’Connor and Company Solicitors, Wexford. Mr. Canty told the Court that he therefore copied the letter to Mr. James J. O’Connor as principal of the firm of Solicitors for the Registered Full Owner of the lands.
This raises the issue of whether Mr. James J. O’Connor had a legitimate interest or duty in receiving the letter of complaint. He definitely did not have power to punish or to reprimand Mr. Adrian Doyle or, in any proper use of that word, to give “redress” from his alleged activities. However, in my judgment, Mr. O’Connor, as solicitor and agent for Mr. Patrick Doyle, whether acting under a general retainer or acting in relation to this particular property only, was entitled to receive the letter as the representative of Mr. Patrick Doyle who certainly had a legitimate personal interest and power to inquire into what was being done as regards what was still his registered property. In the circumstances, I am satisfied that the occasion on which Mr. Canty wrote the letter of 13th August, 2001, was a privileged occasion and I am not satisfied that the plaintiff has established that the letter was written with any indirect or improper purpose or motive thereby misusing the occasion and losing the privilege.
The letter of 2nd September, 2002, was addressed to Mr. Martin Cullen, T.D., Minister for the Environment and Local Government and was copied to Mr. Seamus Dooley, County Manager, Wexford County Council.
I find on the evidence that the following events referred to in the second paragraph of this letter are true and are therefore facts:-
“On 11th July, 2002, Wexford Borough Council, by letter, falsely accused us of carrying out an unauthorised development at 79 South Main Street, Wexford and I quote:-
‘Among the issues we will bring to the notice of An Bord Pleanála in deciding this matter are:-
(I) ….
(II) Protected status of the frontage of the premises and its subsequent alteration without planning permission.
(III) ….'”
It is claimed on the part of the plaintiff that the following words in this letter are defamatory of him:-
“There is no doubt that the architect of this false and unfounded allegation is Mr. Adrian Doyle, Director of Planning Wexford County Council and Manager Wexford Borough Council. Mr. Doyle believes that I am solely responsible for the refusal by An Bord Pleanála in January, 2002, of a planning permission for a proposed three story 12 two-bedroomed apartment development on a small site, that presently has thereon a bungalow, which he and his three brothers own equally on the Newtown Road, Wexford…Mr. Adrian Doyle, Director of Planning Wexford County Council stood to make a substantial personal financial gain if the planning application had been successful.”
In my judgment, a fair and reasonable member of the public would not understand these words as expressing an opinion on the facts stated in the previous paragraph or even on an inference drawn fairly and honestly from those facts. Mr. Adrian Doyle in giving evidence at the hearing of this action denied that he had any involvement in this matter. In my judgment there is no primary or circumstantial evidence which would entitle this court on the balance of probabilities to reach a different conclusion. The fact that Mr. P. Collins for whatever reason decided to advise Mr. Adrian Doyle, that the s. 5(4) Reference regarding Mr. Canty’s application to Wexford Borough Council had been sent to An Bord Pleanála, is in my judgment nothing approaching sufficient evidence of an involvement by Mr. Adrian Doyle in the matter.
In the 6th February, 2002, edition of what appears to be the Wexford People Newspaper, Mr. Adrian Doyle is quoted as saying that:-
“The County Manager sent a letter last week to An Bord Pleanála urging the Bord to disregard the objections”, [of Mrs. Odette Canty to a major proposed development at Trinity Street, Wexford]
Mr. Adrian Doyle in his evidence accepted that this is a correct attribution. While one may wonder why Mr. Adrian Doyle, after his secondment in November, 2001, was involving himself in this local planning matter and no explanation was offered by him in giving evidence, this is surmised rather than evidence and falls far short of establishing that he had any connection with the sending of the letter of 11th July, 2002, to An Bord Pleanála, and certainly nowhere near approaches establishing that he was the “architect” of that letter or of anything contained in it.
In cross-examination, Mr. Canty put to Mr. P. Collins, Mr. Thomas (Tony) Nolan and Mr. Adrian Doyle that initials on various documents and letters relating to this s. 4 reference were those of Mr. Adrian Doyle. Each of these witnesses told the court, and I accept their evidence, that the initials, though admitted to vary considerably, are all those of Mr. Tony Nolan. Some documents produced in evidence carry the full signature of Mr. Adrian Doyle as well as the initials in controversy which Mr. Canty contends are those of Mr. Doyle. I accept Mr. Doyle’s evidence that he would not sign a document with his full signature and also initial it. I accept his explanation that the purpose of the initials was to indicate that it had been considered and passed by Mr. Tony Nolan as Senior Staff Officer in the Planning Department. I also accept the evidence of Mr. Tony Nolan that the date of the instruction referred to in his Memorandum of 11th July, 2002, to Anne Shannon, given as 8th April, 2002, is an error. I find this to be an understandable misinterpretation of the almost indecipherable date on the instruction by Louise O’Rourke, Acting Town Clerk of Wexford Borough Council, to Anne Shannon.
Mr. Adrian Doyle denied in evidence that he believed that Mr. Oliver Canty was solely responsible for the refusal by An Bord Pleanála of the application for a grant of planning permission in respect of the proposed development at Newtown Road, Wexford. I have no doubt whatever that Mr. Canty bona fide believed that what he stated in the letter was true. However, he was not able to produce a single piece of evidence to support his beliefs. I find, using the words of Lord Diplock in the well known case of Horrocks v. Lowe [1975] A.C. 135, at 150, that he was swayed by prejudice, relied on intuition rather than reasoning and leaped to conclusions on inadequate evidence in asserting the facts stated in the passage complained of in the third paragraph of the letter of 2nd September, 2002.
The defence of fair comment does not extend to excuse misstatements of fact however bona fide made.
As stated in McDonald on the Irish Law of Defamation [Round Hall Press 2nd Edition 1989] at p. 226:-
“The predominant difference between the two defences, [of Fair Comment and Qualified Privilege], is, of course, that the facts supporting a fair comment must be true while a comment made on a privileged occasion may be based on true or untrue facts.”
I am satisfied that the words complained of in the letter of 2nd September, 2002, which I have already considered, together with the following words also complained of appearing in the final two paragraphs of the same letter, though not based on any proven facts or reasonable inferences from facts and written rather because Mr. Canty, borrowing the words of Gatley on Libel and Slander, (Edition referred to) at p. 771 was, “hasty, prejudiced or foolish in jumping to a conclusion”, were still uttered on a privileged occasion. These other words complained of are as follows:-
“I am sure you will agree, as Minister, that An Bord Pleanála’s valuable time should not be wasted by allowing Mr. Adrian Doyle to abuse his office in order to settle a score in such a manner, on what was a legitimate bona fide appeal to An Bord Pleanála which I only became involved in as a result of being contacted by an extremely distraught resident of the area, who could not believe that Mr. Adrian Doyle, Director of Planning Wexford County Council could conduct local authority business in that way,…
Would you please advise whether I should also forward the Doyle file to the Flood Tribunal or would it be more appropriate to forward it to the Director of Public Prosecutions for his consideration.”
I am quite satisfied that Mr. Oliver Canty had a legitimate personal interest in making this communication to the Minister for the Environment and Local Government and Mr. Seamus Dooley, Wexford County Manager, and that these gentlemen had an actual legitimate reciprocal interest and duty to receive it for the reasons I have stated in dealing with the letter of 13th August, 2001. In my judgment, Mr. Oliver Canty was bona fide acting to protect his reputation and that of his wife from an express accusation of law breaking and in the context of the timing of the letter of 11th July, 2002, of an implied accusation of being disruptive, anti-social hypocrites.
I am quite satisfied on the evidence that Mr. Oliver Canty honestly, in good faith and without recklessness or indifference to the truth or falsity of what he was writing, believed that what he was stating was true. As was pointed out by Lord Diplock in the judgment to which I have already referred in Horrocks v. Lowe, at p. 150 of that judgment:-
“In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value… But despite the imperfections of the mental process by which the belief is arrived at it may still be ‘honest’, i.e., a positive belief that the conclusions they have reached are true. The law demands no more.”
The defence of qualified privilege can only be defeated by proof of actual malice on the part of the defendant in making the statement of which complaint is made. The onus of proving such malice is on the plaintiff and I am not convinced that in the instant case the plaintiff has discharged that onus. The fact that Mr. Canty must have known that his letter of 2nd September, 2002, was likely to cause some injury at least to Mr. Adrian Doyle is not sufficient to establish malice on his part. In my judgment it is quite clear from the face of the letter itself, further strengthened by the evidence of Mr. Canty given at the hearing of this action, that his dominant motive in writing this letter was to secure a withdrawal of, and an apology for, what he saw as false, unfounded, damaging and extremely hurtful allegations made against him and his wife. I find that the defendant did not extend the publication of this letter beyond the two persons undoubtedly having the primary actual legitimate interest in receiving it. I find that it was no misuse of the occasion by the defendant, nor did the defendant have any indirect motive or purpose in inquiring of the Minister for the Environment and Local Government whether he, Oliver Canty, should forward the “Doyle file”, (by which he obviously meant his own file in relation to Mr. Adrian Doyle), to the Flood Tribunal or to the Director of Public Prosecutions.
This query to the Minister could not, in my judgment, be properly construed as raising a new criticism of Mr. Adrian Doyle separable from and extraneous to the remainder of the letter and further defamation of the plaintiff. Neither can I accede to the argument that a reasonable and fair minded member of the public would understand this query as, by necessary inference, accusing Mr. Adrian Doyle of serious crime or of significant dishonesty and corruption in public office. I am satisfied that the query must be seen as logically connected with and inseparable from the remainder of the letter and, though capable of being construed as harsh, hasty, irrational or foolish, is not sufficiently extreme to be evidence of malice on the part of Oliver Canty.
In the result, even though I find that the statements complained of in the letter of 2nd September, 2002, are untrue and defamatory of Mr. Adrian Doyle, I am driven to the conclusion that the defendant is nonetheless entitled to rely on the defence of Qualified Privilege.
The conclusions reached in this judgment are a clear vindication of the character, reputation and good name of Mr. Adrian Doyle. It should be clearly understood that if he is not successful in taking this action against Mr. Oliver Canty, it is only because as a matter of social, utility and policy the law for almost 200 years has considered that the right of the individual to vindicate his or her good name, character and reputation by way of a legal action should not be permitted in the case of “…communications which the interests of society requires to be unfettered… made by persons acting honestly and without actual malice…no matter how harsh, hasty untrue or libellous…”.
Other cases referred to in the argument
Stanley Bell v. Winifried Pederson and Sandoz Ringaskiddy Limited (Unreported, 14th May, 1996: High Court: Morris, J.)
Kearns v. General Council of the Bar
[2002] 4 A.E.R., 1075.
Approved: Herbert J.
Tolan v An Bord Pleanála
[2008] I.E.H.C. 275, Hedigan J. JUDGMENT of Mr. Justice Hedigan delivered on the 29th July, 2008
This is a case that comes before me as an appeal from the Circuit Court. In it, the plaintiff claims,
(a) A mandatory injunction directing the defendant to remove from the planning file a letter written by one Gerard Lynam, dated 13th October, 1999, and all documents referring thereto;
(b) Damages for defamation;
(c) Other reliefs;
(d) Aggravated damages.
The case arises from the act of a public representative in writing and having delivered to the defendants, a letter that contained false and scurrilous allegations against the plaintiff. This letter purported to be written in connection with the plaintiff’s application for planning permission for a house. The letter was received by the defendant, even though it acknowledged at the time of reception, that it contained nothing relating to planning issues. It remains on the file to this day. From this reckless and irresponsible act by a public representative, has flowed enormous distress, grief and suffering for the plaintiff and his wife, whom everyone agrees, and this court reiterates and emphasizes, are entirely innocent of the scurrilous allegations made against them. When the existence of this letter came to his notice, the plaintiff and his wife made enquiries about it. Apparently, the contents of this letter were being bandied about among elected representatives and others. The plaintiff was refused access to the letter by the defendants because it had not decided whether to circulate it for comment.
Following discussion with the public representative in question, he agreed that he had mistaken the plaintiff’s identity for that of someone else. He agreed he was wrong, and through his solicitors, advised the defendants of this fact. He thereby explicitly withdrew the letter and asked the defendants to ignore the entire substance of it. At the same time, under separate letter, the public representative apologised to the plaintiff. The plaintiff assumed the letter would be forthwith removed from the file.
The decision of the defendants in his application at the time was to refuse him permission. He had been given planning permission by the local planning authority for the construction of a house. The plaintiff and his wife, at the first opportunity, attended at the offices of the defendant to inspect the file. To their dismay, they found the letter still remained thereon, although together with a document stamped heavily in red, ‘WITHDRAWN’, around which were staple marks and together with an envelope. The letter was not sealed, was readily available for inspection and according to the plaintiff was, in fact, highlighted by the document with ‘WITHDRAWN’ written on it.
