SUPREME COURT OF IRELAND
1 JUNE 2011
These are appeals in two libel actions which were tried together and in which it is convenient to give a single judgment since the issues arising on appeal are identical as between the cases.
On the 13th June, 2004, the defendants published the words complained of in one of its newspapers, the “Star Sunday”. The article, a photocopy of which is attached to this judgment, was published under a headline which read:
Siblings leading the underworld’s most dangerous armed gang.
Underneath that in very large letters, were the words:
BROTHERS IN ARMS.
Underneath that, again, were two photographs each showing a man apparently dressed in a white tee shirt but with his head pixellated and thereby rendered obscure except in outline. Underneath this was printed the words:
THE FAT HEADS
Pictured this week by Star Sunday, the brothers - aged 25 and 31 - are responsible for a series of lucrative armed raids over the
past four years.
Another headline read:
Massive CAB probe into pair’s four million euro fortune from bank raids.
Beneath that is a photograph which appears to be a still from the film “Heat” showing two armed robbers. Underneath that is printed the words:
INSPIRATION: Robert de Niro with Val Kilmer in Heat - although Gardaí say the pair are no de Niros.
The text of the article, as pleaded in the Statement of Claim is as follows:
THESE two brothers lead the most dangerous criminal gang operating in Dublin’s underworld today, Star Sunday can reveal. The notorious pair - dubbed the Fat Heads - have made a cool €4m from their crimes. They are now the focus of a massive investigation involving several specialist Garda units into a string of cash-in-transit robberies, gun crime and money laundering in West Dublin.
The Criminal Assets Bureau is also investigating their substantial wealth.
The pair each have a string of criminal convictions.
Their activities have even been brought to the attention of Justice Minister Michael McDowell - such is their fearsome reputation in the underworld.
Gardai and CAB officials believe the brothers - aged 25 and 31 - have benefited from a string of cash-in-transit robberies carried out since 2000. Among the raids attributed to the gang are: The theft of IRL£260,000 from a security van at Blanchardstown Shopping Centre in November 2001
Gardai believe the above list of armed robberies is the tip of the iceberg. One security firm has been targeted at least ten times by robbers loyal to the brothers, according to Garda information.
Gardai suspect the gang’s involvement in at least 60 armed heists in the past four years.
The brothers themselves claim to trade in horses and cars from a house in West Dublin. However, they move between various addresses in County Kildare, County Meath and Dublin.
They also have a string of cars at their disposal which they use to avoid Garda surveillance.
The gang’s activities have been brought to the attention of Justice Michael McDowell who expressed his concern at the level of gun crime in the State in recent months.
He has already announced plans for tougher sentences for those convicted of firearms offences after studying reports about the gang.
According to sources, McDowell was genuinely astonished at the volume of raids organised by the gang.
Garda HQ have now allocated extra resources into combating the brother’s gang.
Security companies have also been advised to step up their security and armed escorts are now being provided to all major cash-in-transit deliveries to Banks and ATM cash machines.
Detectives say the gang model themselves on the Hollywood Heat starring Robert de Niro. In the film, de Niro leads a high-tech outfit pulling off raids on bank vaults, armoured cars and cash in transit vans on the streets of Los Angeles.
While Gardai point out that the Fat Heads are “no De Niros”, they readily say the brothers are now the prime movers in the Dublin underworld.
A source said: “They are very up front. They associate with known criminals in the West Dublin area.
“They don’t trust anyone and have shown themselves to use violence against their enemies.
We have linked their gang to gangland murders and several shootings in West Dublin.
“Our information indicates that rival criminal gangs are extremely reluctant to take them on because of the sheer fire power they have,” explained the Garda source.
“The brothers and their gang are now the top dogs in the Dublin underworld. They have made about £4m from their activities and few are willing to cross swords with them,” added the source.
Detectives point the finger of blame at the brothers for turning West Dublin into a hotspot for gun crime.
A number of people were murdered on the brothers’ turf last year as a result of gangland feuds. A number of shooting incidents have actually happened in close proximity to the brothers’ family home.
While they appear to be penniless, Gardai believe that the brothers have invested hundreds of thousands in ‘front businesses’ and have acquired property abroad and in South Armagh.
Our source added: “The older brother is even organising discos at the weekend in an attempt to give himself some official source of income.”
Information gathered by Gardai suggests he has invested heavily in a nightclub enterprise. One brother is also in the building trade.
The other claims to deal in imported and second hand cars. He himself drives a souped-up sports car.
Gardai say the gang are almost impossible to place under surveillance.
“The older guy is a shrewd operator. He is aware that he is under constant surveillance. He is constantly on the move and never follows the same routine on any two days,” said one senior garda.
“A number of people act as look-outs around their family home. If they see a strange car parked near their home or anything suspicious, he will know in minutes. If he is not hanging around outside their house, he holds meetings in the fields around Dunsink Dump where he can’t be followed.”
Gardai consider the younger brother to be equally as cunning.
“They take no chances and have distanced themselves from committing the actual crimes. Instead they plan and teach other young criminals to do their bidding.”
The gang specialise in robbing cash-in-transit vans. Officers believe the brothers have devised systems to disable various security devices by the banking sector.
Hard cash is usually stored in special boxes which explode into a ball of red smoke if robbed.
The raiders disarm the devises by placing the cash boxes in a barrel of water, which prevents the box from emitting smoke.
The two brothers usually oversee the armed robberies from a safe distance.
In one recent robbery foiled by Gardai, officers stopped the two brothers driving a van near the scene of the crime.
When the van was searched, officers found a barrel of water in the van.
The attached photocopies permit the visual effect and layout of that and another article to be better judged.
The pleadings and issues arising
The plaintiffs issued proceedings for libel on the 16th August, 2004. A Statement of Claim was delivered on the 23rd September, 2004, and a defence, bearing the same date, 23rd September, 2004, was subsequently delivered. It is not clear how the Statement of Claim and the Defence bear the same date.
In the defendants’ defence which, together with the Statement of Claim, defines the issues of the trial, publication of the article was admitted. Significantly, however, it was denied, in each case, that the article was published of and concerning the plaintiff, or that the article was understood to refer to the plaintiff. It was then denied that the article bore the meanings alleged in the Statement of Claim or any meaning defamatory of the plaintiff. There was then a pleading that if the respective plaintiffs were identified by the publication then “the same are true in substance and in fact in their true meaning, but not in the meanings pleaded in the Statement of Claim”.
This is a most unusual pleading. The learned trial judge subsequently held, correctly in my view that it did not constitute a recognisable plea of justification. When confronted with this plea the plaintiffs raised a notice for particulars of the plea. The defendant replied to this by letter of the 1st February, 2006, in the following form:
In answer to the queries posed in your letter of the 24th January, 2006, the defendant answers as follows:
The balance of the letter is not immediately relevant.
This plea gave rise to legal argument before the learned trial judge, Ms. Justice Dunne, on the 14th and 15th February, 2006. On the latter day the learned trial judge gave a ruling in the following terms:
|In practical terms, and I think this key, I don’t think that the defendants in this particular case can advance these matters by way of suggesting that the article complained of is true in substance and in fact. I don’t see how even if they succeed in proving the various matters, for example, that they are suspected of crime, that they are thought to be involved in particular matters that have been set out, that that will result in a successful plea of justification .... I don’t think that they [the defence] are entitled to advance a plea which falls so far short of justification in the context of what is the meaning of the article as a whole in terms of where it stands. So far as that is concerned, it is out.|
In other words, it appears to me, and I did not understand it to be denied on the hearing of this appeal, that the learned trial judge ruled out any plea of justification. In this, in my opinion, she was undoubtedly right since the article contained multiple statements which were obviously statements of fact about the two brothers who are the subject of the article, whether identified in or not. These statements include, for example, the uncompromising headline:
Siblings leading the underworld’s most dangerous armed gang.
That is not a statement of opinion, or a suspicion, but a statement of fact. The very first statement of the article is:
|These two brothers lead the most dangerous criminal gang operating in Dublin’s underworld today, Star Sunday can reveal.|
Since this aspect of the case is not the subject of the present appeal, I forebear to quote further. The relevant fact is that the action proceeded to trial with no plea of justification. In other words the defendant did not contend at the trial that the article was true. However, prior to the trial the defendant had served a notice under Order 36, Rule 36 of the Rules of the Superior Courts. This Rule provides as follows:
|In actions for libel and slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before trial he furnished particulars to the plaintiff of the matters as to which he intends giving evidence.|
For centuries, it has been open to a defendant in a libel action, even though he cannot prove the truth of what he published, to bring evidence before the Court to show that the plaintiff, apart from the defendant’s publication, had so poor a reputation that the damages to which he would otherwise be entitled for the libel should be reduced or “mitigated”. This kind of evidence is called evidence in mitigation of damages. But it is strictly confined to evidence of the plaintiffs’ general bad reputation and the defendant is not allowed, for example, to introduce rumours or suspicions that the plaintiff had done what the article alleged or evidence of other discredible acts he has committed. The reason for this is that, if the law were otherwise, a plaintiff would have to put his whole life and every part of it “on the line” in order to rebut a specific libel. But for the defendant being confined in this way libel cases might go on indefinitely and a huge number of issues, for which the plaintiff could not be properly be prepared might be alleged.
It has been recognised for many years that there is a considerable danger that a defendant, under the guise of attacking the plaintiff’s general reputation will introduce material tending to suggest that what he published was in fact true, without committing himself to a plea of justification.