The plaintiff went to see the Secretary of An Bord Pleanála, Mr. Collins, and met with him and with a Mr. Carlton. He asked the Board to remove the letter. Mr. Collins said it would take a High Court order. The plaintiff subsequently wrote on a number of occasions to the defendants, asking for the removal of the letter. His letters remained unanswered. He telephoned on numerous occasions; according to his wife, she was sure that he was making a pest of himself and that the defendant was simply ignoring him. Finally, he issued these proceedings in June 2002. In their defence, the defendants essentially argued that they are bound by Regulation 72 (a) of the Local Government Planning and Development Regulations 1994, as amended, which require them to keep available for inspection by members of the public, “the documents relating to an appeal”. They claim either absolute or qualified privilege in respect of their maintaining this letter on their publicly accessible files. It is admitted that they have known, since 22nd December, 1999, when Mr. Hanafin, solicitor, wrote, on behalf of the public representative, that this letter contained matters that were entirely false.
I will take the essential issues as they have presented them to me, one by one. Firstly, there has clearly been publication by reason of the maintenance of the letter on this publicly accessible file. The evidence is that at least three people have inspected the file, in addition to the plaintiffs. These were: Sandra Bissett, Frank Connolly and Dara McElligot, although this last on the instructions of the plaintiff. It is also noteworthy, that when they inspected the file, the plaintiffs found that the offending letter was open and unsealed and located one-third of the way into the file. The defendants’ case is that it had been placed in a sealed envelope, close stapled to the ‘WITHDRAWN’ document at the back of the file. On this basis, clearly, it had been inspected before by somebody else. As for the claim by the defendants that it was sealed and close stapled, human nature tells us anyone seeing such a thing on a file will search that document first.
It is reasonable to infer that many people, including local interest groups, have inspected the file. Moreover, the un-contradicted evidence of the plaintiffs is that they were shunned by many of their neighbours, which is sufficient, I think, to infer a fairly wide level of publication. In my view, therefore, there is no doubt but that there has been substantial publication. Secondly, there can be no doubt as to the meaning of the words in the letter. They are profoundly damaging to the plaintiff and, indeed, to his wife. They are suggestive of all manner of criminal and/or antisocial activity. They are written by a public representative, which gives them even more weight, they are cloaked in the garb of authority by being on the file of An Bord Pleanála. Any member of the public could have been, and still can be fooled, into according them some credibility. The attendant letters may not even be read, or if read, may not be fully understood. The meaning is profoundly damaging. Thirdly, in relation to the existence of the privilege claimed, the burden of establishing privilege is on the defendants. It is clear that no statutory privilege is accorded to the defendants. The only claim they can make is that they are required to maintain documents relating to an appeal, available for public inspection. They have no statutory provision according them immunity. Clearly, therefore, they must be very careful what they allow to be carried on their file. There can, in my view, be no question of an absolute privilege in the absence of the clearest statutory provision. The role of statutes is replete with examples of privilege accorded, but not here. I have been referred to two examples;
s. 52 of the Medical Practitioners Act 1978, and s. 77 ss. 2 of the Investment Intermediaries Act 1995.
As to whether there is a qualified privilege involved here, no evidence has been called to the existence of an honest belief in the words published. As the defendants did not, and have not, at any stage attempted to claim that the words were true, this is unsurprising. Clearly, the defendants have no belief whatever in the truth of the words and, indeed, acknowledge them as false. Regulation 72 (A) requires the Defendants to retain on the file any document submitted relating to an appeal. Does the definition of “document relating to an appeal” include the document in this case? Reply No. 6 of the Replies to Particulars, dated 23rd June, 2003, states explicitly that the document in question did not contain any matters relating to planning issues which pertained to the proposed development. There was, in my view therefore, no duty on the Defendant to retain the letter on the file. This pleading by the defendant is, I note correct, because the defendants have acknowledged through Ms. Morrin who received the letter at the offices of the Defendant, when the letter was delivered first, that it contained no information relevant to the application. In the result, in my judgment, no qualified privilege exists here to protect the defendant.
Fourthly, in this case, the plaintiff, the victim of a gross falsity, written in a letter to the defendants, asked them to remove this letter from their file, which was open to the public. The response was that they would not do so unless ordered to by the High Court. I consider this response from a public body to be entirely inadequate. They were aware that present on their file, which was, and remains readily accessible to the public, false and highly defamatory statements about a citizen. Their response should have been immediate and effective. Instead, they purported to throw upon the plaintiff the onus of moving in the High Court, with all the attendant risk, financial and otherwise, at a time when he was planning to come back before them with a further application, and at a time when he was in considerable financial hardship.
The response of An Bord Pleanála fell far short of the State’s duty to vindicate the good name of the plaintiff. They did not even seek legal advice as to what they might do. Their action, in allegedly sealing the letter in an envelope on the file, was a transparently inadequate response, all but certain to attract attention rather than deflect it. I therefore find for the plaintiff on liability in this matter.
In considering damages, after some careful consideration, I have decided not to award aggravated damages. I do so because the defendants were not the origin of the defamation in question. I do not want to be taken in this regard as approving in any way the actions of the Board. The administrative indifference shown to the plaintiff in this case, has no place in modern Ireland and deserves the fullest criticism. It does not, however, lead me to award aggravated damages. The plaintiff, clearly, is entitled to general damages, and taking into account the amount already recovered by him from the other parties to this sorry tale, I award the sum of €75,000. As to the injunction required, I will make an order directing the removal from the file of the letter of 13th October, 1999, from Councillor Gerard Lynam to An Bord Pleanála, together with all other documents which refer expressly, or by implication, to the said letter.
Talbot v Hermitage Golf Club
[2014] IESC 57Judgment delivered on the 9th day of October, 2014, by Denham C.J.
1. I agree with the judgment to be delivered by Mr. Justice Charleton, both the reasons given and the order proposed. Charleton J. has pointed out that delivery of this judgment today will constitute the 83rd day that the resources of the High Court and the Supreme Court have been directed towards this claim. There are some observations that I wish to make regarding case management.
2. The traditional practice in common law legal systems was that it was the parties and their lawyers who set the pace of a case. The courts did not intervene by actively managing the progress of the litigation process. This approach reflected the dominant laissez-faire attitude of the nineteenth century.
3. However, with the growth in the volume of litigation and the increasing complexity of cases, it became apparent that judges presiding in the courts must begin to proactively case manage cases and adopt case management practices and procedures.
4. Case management in civil litigation was developed in England and Wales in the mid 1990s. In Ireland an early initiative to introduce case management began in June 1996 by way of a High Court practice direction concerning personal injuries actions in which liability was not in dispute.
5. The adoption of case management in England and Wales came to the fore when the then Master of the Rolls, Lord Woolf, submitted two reports entitled Access to Justice, Interim Report, to the Lord Chancellor on the civil justice system in England and Wales (June 1995) and a Final Report (July 1996). Lord Woolf observed that:
“Case management…involves the court taking the ultimate responsibility for progressing litigation along a chosen track for a pre determined period during which it is subjected to selected procedures which culminate in an appropriate form of resolution before a suitably experienced judge. Its overall purpose is to encourage settlement of disputes at the earliest appropriate stage; and, where trial is unavoidable, to ensure that cases proceed as quickly as possible to a final hearing which is itself of strictly limited duration.”
6. There is also jurisprudence of the European Court of Human Rights on the effect of Article 6.1 of the European Convention on Human Rights and Fundamental Freedoms, and this has impacted on the traditional approach in common law jurisdictions, where the parties controlled the movement of a case through the courts system. Article 6.1 provides that:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….”
7. The European Court of Human Rights has heard a number of cases concerning delays in disposition of cases by national courts. In Buchholz v. Germany [1981] ECHR 2, it found that:
“…the Convention places a duty on the Contracting States to organise their legal systems so as to allow the courts to comply with the requirements of Article 6 par.1, including that of trial within a ‘reasonable time.’”
8. When considering how proceedings before all civil courts in Germany are governed by the principle of the conduct of the litigation by the parties, the Court considered that such factors:
“do not dispense the judicial authorities from ensuring the trial of the action expeditiously as required by Article 6.”
9. Similarly, in Price and Lowe v. the United Kingdom [2003] ECHR 409, the Court found that:
“a principle of domestic law or practice that the parties to civil proceedings are required to take the initiative with regard to the progress of the proceedings does not dispense the State from complying with the requirement to deal with cases in a reasonable time.”
10. The European Court of Human Rights has consistently repeated that sentiment in other cases where there has been delay. See for example the cases of Mitchell and Holloway v. the United Kingdom [2002] ECHR 818; and McMullen v Ireland [2004] ECHR 404.
11. Irish jurisprudence is also relevant. This Court stated in Gilroy v Flynn [2004] IESC 98 at paragraph 13 that:
“comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end.”
12. We have now reached a position in Ireland where as Mr. Justice Hardiman explained in Cruise v Judge O’Donnell [2007] IESC 67:
“We live in an era of case management, when a serious attempt is being made to deal with all litigation, civil or criminal, in an efficient manner.”
13. The use of judicial case management is crucial to the effective conduct of litigation, including where litigants are unrepresented by lawyers. This approach helps to define the key issues and to clarify the responsibilities between the parties. It enables managed use of limited court resources. It can assist by making the case more understandable for all those concerned, and may facilitate an early settlement between the parties.
14. Further, case management assists a court in determining a case within a reasonable timeframe. This is important for all parties in an action.
15. In this case the appellant filed very comprehensive written submissions which the Court received. However, he insisted on reading them out to the Court, and objected to questions from the Court. This is inconsistent with the proper conduct of appeals where full written submissions have been filed. The main purpose of an oral hearing is for the Court to seek and obtain clarification on the submissions.
16. The learned High Court judge took great care to hear and determine the issues raised by the appellant. I agree with Charleton J. that the conduct of the learned trial judge was exemplary. However, I consider that the Courts would benefit by a further development and use of case management so that the best use may be made of scarce court resources for the benefit of all litigants.
Judgment of Mr Justice Charleton delivered on the 9th day of October 2014
This is an appeal from the judgment and order of Herbert J dated the 27th July, 2012, [2012] IEHC 372, wherein he dismissed the plaintiff/appellant’s claim for damages against the defendant/respondents for defamation and for conspiracy. The plaintiff/appellant Mr Talbot represented himself at all stages and the notice of appeal is wide-ranging. In essence, every finding of fact of the learned trial judge is disputed by Mr Talbot. He pleads that there was evidence that he was defamed as to the integrity of his golf handicap. He claims that a conspiracy to destroy his character was effected successfully by a combination of all of the defendant/respondents, the Hermitage Golf Club, its handicap committee member and chairman Eddie Murphy and the Golfing Union of Ireland. In the result, he claims that he had to forego membership of Hermitage Golf Club, a privilege that he had enjoyed for 50 years. During the years 2001-2003, Mr Talbot believes that he had uncovered sharp practice in terms of finance and also waste of resources at Hermitage Golf Club. It was because, he says he believes, of the risk of him drawing that to the attention of the wider membership of the club, and outside the club, that the alleged conspiracy formed. Apart from what was alleged on the pleadings, he made allegations of malice, fraud and theft during the course of the hearing. There was not the slightest evidence to support any such allegation. In addition, Mr Talbot claimed that he had been maliciously prosecuted. There were no proceedings of any kind, civil or criminal, taken against Mr Talbot by any party to this appeal. Probably, Mr Talbot believes that he was maliciously persecuted. Only defamation and conspiracy are before the Supreme Court in this appeal. In addition to his disputation of the findings of law and fact of the learned trial judge, a general claim has been mounted by Mr Talbot that the trial was unsatisfactory.
Facts
Mr Talbot joined Hermitage Golf Club on 11th February, 1962, some 40 years before the series of incidents that he complains of. On retirement from work and finding himself with more time, he travelled around Ireland and submitted to the handicap sub-committee of the Club several score cards during the years 2002-2003. Adjustments are made on analysis of relevant returns such as these by this committee. This resulted in multiple adjustments of his playing handicap upwards and downwards. Adjustments are notified to the player. Mr Talbot challenged the changes to his handicap in correspondence from May to July 2003. Some of his remarks were taken exception to. At the handicap sub-committee meeting of 30th April, 2003 an apology from Mr Talbot was noted in the following terms:
Eddie Murphy read out an apology from Tom Talbot to the Hon Secretary for his delinquency in writing to individual members of the handicap committee with his complaints under handling of his handicap revision in 2002. The committee unanimously accepted the apology but stated they would not like a repeat of the incident.
With the submission of further scorecards from Mr Talbot, the handicap sub-committee met again in relation to his handicap on 30th July, 2003. The following was noted in the minutes:
Thirteen further cards received from Tom Talbot – clearly for handicap building purposes. It was agreed that these would be placed through his handicap details and then cut back to thirteen. This was done and a note left for him to play off thirteen. A printout of his handicap details was also made available for Mr Talbot.
On the facts as accepted by the learned trial judge, these minutes were typed by Dick Clery who was a member of the handicap sub-committee but he had not attended this meeting. A note was then left in the clubhouse for Mr Talbot attached to the notice board of the men’s locker room. This note was sealed and dated the same day. Mr Talbot claims to have retrieved it only a month later and to have opened it discovering to his horror that he was being accused of cheating at golf. The relevant part of the note simply states that Mr Talbot was a “playing member of Hermitage Golf Club” and that his current handicap was 13. The note is signed by Eddie Murphy, as chairman, and underneath the signature and date he also wrote the words: “General Play (Handicap Building)”. Mr Talbot was not at all happy at this situation.
The minutes, the learned trial judge accepted on the evidence, were kept secure in the clubhouse in the men’s competition room, to which only the members of the sub-committee have access. Only Mr Talbot opened the note. No one outside the committee prepared either the minutes or the note. At that time, however, from April 2003 the club was engaged in computerising its records and among its most important records are those of the handicap that members are playing off. A computer firm called Genesys was engaged in designing the relevant software. The learned trial judge was satisfied that communication of a terse note as to Mr Talbot and his handicap, containing the words “handicap building”, was published to some anonymous computer programmer working for that firm. A notice to vary judgement was filed by the defendants/respondents. The argument advanced is that there was no publication to anybody outside the sub-committee and that the learned trial judge had erred in holding that any reference to Mr Talbot and handicap building had come to the attention of anyone in the computer firm. This is not accepted. In the first place, on the transcript of the hearing it is not at all clear as to who did the computer programming or when that was entirely finished. Secondly, it is not credible to believe that the learned trial judge was not aware of patching and updating of computer programs which, of necessity, requires access to the program at later dates by such a specialist.
On 8th November, 2004, Eddie Murphy drove into the car park of the Hermitage Golf Club and noticed Mr Talbot speaking to another member. He apparently turned in the direction of Eddie Murphy and said “It’s that f- -ing idiot there”, or words to that effect. Eddie Murphy replied that he hoped that the comment was not addressed at him; to which Mr Talbot is supposed to have replied “Put it in writing and I will see you in court.” This incident later resulted in a disciplinary hearing at Hermitage Golf Club and the result was the suspension of Mr Talbot from the Club for three months. The suspension of a member, the learned trial judge noted, had only happened twice in the previous 40 years and then for serious incidents involving the abuse of club property and for singing songs with inappropriate words “in mixed company”.
On 10th December, 2004, the annual general meeting of Hermitage Golf Club took place. This was a heavily attended gathering as it was a matter of considerable interest to members. Mr Talbot was at that meeting fortified with notes that were produced on this appeal. He gave the learned trial judge a very full account of what he said there. He insisted in reading out his notes at the trial. Among the items debated at the meeting was a report from the captain. One of the items was new members. The captain proposed that in order to protect the integrity of membership in the Club “a system of interviewing prospective candidates” was to be “added to the screening process.” To this, apparently, Mr Talbot added his own spoken observation. He testified at the trial about his contributions to the meeting and he also asked numerous questions about this meeting of other witnesses. At trial he also recited from his notes and so what he said at the meeting was likely to be similar to the note produced in court, and on this appeal, which read:
I hear money on the table over the odds is the accepted way of breaching proper determination of membership to Hermitage. This started in 2001 evidenced by subscriptions and entrance fees exceeding budget by 201,597 for year ending 30/9/02… This [proposal] is hypocritical in the extreme. This year entrance fees… are conveniently transferred from income to capital account: the start of a nimble concealment process.
People found this upsetting. This was not his only intervention. On an anodyne proposal to re-elect the auditors, Mr Talbot objected. According to his own note, he said:
In fact we don’t need outside auditors to simply rubberstamp what is presented to them for one reason. We are tax-exempt and we somehow produce more accountants here than any other walk of life that can rubberstamp saving us €9,000 annually.
When there was angry reaction, according to his own note, Mr Talbot records himself as saying: “It must be just the accountants who were muttering impieties.” He then accused a solicitor of being present for the purposes of “camouflage” and, according to some of the evidence at the hearing, also launched a verbal attack on bankers but, according to other evidence, he may have criticized lawyers. Perhaps it was both. On the evidence before the learned trial judge, there was audible disquiet from those at the meeting at Mr Talbot’s interventions. In the aftermath, three people wrote to Eddie Murphy, this time in his capacity as the honorary secretary of the Club. Since these letters are central to the allegation of conspiracy, they must be quoted. The first was dated 16th December, 2004 from a member called Gerry O’Donnell and read thus:
I am writing to protest in the strongest possible manner about the behaviour of our member Mr Tom Talbot, at last week’s AGM of the Club. The non-stop barrage of abuse, discourtesy, incoherence etc was totally unacceptable and most insulting, not alone to the officers and to the various committee members but also to the general body of members. The outgoing and incoming captains showed enormous patience and forbearance in their efforts to facilitate free-speech but Mr Talbot crossed the line to such an extent, on this occasion, that I feel the time has come when serious consideration will have to be given to preventing any re-occurrence in future. Several members mentioned to me that they had points to raise, as would be normal at any AGM but were so disgusted at Mr Talbot’s performance that they refrain from saying anything at all. This is not good for our Club and I earnestly request that the new officer board and/or Executive Committee will give this letter appropriate attention in due course.
A further letter dated 18th December, 2004 was received from Seán Óg Ó Ceallacháin, another member, in these terms:
May I add my voice to those with similar views in condemning the disgraceful behaviour of Tom Talbot at last Friday’s… AGM. I do so in case there is any softening of committee attitude towards member Talbot on the grounds of ill-health. I have not witnessed a worst display of ignorance and bad manners in my 51 years membership of the club. His insulting behaviour towards outgoing captain Tony Hatton and incoming captain Andy Brennan during the course of the meeting was not alone inexcusable but totally unacceptable for a club of Hermitage’s stature. There is no case here for leniency of any kind in dealing with Tom Talbot over his conduct last Friday night. His comments regarding the club’s auditors were disgraceful but to apply them also to the Hon Treasurer Fergus Malone was beneath contempt. Tom Talbot’s track record at Hermitage either at an AGM or EGM levels in recent years, and again last Friday, cannot be allowed to go unpunished. I would point out that member Talbot is already under a cloud over two recent incidents involving the club Hon Secretary and a prominent member of the Leinster Branch of the GUI, serious matters in themselves. How many more instance as the club to endure before positive action has to be taken. Can I conclude by stating, if Tom Talbot is not seriously and severely dealt with under the present rules on discipline and behaviour or other relevant rules, he will only be encouraged to mount similar attacks in the future, thus setting a dangerous precedent. I will be satisfied to accept any punishment imposed by your committee.
The last letter written by a member was from David Cullen and was dated 11th January, 2005:
As a result of one of Tom Talbot’s contributions at our Annual General Meeting, I was moved to check the amount of the GUI levy. At €15, or a little over 1% of my total bill, it is insignificant and indeed represents, contrary to Tom Talbot’s tirade, excellent value, given the amount of work that the GUI undertakes to administer the game at all levels. In addition, Tom Talbot’s request to re-write minutes, failure to heed the chairman’s requests for quiet, general truculence and indeed his criticism of member accountants and lawyers were all unbecoming. I feel compelled to let you know my views, and would wholeheartedly support the committee in any action it deems necessary to take, to curb this behaviour and ensure the proper conduct of future meetings. While this is not the only recent incident of former officers acting in an aggressive manner at meetings… to have the AGM ‘hijacked’ by someone who sadly has some form of agenda, ruined the event for others.
The suspension which followed the car park incident and the hearing that was conducted at Hermitage Golf Club in relation to the annual general meeting are not germane to this appeal.
The Golfing Union of Ireland, or GUI, regulates this sport in Ireland. There were two audits in consecutive years of the handicapping system by the Leinster branch of the GUI. These happened to cover the 2002 and the 2003 playing seasons. The learned trial judge accepted evidence from John Ferriter, which was backed by evidence from Seamus Smith, both of the GUI, that any decision to audit and the result of any such audit were taken entirely independently of Hermitage Golf Club. In particular, the learned trial judge accepted that no golf club can call for itself to be audited. Furthermore, the nature of the audit may involve persons from the GUI who are also members of the club being audited. The reason for this is simply to save time and travelling expense. There is no stipend involved in this voluntary work. Mr Talbot believes that these audits occurred for the purposes of whitewashing the malicious work of the handicap sub-committee. The evidence at trial was, however, to the effect that the general system was what was looked at and not individual handicap scores. Mr Talbot’s handicap would have been of no interest to the GUI. Furthermore, reasons were given at trial as to why audits could take place in consecutive years and these related to such matters as success in competitions.
Following a hearing in the Supreme Court on 29th February, 2008, Mr Talbot was ordered to list each and every document which he claimed defamed him; to produce copies of each of such documents if requested; to state to whose attention these documents came; and to state the nature of the conspiracy he alleged, listing each and every act known to him which he alleged was done in pursuance of the conspiracy. In addition to the handicap certificate that mentions “handicap building” addressed to Mr Talbot of 30th July, 2003 and the three letters of complaint following on the annual general meeting of 10th December, 2004, two other documents were referenced in clarification of the defamation allegation. The first is a letter dated 14th May, 2007 which was addressed by John Corcoran, the honorary secretary of Hermitage Golf Club, to all members and headed “High Court Action”. This read:
Members should be aware of a High Court action being taken by a member of the Club, Mr Tom Talbot, alleging defamation and other ‘torts’ against Hermitage Golf Club, the Golfing Union of Ireland and Eddie Murphy. The Club is defending the action and lodged a defence on its own behalf and on behalf of Eddie Murphy on 30th March last. In addition, the Club has appealed, to the Supreme Court, a decision by a High Court judge not to oblige the Plaintiff to reply to a request for particulars in relation to the claim. Members will be kept informed of developments.
The second of these documents was a circular from the same source, wishing everyone a happy Christmas and “good golf in ‘08” that was circulated some time around 26th November, 2007. In part, this predominantly jolly communication read:
In my letter of 14th May, 2007 I drew the attention of members to the High Court action being taken by Mr Tom Talbot alleging defamation and other ‘torts’ against Hermitage Golf Club, the Golfing Union of Ireland and Eddie Murphy. As indicated that Club lodged its defence in this action on 30th March. The case continues and I will keep members informed of developments.
In addition to those listed documents, letters from the GUI as a result of the handicap audit conducted in 2003 and 2004 were introduced in evidence. In reality, they say nothing about Mr Talbot, comprising measured and very dry technical communications about handicapping. Mr Talbot also produced a letter, which he said was from his brother. He did not call his brother. The letter was dated 17th May, 2006 and this in part, read:
Recently, I spoke to a friend of mine in Cavan who is involved in the Golfing Union of Ireland and he asked me had I a relative named Tom who played golf in Hermitage. When I said I did he told me that you were taking legal action against Hermitage and the GUI over your handicap. Is this true?
There was also considerable dispute at the trial, none of it germane to any of the issues, about clause 19 of the ‘The Standard Scratch Score and Handicapping System’ of the Golfing Union of Ireland. In reality, that rule, for good or bad, applied to all affiliated clubs and to Mr Talbot as well. Any claim of unfairness by Mr Talbot in that regard is completely hollow.
These are the basic facts in respect of which the trial took place over 20 days in the High Court. There was much other correspondence which was referenced at the trial and on this appeal, including a solicitor’s letter on Mr Talbot’s instructions to Hermitage Golf Club and the reply, and several other documents. These are not germane either. At the trial, Mr Talbot insisted on calling every witness, including ones who clearly were not likely to be helpful to his case because they had a contrary account of events, for example Eddie Murphy. These were examined and cross-examined by him, sometimes at astonishing length and in a bewildering fashion.
Boundaries to an appeal
The learned trial judge listened with obvious attention and great patience to Mr Talbot and to every witness that he called. This Court on appeal does not have that advantage. Instead, Mr Talbot addressed the appeal by way of the recitation of facts and documents over approximately five and a half hours, reading from a pre-written submission that already had been furnished to the Court and insisting that no questions should be asked of him. In Hay v O’Grady [1992] 1 IR 210, the issue arose as to whether Article 34.4.3º of the Constitution, in conferring appellate jurisdiction on the Supreme Court, mandated or required an appeal by re-hearing to substitute facts found by the trial judge with the view of the facts to which members of the court might come on reading the transcript. In the view of the Supreme Court it did not. McCarthy J set out three principles which were established in existing case law but which, because of the clarity of his expression, have been often repeated since. The principles are as follows (at page 217):
1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of the transcript seldom reflect the atmosphere of a trial.