In any event, this case proceeded with just two issues raised by the defence. These were:
Was the article written of and concerning the plaintiffs’? Was it about Alan Bradley and Wayne Bradley? Were they identified in it either to all the readers, or to some group of readers such as those who lived in the area where the Bradley brothers live, family members, etc.?
If the jury accepted the evidence led by the defence as to the Bradley brothers’ reputation in fact, to what extent did this mitigate the damages to which they would otherwise be entitled?
Of these two issues, only the first could lead to a verdict for the defendant. This is because every plaintiff in a libel action must show that the words of which he complains were published “of and concerning” him. If he does not succeed in doing this he must lose the action because a vital element of the tort of defamation is missing.
This is what happened in the present case. The jury found that the words had not been published of and concerning the Bradley brothers and therefore they lost the case.
But before that happened, the jury (who obviously took a highly intelligent interest in the proceedings) asked the learned trial judge a direct question as to whether or not they could make use of the “reputation” evidence in deciding on the “identification” issue. The learned trial judge told them that they could not. Very shortly afterwards, having heard argument from counsel, she apparently became convinced, contrary to the previous ruling, that the jury were entitled to look at all the evidence in deciding the identification issue. But the jury were never told this. What happened in court is reconstructed in some detail later in this judgment. But another issue must first be noticed.
The second article
Some months after the defendant had published the first article, they published another one. The difference was that, on the second occasion, the article was clearly about Alan Bradley and Wayne Bradley. It said so in terms and gave their names. There was also published, as part of the second article a photograph of the first article as it had appeared in the defendant’s tabloid newspaper. A copy of this article, too, is attached to this judgment. It will be seen that headline is “I’m not the ATM bandit, accompanied by a picture of Mr. Alan Bradley and on another page a further headline “We are not ATM thieves” and underneath that paragraph “Dublin brothers say gardaí are barking up the wrong tree”. There is a picture, which this time is not pixellated or otherwise obscured of Alan and Wayne Bradley, who are named. Above that there is a picture of the previous article “Brothers in Arms”. Underneath the photograph of that previous article are the words:
STAR SUNDAY JUNE 13
We first told of CAB probe.
This article was published on the 22nd August, 2004, about two months after the first article. Both the photographs and the text clearly refer to the first article.
The story in the second article was centred on the fact that the two brothers had contacted “Star Sunday” to say that they were not behind the string of ATM robberies referred to.
Another central issue on this appeal relates to how that second article, and the defendants’ evidence of general reputation was dealt with at the trial.
The Jury’s question
During the jury’s deliberations, on Wednesday, 22nd February, 2006, the sixth day of the trial, the foreman of the jury asked a question as follows in open court:
We have one question that is based on the direction that was given to us in relation to how we would come to a decision on the two aspects of this case. It turns on the difference between identity and reputation. We were directed towards the fact that the burden of proving identification in this case rests with the plaintiffs. They present a number of pieces of evidence from their side that they claim identifies them in the article.
In the second part, the defence made an argument based on reputation that turns on the issue of damages. We were wondering if it is proper and correct to take into account the issue of reputation when we are looking at the issue of damages, if I make myself clear?.
The learned trial judge’s response to this extended into the next page of the transcript, and is set out below. The judge had previously ruled, as is set out in paragraph 13 of the defendants submissions:
.... that a newspaper article published by the defendant on the 22nd August, 2004, subsequent to the article of the 13th June, 2004, which was the subject matter of these proceedings was not admissible to establish identification.
The evidence as to reputation in question was principally the evidence of a garda inspector who said, amongst other things:
Within the police force, the Bradley brothers have, what would be described as a notorious reputation. I mean they are believed to be, from our perspective, they are believed to be what would be described as… their reputations in the police force is that they are serious criminals… armed robberies, particular in respect of automated banking machines, that is what is known as ATMs, bank links, which would be where you put your card into. That type of robbery in particular.
Relevance of this evidence
It will be recalled that the article to which the action related showed a picture of “the scene of the €180,000 ATM robbery at St. James’s Hospital”, and referred to other ATM robberies as follows:
The theft of €180,000 from a Securicor van making a drop-off to an ATM machine in St. James’s Hospital in July 2002
€420,000 robbed in a meticulously planned hold-up of a cash delivery van to the ATM at the Omnipark centre in Santry in August 2002
The robbery of €200,000 from an ATM at the Clontarf Branch of the Bank of Ireland in May 2002
The theft of €250,000 from an ATM machine near Swords, County Dublin in May, 2004.
As can be seen, the emphasis on ATM robberies is a feature of both articles, and of the Garda Inspector’s evidence.
It seems clear from this and from the article as a whole that they and the evidence of reputation might - it would be a matter for the jury - tend to identify the plaintiffs as the brothers who are the subject of the first article. However, the judge excluded, the second newspaper article, from consideration by the jury “when we are looking at the issue of identification”. As we are about to see, she also excluded the general evidence of reputation from the jury’s consideration of the identification issue.
Accordingly, between pages 155 and 157 the jury asked the question “… if it is proper and correct to take into account the issue of reputation, when we are looking at the issue of identification?”. The judge ruled:
I do not think there was any matter by way of reputation that could assist you on the question of identification, because the matters in relation to reputation are, relatively speaking, limited and I do not think there was anything in the matter which I have been dealt with in evidence in relation to reputation that would go to identity. So I think that the answer to your question is probably, at this stage, it is no.
Counsel then made submissions to the learned trial judge and she said, at page 158 of the transcript of Day 6; in the absence of the jury:-
If I thought that the jury were of the view that they cannot take into account the defendant’s evidence in coming to a conclusion on identity, then clearly that would be wrong.
On the following page she said:
I do not think that the matters that are relied on by the defendant by way of reputation could be matters which identify, but I want to make sure that the jury understand that they are entitled to look at the evidence given by both the plaintiffs and the defendants in coming to a view on identity even though the ....
Counsel for the defendant argued that the jury had already been correctly directed on the question and the judge decided to “leave it as it stands”.
In my view, the above extracts manifest a certain amount of confusion which came to afflict the case. There were two issues and two issues only before the jury. The first was as to whether the article complained of had been written “of and concerning” the plaintiffs’: did it identify them?
The second issue was as to the effect of the defendant’s evidence that the plaintiffs had a bad reputation, which evidence was offered in mitigation of damages.
There is absolutely no warrant in law for saying that in considering the first issue (or the second, where the principle is the same, but the first issue is what is relevant here) the jury is not entitled to have regard to all of the evidence in the case.
Where a plaintiff’s case is weak in certain regards, defending counsel must consider the question of whether, if they go into evidence, they will improve the plaintiff’s case, or even make up some essential element which is missing.
At the close of the plaintiffs’ case in this trial, there was, perhaps, only just enough evidence to get past a direction on the question of identification. But the defendant then led evidence, in a case where identification was an issue, in which a Detective Inspector spoke of the Bradley brothers as having a reputation for, inter alia, the robbery of ATM machines. The main picture in the article complained of showed the site of an ATM robbery and the text identified four separate ATM robberies in which it said “A gang led by two brothers” were involved.
There was clearly risk from the defendant’s point of view in leading this evidence. But they decided to take that risk.
The question of the foreperson of the jury was a very natural one where the jury had been instructed as to the two issues arising. It was not merely natural, it was perspicacious and intelligent. It received a negative answer, meaning that they could not consider the evidence led as to reputation in considering the issue on identification.
Very shortly afterwards, as appears from the extracts above, the learned trial judge had realised that this was incorrect and that the whole of the evidence was available to the jury in considering both issues. She said so in unambiguous terms. She also said she would tell the jury this. But in some way, which is not easy to identify precisely, simply from the transcript, that did not happen.
The above summarises the first confusion which arose at the trial. The jury were wrongly told they could not consider the “reputation” evidence on the “identification” issue. It was then decided to correct that incorrect instruction but this did not occur. Alternatively, though this is not stated in the transcript, the decision to “leave it as it stands” may reflect an unspoken acceptance of the defendants’ submission that the jury had already been adequately directed. I could not agree with such a conclusion, if it were arrived at, for the reasons indicated above and for the reasons given by the learned trial Judge and quoted above from pages 158 and 159 of the transcript for Day 6 of the trial.
The second confusion is the following. Though the learned trial judge came to the conclusion that the defendant’s reputation evidence was indeed available to the jury on the identification issue, she herself plainly did not think much of it as evidence. She said so in unmistakable terms at pages 157 and 159 of the transcript. The learned trial judge’s statement on the latter page has been quoted in full above.
The learned trial judge was quite clearly entitled to have her own view on the quality and content of the evidence. She was also entitled to express such a view to the jury. If she had done so, she would no doubt have told them that this was merely her opinion, that the matter of the meaning, credibility and content of the evidence was entirely a matter for them, and not for her. In fact, this did not arise because the judge did not alter the instruction to them that the reputation evidence was not available at all on the identification issue.
Effect of the foregoing
The defendants, the respondents of this appeal, maintain that even if they are wrong about the foregoing matter, they are entitled to rely on Order 58 Rule 7(2) of the Rules of the Superior Courts. This provides as follows:
A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence .... unless in the opinion of the Supreme Court some substantial wrong or miscarriage has been thereby occasioned in the trial ....
In order to see whether that condition is met in regard to the point discussed earlier in this judgment, one must first look at the actual verdict of the jury.
The verdict was given at 5.33pm on the sixth day of the trial, after the jury had retired about two hours previously, at 3.38pm. In the interval, at a time which is not precisely indicated on the transcript, the jury had come back and asked t he question discussed above.