2. If the findings of fact made by the trial judge 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.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes LJ in “Gairloch,” The S.S., Aberdeen Glenline Steamship Co. v Macken [1899] 2 I.R. 1, cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or a recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
In reviewing any appeal, the Supreme Court is required to analyse the law to see whether it was correctly stated and correctly applied to the facts found by the judge of trial and is required, in addition, not to interfere with findings of fact where credible evidence support same. On matters of inference, an appellate court is at large and is regarded as being in the same position as the trial judge where inferences are drawn from circumstantial evidence. Where inferences depend upon oral evidence, the trial judge is regarded as being in a better position than the appellate court and such findings should generally be left undisturbed.
Defamation
The law on defamation was stated with admirable clarity and concision by the learned trial judge. The common law definition of defamation provides that defamation consists of words or actions which lower a prospective plaintiff in the eyes of ordinary right-thinking persons of the class to whom the communication is addressed; Quigley v Creation Ltd. [1971] IR 269 at 272. It is the effect of the words that gives rise to tortious liability. The intent of the person communicating does not alter their defamatory meaning. Unintentional defamation may otherwise be provided for in a statutory defence, as in an unintended reference to a person of the same name, but that is not relevant to this definitional element. Words must be looked at as regards two elements: what the words mean in themselves; and at what meaning the hypothetical ordinary, reasonable and well-informed person without any special knowledge would draw from those words; Lewis v Daily Telegraph Limited [1964] AC 234 and Griffin v Sunday Newspapers Limited [2012] 1 ILRM 260 at 267. It is for the trial judge, as a matter of law, to decide whether words are capable of bearing a defamatory meaning and it is for the jury, or the trial judge if the case is tried without a jury, to say whether in fact the defamatory construction should be put on the words according to their fair and natural meaning as would be given them by a reasonable person of ordinary intelligence without over elaboration or searching for some hidden or obtuse sense; McGrath v Independent Newspapers (Ireland) Limited [2004] 2 IR 425. Alleging that a prospective plaintiff was, for instance, seen leaving a particular address at a particular time might not on the face of it be defamatory, but the notoriety of such place as, for instance as a bordello, might allow extrinsic facts to be pleaded and proved that established the defamatory effect of otherwise innocent words. To be defamatory, words must be published to at least one other person beside the prospective plaintiff. A person may whisper abuse in to the ear of another without liability, or loudly condemn a man to his face while both are alone in a boat on the high seas, but communication to even one other person establishes the element of publication necessary in the tort. Mere vulgar abuse is not enough. There must be something in the words that communicates an undermining of the credit or reputation of a prospective plaintiff. Once the plaintiff has shown the matter complained of to be defamatory, the law presumes the statement to be false. If a defendant claims that the statement was true and raises a defence of justification, then the burden of proof is on the defendant to establish the truth of the statement.
Proof that defamatory words were published may be defended where the person who makes the communication has an interest or duty, legal, social or moral, to address it to the person to whom it is made and that person has a reciprocal interest or duty to receive such information; Henwood v Harrison [1872] LR 7 CP 602 at 622. Actual malice, meaning an improper motive for the communication, which arises naturally where the person disseminating the words knows them not to be true, defeats this defence of qualified privilege. An inference of malice is rebutted prima facie from a statement that attacks the character of a prospective plaintiff where a situation of privilege is proven and thus requires the plaintiff at trial to show that the communicator of the statement was motivated by personal spite or ill will; Wright v Woodgate [1835] 2 CMR 573 at 577 and Harris v Arnott (No 2) [1890] 26 LR Ir 55. The law presumes that communications on an occasion of privilege were believed to be true. This is rebutted by proof of malice. Malice is shown where a plaintiff at trial proves that the defendant did not honestly believe the truth of what was communicated or was indifferent to its truth or falsity; Horrocks v Lowe [1975] AC 135 at 149-151.
All of the above was recited and ostensibly applied in the judgment of the learned trial judge. As a statement of the principles underpinning the law on defamation over more than a century, it is unimpeachable.
The learned trial judge’s findings were based on a solid foundation of fact. None of the witnesses called by Mr Talbot agreed with any allegation of malice, ill-will, spite or conspiracy that he put to them. On the contrary, there was abundant evidence that no-one in Hermitage Golf Club could ever have been motivated by anything other than disappointment. A striking incidence of this occurred on the evidence of Andrew Brennan, who had been vice-captain of the Club in 2004, captain in 2005 and vice-president in 2006. He was asked by Mr Talbot as to why a new standing order had been brought in following the annual general meeting in 2004 concerning the conduct of meetings. Mr Talbot put it to him that this was done in order to interfere with democratic rights; and in particular his. He answered:
Well, firstly I would say… that that was inserted following … receipt of legal advice given the disruption that you primarily had caused at many earlier meetings. Now it would not be normal but it was deemed to be a requirement for the orderly running of meetings. Now, for whatever reason, you seem to have a persecution complex and at the earlier part of the meeting in question I think if I could remind you, and it is clearly in the minute, you had requested that the minutes of the prior year, 2003, be totally rewritten in that they were inaccurately recorded. This was put to the floor by the captain and the chair, Tony Hatton, and you were the only single dissenting person.
When asked directly by the learned trial judge whether this standing order had been brought in to get at Mr Talbot, the witness answered:
Your Honour, under no circumstances. I mean this is a persecution complex. I did not bring it in. The committee of Hermitage Golf Club took appropriate legal advice to deal with a single difficult member, Tom Talbot, many of whom – many of us had been friends with him for years. There is no indication of vendetta [or] conspiracy. I mean this is not a secret society as Mr Talbot knows, or Tom knows, and you are not dealing with the Teamsters Union. As far as I’m concerned, we [took] legal advice and meetings had consistently run out of control and other members had objected clearly to the way the meetings were being run and being hijacked candidly.
On the issue of publication, the learned trial judge decided that there had been publication of the “handicap building” note to a computer programmer from the Genesys firm. This finding was based upon solid evidence, and referenced the minutes of the handicap sub-committee minutes and other evidence, of 23rd October and 28th November, 2002. His finding was as follows:
Finally, in the minute of the 2nd April, 2003, it is recorded that, “a representative from Genesys recently provided training on the handicap system to committee members”. Eddie Murphy, the third defendant, was chairman of the handicap sub-committee in the year 2002 and in the year 2003 and Dick Clery was a member of the sub-committee in both years. The third defendant gave evidence that since in or about 2001 it was a requirement of the second defendant that complete details of the handicap of each member of the Club be entered on the computer record. The plaintiff does not have to prove that the defamatory words were actually seen and read by a particular third party. If, on the evidence adduced, it is a reasonable inference that this occurred, a prima facie case of publication will be established. From these minutes of the 23rd October, 2002, and 28th November, 2002, I am satisfied that it is reasonable to infer that the defamatory words were published to an employee or agent, employees or agents of Genesys and, though it is unnecessary to go this far, also to some member or agent of the second defendant, by the members of the handicap sub-committee of the Club including the third defendant.
This finding on publication is soundly based. On defamatory meaning, the learned trial judge held that the words “handicap building” were defamatory. On this appeal, that finding has not been seriously disputed. The relevant rule applied by the handicap sub-committee was clause 19 of the ‘The Standard Scratch Score and Handicapping System’ of the Golfing Union of Ireland, in the form relevant from 1st January, 2001. This requires the handicap sub-committee of a golf club to reduce a member’s handicap “by not less than one whole stroke” where the handicap is “too high and does not reflect his [or her] current playing ability”. The finding of the learned trial judge was made thus:
I am satisfied that the words “Handicap Building” are fairly capable of a construction which would render them defamatory. I find as a fact that this construction ought to be attributed to them in the circumstances of this case. I am satisfied that any hypothetical, ordinary, reasonable and well informed member of the class of persons interested in the playing of the game golf would reasonably and fairly conclude from these words that the addressee was being accused of consciously and deliberately inflating his playing handicap so as to give himself an unfair and improper advantage against other players by misrepresenting his true playing ability. I find that the words “Handicap Building”, written by the third defendant and recorded in the minute of the meeting of the handicap sub-committee of the 30th July, 2003, in their natural and ordinary meaning meant that the plaintiff was cheating at golf. I do not accept the construction contended for by the first and third defendants that the words meant only that the plaintiff’s playing handicap had automatically built up by reason of the operation of Clause 16.3 of the Scheme on the large number of score cards he had returned and consequently needed to be adjusted downwards under the provisions of Clause 19.1 to reflect his current playing ability. I do not accept that a hypothetical reasonable member of the class of persons interested in the playing of the game of golf would reasonably put such a construction on these words.
What then came into focus was the occasion and motivation for the publication. The learned trial judge held that this very limited communication to the computer programmer was on an occasion of qualified privilege. His finding was as follows:
Even where a plaintiff proves that defamatory words have been written and published of and concerning him, there are occasions, in the public interest where the law relieves a defendant from what would otherwise be the consequences of that publication. Such [an] occasion … arises where the person who makes the communication has an interest, or duty, legal, social or moral to make it to the person to whom it is made and that person has a reciprocal interest or duty to receive it. … The third defendant and the other members of the handicap sub-committee of the Club clearly had no moral, social or legally enforceable duty to make this communication to any employee or agent of Genesys. This leaves the issue of whether he or they had an interest to make the communication and whether Genesys had a reciprocal interest to receive it.
The evidence established that there are over one thousand members in the Club and that the handicap sub-committee was solely responsible for ensuring that the playing handicap of each such member was constantly reviewed and validated in accordance with the requirements of the Standard Scratch Score and Handicapping System then in force. The work of the sub-committee was subject to random audit by the second defendant. In the performance of this exacting and onerous task, the handicap sub-committee needed to constantly refer to the individual records of each playing member of the Club. The evidence established that a failure on the part of the handicap sub-committee to carry out their task efficiently and accurately could result in serious consequences for the Club, including the suspension or loss of handicaps so that members could no longer participate in the game of golf within the CONGU system.
In these circumstances I find that the third defendant and the other members of the handicap sub-committee had a reasonable and a genuine interest in seeking out the computer software system which they considered was best suited to assist them in their task. For this purpose, the third defendant and the other members of the handicap sub-committee of the Club had an interest in communicating with Genesys and, having chosen that particular system, he and they had an interest in ensuring that a complete and accurate database was set up. This, as the minute’s record, necessarily involved transferring all existing handicap details of members, including the details relating to the plaintiff, to this new system.
This finding was supported by evidence. There was no evidence that malice attended this communication and the dry circumstance of the computerisation of necessary records would make any such idea very unlikely. There is no basis on which the careful findings of fact of the learned trial judge could be interfered with on appeal. The manner in which the learned trial judge found from the confused abundance of evidence that there was no basis upon which any possible claim of defamation could be made by Mr Talbot demonstrates his scrupulous fairness in conducting this trial.
Other documents were claimed to be defamatory. Among these were the three letters about the annual general meeting of 10th December, 2004. The letters are quoted above. They speak for themselves. The facts of the meeting and the evidence of several witnesses, among them that of Andrew Brennan quoted above, who had witnessed the situation tended to the same effect; that the entire incident was unfortunate but that it was also unacceptable. It is not defamatory for someone to be responded to with complaints where they make allegations at an important club meeting. Such complaints are expressions of opinion. Nothing in the three letters attacked the credit or reputation of Mr Talbot. All they said was that the interventions should not have happened, certainly not in the form in which they occurred. The learned trial judge also held that the occasion on which the letters had been written and the limited audience to which the letters were addressed was on an occasion of qualified privilege. Before the learned trial judge and on this appeal, Mr Talbot claimed that by mentioning or inferring in the complaints that he was suffering from illness meant that he was insane. A reference to illness occurs in the letter from Seán Óg Ó Ceallacháin. The text of the relevant letter, however, can be read only as suggesting that excuses for such conduct as had occurred at the meeting should not lightly be accepted. This reading was the entirely sensible approach of the learned trial judge. On the issue of these letters, his finding on defamatory meaning and on privilege was thus:
When these words, “on the grounds of ill health” are considered in their context, the only natural and ordinary meaning to be placed upon them is that the Executive Committee of the Club should not deal leniently with the plaintiff even if he should make the case that he was suffering from some health problem on the 10th December, 2004. Conversely, Mr. Cullen seems to be considering that the plaintiff’s conduct at that Annual General Meeting on the 10th December, 2004, was so extraordinary that he may have been suffering from some health problem. I find that these words were not defamatory of the plaintiff. Even if they were, I am satisfied on the evidence, that each of these three members of the Club had a separate interest in making their complaint and the third defendant had a reciprocal interest in receiving that complaint so that occasion of publication was one of qualified privilege. I find that the plaintiff adduced no evidence of any malice on the part of any of these three members towards him other than to suggest that they wrote the letters at the instigation of the third defendant, with a view to having him expelled from the Club. I have already found that this did not occur. Further, I find that there was no unconnected or extraneous material in any of these complaints such was would negative the privilege. In addition, Mr. O’Donnell, Mr. Ó Ceallacaháin and, Mr. Cullen were not joined as defendants in this action. I am satisfied on the evidence and I so find, that none of these three letters nor the statement of Mr. David Cullen was libellous of the plaintiff.
The legal analysis of the occurrence of an occasion of qualified privilege is unimpeachable. In a similar way, Mr Talbot was offended by the letter dated 14th May, 2007 addressed by John Corcoran, the honorary secretary of Hermitage Golf Club, to all members and by the circular of some time around 26th November, 2007.
It is clear that the members of an unincorporated association have an interest in whatever litigation may burden the property that is held in contract of membership between them. This litigation has been long and expensive. It also has resulted in Mr Talbot making very serious and derogatory comments about a multiplicity of officers and members of Hermitage Golf Club and a range of other people. None of these were anything other than unsound. Mr Talbot’s comments were made on an occasion of absolute privilege in court and were related to the litigation and so were not actionable. To this allegation was added the hearsay account from Mr Talbot’s brother. This did not constitute a proven statement, much less defamation. Nonetheless, the learned trial judge facilitated the allegation by allowing it to be made as part of the general case on the letter and the circular by treating it as another letter. The learned trial judge dealt with the matter thus:
Mr. John Corcoran is not a defendant in this action. There is no repetition or republication of the alleged libels or any part of them in either of these documents, nor, did Mr. Corcoran make any comment whatsoever with respect to them. These documents published by Mr. Corcoran impute nothing more to the plaintiff than that he has taken a High Court action against the first defendant, the second defendant and, the third defendant for defamation and other torts. In my judgment, it is not defamatory of the plaintiff to publish that he has taken such action and, that it is being defended, where there is no reference whatsoever, either directly or indirectly to the basis of the claim. I am also satisfied that the publication of these documents does not amount to a republication of the original defamatory words by reference. In my judgment Mr. Corcoran, as Honorary Secretary of the Club had an interest in communicating this information, and perhaps even a duty to communicate it, to the members of the Club. They as members of this incorporated association which might have to indemnify the third defendant in respect of any award of damages made to the plaintiff against him or, might themselves have to meet that claim should the assets of the Club prove insufficient for the purpose, had a reciprocal interest to receive that information. No evidence whatsoever to establish malice on the part of Mr. Corcoran was offered by the plaintiff during the course of this action. The fact that these documents probably led to a certain amount of speculation by members of the Club as to the nature of the plaintiff’s claim does not amount to the publication of a libel which is the essence of the actionable wrong.
It is impossible to fault the learned trial judge in his analysis of the law and there is nothing in his application of that law to the facts that could be regarded as in error or as being unsupported by evidence. Instead, it is clear that there was an abundance of evidence upon which each such careful finding was based.
Conspiracy
If two or more people combine together and pursue by agreement an unlawful action, whether civil wrong or crime, this is an unlawful conspiracy. In Iarnród Éireann v. Holbrooke [2000] IEHC 47 (Unreported, High Court, 14th April, 2000) O’Neill J, having considered earlier authorities, held that the following essential features of the tort of conspiracy had been established:-
1. The agreement or combination of two or more people, the primary or predominant object of which was to injure another is actionable even though the act done to the party injured would be lawful if done by an individual.
2. An agreement or combination of two or more persons to carry out a purpose lawful in itself but by using unlawful means is actionable, in circumstances where the act in question might not be actionable against the individual members of the combination, as individuals.
All agreements to do something unlawful either as the end object or the means are actionable conspiracies. A further specific observation needs to be made: while an agreement to do something unlawful, whether by object or means, is a tort, liability was also influenced by centuries old notions that people are entitled to combine for their own interests even with the object of undermining the business or interests of another person. Thus, where two or more persons determine to further their own interests to the detriment of another, but do not pursue unlawful action thereby, this combination is not actionable. Such just cause or excuse for all lawful actions of those in the agreement renders the combination lawful. The boundaries of that exception have been eroded as regards economic activity, however, by Articles 101 and 102 of the Treaty on the Functioning of the European Union and by the national legislation in the form of the Competition Acts 2002 – 2012.
Nothing beyond the basic definition of civil conspiracy is relevant here. Mr Talbot put his allegation of conspiracy on a multiplicity of factors. These included three letters of complaint following upon the annual general meeting of 10th December, 2004 which Mr Talbot alleges were directed by officers of Hermitage Golf Club; that the Golfing Union of Ireland conducted audits in 2003 and 2004 in order to “whitewash” what Mr Talbot regarded as the attack on him; that everything that was done as regards his handicap was for the purpose of giving him “an evil reputation as regards handicaps”; that the Golfing Union of Ireland was somehow in collusion with Hermitage Golf Club; that solicitors letters emanating from Hermitage Golf Club and from John Ferriter of the Golfing Union of Ireland showed collusion; and that disciplinary proceedings were initiated against him for improper reasons. All of this is extremely hard to follow and even harder to accept.
Following on from a hearing in the Supreme Court, on 29th February, 2008, Mr Talbot was directed to state precisely what overt acts he alleged in pursuance of the conspiracy against. He pleaded three factors:
1) Aforementioned GUI notices confirming audit meeting cooperation and assistance on the occasion of reviews authorised by GUI handicap convener.
2) The aforesaid three letters [from Messrs O’Donnell, Ó Ceallacháin and Cullen], that came about [by] design to collude in injuring me.
3) The collusion in both John Ferriter, GUI 5th June, 2005, and Ian O’Herlihy, member of and solicitor to Hermitage and Murphy 3rd June, 2004, coming to exactly the same conclusion and explanation.
The learned trial judge found that the complaint over the incident in the car park was neither actuated by malice nor inspired by any other party than the one complaining. The learned trial judge found that the three letters following on the annual general meeting of 10th December, 2004 had been written by the writers spontaneously and entirely of their own volition. The learned trial judge held that the audits of the club by the Golfing Union of Ireland in 2003 and 2004 were decided upon, initiated and completed by that body without any involvement whatsoever from any member of Hermitage Golf Club. The evidence from John Ferriter of the Golfing Union of Ireland was that he was entirely and completely unaware of any dispute between Hermitage Golf Club and Mr Talbot. Furthermore, he knew nothing about any belief that Mr Talbot might have had as to whether certain projects were costing too much money. The learned trial judge held:
I am satisfied on the evidence that there was no conspiracy of any sort to injure the plaintiff between the third defendant and any other member of the first defendant and the second defendant or any council member, officer or agent of the second defendant including Mr Ferriter, Mr Fintan Buckley and Mr John Joe Maher.
All of these findings were overwhelmingly supported on the evidence. Further, there is no evidence that anyone wished for any detriment to Mr Talbot, much less tried to set about damaging his legitimate interests.
Entitlement to jury trial
Mr Talbot has complained on appeal that a judge and jury should have tried his case.
An allegation of defamation on its own is tried by a jury. Here, as the learned trial judge patiently explained on many occasions to Mr Talbot, it was he who insisted in joining on the tort of conspiracy to his defamation claim and in so doing joined the Golfing Union of Ireland as the party with whom Hermitage Golf Club and its handicap sub-committee chairman Eddie Murphy were allegedly, as he put it on this appeal, “in collusion” to damage his interests. In terms of what is now before this Court, a notice of trial was served by Mr Talbot on 27th April, 2007 for trial by judge and jury. After a hearing before McMahon J in the High Court, by order dated 1st November, 2010, that notice of trial was set aside on the application of the Golfing Union of Ireland. It was also ordered that any further notice of trial provide for the proceedings against the Golfing Union of Ireland to be determined by a judge sitting alone and for the defamation and the conspiracy proceedings against all defendants to be heard together. This order was not appealed. On a motion before Ó Néill J on 14th March, 2011, on the application of Hermitage Golf Club and Eddie Murphy, it was ordered that the issues between Mr Talbot and those parties be heard before a judge alone and tried together with the action against the Golfing Union of Ireland. That order was not appealed.
Trial by judge sitting alone was thus appropriately ordered and not appealed when the matter came on for trial before Herbert J on 13th December, 2011.
Conduct of the trial
A multiplicity of complaints were made by Mr Talbot about the trial, about the trial judge, about counsel for the defendant/respondents, about a particular registrar of the High Court and about previous rulings of the Supreme Court. Condensing the submissions to what is relevant here, the plea is that the trial was unsatisfactory. There is no basis on which it could be claimed that the trial before the High Court was unsatisfactory. Mr Talbot insisted on calling every witness. He must have known that each such witness would not help his case. Perhaps, one cannot know, he felt that by asking them questions somehow the case that he wanted to emerge would come out. That did not happen. Parties are not entitled to cross examine witnesses that they have called themselves. Nonetheless, very wide latitude was extended by the learned trial judge with exemplary patience. The conduct of the trial was such that no reasonable person could have imagined that the court was intent on any other exercise than the most complete analysis of the facts. In many other ways, the learned trial judge sought to assist Mr Talbot as an unrepresented litigant.
The learned trial judge, for instance, held that the non-identification of the database of golf handicaps by Mr Talbot should not prejudice his case. Had Mr Talbot been a represented litigant it is more than doubtful that such latitude would have been given. Another striking instance is the inclusion for analysis of a letter from Mr Talbot’s brother referencing a comment by another person. This instance of dúirt bean liom go ndúirt bean léi demonstrates not that the learned trial judge elided the hearsay rule but that the learned trial judge was determined to deal with every single issue raised by Mr Talbot. The learned trial judge expressed his attitude thus:
Throughout the hearing of this case many pleading issues arose in which counsel for the first defendant and third defendant objected that matters were being canvassed by the plaintiff and evidence was being led by him which fell outside the parameters of the pleadings in the case and especially outside these schedules. However, conscious of the fact that the plaintiff is a litigant in person and drew his own pleadings, and, mindful of the reproach of Lord Diplock in Boston v. Bagshaw [1966] 1 WLR 1126 at 1135 that “lawyers should be ashamed that they have allowed the law of defamation to have become bogged down in such a mass of technicalities…”, I determined, in the interests of justice, to permit very considerable latitude to the plaintiff in making his case. I allowed this latitude to the plaintiff provided he did not depart altogether from what he had pleaded and so long as I was fully satisfied that the defendants were not thereby prejudiced in dealing with the evidence or in making their defence.
This was not only a transparently just approach but it also had the hallmark of temperate case management.
Court resources
As the Chief Justice points out in her judgment, with which I agree, the delivery of this judgment will constitute the 83rd day that the resources of the High Court and the Supreme Court have been directed towards this claim. This was, in essence, a very simple case: was it defamatory to say of an amateur golfer that he was “handicap building”; was that statement published to anyone other than the maker of the statement and the subject of it; and if yes was the answer to these two questions, was publication on an occasion of qualified privilege not undermined by malice? The conspiracy claim was also straightforward. Complication is perhaps inherent in the law of defamation; a matter remarked on by the learned trial judge who quoted from Lord Diplock in Boston v Bagshaw, as noted above. Focus, however, is far from impossible even in the most difficult case. The plaintiff/appellant Mr Talbot pleaded this case himself without legal counsel or assistance over 20 days in the High Court. Numerous motions were brought to the High Court either by him or by the opposing parties. Several appeals were heard by the Supreme Court. The necessary observations which follow on what the Chief Justice has said are a criticism of no-one.
Among the unenumerated rights in Article 40.3 of the Constitution is the right to have access to the courts for the purpose of litigation. This was described by the Supreme Court in Tuohy v Courtney [1994] 3 IR 1 at 45 as “the right to achieve by action in the courts the appropriate remedy upon proof of an actionable wrong causing damage or loss as recognised by law.” The resources of the courts are there for litigants. Those resources are not, however, unlimited. No litigant is entitled to more than what is reasonably and necessarily required for the just disposal of a case within the context of the other demands on court time. Whether it is an unrepresented litigant or not, the resources which the courts decide to assign to a case must depend upon: the importance of the legal issues involved; the gravity of the wrong allegedly suffered by the moving or counterclaiming party; the monetary sum involved; and the public interest in the outcome of the case. Courts are entitled, and indeed are required, to foster their resources. This is both a matter of public and private interest. Court resources used in litigation are funded by public money. In addition, the parties pay for legal representation. Litigants should not be faced with cases that are longer or more expensive than they need to be for a fair resolution. In many instances, costs if awarded against a losing party may not be recovered. In that regard, putting reasonable limits on submissions in terms of time and allowing a measured number of hours or days for each side to litigate their case is both right and appropriate. The calling of repetitive expert evidence may and should also be curtailed. Many motions can be brought in apparent aid of certainty as to nature of each side’s case. This needs to be vigilantly watched by the courts. The Rules of the Superior Courts are there to aid in the just disposal of litigation and are not to be over-used in such a way as to overwhelm the central core of what a case is actually about. Clear focus on that is required from the start; IBB Internet Services Limited and Others v Motorola Limited [2013] IEHC 541 (Unreported, High Court, Charleton J, 19th November, 2013) at paragraph 3 refers.