It is clear from the foregoing that the question of whether or not the jury could have regard to the reputation evidence in relation to the identification issue had arisen not long after they had withdrawn and that their question about it was answered by the judge about an hour, or less, before they gave the actual verdict.
The first question left to the jury was as to whether the article had been published of and concerning the first plaintiff. The jury answered this “no”. They answered the same question about the second plaintiff in the same way. That was the end of the plaintiffs’ case and the defendants became entitled to a verdict on the general issue, which they got.
In those circumstances, when the jury addressed the question of identification on a basis subsequently stated by the learned trial judge herself to be an incorrect one it seems to me that a substantial wrong or miscarriage did indeed occur. The plaintiffs’ were entitled to have the question of identification addressed on the basis of all of the evidence in the case and that did not occur. The case is an unusual one in that the learned trial judge seems to have intended to correct the instruction to the jury but did not do so, perhaps because she accepted the defendant’s brief submission on the point.
In my opinion that is sufficient to resolve this appeal in favour of the plaintiffs. Since, however, a good deal of argument was addressed to another question, which is likely to arise again at a re-trial, I propose to address it here. This is the issue of the defendant’s subsequent publication.
Defendants’ subsequent publication
Where a defendant publishes one article which does not name a plaintiff or otherwise clearly identify him, and subsequently (as in this case) publishes another article which both names and identifies him, and which refers to the first article and actually includes a photographic representation of it, is the second article admissible in evidence for the proposition that the first article was published “of and concerning” the plaintiff?
As we are about to see, this simple question has led to conflicting judicial decisions which are difficult to reconcile and to much confusion in a number of Common Law countries. Most relevantly to the present case, there is conflicting English Authority which was cited both at the trial and on the hearing of this appeal.
The English Authorities
An extraordinary feature of the argument on this appeal was that it became quite clear that the main judgments in each of the apparently conflicting English Authorities were given by the same very eminent judge, Lord Denning MR, within six months of each other.
The confusing development of English law may be traced through successive editions of the well known and well regarded text book, Gatley on Libel and Slander. In the Eighth edition of this work (1981) it is said at para. 1308:
The plaintiff may give in evidence any subsequent article written by the defendant in which the libellous article is referred to, or the name of the plaintiffs’ mentioned, or indeed any facts or circumstances known to the persons to whom the words were published from which it can reasonably inferred that they understood the words to refer to the plaintiff.
The ninth and tenth (2004) editions treat the question in an identical form of words at para. 32.19 which is headed “Identification from a subsequent publication”. It says:
Although as a general rule a claimant cannot rely on events subsequent to publication to establish that the words referred, or would have been understood to refer to him (Grappelli v Derek Block  1 WLR 822). In certain circumstances evidence may be admissible of a subsequent publication naming the claimant for the purpose of identifying the claimant as the subject of defamatory allegations in which he is not named. In Hayward v Thompson  QB 47 the plaintiff complained of two articles published in a Sunday newspaper on consecutive Sundays in the first of which he was not mentioned by name. The judge’s ruling was that it was permissible for the jury to look at the second article to see to whom the first article referred, was upheld on appeal. This ruling has been applied and extended in Australia to allow a plaintiff claiming in respect of a defamatory item in a morning newspaper which did not name him to rely upon a television programme in which he featured broadcast later that day (Baltinos v Foreign Language Publications 6 NSWLR 85).
It can thus be seen that the very clear statement in the 1981 edition has been transformed over the ensuing twenty years or so into a much more nuanced and doubtful treatment. This, undoubtedly, is due to the great confusion which has arisen as a result of two cases in the English Court of Appeal, the first being Grappelli v Derek Block (Holdings) Ltd.  1 WLR 822. This case was heard before the English Court of Appeal (Denning MR, Templeman and Dunn LJJ on the 19th and 20th January, 1981. The other Hayward v Thompson was heard before the Court of Appeal in England (Denning MR, Baker and Rees LLJ) on June 2nd, 3rd, 4th and 5th, 1981. The judgment was given on the 22nd of that month.
In Grappelli, the plaintiff, Stephane Grappelli, an internationally known musician, had employed the defendants as his promoters. The latter purported to arrange concerts in various places in England for him. It appears that they did this without his authority and they subsequently told the owners of the venues that the concerts had to be cancelled because Mr. Grappelli was “very seriously ill in Paris” and that it would be surprising “if he ever toured again”. About five months later the defendants by advertisement and a press release announced a number of concerts to be given by the plaintiff at different places on dates which included some of the dates on which the first concerts were to have taken place. The plaintiff claimed damages for injurious falsehood, and for libel alleging that the facts gave rise to an innuendo that the plaintiff had given a false reason for cancelling the concert which he knew to be false. The defendant sought to strike out the allegation of libel and slander because the pleadings did not identify any members of the public who were alleged to acknowledge of the intrinsic facts supporting the innuendo. They failed before the Master and in the High Court but succeeded in the Court of Appeal. Denning MR said:
I would go by the principle, which is well established, that in defamation the cause of action is the publication of defamatory words of and concerning the plaintiff. The cause of action arises when these words are published to the person by whom they are later read or heard. The cause of action arises then: and not later.
We will refer to a New Zealand case which was not cited to the judge below. It is Simons Proprietary Ltd. v Riddle  NZLR 913. Blair J. seemed to me to put the position quite accurately when he said:
That seems to me to be correct. He emphasised it by saying that, if the person was liable in damages in those circumstances it would mean a great extension in the law of libel. He said it would be extending it much too far:
Dunn LJ, concurring, said at page 831:
Like Lord Denning MR I would prefer to deal with this on principle. I agree that a publication is an essential part of the course of actions; but once there is publication the cause of action is complete, and there is no room for the doctrine that cause of action can, so to speak, be allowed to be inchoate or lie dormant, until such time as some fact emerges which would transform an otherwise innocent statement into a defamatory one. That I believe to be the principle underlying the judgment of Blair J. in [the New Zealand case]; and on that ground I too would hold that these paragraphs alleging libel and slander cannot stand. I think the plaintiff should rely upon the allegation of injurious falsehood and I would allow the appeal’.
It will be seen, therefore, that the context of the remarks about reliance upon subsequent publications was that of an alleged innuendo which would allow a defamatory meaning in the original article to become clear.
The context of the next case, Hayward v Thompson, is very significantly different. This related to the so-called “Scott affair”. The “Scott affair” was an allegation by a man called Andrew Newton that he had been paid £5,000 to murder a Mr. Norman Scott, who had claimed to have had a homosexual relationship with Mr. Jeremy Thorpe, former leader of the Liberal Party. The article first published claimed that the names of two more people connected with the affair had been given to the police and that one was a wealthy benefactor of the Liberal Party. Mr. Hayward was a wealthy philanthropist resident in the Bahamas who had indeed given over £200,000 to the Liberal Party. He was not however named in the first article. A week later, however, a second article in the same newspaper headed “New name in Scott affair” named the plaintiff and also referred to him as the Bahama’s based millionaire who once gave the Liberal Party £150,000. The plaintiffs claimed damages for libel contained in these editions of the Sunday Telegraph. The trial judge ruled that the second article could be considered by the jury in order to determine to whom the first article referred. He said:
It seems to me, if you publish words of the nature which were published on the 9th April and then on April 16 identify the plaintiff as the person, that a grave injustice would occur if the plaintiff were not entitled to show that his identity had been established as the subject of the defamatory statement.
It was this statement that was upheld on appeal. Denning MR agreed that the second article was admissible in evidence so as to show that in the first article the author aimed at the plaintiff and intended to refer to him. He found that the principle in Grappelli did not apply where the original words were defamatory on the face of them, were “aimed at” or “intended to refer” to the plaintiff and the question was one of identification. Baker and Rees LLJ agreed and they also emphasised that the article of the 9th April was not an innocent one, as the original statements in Grappelli had been. It was apparently this fact that distinguished Hayward from Grappelli and other cases where the Court was dealing with an attempt to make an innocent statement defamatory by facts which came into existence subsequent to its publication. Sir Stanley Rees commented that if the evidence was not admissible:
.... it would be open to a newspaper to publish a virulent libel without identifying the person defamed but adding a statement that the victim would be identified in a week’s time. The newspaper could then a week later publish the name of the person defamed without attracting liability for libel.
Lord Denning MR at p.60 said:
The jury, no doubt, inferred that Mr. House (the journalist) knew the name all the time: and simply used the phrase about ‘a wealthy benefactor’ as a cover up hoping that it would give him an answer to an action for libel. It gives him no answer. The second article was admissible in evidence to show that in the first article Mr. House aimed at Mr. Jack Hayward and intended to refer to him: and therefore that the first article was published of and concerning Mr. Hayward.
Sir George Baker said:
.... that the article of April 9 was not ‘innocent’ is I think of importance when one comes to consider the other arguments for the defendants. [Counsel] says that the article of 16th April cannot be admitted to throw light on the article of April 9 and the judge was wrong in refusing to order that [the relevant part of the pleadings] be struck out.
He referred to the authorities including Grappelli, and distinguished it:
But there the Court was dealing with an attempt to make an innocent statement defamatory by facts which came into existence subsequent to its publication. That is clear from the adoption by Lord Denning MR of a passage from the judgment of Blair J. in Simons Proprietary Ltd. v Riddle.