There can be problems beyond what are usual in litigation. Where a lay litigant is involved, pleadings may be confused. Traditionally, in every court, judges have done all that they can constitutionally do to assist. It would help in many cases, both with lay litigants and in complex cases where the parties are represented, for a case management hearing to take place before a judge who, after hearing the parties, can have the parties agree the issues for trial or can set these. This can avoid the unnecessary use of discovery and particularisation as the judge may then and there make such orders as are necessary for the just disposal of the case. The core purposes of case management are that it allows the court to focus on necessary issues and to set fair limits as to the resources of the courts that can be allocated to litigation.
Result
In the result in this case, the conduct of the learned trial judge was exemplary; his summary of the law was unimpeachable; his findings of fact were in each case supported by more than ample evidence; and I would dismiss this appeal.
Towell v Fallon
High Court of Justice.
King’s Bench Division.
28 January 1912
[1913] 47 I.L.T.R 176
Lord O’Brien, L.C.J.
This is an action for slander, and the question to be decided by us is whether the occasion on which the alleged defamatory language was spoken was what the law recognises as a privileged occasion. We were referred to many cases on the point in the course of the argument, but I take it to be settled law that if the person who utters the incriminating words has what the law regards as an interest in uttering them on the occasion on which they were uttered, then the occasion is a privileged occasion, and the plaintiff, in order to succeed in an action, must give evidence of, or rather must establish, actual or express malice on the part of the defendant. It must be borne in mind that, apart from all material interest, a man is under a moral duty to himself, owes an imperative obligation to his own reputation, to show if he can that he is not such a person as would, while professing to sell one article, sell another of a different and inferior nature. So much for privileged occasion. Now for privileged communication. I quote the language of Sir James Willes, than whom there could be no higher authority. He is reported, in giving judgment in the case of Huntley v. Ward, (1859) 6 C. B. N. S., at p. 517, to have said: “Where the matter is written in the assertion of some legal or moral duty, or in self-defence, and the thing is done honestly and without sinister motive, and in the bona fide belief in the truth of the statement at the time of making it … the law declares it privileged.” Such is the language of Sir James Willes, and it is applicable to this case. To the same effect is that of May, C.J., in Dwyer v. Esmonde, (1878) 2 L. R. Ir., at p. 253: “If a defendant in an action of libel relies on privilege as a defence, it is clear that it is for the Court to decide whether the occasion upon which he admittedly used the defamatory language attributed to him was privileged; it is, on the other hand, the province of the jury to find by their verdict whether the defendant abused the privilege which the law accorded to him, and exceeded its due limits. In the present case the privilege claimed is one of self-defence—that the defendant was justified in publishing a statement in answer to the libel admittedly published against him by the plaintiff—thereby explaining and accounting for the oppressive conduct towards the present plaintiff, imputed to him in that libel. It is admitted that a privilege of the nature of that claimed by the defendant extends only so far as to enable him to repel the charges brought against him—not to bring fresh accusations against his adversary. This privilege is in fact a shield of defence, not a weapon of attack.” I now turn to the facts of the case. The plaintiff and defendant are merchant tailors. The words complained of were provoked by a remark made by George Patterson and were addressed to him, although no doubt others heard him. I assume that the word “shoddy” was not used by the defendant. At any rate the jury have negatived it. I do not examine the defences with a very meticulous accuracy, I take the words actually used and treat them with regard to the way in which the case was argued before us. [His Lordship then referred to Patterson’s evidence.] “I did better, I got an Irish tweed suit from the plaintiff.” Having regard to the course of the argument it is these words that must be considered. It will be seen that what the defendant said was elicited or provoked by Patterson’s statement that “he did better.” I think that self-defence, which Webster’s Dictionary tells us means “defence of oneself, one’s property or one’s reputation,” justified the defendant in the absence of malice in saying then and there upon the spot what he did say. That is to say, he was privileged in repelling the attack in the place where it was made; in other words, he was under no obligation to wait until the defamatory matter had reached a wider area. He was privileged so to speak to nip the mischief in the bud. The occasion was privileged. Of course if malice in fact is established the privilege is lost. [His Lordship then quoted Christian, L.J., in Dwyer v. Esmonde (ubi sup.), at p. 259: “The defendant might, in exercising this privilege, fall into excesses of phrase or intemperance in expression which would indicate an animus going beyond the bounds of self-defence. But the effect of that would be, not to take the subject out of the privilege, but to constitute evidence from which the jury might or might not infer malice in fact; the malice in law, which is implied primâ facie in the mere publishing of defamatory matter being repelled by the privilege of the occasion”] It may be said that a number of clerks were present when the words complained of were spoken, and that therefore the defendant was not privileged to speak them. But the clerks were also *177 present when the attack was made on him, and I think he was privileged to defend himself when the attack was made. It was said, too, that the defendant spoke somewhat loudly, but he does not lose the privilege of self-defence because he raised his voice. Finally, as to malice in fact, this was a matter peculiarly for the jury, and in my opinion there was evidence to justify the jury in their finding of absence of malice. The motion must be refused with costs.
Gibson, J., in his judgment, said:—In this case the defence of privilege is based on the fact that Patterson, who was a customer of the defendant, had consulted him in order to get his opinion on a pattern of cloth. The jury negatived the use of the word “shoddy,” but they found that words were used imputing that the material was not of Irish manufacture, which, as the plaintiff made the sale of Irish manufactured goods a speciality and had sold the suit as such, might be understood to convey a serious imputation on him and upon his business methods. In Patterson’s version of the conversation I do not think that the defendant was consulted with a view to assisting Patterson by his advice. The case was argued before us, not on the pleadings, but on the question whether on Patterson’s evidence a case of privileged occasion was made out, and I shall deal with it on that footing. Against the plea of privileged occasion the following arguments were used:—(1) That Patterson’s language, when fairly construed, conveyed no imputation on the defendant. (2) That the defendant unnecessarily spoke the words complained of in the presence of bystanders. (3) That the contract between Patterson and the plaintiff was complete, and that the defendant’s reflection on the plaintiff’s goods was a voluntary and indefensible attack. (4) That the defendant’s only interest was pecuniary interest in opposition to a trade rival, and such interest does not support privilege.
The first objection has caused me some difficulty. Patterson’s remark might have borne a sportive, innocent meaning; or, on the other hand, it might be understood as instituting an invidious comparison between the two tailors to the disadvantage of the defendant. No question was put to the jury on the subject, and with some doubt I think that the Court must now construe the remark as best it can, and looking at the defendant’s conduct (which the jury have found to be free from malicious motive), I interpret the words as provocatory and disparaging—a sort of challenge—whether Patterson meant it or not. The privilege depends not on what Patterson himself meant, but on how his words would reasonably be, and were, in fact understood. As to the second point, the presence of a number of persons who might have heard what was said, does not of itself destroy privilege. The circumstances in each case must be considered. A defamatory communication, if made wantonly and unnecessarily in the presence of third parties with the object of letting them hear, would be published to them, and the speaker could not escape from the consequences of his utterance by the pretence that his words were in form addressed to a person who if by himself could have been a legitimate recipient. On the other hand, privilege is not destroyed by the accidental presence of others, especially where the matter is sudden and impromptu as in the present case. In my opinion the objection fails in the circumstances before us. As to the third point, the suit ordered by Patterson from the plaintiff had not yet been delivered, but, in any event, I consider the point to be one of no substance. The fourth ground—namely, that of self-interest—is the main one on which the case was argued before us. The plaintiff relied on the case of MacIntosh v. Dun, [1908] A. C. 390, but that decision is not in point, for there the defendants collected information on their own responsibility and for their own gain, and supplied it to their customers. Privilege is not lost by reason of financial interest. A doctor employed by an insurance company to examine persons proposing to be insured, or an agent employed to report on persons or property, acts and reports because he is paid; and his employers retain him because they expect profit from the contemplated transaction as to which the report is to be made. The relation between the parties is not based upon general, moral or civil duty, but on contractual obligation for mutual advantage. Communications from such doctor or agent would be manifestly privileged. Suppose a person specially employed for pay to report upon a mercantile correspondent’s financial position, or as to a mine and its promoters, or the statements in a company’s prospectus and its directors, would he be able to cover his bona fide reports by privilege (as I think he could), the same principle ought to extend to subordinate means of information that such agent might be obliged to utilize. If one could specially employ an individual to get information for his benefit and protection, why should he not be able specially to employ an agency or firm for the same purpose? As I construe it, MacIntosh v. Dun (ubi sup.) is confined to a body with information accumulated as stock ready for sale—a kind of dangerous mer *178 chandise—it does not extend to agents specially engaged to acquire information. The distinction between subscribing to an enquiry agency for the purpose of being supplied with information already laid in for use when occasion arises and employing an agency to procure information may seem fine, but it is appreciable. In the one case the subscription is the price of ready-made material, in the other, the material is brought into being as the result of a special order, and there is a special contractual duty. The Privy Council case has no application to the facts now before us, which lie outside the authorities cited and must be decided on principle. To constitute a privileged occasion there must be a common interest or duty between the parties, and the matter communicated must be germane to such interest or duty. Was there such a common interest here? The defendant’s privilege depends on Patterson’s answer to his query about the ordering of a suit—namely, “I did better, I got an Irish tweed suit from Towell.” I would think that the speaker intended to convey that the suit in question was better as to price and material than what the defendant would supply The defendant was entitled to refute the implied imputation, he had an interest in showing Patterson that he was mistaken in comparing the plaintiff’s goods to the disadvantage of those of the defendant. If he spoke in honest self-vindication he is protected. It would be otherwise if his motive was merely to injure a trade rival. Here, however, the jury have negatived the existence of malice on the part of the defendant. The case may be tested by asking would the statement be privileged if Patterson had visited the defendant’s shop and the conversation had taken place there without anyone else being persent. The motion must be refused with costs.
The plaintiff appealed to the Court of Appeal, and the Court (Barry, L.C., Holmes and Cherry, L.JJ.), without calling upon counsel for the defendant, unanimously dismissed the appeal (April 23, 1912), being of opinion that the occasion was privileged, Holmes, L.J., being also of opinion that the words used were not properly capable of a defamatory interpretation.
O’Brien v The “Freeman’s Journal,” Ltd
High Court of Justice
Motion by the plaintiff to strike out paragraph 31 of the defendants’ statement of defence, “upon the ground that it discloses no ground of defence to the action, and is embarrassing and calculated to prejudice the fair trial of the action.” The plaintiff is Mr. William O’Brien, M.P., and the defendant company are the proprietors of the Freeman’s Journal. The plaintiff claims £5,000 damages for libel. The plaintiff, in his statement of claim, states that on or about June 19, 1906, the defendants falsely and maliciously printed and published in the Freeman’s Journal of and concerning him the following, which is set out in paragraph 2:—
The great trouble in the South of Ireland at present is to counteract the tremendous damage to the business of the fair price of land caused by Mr. Wm. O’Brien (meaning the plaintiff). While advocating popular *35 demands, Mr. O’Brien has only too efficaciously sapped the foundations of all reasonable solution of these demands by his unnatural services to insatiable landlordism. No champion professedly on the landlords’ side has done a tenth part of the injury to the question of the sale and purchase of land at a fair price that Mr. O’Brien has done. The greatest present-day admirers of the honourable gentleman are the old rusty tools of the landlords—the bailiffs, the agents, and the grabbers.
The plaintiff says that these words mean that he was knowingly false to his political principles and professions, and betrayed the cause of the agricultural tenants of Ireland in the interest of the landlords. The plaintiff also complains that on or about Feb. 22, 1905, in the Freeman’s Journal, the defendants falsely and maliciously printed and published of and concerning the plaintiff the following, set out in paragraph 5:—
There is another matter in which I desire information. It also has been treated evasively and mysteriously by the Chief Secretary. There was a mysterious dinner party arranged in 1903 which never came off. What are the facts? According to the Chief Secretary, not in the year 1904, but in 1903, after the Land Act had been passed, amidst general applause—at a time when Lord Dunraven received compliments which he had so well earned from all sections of public opinion, and at the time when the hon. member for Cork City (meaning the plaintiff) had converted an organ hostile to the Government into an organ of conciliation—it was then that Lord Dunraven came to him and discussed the chances and prospects of a moderate Unionist Party in Ireland. Mark the introduction of the word Unionist. There was a Unionist Party already. What was the idea of the new party in Ireland? Was it to be composed of Unionists is the essence of the question, or was it to be composed of a section of Unionists and a section of Nationalists ? … Then the right hon. gentleman went on to say that the subjects proposed to be discussed at the dinner party were subjects on which all men in Ireland were agreed. That appears to be a very lame explanation of the intended dinner party. It is a matter which ought to be probed to the bottom. … I should like to know who were the gentlemen who were going to be invited to the dinner party. Were they Nationalists, or Nationalists and Unionists? In Lord Dunraven’s statement there is not a single word about its being a Unionist Party. It is, on the contrary a moderate Central Party, having for its basis the devolution proposals; therefore that dinner party is indissolubly connected with all that took place afterwards. These questions are all exceedingly pertinent, and they ought all to be frankly answered if we are to form a real wellinformed judgment of the present crisis in Ireland. Was the Chief Secretary aware of the advances and proposals that were being made to some of us, Nationalists, in the autumn of 1903? It would be a very interesting thing for me to know whether he was aware of it. I speak only for myself, but I was approached not at all on behalf of Sir Antony MacDonnell, but on behalf of the friends of Lord Dunraven in regard to this new policy, and I say that for any man who has lived in Ireland to imagine that he is going to get out of this business by simply hiding his head in the sand is most absurd. I wish to read to the House a brief extract from the London Globe, which has made itself the official organ in London of the anti-MacDonnell crusade. The correspondent of the Globe in Dublin, a very well-informed gentleman, I have no doubt, said on Saturday last:— “At an early date I propose to lay before the readers of the Globe some interesting details as to the manner in which the Chief Secretary set himself to bring about a settlement of the Irish question. For a moment, I may say, that it is useless for any minister, short of buying a newspaper outright, to hope to influence his policy by the acquisition, through a third party, of such of its shares as may for the time being be on the market.” That is a very cryptic saying to people here; but we in Dublin understand it perfectly, and we look forward with considerable interest to the details which may be published in the Globe in the next few days. This affair had assumed such proportions that it has obscured and over-shadowed the amendment.
A number of other paragraphs were set out in the statement of claim as having been published in the defendant company’s newspapers. They are summarised in the judgment. The effect of the first thirty paragraphs of the defence is stated in the judgment.
Paragraph 31 of the defence, which it was sought to strike out, is as follows:—
The defendants further say that the said plaintiff was not a member of the Irish Parliamentary Party at the times or dates when any of the foregoing matters were published. The said plaintiff left that party about the Nov. 1, 1903. In the month of August, 1904, said plaintiff became a candidate for Parliament, but refused and declined to take and subscribe the pledge or undertaking to act in concert with the Irish Parliamentary Party in the House of Commons, which is a condition precedent to any Parliamentary candidate obtaining the support or membership of the Irish Parliamentary Party, and said plaintiff was elected without having taken or subscribed said pledge; and in the month of June, 1905, the said plaintiff, on the occurrence of another vacancy in the representation of Cork City, put forward a candidate for same whose candidature was advocated and supported by said plaintiff on the condition, under-standing, and express stipulation that the said candidate should not take or subscribe the said pledge, and during all the before-mentioned periods, and the period during which the words set out in the statement of claim were published, the said plaintiff in the Press, at public meetings, and from his place in the House of Commons after his re-election, carried on a discussion and controversy as to the aims and policy of the Irish Parliamentary Party which he left, and in reference to the subject-matter of the alleged libels, making the bitterest attacks and charges upon said defendants; and it was in order to combat, refute, and meet the said attacks and charges that the words mentioned in the statement of claim were published.
Representation
Campbell, K.C., Healy, K.C., Harrington and J. M. Fitzgerald for the plaintiff.
Ronan, K.C., Moriarty, K.C., Patrick Lynch, K.C., Muldoon and M’Sweeny for the defendants.
Authorities cited:—
O’Donohue v. Hussey, Ir. R. 5 C. L. 125;
Murphy v. Halpin, Ir. R. 8 C. L. 127;
Duyer v. Esmonde, Ir. R. 11 C. L. 548, 2 L. R. Ir. 244;
Or. XIX., r. 4; Wylie’s Judicature Acts; Common Law Procedure Act; Odgers on Libel, p. 590; Jenoure v. Delmege, [1891] App. Cas. 73;
Caulfield v. Whitworth, 18 L. T. (N. S.) 527;
Nevill v. Fine Art Co., [1895] 2 Q. B. 156.
Cur. adv. vult. *36
Andrews, J.
This is an application on the part of the plaintiff that paragraph 31 of the statement of defence be struck out upon the grounds that it discloses no defence to the action, and is embarrassing and calculated to prejudice the fair trial of the action. The statement of claim sets forth six alleged libels complained of as having been published in the defendants’ newspaper of and concerning the plaintiff, on June 19, 1906, and Feb. 22, Oct. 15, Aug. 16, and Nov. 12, 1905. To each of these alleged libels several separate defences are pleaded in the statement of defence, none of which are in question upon this motion. They include traverses, denials of the alleged libel, that it was defamatory in meaning, that it was not libellous but fair comment on matters of public interest, and fair reports of public proceedings in relation to matters of public interest. Paragraph 31 of the statement of defence purports to be pleaded as a further defence to all the six alleged libels. It has not been contended on behalf of the defendants that it is pleaded merely in mitigation of damages, and the character of the defence which it appears to have been intended to rely upon is what might be described shortly as a plea of legitimate self-defence founded on alleged previous attacks and charges publicly made by the plaintiff upon and against the defendants, which the alleged libels were published in order to combat, refute, and meet, and, as understood that is admitted to be the defence which in this paragraph the defendants intend to rely on as a defence of the entire action comprising all the libels complained of. I am unable to see, and no satisfactory explanation has been given to show, what relevance there was to such a defence in a number of averments in the first portion of the paragraph. The plaintiff, as appears from the statement, was an Irish Nationalist and also a member of the Irish Parliamentary Party, which he left about Nov. 1, 1903. The meaning imputed to the first of the alleged libels in the statement of claim is that the plaintiff was false to his political principles and betrayed the cause of the agricultural tenants of Ireland in the interests of the landlords, and the meaning imputed to the remaining five alleged libels respectively was that while a pledge-bound member of that Party in 1903 he took part in a plot to disrupt it; that he was party or privy to a plot to undermine it, and he betrayed or was willing to betray it; that he was secretly conspiring to disrupt the Irish Nationalist Party; that in 1903 he was guilty of an attempt to undermine that Party, and that in 1903 he was engaged in a conspiracy to disrupt and destroy it. The averments in paragraph 31 of the statement of defence are that the plaintiff was not a member of the Irish Parliamentary Party at the dates when any of the alleged libels were published; that he left the Party about Nov., 1903; that in Aug., 1904, he became a candidate for Parliament, but refused to take the pledge to act with the said Party in the House of Commons, which was a condition precedent to any Parliamentary candidate obtaining the support or membership of that Party, and was elected without having taken the pledge, and in June, 1905, on the occurrence of a vacancy in the representation of Cork City, he put forward a candidate who was supported by the plaintiff on the condition that he should not take the pledge. I wholly fail to see the relevancy of these averments or any of them to the defence intended to be relied upon in paragraph 31. They are calculated to prejudice and embarrass a fair trial of the action by raising a number of questions which were irrelevant to the intended defence, and the introduction and discussion of which, while possibly creating prejudice, would tend to lead away from the defence without in any way supporting it. These averments, therefore, should be struck out. As regards the remainder of the paragraph I think it is insufficient to show the defence intended to be relied upon. I take it to be well settled, and I venture to add in obvious justice that in order to support a plea to an action for libel of legitimate self-defence the plea must show that the defendants’ statement complained of as libellous was reasonably capable of being held to be sufficiently connected with and relevant to the charge or charges made against them by the plaintiff to bring the defendants’ statement within the privilege of having been published on a privileged occasion in their legitimate self-defence. Unless this is done by the plea it fails to show that the statement complained of by the plaintiff as libellous was published on a privileged occasion. The defendants were the publishers of the statement complained of by the plaintiff, and the person or persons of whom the publication was made must have corresponding interests in reference to the matter complained of by the plaintiff. What the defendants were entitled to do was to vindicate themselves against false aspersions upon them by the plaintiff. Their privilege was to defend themselves against an attack made upon them by the plaintiff, not to make an independent attack upon the plaintiff unconnected with and irrelevant to the attack made by the plaintiff upon them. It is not sufficient to merely allege generally in the plea, as is done in paragraph 31, that the plaintiff had publicly carried on a discussion and controversy as to the aims and policy of the Irish Party, and in reference to the subject-matter of the alleged libels making the bitterest attacks and charges upon the defendants in order to combat, refute, and meet which the alleged libels were published. The *37 plea should aver sufficient facts to enable a Court or a Judge to determine whether the alleged attacks and charges by the plaintiff had reference to the subject-matter of the alleged libels, in this sense where the alleged libels are reasonably capable of being held to be sufficiently connected with and relevant to the alleged attacks and charges made by the plaintiff to bring the defendants’ statement within the privilege—which is a question of law to be determined by the Court or the Judge, not by the mere assertion of the defendants—and paragraph 31 does not, in my opinion, state sufficient facts to show that the occasions on which the alleged libels were published were privileged occasions, and in that respect it is both insufficient in law and embarrassing. Further, it is not pleaded in this paragraph that the plaintiff’s alleged libels and charges were defamatory or false. If true, the defendants could have no privilege to retort defamatory matter in reply to them, and in this respect also the plea was insufficient and embarrassing. As regards the absence from it of the usual, and, I might say, the invariable averment of such a defence, that the matters complained of by the plaintiff were published bona fide by the defendants, believing them to be true and without malice, it is unnecessary for us to decide in the present case whether in this respect also the plea is insufficient. There is, of course, no doubt that once an occasion is shown to be privileged it is for the plaintiff to prove malice; in fact, Mr. Odger in his valuable book on libels and slanders gives it as his opinion that in strictness this averment is unnecessary, and in some of the judgments in the cases referred to it seems to be treated as necessary. I am unable to agree with Mr. Moriarty’s contention that the averment, if necessary, might be imported into paragraph 31 from other defences. With reference to that I might refer to Or. 20, r. 7. Another objection which might be well taken to the paragraph is the difficulty and embarrassment of employing such a plea as a separate defence to each of the six distinct alleged libels complained of by the plaintiff. The result is that paragraph 31 is, in my opinion, both embarrassing and insufficient in law, and must be set aside, but with liberty to the defendants, if they so desire, to amend within a limited time by pleading a good and unembarrassing plea of legitimate self-defence if they have materials to do so. They must, however, pay the plaintiff his costs of this motion.
Boyd, J., concurred.
Wright, J., concurred. It must be shown, and it must appear from the pleading itself and from the libels or the charges that were set out in the pleadings—it must be shown that there was an intimate connection between the libel of the plaintiff and the libel of the defendants which drew from the defendants the libel that was complained of, Privilege extends only so far as to enable the defendants to meet the charges brought against them, not to bring further accusations. Privilege is a method of defence, not of attack. The materials ought to appear in the plea from which the Court would draw the inference that there is such a connection between the charges brought. It is not sufficient for the pleader to say there is a connection. It is not pleaded or shown in any way that the plaintiff’s attacks were in the slightest untrue. No connection is shown between the libels complained of and the attack of the plaintiff, and on that ground the plea is not sufficient. The rule states that where a plaintiff seeks relief on several distinct claims, the complaints founded upon separate and distinct grounds should be set out separately and distinctly as far as possible. It is quite plain to anybody looking at this defence that the defence is made up of traverses, pleas of fair comment, fair and correct reporting in the newspaper, and self-defence. It is impossible to say that we can import from the preceding paragraphs into it the allegations that are necessary in all the preceding paragraphs—bona fide and without malice. Is that averment in itself a necessary one? It is not only a usual but an invariable averment, and it would take a great deal more than the dictum of a text-writer, however eminent, to convince me it is not a necessary averment.
Dempsey v Wall & Co. Ltd. and Philip Ryan
Circuit Court.
29 November 1943
[1944] 78 I.L.T.R 73
Judge Shannon
Judge Shannon:
I find that there is no substantial difference between the words complained of by the plaintiff and admitted to by the defendant Ryan in the witness-box. But I am coerced into finding that the plaintiff did take this note-book out of her drawer and place it on Miss Hopkin’s desk, and that Ryan thought that the plaintiff did intend to take this book to her solicitor. The plaintiff had lost her temper and intended to take this note-book, which was of no value to either the plaintiff or the defendants. I believe that Ryan thought that the plaintiff was going to take this book. The defendant Ryan in his reference to the police may have used strong language, but that does not necessarily destroy the privilege. It can be construed as an indication of his state of mind. I find that Ryan believed that the plaintiff was about to steal this note-book.
I have a difficulty in reconciling White v. J. & F. Stone Lighting and Radio Limited 55 T. L. R. 949 with Toogood v. Spyring [1834] 1 Cr. M. and R. 181. McKinnon, L.J., in White’s Case, at page 950, applies Toogood v. Spyring, but the head-note in White’s Case, in my opinion, is not correct when it states that “the person to whom it” (the communication complained of) “is made must be a person other than the plaintiff.” The defendant Ryan in this case had a duty to make the communication to the plaintiff, but not to Hopkins and Murphy. But their presence does not destroy the privilege. Ryan’s state of mind helps to establish privilege: he had a duty to make the statement complained of and the plaintiff had an interest in receiving it. I therefore dismiss the action with costs.