Grappelli versus Hayward: Conclusion
It appears to me that in these two cases, the learned members of Court of Appeal in England who dealt with them considered that they were dealing with two quite different situations. In part, the distinction turns on the word “innocent” which is used in both cases, as the extracts cited above show. The first publication, that in Grappelli, was “innocent” in the sense that it lacked any defamatory content. It was merely a statement that Mr. Grappelli was seriously ill. To be seriously ill is a great misfortune but a statement to that effect is not normally capable of a defamatory meaning. A false statement that a person is seriously ill may also cause him considerable loss especially if he is a self employed performer like Stephane Grappelli, and that is the meaning of the statement at the end of the judgment of Lord Justice Dunn that the plaintiff should confine himself to the action for malicious falsehood. But the first publication in Grappelli was “innocent” in the sense that it was not capable of a defamatory meaning about the person to whom it related. It was only when, some months later, it transpired that the plaintiff was indeed going to perform elsewhere on dates which he had previously cancelled due to “illness”, that the innuendo that the plaintiff had lied about his reasons for cancelling the first commitments arose. The true facts appear to be that the agents had acted beyond their authority in committing him, without his knowledge, to the first set of dates. Rather than admit this, they had then invented the story of an illness in order to extricate themselves.
In the other case, Hayward, there is no doubt from the report that the first publication was highly defamatory. The very headline “Two more in Scott affair” is manifestly defamatory when it is realised that the Scott affair was, a conspiracy to murder. The article then went on to say that two more people “connected with” the affair had had their names given to the police, and that one was a wealthy benefactor of the Liberal Party. The meaning of the article is briefly and convincingly summarised by Sir George Baker in the first two paragraphs of his judgment:
‘In’ means ‘in’. The article of the 9th April, 1978 is headed ‘Two more in Scott affair’. What, asks the uninformed reader is the ‘Scott affair?’ On reading further he will discover that it is an allegation by a Mr. Andrew Newton that he had been paid €5,000 to murder a Mr. Scott, who had once claimed he had a homosexual relationship with Mr. Thorpe, the former Liberal leader. He would also discover that ‘police have been told’ that ‘a wealthy benefactor of the Liberal Party’ and the other man had ‘arranged for a leading Liberal supporter to be ‘reimbursed’ £5,000’ and that the names of the two men had been given to the police who must have already taken into custody a Mr. Le Mesurier described as ‘on police bail’. The article is by Christopher House, Crime Correspondent. So the reader can now expand the heading to ‘wealthy benefactor of the Liberal Party is involved in this payment of £5,000 to Newton to murder to Scott and one man has already been arrested and bailed’.
On this analysis it seems to me impossible to contend that the opening sentence of the article ‘The names of two more people connected with the Norman Scott affair have been given to the police’ means no more than that there is an investigation which may result in the wealthy Liberal benefactor being eliminated from the Inquiry or even, as happened, being a prosecution witness as was suggested to Chief Superintendent Challes in cross-examination.
In Hayward as in the present case, the words originally published clearly meant that a person, identified in the English case as a wealthy benefactor of the Liberal Party and in the Irish case as one of two brothers of a particular age which was accurately stated, were involved in serious crime which was described in considerable detail. The only thing lacking was an express statement of identity of the people in question. This information was later supplied by the same author and publisher who are responsible for the first article, in a subsequent edition of the same paper. In the second article in the present case, the paper actually boasted of being the first to reveal (in the original article) that the brothers, who are then named, were the subject of a “massive” CAB investigation.
I have already quoted the passage from the judgment of Sir George Baker in Hayward in which he distinguishes Grappelli. He went on to say that in Hayward, unlike in Grappelli, there was nothing innocent about the first publication.
Denning MR distinguished the earlier case in much the same way. At p.59 of the Report he said, referring to Grappelli:
It was there held that, where words in a publication were not on the face of them capable of a defamatory meaning, it was not permissible to bring in a subsequent publication so as to make them defamatory.
Lord Rawlinson [counsel for Hayward] submitted that that case did not apply where the words were defamatory on the face of them, and the only question was one of identification. Did they refer to the plaintiff? Or would they be understood as referring to the plaintiff? I accept Lord Rawlinson’s submission.
This distinction by Lord Denning was however based on his conviction that the second article shows that “the defendant intended to refer to the plaintiff and .... he is to be given credit for hitting the person whom he intended to hit”.
I cannot agree with the last quoted statements of Lord Denning in as much as they imply that intention is a necessary constituent of the tort of libel. I do not believe that proof of intention is necessary to constitute a libel action and I do not believe that, in general, the defendant’s intention is of relevance, except in the case where malice is in issue or the publication is said to be accidental. I agree with the statement of the learned editors of the 10th edition of Gatley (para. 32.19, footnote 73):
|It has to be said that Lord Denning’s emphasis on intention is somewhat in conflict with the established principle that save in the context of malice the intention of the publisher of a libel is irrelevant as regards his liability.|
This does not mean, however, that evidence that the same author and publisher have published a subsequent article linking the plaintiffs by name to the allegations previously made of two unnamed brothers of the same age as the plaintiffs, who are also brothers of the stated ages, is inadmissible and must be excluded from consideration in an action based on the first article. To do so would be highly unrealistic, in the sense that it would exclude from the jury’s consideration material which every person of normal intelligence would consider relevant to the question, who was the first article published about? It is one thing to say that intention is neither necessary nor sufficient to constitute a libel: it is quite another to say that a specific article undoubtedly published in the same newspaper by the same journalist was an employee of the same defendant, must be excluded from consideration on the question of identification.
There are a great number of old cases from unusual sources quoted in the various editions of Gatley I have mentioned above. In particular, there is an unaccountable emphasis on 19th century American State Court decisions. I intend to quote only from one of them, not because it is the judgment of the Supreme Judicial Court of Maine in White v Sayward (1851) 33 Maine R. 322, but simply because I think it puts the point very well. The Court said:
If subsequent publications were to be entirely excluded great injustice might take place. It would be in the power of a party so to frame an article published, in reference to the person intended to be affected, that although it might be perfectly understood in the neighbourhood of the one supposed to be accused, that he was referred to, and still be attended with great difficulty if an attempt should be made to satisfy a jury upon the point. And the article may have been published under such circumstances and in such terms that it may be supposed that he was influenced by none but pure motives and a sincere desire to prevent an imposition on the public and upon individuals. Subsequent publications, made at a time when the author was less cautious, not libellous in themselves so much as containing a reference to the former article complained of, explanatory of the meaning and exhibiting the motives and designs of the publisher would be pertinent.
The points made in this passage are graphically illustrated in a much more recent case, a judgment of the Court of Appeal for Ontario, Misir and Metro Orthopaedic and Rehabilitation Centre Incorporated v Toronto Star Newspapers Ltd. (1997) 105 O.A.C. 270. The case seems amply to illustrate the proposition that, in defamation, the most improbable facts may easily occur. The judgment of the Court is that of Laskin JA.
It is central to an understanding of this case to note that by reason of s.5(1) of the Canadian Libel and Slander Act, 1990, an intending plaintiff must serve a notice on the defendant, within six weeks after the alleged libel has come to his notice. In the case I am discussing the Toronto Star published nine articles about Ontario’s car insurance system, alleging fraud against public officials, lawyers and doctors. These were published between May 13 and May 17 1995. The titles of the article are set out at para. 4 of the judgment and give a clear idea of the sort of journalism that was being practised. All the articles were by the same person. It was alleged that an organised ring had defrauded 29 insurers of $1.1 million by means of 240 suspicious car claims. None of these articles referred to the plaintiff, who was a lawyer, nor an associate of his, S., who was a doctor.
On the 30th September, 1995 the Toronto Star published the final article in the series, written by the same journalist. This was well over six weeks since the publication of the last of the original batch of articles. This article did name Misir and his corporation Metro Orthopaedic. It also condemned the activities of Dr. S. and emphasised the “interesting web of connections between Misir and Dr. S.”.
The plaintiff served the notice required by the statute on October 11th 1995 and relied on the last published article, that of September 30th, which for the first time named Miser and his corporation “thereby clearly and directly raising the implication that the contents of the earlier articles are directed towards Miser and Metro Orthopaedic.
The similarity to the present case is considerable. The plaintiff was seeking to rely on a subsequent article to prove that he and his company are the persons about whom the earlier articles were written.
The defendants then brought a motion before delivering a defence. They claimed that the earlier libels were barred, having regard to s.5(1) of the Libel and Slander Act already referred to. They also asked the Court to strike out as disclosing no reasonable cause of action the plaintiff claims for libel in the earlier articles. The motion judge dismissed the defendant’s motion and the plaintiffs were also successful on appeal. In the judgment referred to both Hayward and Grapelli, both cited above, and discussed at para. 16ff. The judgments of Denning MR and of Rees LJ are extensively cited. Laskin JA concluded, at para. 18:
Applying these principles, the trier of fact will be entitled to find that the May articles were defamatory of the plaintiffs because of the publication of the September 30th article. Alternatively, the trier of fact may be entitled to treat the separate publications, the May and September articles, as a single libel ....
The decision of the Supreme Court of Canada in Botiouk v Toronto Free Press  3 SCR 3 supports this approach. In Botiouk three documents were alleged to be defamatory. The trial judge, also Caruthers J., held that
There was, apparently, a judicial discretion to do this and the trial judge did so, upon request. The judgment continues, at para. 19:
In upholding the trial judge’s decision, Corry J. for the majority of Supreme Court of Canada observed at page 26;
Laskin J.A. also stated, at p. 5 of the judgment:
The trier of fact can look to the September 30 article to see to whom the previous 11 [sic] articles referred. A newspaper cannot avoid an action for libel by publishing a series of defamatory articles but only linking the plaintiff to defamation by identifying them in the last article.
I respectfully agree with the learned Canadian judges. I do not think that there is necessarily a contradiction between the judgments, even those of Denning MR, in the two English cases cited. They were dealing with quite different circumstances. One was an attempt to establish that an innocent earlier publication could be rendered defamatory by a consideration of a fact - the advertisements for the later concerts - which did not arise at all until after its publication. I fully agree that that is inadmissible because of the unfairness referred to in several of the judgments. The issue in Hayward was quite different. The defendants published an article whose content was clearly defamatory and not “innocent” as the learned English judges put it, about two unnamed men. Subsequently it published further material which clearly identified one of the men, Mr. Hayward. I have referred to cases separated by almost a century and a half which point to the injustice which would arise if a defendant could avoid liability for a gross libel - such as an allegation of conspiracy to murder or other gross criminality - simply by publishing the article which identified the plaintiff separately and after the main defamatory publication, whether one week after as in Hayward or a number of months after as in Misir and in this case.
Some more general observations
This case illustrates some of the major deficiencies in libel actions which make them unduly prolonged, unduly expensive, and extremely unpredictable in the course.
The first is oddity of pleadings. The defendant put in a defence here which was resembled but was not, a plea of justification.
When their plea was particularised, it turned out that the defendants were prepared to defend merely the proposition that the brothers who are the subject of the article were suspected by the gardaí of committing serious crimes. If that was all the article they had published said, that defence would be quite appropriate. But the article went much further and stated in terms as a statement of fact that the brothers in question were involved in serious crime. It sought to obscure this inconsistency by saying that that was the true meaning of the article, which is manifestly false.
This plea remained on the record for a number of years. It was eventually found, quite correctly, not to be a plea of justification and was disallowed. But this was after the action had begun with the result that, until shortly before the evidence started, no-one in the case, not the parties or the judge - knew what the issues in the case actually were.
In my view, a defendant who wishes to plead justification must realise that he must justify the article actually published. In some cases there may be some genuine doubt as to its meaning: there is none here.
Odd forms of pleading such as this may arise in circumstances where the defendant realises that he cannot justify what he actually printed but believes he may be able to justify something not dissimilar. Accordingly, he pleads that the article means something other than what the plaintiff alleges and that, in this sense, it is true.
A plaintiff confronted with such a plea, in order to ensure an efficient and relatively brief hearing, which is no more expensive than it needs to be, should in my view consider bringing an application to the Court by way of motion to decide whether or not the plea is a good one, and to resolve any genuine issues of meaning. In practice, this counsel will be of no great use since the length of time required to bring on a substantive motion to a proper hearing, and still more to bring the result of such hearing to appeal, is now very great indeed. But that is not something the Courts can remedy.
Secondly, there is laxity in applying the rules of evidence. Although, as stated elsewhere in this judgment, a defendant is entitled, if he can, to bring evidence of the plaintiff’s general bad reputation with a view to mitigating damages, this entitles him only to bring general evidence of reputation. In the present case, the evidence went far beyond that and one of the defence witnesses, in particular, was allowed to make statements of fact about the plaintiff which are quite inadmissible under this heading. Where evidence of this kind is sought to be led, it must be tightly controlled, confined to the relevant area of the plaintiff’s life, rigidly exclude hearsay and avoid statements of fact, unless, of course, cross-examination opens the way to their introduction.
Thirdly, much great effort must be made to ensure that the pleadings in a defamation action reflect the actual issues between the parties. At present they are sometimes quite simply competitions in ingenuity between the advisers of the various parties. The plaintiff may exaggerate the defamation or its consequences. The defendant often wants to say as much as possible that is deleterious of the plaintiffs’ while not pleading justification. In order to do this, an unfortunate obliquity creeps into the pleadings, unnecessary and irrelevant issues are raised and every effort made to ensure that the result of the trial will turn on something quite other than the factual issue between the parties. The issue here seems to me to be as simple as could be, is what the Star said about the Bradleys is factually correct, in whole or in part? But the argument between the parties both at the trial and even more so on the hearing of this appeal wandered very far from this issue which, though grave, is easily stated. It is very much to be hoped that pleadings will address the actual issue between the parties and that mere ingenuity or the introduction of unnecessary legal issues can be avoided.
I would set aside the verdict of the jury and direct a retrial on two separate grounds. The first is that the jury were wrongly told that they could not consider a particular section of the evidence, the defendants’ evidence as to reputation, in considering the issue of identification. The second ground is that I believe that the second publication is clearly capable of identifying the plaintiffs as the subjects of the first article. Whether the jury accepts that it does so or not is entirely a matter for them in any retrial.
The Star Sunday on 13th June 2004 published a sensational article alleging highly serious organised criminality against two unnamed “Brothers in Arms,” accompanied by two digitally disguised photographs captioned “The Fat Heads.” In a later article, published after the plaintiffs had sued, the newspaper revealed that the original article did, in fact, refer to the plaintiffs.
A High Court jury dismissed the plaintiffs’ separate claims for damages because the jury found that they were not identified in the article. Two principal points arise for consideration:
whether the learned trial judge (Dunne J) was right to exclude from the jury's consideration evidence of the subsequent article which indisputably identified the plaintiffs and referred to the original article;
whether the learned trial judge was right to admit evidence called by the respondent in mitigation of damage from Garda witnesses of the plaintiffs’ general bad reputation.
There are other two other grounds of appeal. The jury clearly were not convinced by the evidence of identification called on their behalf; they asked the trial judge whether they could take into account, on that issue, the evidence called by the defendants of the plaintiffs’ general reputation. The learned trial judge told them that they could not. There is also an issue concerning the exclusion of evidence of one witness on the identification issue. Hardiman J, in the judgment which he has delivered, deals principally with the first ground which I have mentioned in paragraph 82 and with the way in which the learned trial judge responded to the jury’s question.
The defendant publishes a newspaper called "The Star Sunday," a Sunday version of its daily newspaper. It has a circulation of between 50,000 and 60,000 copies.
On 13th June 2004, The Star on Sunday contained an article covering two pages. The first page had a very large heading, "BROTHERS IN ARMS, under a smaller heading, “INSIDE GANGLAND, Siblings.” Under those headings were two large photographs digitally disguised to make the subjects unidentifiable. Underneath the photographs appeared the words, “THE FAT HEADS,” and a statement that the subjects “the brothers—aged 25 and 31—are responsible for a series of lucrative armed raids over the past four years.”
The second page of the article was headed across the page: "leading the underworld’s most dangerous armed gang.” In the middle of the page was a heading: “Massive CAB probe into pair’s €4m fortune from the bank raids.”
The article appears under the name of John Mooney, Crime Correspondent. Its introductory paragraphs are as follows:
THESE two brothers lead the most dangerous criminal gang operating in Dublin's underworld today, Star Sunday can reveal.
The notorious pair -- dubbed the Fat Heads -- have made a cool €4m from their crimes.
They are now the focus of a massive investigation involving several specialist Garda units into a string of cash-in-transit robberies, gun crime and money laundering in West Dublin.
The Criminal Assets Bureau is also investigating their substantial wealth. The pair each have a string of criminal convictions.
Their activities have even been brought to the attention of Justice Minister Michael McDowell - such is their fearsome reputation in the underworld.
Gardai and CAB officials believe the brothers -- aged 25 and 31 -- have benefited from a string of cash-in-transit robberies carried out since 2000 ....
There then follows a list of 10 thefts and robberies alleged to have been carried out on security vans, at ATM machines and some unidentified premises in the Dublin area. The rest of the article gives accounts of large-scale criminal activity, the brothers are alleged to have carried out, the strings of cars used, the methods used to avoid Garda surveillance and their use of violence. The article claims to have linked the gang “to gangland murders and several shootings in west Dublin.” It is alleged that they turned West Dublin "into a hotspot for gun crime," that, while appearing to be penniless, they have invested hundreds of thousands in ‘front businesses,’ in short, that they are the "top dogs in the Dublin underworld." Hardiman J has quoted the article in full in the judgment which he has delivered.
The article does not name the brothers, although the nickname "the Fat Heads" became an issue at the trial.
The plaintiffs’ solicitors wrote a letter to the defendant on their behalf on 7th July 2004, complaining about the article and alleging that it identified them, in particular by the use of their nicknames and personal details. The letter called for a retraction, an apology and an agreement to pay damages. The defendant did not reply at that time. The plaintiffs commenced these actions by the issue of a plenary summons on 16th August 2004.
On the 22nd August 2004 The Star Sunday published a second article under the name of John Mooney with the title: “WE ARE NOT ATM THIEVES.” This article identifies each of the plaintiffs by name. It refers to the plaintiffs’ solicitor’s letter. Referring to the demand for a statement that no allegation was being made against the plaintiffs and their threat to sue, it says that senior gardaí have confirmed that they were the focus of a special investigation into armed theft and cash-in-transit robberies. It repeats the general gist of the article of 13th June and includes a reduced size facsimile of it. It is also accompanied by two photographs of the plaintiffs, this time undisguised and easily identifiable.
The pleadings in the case at present before the Court relate only to the article of 13th June. It emerged during the hearing in the High Court that the plaintiffs had issued separate proceedings in respect of the article of 22nd August. Those proceedings are not before the Court. Nonetheless, the article of 22nd August has played an important role in the proceedings on the issue of identification of the plaintiffs.
Each of the plaintiffs delivered a statement of claim on 23rd September 2004 in which, it is pleaded that the article with the photographs "referred and were understood to refer to the plaintiffs."