Willis v Irish Press Limited
High Court.
9 November 1938
[1938] 72 I.L.T.R 238
O’Byrne J.
O’Byrne, J., ruled that there was sufficient evidence of malice to be left to the jury. He said that he had arrived at the conclusion that the occasion was privileged. Privilege sometimes arises from duty. It had been held time and time again that the duty necessary to give rise to the plea of privilege need not be a legal duty. The term was sufficiently wide to include duties of a moral or social nature. There was a duty upon the defendants to make a communication. They had already published an article clearly defamatory of Casey and Peltonen. It was clearly the duty of the “Irish Press” to set right the injury, which they had done to these persons and there were no other means by which it was possible for them to do so than by publishing the apology, which appeared in the “Irish Press” of the 25th February, 1938.
Another ground for holding that the communication made by the defendants was privileged was that it was made for the reasonable purpose of self-protection and on that ground, following the decisions of the Court of Appeal in Adam v. Ward [1917] A. C. 309 it was reasonable to hold that this was a privileged occasion. His Lordship had also to rule whether the communication itself was privileged. Mr. Campbell had submitted that the communication went beyond the reasonable requirements of the occasion. His Lordship did not accept that point of view. The communication itself was privileged and was made on a privileged occasion.
Lord Annaly v The Trade Auxiliary Company
Supreme Court of Judicature.
Court of Appeal.
1 May 1890
[1890] 24 I.L.T.R 57
Lord Ashbourne C., O’Brien C.J. FitzGibbon, Barry L.JJ
Lord Ashbourne, C.
The facts of the case appear so fully and clearly in the judgment of the Lord Chief Baron that it is not necessary for me to re-state them at any length. The action is one of libel against the defendants for inserting in their publication, under the head of “Bonds and Judgments,” certain particulars taken verbatim from the books of the Register of Judgments. The Registrar kept these books in obedience to statute, and acting—as he was bound—on information supplied in a minute certified by an officer of the Queen’s Bench Division. That certified minute omitted to state, after the name of Lord Annaly, that the judgment was obtained against him as executor of his father. The entry in the Registrar’s book, following the certified minute, had a like omission. The defendants’ paper in publishing the particulars of the judgment taken from the Registrar’s book, also had this defect. No evidence whatever was given that the defendants had any reason to believe that the particulars contained in the Register were in any respect inaccurate, or that they had any malice or indirect motive in the publication. The Act under which the judgment was registered is the 7 & 8 Vic., c. 90. [His Lordship read section 11.] The 11 & 12 Vic., c. 120, provides the safeguards for accurate registration, and requires that a judgment shall not be registered unless the proper officer certifies its existence. The Bankrupt and Insolvent Act, 1857, avoids as against assignees any judgments obtained more than 21 days before the bankruptcy which shall not be registered as therein provided. The Registrar of Judgments must act on the certificates brought to him, and has no power to refuse. Whether the registration is useless or useful, whether compulsory or permissive, are topics with which he has no concern. He is a public officer bound to register all judgments, lawfully brought to him, in books open to the public and intended to be essentially public. Because the Queen’s Bench officer, in preparing the certified minute, made an error of omission, in no respect entitled the Registrar, who was ignorant of it, to decline registering. Once registered, all the particulars contained in the certified minute and copied into the Registry books were published for all purposes and became public property. Knowledge of and notice of judgments may be of the highest interest and importance to many sections of the public. Under the statutes I have cited everyone in the community might search for and examine this entry. If then a person, who had no notice of an omission and had no malice, made public the particulars in the Registrar’s book, could he be made liable in an action for libel? The defendants in their publication merely facilitated the public in gaining a knowledge which it was intended should be open to all, and saved the public from trouble. The defendants are not liable in libel for their bona fide publication of the contents of a public book kept by a public officer in a public department. I do not think the suggestion that the defendants should lose their privilege because in their publication they had not stated that they took their particulars, not from the originals, but from the items entered in the Registrar’s book as transcribed from the certified minute, is well founded. The authorities cited, when the facts are examined, all strongly support the view I have taken. The judgment of Lord Cottenham in Fleming v. Newton is really conclusive:—“I found my opinion upon this, that the publication of the fact proposed to be inserted in the appellant’s lists has been made by the Act of Parliament in certain registers, the contents of which are public property, and the publication of them authorised” (p. 377). The omission of the words, after Lord Annaly’s name, which would show that the judgment was only obtained against him as executor, is very unfortunate, but whoever is to blame the defendants are not, and it would be opposed to all sound principle to deny their privilege for publishing the contents of a public register kept for the use of the public. I therefore concur in the judgment of the Exchequer Division and the reasons of the Lord Chief Baron, and think that this appeal should be dismissed with costs.
O’Brien, C.J.
This case turns on the answer to the question, “Did the statutes make the contents of the Register of Judgments public property?” If so, the publication of the contents of the Register, or an extract from it, is authorised and privileged against the contention of actual malice. [His Lordship cited the recital and section 2 of 7 & 8 Vic., c. 90.] When the memorial and certificate of the prescribed character are presented to the officer, it is his duty to register them, provided they are such as are contemplated by the Acts of Parliament. Section 11 of the 7 & 8 Vic., c. 90, provides that all persons are at liberty to search the Register. Who are entitled to search? All persons, there is no limitation, it is not limited to purchasers. This makes the Register “patent to all the lieges,” a source of information to the public generally, and absolves from all allegation of malice. It was suggested by counsel that the benefit intended was the putting together and registration in one office of the judgments so as to prevent the necessity of different searches. If so, it would be inconsistent with the objects of the Acts of Parliament. The benefit to the public would then be of a very illusory character. The public could not publish extracts from the Register without subjecting themselves to actions for libel if it were not free to use them without verifying them. This case is governed by Fleming v. Newton. Lord Cottenham there says: “The Act of Registration of 1696 provides that the Register under the Clerk-Registrar’s keeping ‘shall be patent to all the lieges.’ This includes the books of council and session in which the entry of protests is kept. The 55 Geo. III., c. 70, regulates the keeping of registers of deeds and instruments of protest; section 27 of 1 & 2 Geo. IV., c. 38, provides for making indexes to certain and divers registers, and, amongst others, to adjudications recorded in the books of council and session for the purpose of easy reference, and that they may be accessible to the public. It appears that in fact no index was made of the Register of Protests, but by the table of fees a different fee is payable for searches where there is and where there is not an index, so that the contents of all the registers, whether with indexes or not, are open to the public upon payment of a certain fee.” From the Acts of Parliament it is clear that the legislature thought that the public at large ought to be at liberty to inspect the Register and search it—the defendants in this case have the highest reason for doing so. It was the intention here to make the Register public property; on payment of a fee all persons were entitled to search it. I fully adopt the language of the Lord Chief Baron in the following sentence of his lordship’s learned judgment:—“Every one of the public might lawfully inspect the entry, and might lawfully send his agent to procure the particulars The public generally, or any particular class of the public, as, for instance, the subscribers to a particular gazette, might lawfully agree to appoint one agent to obtain those particulars for their benefit, and for the purpose of communicating *58 such particulars to them. Nay, further, as the entry in the book amounts to a publication to the public generally, I think a person who had no notice of an error would be justified in making known an entry to any of the public without request by them, provided only that he acted without malice” (pp. 31, 32, ante ). I am of opinion that there is a privilege to publish these extracts, conditioned on the absence of actual malice, which is out of this case. Mr. Wright contended that if what the defendants published amounted to a statement that this judgment was published in this Register, there would be a privilege. If so, what difference would there be in the damage the plaintiff would sustain? The fallacy consists in not holding that each particular publication is privileged; once they are put in that Register each particular is privileged in the absence of malice. As to Williams v. Smith and M’Nally v. Oldham, I agree with the Chief Baron in reference to those cases. The judgment of the Court below should be affirmed.
FitzGibbon, L.J.
I also agree. I wish my observations to be treated as supplemental. This case falls within the principle of Lord Cottenham’s judgment in Fleming v. Newton. Once the Register of Judgments is held to be intended for the use of the public—“patent to all the lieges”—it follows that the use of it by any one member of the public for the purpose of communicating its contents to others cannot be an actionable wrong. As Lord Cottenham says—“The transaction disproves any malice, and shows a legitimate object for the act done.” Test the matter by putting the case a step farther back. The Registrar acts upon the certificate signed by the officer of the Queen’s Bench, he inserts that upon the Register, he does not go to the office of the Queen’s Bench Division to ascertain whether the certificate handed to him is correct or not. Yet, in so registering what was given to him, the Registrar did the very same thing of which the plaintiff complains against the Trade Auxiliary Company. Is the Registrar liable to an action for libel? No. Why not? Because he was simply performing a public duty in the way which the Act directs him to perform it, and the Act made the certificate a sufficient warrant to him of the existence of the judgment. What were the Trade Auxiliary Company doing when they published what the Registrar had recorded? Assuming that they published only what was registered, they were only exercising the public right to use the Register, and there is no higher protection for the Registrar in the performance of his statutory duty of recording the judgment, than there is for those members of the public who exercised their statutory privilege of consulting the Register and publishing its contents. The only argument advanced to displace that proposition was that the Register of Judgments was constituted only for a limited purpose, namely, for the protection of purchasers of landed property, who might have recourse to it in order to ascertain whether such property was affected by judgments, and that as the defendants were not members of the class for whose protection the Register was established, they were not privileged in publishing its contents. There are two answers to that argument—first, Stubbs’s Gazette may be used by purchasers for the purpose of obtaining the information they require, and so the editors may be the “common agents” for that very class of persons for whom the Register was established as well as for others. But, secondly, although the immediate object of the Act by which the Register of Judgments was constituted may have been the protection of purchasers, that object was attained, not by confining the right of inspecting it to any limited class, but by establishing a register of “all judgments” and opening that register to all the public alike. Parliament itself, long after the passing of the Act, availed itself of the Register for the purposes of the Bankruptcy Code. This very fact answers the argument that the re-publication of this judgment was not protected, because there was no possible object in registering it, as, being recovered against an executor, it could not affect lands, nor could it affect priority in bankruptcy. That might be a very good argument against the solicitor who registered it, or the officer who gave the certificate, but the very fact that it was registered as a personal judgment would rather tend to make the registration seem all right, and so throw a person finding it registered off his guard, for as a personal judgment its registration would be operative under the Bankruptcy Act, 1857, s. 331. As regards the argument that the defendants are liable because they stated that a judgment had been recovered against Lord Annaly, instead of merely stating that it had been registered —in other words, that they published more than they found on the Register, and therefore are not protected—I would first point out that if the argument prevailed it could only entitle the plaintiff to nominal damages, for the cause of action would be for the difference between the allegation of the existence of the judgment and the allegation of its registration; a difference wholly inappreciable in its effect on the plaintiff’s credit. But the distinction seems to me to be inconsistent with the very ground of our decision, and to be a mere petitio principii, because the only purpose served by the Register is that of informing those who inspect it of the existence of judgments, and not merely of the registration. Again this argument is met by going back a step. If the mistake had been made in England would the entry of the judgment in the Queen’s Bench here as a personal judgment not have justified the assertion that a judgment had been “recovered”? The privilege consists in the right to rely on the Register as an official record and as official evidence of the existence of those judgments which are registered there, and the fact which may be published is not merely that such-and-such a judgment has been registered, but that such-and-such a judgment has been recovered, as appears by the fact that it has been registered. It is true that every one who makes use of the Register does so “at his peril.” But what is the peril? If he quotes inaccurately, or draws an unwarranted inference from what appears upon it, or even publishes its contents knowing them to be erroneous, he does so at his own risk, but so long as he publishes only what appears on the Register or is officially evidenced by it, and does so in good faith, without negligence or malice, and for the legitimate object of giving information to those to whom he is entitled to give it, there is no peril. It is said that the special plea avers the judgment to be in fact existing, and therefore is not sustained. I think this plea may be sufficient, because it relies on the Register, and sets out its contents, and merely alleges what those contents would prove if they were accurate. But in any case, on the whole record and evidence, it now appears that the defendants published only what the Register justified them in assuming to be true, and “patent to all the lieges;” and therefore on the pleas of “no libel,” or even under Or. XXXIX., r. 8, we have all the materials before us necessary for finally determining that the defendants are entitled to judgment. *59
Barry, L.J.
I entertain serious doubts as to the conclusion at which we have arrived. First, is the Register of Judgments at all within the legal limitations of a privileged publication? The true foundation of the privilege is that they are proceedings in a Court of Justice. Does the Register of Judgments come within that category? Secondly, this publication does not profess to be a re-publication of the Register. It is an averment of a judgment, and no such judgment ever did exist in fact. The Register is a mere index for the convenience of the public. Is there any justification for any person saying, “I find in the Register such-and-such a judgment.” Those are the grounds of my doubts. But, having regard to the cases cited, I am not prepared to press my doubts to the extent of dissenting.