Each statement of claim alleged that the published words bore the following defamatory meanings relating, respectively, to each of the plaintiffs:
that the plaintiff was one of the leaders of the most dangerous criminal gang operating in Dublin's underworld;
that the plaintiff was guilty of carrying out armed raids and robberies;
that the plaintiff made €4m out of the proceeds of cash-in-transit robberies, gun crime and money laundering;
that the plaintiff was guilty of murder, violence and intimidation;
that the plaintiff was guilty of gun crime and money laundering;
that the plaintiff organised various people to carry out armed raids, shootings and gangland murders on his behalf.
The defences filed constituted seriatim denials: they denied that the article referred to the plaintiffs and that it bore any of the defamatory meanings pleaded. It was also pleaded that if, in each case, the plaintiff was identified by the words complained of those words were true in substance and in fact.
When asked to deliver particulars of the plea of justification in each case, the defendant's solicitors replied that each plaintiff was “suspected” of being involved in serious crime and that there were "reasonable grounds for that suspicion." The letters furnishing particulars referred to a number of other matters of suspicion such as that the plaintiffs had been brought to the attention of the Minister for Justice, that they had been stopped and searched, that they had engaged in police surveillance activity, had associated with major crime figures and led a lavish life style which could not be supported from the occupations which they admitted to pursuing. The particulars did not contain any allegation that either of the plaintiffs had, in fact, committed any of the many crimes attributed to them by the article, save that, they had committed the crimes of which they had been convicted: in the case of Wayne Bradley, this was one road traffic offence.
The defendants’solicitor, while replying to the request for particulars of justification, also provided particulars of the character of the plaintiffs, purporting to rely upon Order 36, rule 6 of the Rules of the Superior Courts in the following terms:
the reputation that the plaintiff has of being a man engaged in the most serious crime.
the reputation that the plaintiff has of being a man engaged in crime including but not limited to robbery and gun crime.
the reputation that the plaintiff has of being a leader of a criminal gang.
the reputation that the plaintiff has of being a man of whom his community is afraid.
the matters set out under (1) above. [these were the purported particulars of justification, already referred to]
of the plaintiff’s reputation for having acted in the way described at (1) above. [see paragraph e)]
The two actions came on for joint trial before Dunne J in the High Court on 14th February 2006. At the commencement of the trial, counsel for the plaintiffs objected to the defendant maintaining the plea of justification on the basis that an accusation of the commission of a crime cannot be justified by proof that the plaintiff was suspected of that crime. Dunne J ruled that the article was clearly capable of bearing the meaning that the plaintiffs were leaders of the most dangerous gang operating in Dublin's underworld, were guilty of carrying out armed raids and robberies and of murder, violence and intimidation as well as gun crime and money laundering. She ruled, however, that the defendant would not be permitted to advance the plea of justification, since the particulars furnished did not meet the sting of the libel. An allegation of suspicion was not the same as a plea that a person is actually guilty of the particular offence alleged.
The trial lasted for six days. The plaintiffs each gave evidence. They said that they identified themselves and each other principally by reference to the accompanying photographs and the nickname “fat head,” by which each of them said that he was known. A number of other witnesses gave evidence of recognising the plaintiffs as referred to in the article, generally by reference to the photographs and to the nickname “fat head.” Some also associated the plaintiffs with details such as references to dealing in cars or in horses. One witness, Sandra Browne gave evidence of buying the newspaper and of herself identifying the plaintiffs, but the learned trial judge ruled that she could not give evidence of what others said to her on that occasion. This ruling forms one of the grounds of appeal.
The defendant called two members of the Garda Síochána to give evidence of the reputation of the plaintiffs. The defendant also called a Parish Priest from Finglas South, but the learned trial judge directed the jury to disregard his evidence as not coming within the scope of the reputation evidence she had been prepared to admit.
There were two questions on the issue paper for the jury. There was no possible doubt that the article was defamatory. The only question on liability was whether the plaintiffs were identified in the article. The jury found that they were not and did not have to consider the second question, i.e., damages.
Issues on the appeal
The arguments on the appeal have centred on two points. The appellants complain that the learned trial judge wrongly excluded evidence bearing on the issue of identification and that she incorrectly directed the jury, in answer to a question, relating to the same issue. They also complain that the evidence of reputation was incorrectly admitted and, in any event, that it exceeded what had been permitted by the learned trial judge.
The major controversy concerns the trial judge’s ruling excluding the second article published by the defendant from evidence. This is a point of some difficulty and calls for detailed consideration of some English authority.
Evidence of Sandra Browne
I propose to consider, in the first instance, the ruling made regarding the proposed evidence of the witness, Sandra Browne.
Ms Browne gave evidence that she had known the plaintiff, Alan Bradley, from childhood and also that he was called "fat head." She said that on Sunday 13th June 2004, the day of publication of the article, she had been at the Finglas market, that a huge number of people had mentioned the article to her and that, as a result, she bought the paper. She had no doubt that the article concerned the plaintiffs.
The learned trial judge had ruled, in advance of her being called, that she could not go beyond evidence that her attention was drawn to the article as a result of conversations. Counsel for the plaintiffs had told the judge that "after Mass on Sunday, everyone was talking about the Bradleys.” It appears that, in fact, these events happened at the Finglas market. Counsel for the defendant had argued that evidence of this sort had to be treated with caution because it was not possible to cross-examine the people who are alleged to have said the various things ascribed to them.
It is unsatisfactory and unfortunate that we do not know what evidence Ms Browne in fact wished to give. It is notable that the learned trial judge expressed the view that it would not be "appropriate that we have a witness reporting on the reactions of other people who are not before the court to see what those other people were doing, thinking, talking about.” I propose to consider this matter on the assumption that the witness would have given evidence that other people informed her that the article was about the plaintiffs: counsel had said people were “talking about the Bradleys.”
Counsel for the plaintiffs cited the following passage to the trial judge from paragraph 34.20 of Gatley:
Evidence may be admissible that the claimant has been identified as the subject of the article, even though the means of identification or the reason why the claimant was connected with the libel, is not established. Thus evidence that the claimant was pointed out and made the subject of ridicule and laughter at a public meeting, shortly after the publication of the libel is admissible “as identifying the subject of the libel and as proof of the consequences necessarily resulting from its publication.” The claimant can give evidence about persons who made contact with him, and by of their contact, conduct or statements had indicated that they identified him as the subject of a libel. Evidence of anonymous telephone communications to the claimant after the publication of the libel are also admissible, although the jury should be warned to treat such evidence with caution. Moreover where the libel takes the form of a statue, picture or caricature, statements made by persons looking at it are admissible in evidence to show that they understood it to represent the claimant.
On this appeal, the appellants have relied on the authority cited for the proposition advanced in the penultimate sentence, an English High Court decision at first instance, namely Jozwiak v Sadek and others  1 W.L.R. In fact they could have cited a decision of this Court to the same effect. First, I will refer to Jozwiak.
The facts of that case were as follows. An article in “The Polish Daily”, a newspaper circulating among the Polish community in London, was written as a purportedly fictitious account of the suicides of two people who had hanged themselves because of financial difficulties: it suggested that their difficulties had been caused indirectly by the actions of a man who was the chairman of an association. There had in fact been two suicides in those circumstances in the Polish community. At the relevant time the plaintiff was the chairman of an association of business people in the Polish community. The issue was whether the plaintiff was identified in the article. Ormerod J admitted evidence of statements made by persons at a meeting of the Polish community in London showing that they identified the plaintiff as the person referred to in the article.”
The judge referred to a very old case of Du Bost v Beresford (1810) M. & P., where Lord Ellenborough held that "the declarations of spectators while they looked at the picture in the exhibition room, or evidence to show that the figures portrayed were meant to represent [ certain persons].” Ormerod J also cited Cook v Ward (1830) 2 Camp. 511.
As it happens both the decisions to which Ormerod J referred were also cited in the High Court in Fullam v Associated Newspapers (1953-4 Irish Jur. Rep. 79). That was a libel action by a former renowned international footballer. The libel questioned his ability to kick with his right foot. At trial the defendant sought to introduce evidence of words and comments of a crowd at a football stadium and jeering cries of men in his own neighbourhood for the purpose of identifying him as the subject of the libel. Haugh J admitted the evidence. On appeal to this Court it was conceded that Haugh J had been correct. (see Irish Jur. Rep. 1955-56 45).
The respondent, in written submissions, accepts the principle set out in the passage quoted above from Gatley.
It might be thought that the admission of such evidence constitutes some form of exception to the hearsay rule. Evidence is given of comments, remarks often insulting, made by third persons (not witnesses) saying or implying that they thought the article referred to the plaintiff. I do not think that it should be considered as such. The question is whether the plaintiff in a defamation action is identified in the article of which he complains. If he can show that persons, who have read the article, have identified him, that is evidence of that objective fact, which can be admitted for consideration by the jury.
I believe that the ruling of the learned trial judge was unduly narrow. Once the witness was allowed to say that the people at the Finglas market had said something which caused her to buy the paper, she should have been permitted to give evidence of the fact that they identified the plaintiffs as the persons named.
Admissibility of the second article
This is a larger and more difficult issue and calls for consideration of one of the more controversial judgments of Lord Denning, which, in addition, appears to be in conflict with at least one decision of this Court.
Counsel for the plaintiff urged the trial judge to admit in evidence the article published by the defendant on 22nd August 2004 for the purpose of showing that the plaintiffs were the persons identified in the first article. Counsel relied on the decision of the Court of Appeal in England in Hayward v Thompson  1 Q.B. 47, principally for the proposition that, where the defendant aimed at or intended to refer to the particular person, it should be treated as having referred to him. Counsel for the defendant supported the application of an objective standard and relied on the decision of this Court in Murphy v Times Newspapers Limited [ 2000] I.R. 522.
The learned trial judge declined to admit the second article in evidence. She considered that Lord Denning had gone further than the law permits. She held that there must be a complete cause of action in a defamation action at the time of publication. The question was whether the words were understood to refer to the plaintiffs. The test was an objective one. It was not admissible to rely on matters arising subsequent to publication.
The appellants, in their written submissions, continue to place their principal reliance on Hayward v Thompson. They shifted their emphasis from Lord Denning to the other two judges, Sir George Baker and Sir Stanley Rees. At the Hearing, Mr Paul O’Higgins, Senior Counsel, resiled from reliance on evidence of intention. He submitted that the second article simply said that the first article referred to the plaintiffs.
One of the fundamental principles of the law of defamation is that the intention of the publisher is irrelevant to his liability if what he publishes is defamatory. This is most clearly demonstrated by the famous case of Hulton v Jones  A.C. 20, a case which raised the converse issue, whether a publisher who publishes a libel innocent of all knowledge that it refers to a particular person is, nonetheless, liable to that person. A well-known newspaper published an article describing the attendance at a motor race at Dieppe. It described the antics, intending to refer to a fictitious person, of one Artemus Jones, and said of him that he was “with a woman who is not his wife, who must be, you know - the other thing!' It added: “Really, is it not surprising how certain of our fellow-countrymen behave when they come abroad? Who would suppose, by his goings on, that he was a churchwarden at Peckham?” The real Artemus Jones was not, of course, a chrchwarden at Peckham or anywhere else. He was a barrister on the North Wales Circuit. Nonetheless, a majority in the Court of Appeal and the House of Lords unanimously held that the test was not whether the defendant intended to refer to the plaintiff but whether the words published were understood by reasonable people who knew the plaintiff to refer to him.
Lord Loreburn L.C. put it as follows:
A person charged with libel cannot defend himself by shewing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. He has none the less imputed something disgraceful and has none the less injured the plaintiff. A man in good faith may publish a libel believing it to be true, and it may be found by the jury that he acted in good faith believing it to be true, and reasonably believing it to be true, but that in fact the statement was false. Under those circumstances he has no defence to the action, however excellent his intention. If the intention of the writer be immaterial in considering whether the matter written is defamatory, I do not see why it need be relevant in considering whether it is defamatory of the plaintiff. The writing, according to the old form, must be malicious, and it must be of and concerning the plaintiff. Just as the defendant could not excuse himself from malice by proving that he wrote it in the most benevolent spirit, so he cannot shew that the libel was not of and concerning the plaintiff by proving that he never heard of the plaintiff.
That passage was quoted by Keane J, as he then was, when giving judgment for a unanimous Supreme Court in Murphy v Times Newspapers Ltd and others, cited above. The somewhat unusual facts of that case were that two brothers, both named Murphy, brought defamation actions arising from an article in The Sunday Times concerning IRA terrorism. The defendant successfully pleaded justification in an action brought by the first brother. When the second brother sued on the same article, the defendant again pleaded justification. The plaintiff objected on the ground that, since the jury in the first action had found the words complained of to be true in substance and in fact insofar as they accused the first plaintiff of IRA activity, they should not be allowed to raise the same plea against a different person. Keane J dismissed that submission, at page 530, in the following forceful terms:
That proposition is, in my view, wholly unsustainable. If the defendants are in the position that two plaintiffs in successive actions can satisfy the jury that an article, although clearly written about one person was capable of being understood, and was, understood, to refer to each of the plaintiffs, the defendant is entitled to rely on whatever defences are open to him at law, including a defence in these proceedings that, although he never intended the words to refer to the plaintiff in these proceedings, they are nonetheless true concerning him, so far as the allegation of being a prominent member of the I.R.A. is concerned. That conclusion flows inevitably from the fact that the intention of the writer is immaterial when one is determining whether the words complained of are not only defamatory but were understood to refer to the particular plaintiff concerned. If the proposition contended for represented the law, the plaintiff in these proceedings, assuming that he satisfied the jury that the words were understood by one or more persons to refer to him and were defamatory, could recover damages, although the defendants were in a position to adduce evidence before the jury that the allegation in question was true.
Among the better known cases which have restated the irrelevance of intention in defamation are Youssupoff v Metro-Goldwyn-Meyer (1933) 50 TLR and Newstead v London Express Newspapers Torts  1 KB 371. The test is an objective one. It does not depend on the intention of the writer. The test is well established in Irish law. (McMahon and Binchy Butterworths Dublin 2000 at paragraphs 34.111 to 34.114) and implicitly recognised by the Oireachtas in enacting section 21 of the Defamation Act, 1961 permitting the limited defence of an offer of amends for cases of innocent defamation. The Law Reform Commission Consultation Paper on The Civil Law of Defamation (March 1991), of which Mr Justice Keane was then President dealt with the issue under the heading:
At common Law the test of identification does not take into account the intention of the defamer.
The foregoing authorities surely dispose, at least so far as Irish law is concerned, of the statement of Lord Denning at page 60 of the report in Hayward that the defendant should “be giving credit for hitting the person whom he intended to hit.” This statement is a curious echo of an exchange which took place in Hulton v Jones, where Lord Loreborn responded to a suggestion from counsel that the question was “who was meant”, by asking: “Is it not rather who was hit?”
Nonetheless, Hayward concerned successive publications and , to that extent, is relevant. The plaintiff was a wealthy philanthropist and generous supporter of the Liberal party at the time of sensational goings-on, the Scott affair, surrounding that party’s leader in the 1970’s. On 9th April 1978 the Sunday Telegraph published an article which, without naming the plaintiff, stated that the names of two more people "connected with" the affair had been given to the police and that one was "a wealthy benefactor of the Liberal party." On 16th April, it published a second article naming the plaintiff and referring to him as "the Bahamas-based millionaire, who once gave the Liberal party £150,000," and said that the police wanted to interview him.
The plaintiff brought an action in respect of the two articles. At the trial the judge ruled that the jury could look at the second article in order to see to whom the first article referred and that they were not to bring in separate verdicts.
It can be seen immediately that the Hayward case can be distinguished on the ground that the plaintiff brought a single action in respect of the two publications, that there was a single award and that this was upheld on appeal.
The relevant part of the appeal, for the purposes of the present issue, is whether the trial judge was correct to permit the jury to look at the second article to see whether the first article referred to the plaintiff. On this issue, Lord Denning said at page 60:
It is that the words should be defamatory and untrue and should be published "of and concerning the plaintiff." That is, the plaintiff should be aimed at or intended by the defendant. If the defendant intended to refer to the plaintiff, he cannot escape liability simply by not giving his name.
He also referred to other evidence from witnesses who said that they had identified the plaintiff when they read the first article. Neither Sir George Baker nor Sir Stanley Rees decided the matter on intention. The former laid greatest emphasis on the other evidence identifying the plaintiff. The latter seemed to be most impressed (see page 72) by the three circumstances that
the original publication is defamatory;
when the second publication relied upon explicitly identifies the person defamed; and
it is published by the same party who published the original libel.
In considering the relevance of the Hayward case, I would have to emphasis that the principle of intention as the test for identification of a plaintiff in the words complained of as pronounced by Lord Denning is inconsistent with Irish law. I would prefer the reasoning of Sir George Rees. The key points are that the first article was defamatory; the second article was published by the same publisher; it espressly referred to the plaintiff and to the first article.
I would add that the principle that intention is irrelevant is a sound one. As already stated, the Oireachtas intervened by enacting section 21 of the Defamation Act, 1961 (now repealed) to mitigate the effects of innocent defamation. There are sound reasons of principle for not making intention the test. The press frequently prints stories concerning many sorts of wrongdoing, without identifying the miscreants. There may be many reasons. They may not have sufficient evidence to stand up in court as a justification defence. They may be in fear. Stories often develop piece by piece. Journalists may be motivated by a wish to protect persons. The stories may, nonetheless, be of public importance. If intention were to become the test, it would, for example, be open to a person not named in an article to seek to establish intention by means of discovery or interrogatories. The test for identification would cease to be whether the words, construed objectively, referred to the plaintiff, but rather whom the writer had in mind.
I now turn to the present case. There are unique circumstances which persuade me that the learned trial judge should have admitted the second article into evidence. Firstly, the second article constitutes a more or less explicit republication and reference back to the first article. The entire two pages of the first article are produced in facsimile in the second over a caption: “STAR SUNDAY JUNE 13: We first told of CAB probe.” That, in itself constitutes a complete republication of the first article. The second article refers to the solicitor’s letter from the plaintiffs about “a recent article about a gang of armed robbers from Finglas ....”
For these reasons, I would allow the appeal on this ground and remit the matter to the High Court for rehearing.
Judge’s direction to the jury
In these circumstances, it does not seem necessary to deal at any length with the complaint concerning the learned trial judge’s direction to the jury, as the situation is very unlikely to reoccur. The forelady of the jury asked the judge whether they were entitled, when considering whether the plaintiffs were identified in the article, to have regard to the evidence which had been called by the defendant with regard to the reputation of the plaintiffs. The judge, without consulting counsel, advised the jury that they were not. This was, I believe, a mistake for all the reasons given by Hardiman J in his judgment. The jury were in principle entitled to consider any part of the evidence which they considered relevant and helpful to them in reaching their verdict. Neither the fact the defendant called the evidence for a different purpose nor the irony of the plaintiffs’ choosing to rely on evidence which, as to its content, was uniformly hostile to them contervails against the basic principle that it was a matter for the jury to decide.
Evidence of reputation
In view of the judgments delivered in this case, these actions will have to be retried in the High Court. Therefore, it is not strictly necessary to decide whether the appeal should be allowed and a retrial ordered on the further ground, advanced by the appellants, that evidence of the plaintiffs bad reputation was wrongly admitted. On the other hand, evidence of this kind may well be tendered by the defendant at a new trial. I believe that it is both appropriate and necessary to express a view on this issue. It is best to do so in response to the grounds of appeal advanced by the appellants. Even then, it has to be acknowledged that there is an element of the hypothetical in doing so. Mattters will inevitably not play out in the same way at a retrial.
The defendant furnished particulars referred to above pursuant to Order 36, rule 6 of the Rules of the Superior Courts, which provides:
In actions for libel and slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before trial he furnished particulars to the plaintiff of the matters as to which he intends giving evidence.
The evidence of the character of the plaintiffs which the defendant would wish to call pursuant to this rule is necessarily evidence of their bad character.
The learned trial judge gave advance rulings, following argument form the counsel for the respective parties, as to the extent and nature of the evidence which might be given. She took the decision of Cave J in Scott v Sampson  8 Q.B.D. 491 to be the governing authority. Although counsel for the defendant argued that Scott v Sampson did not represent settled law in this jurisdiction, it has been accepted on appeal that it does.
She held that it was open to the defendant to introduce evidence of the bad reputation of the plaintiffs but that did not extend to specific instances of misbehaviour, especially if those instances were calculated to support or to justify the sting of the particular libel.
The defendant called three witnesses on the issue of reputation.
Detective Inspector Bernard Sherry had served for thirty five years in An Garda Síochána. At the time of the trial he had responsibility for investigating all crime in K District which included Finglas. Invited to speak of the reputation in the community of the plaintiffs, he said they were “known as two brothers who are involved in crime in the area.” He went on to say:
They are feared in the area by the local people. A lot of people would have fear of them .... They are people like, I mean, who are --- how would I put it --- they are involved in, we believe they are involved in serious crime. Local people would have that belief as well .... Their reputation is that they are involved in serious crime within the area. They are believed to be involved in armed robberies. They are believed to be involved in drug dealing, and that type of crime.
He was then asked about their reputation in the police force and answered:
Well, within the police force, the Bradley brothers have, what would be described as a notorious reputation. I mean they are believed to be, from our perspective, they are believed to be ....
Their reputation within the police force is that they are serious criminals, [involved in] Armed robberies, particular in respect of automated banking machines .... ATM’s Banklinks, .... That type of robbery in particular. They are also known as involved in robbing the likes of security vans that deliver cash from various business premises. They are also believed to be involved in the distribution, wholesale distribution of a lot of what we would class as heavy duty drugs, like I mean cocaine, cannabis, that type of stuff.
Returning to their reputation in the local community, he said:
I would believe that their reputation in the area that they live in is of a similar reputation as the police would have. The ordinary people living in the area would have that ....
In cross-examination, the Detective Inspector agreed that neither of the plaintiffs had ever been charged with any armed raid or robbery, money laundering, anything to do with drugs, violence, intimidation, shooting or murder and that he had never dealt with either of them personally.
Garda Michael Clavin gave evidence that he was a community garda in the Finglas area. Asked about the reputation of the plaintiffs in the Finglas community, he said that “the community would be in fear of them” and that
they would have a reputation for being involved in serious crime in the area .... the likes of armed robberies and involved in drugs in the area as well.
The defendant’s third witness on reputation was Fr Seamus Ahern, the Parish Priest of Finglas South. He said that he was “involved in the language currency of the place” and that he knew “the perception around the place about people.” While he knew Finglas South better, he said that Finglas South, East and West were “in a sense a unity.”
He said that the perception, the reputation of the plaintiffs in the community was they “are involved in serious crime.” He mentioned “robbery and possibly drug dealing” He added: “I tell you what I hear and I don’t say what I know” and “I don’t even form an opinion. This is what I hear.” He also said: “All I can say is when any serious crime happens so often their name is mentioned.” Fr Ahern went on to deal more generally with the prevalence of crime and the fear of crime in the Finglas area.
Counsel for the plaintiffs objected that all of Fr Ahern’s evidence was inadmissible because it did not relate to the time of publication of the article but to the time of the trial.
The learned trial judge thought the evidence had gone far beyond general bad reputation but, insofar as the witness referred to the plaintiffs’ names being mentioned whenever serious crime was committed, it was evidence of particular crimes and inadmissible.
The appellants object to all the reputation evidence given on behalf of the defendant for a number of reasons. These apply to the three reputation witnesses in slightly different ways, but they can be treated together. The objections are that:
the witnesses did not know the plaintiffs personally;
the witnesses did not know the relevant area of Finglas;
the evidence was based on rumour, hearsay or suspicion ;
the evidence of reputation tended towards justification of the defamatory statements;
the evidence went beyond the content of the articles by referring to dealing in drugs;
the evidence did not relate to the plaintiffs’ reputation at the time of the publication.
The parties referred to the following English authorities: Scott v Sampson  8 Q.B.D. 491; Hobbs v CT Tinling & Co. Ltd  2 K.B. 1; Plato Films v Speidel  A.C. 1090; Associated Newspapers v Dingle  A.C. 371. The defendant cited the decision of this Court in Murphy v Times Newspapers  1 IR 169.
The judgment of Cave J in Scott v Sampson is credited with having clarified the confused and somewhat incoherent state of the authorities prior to 1882. The propositions there laid down have been treated in England as settled law now for more than a century. Hobbs v CT Tinling & Co. Ltd was cited in this Court in the Murphy case (though on a different point).
Cave J identified three classes of evidence which had been considered in the cases:
evidence of reputation;
evidence of rumours and of suspicions to the same effect as the defamatory matter complained of;
evidence of particular facts tending to show the character and disposition of the plaintiff.
The effect of Scott v Sampson has been that the second and third categories of evidence are not admissible.
Cave J identified the competing considerations at page 503 of the judgment:
Speaking generally the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action. The damage, however, which he has sustained must depend almost entirely on the estimation in which he was previously held. He complains of an injury to his reputation and seeks to recover damages for that injury; and it seems most material that the jury who have to award those damages should know if the fact is so that he is a man of no reputation.
Later on the same page, he added:
On principle, therefore, it would seem that general evidence of reputation should be admitted, and on turning to the authorities previously cited it will be found that it has been admitted in a great majority of those cases, and that its admission has been approved by a great majority of the judges who have expressed an opinion on the subject.
Cave J gave reasons for excluding the second category, evidence of rumours, at page 503 as follows:
As to the second head of evidence or evidence of rumours and suspicions to the same effect as the defamatory matter complained of, it would seem that on principle such evidence is not admissible, as only indirectly tending to affect the plaintiff's reputation. If these rumours and suspicions have, in fact, affected the plaintiff's reputation, that may be proved by general evidence of reputation. If they have not affected it they are not relevant to the issue. To admit evidence of rumours and suspicions is to give any one who knows nothing whatever of the plaintiff, or who may even have a grudge against him, an opportunity of spreading through the means of the publicity attending judicial proceedings what he may have picked from the most disreputable sources, and what no man of sense, who knows the plaintiffs character, would for a moment believe in. Unlike evidence of general reputation, it is particularly difficult for the plaintiff to meet and rebut such evidence; for all that those who know him best can say is that they have not heard anything of these rumours. Moreover, it may be that it is the defendant himself who has started them .... Upon the whole, both the weight of authority and principle seem against the admission of such evidence.
He dealt finally with evidence of particular facts and circumstances as follows on page 504 to 505:
As to the third head or evidence of facts and circumstances tending to shew the disposition of the plaintiff, both principle and authority seem equally against its admission. At the most it tends to prove not that the plaintiff has not, but that he ought not to have, a good reputation, and to admit evidence of this kind is in effect .... to throw upon the plaintiff the difficulty of shewing an uniform propriety of conduct during his whole life. It would give rise to interminable issues which would have but a very remote bearing on the question in dispute, which is to what extent the reputation which he actually possesses has been damaged by the defamatory matter complained of. Among all the cases which have been reviewed there is not one which can be cited in support of the admissibility of this evidence.
The House of Lords, in Plato Films v Speidel in 1960 unanimously approved and followed Scott v Sampson, which is not to say that the application of its proposition is free of difficulty in practice. To begin with it is easy to confuse reputation and character. The reputation of a person is what people in general think of him, what Cave J called “the estimation in which he stands in the opinion of others.” His character is the sort of person he is in fact. Cave J made this distinction when he referred, in his third category, to facts tending to show the character and disposition of the plaintiff, which he excluded.
Scrutton L.J. in Hobbs v CT Tinling & Co. Ltd, cited above said:
The defendant may mitigate damages by giving evidence to prove that the plaintiff is a man of bad general reputation, and the plaintiff may rebut it by coming prepared with friends who have known him to prove that his reputation has been good.
That passage suggests that the defendant’s evidence will be of general (bad) reputation, i.e., what society in general thinks, whereas the plaintiff’s own witnesses will be persons who know him well and will speak more to his character. Lord Denning, in Associated Newspapers v Dingle touched on the same problem:
In order to show that a man has a bad reputation, you should call those who know him and have had dealings with him. They are in a position to judge his worth. If they consider he has a bad reputation, they are very likely right, and he has nothing very much to lose. If it is a settled reputation which has been accumulated over a period by a series of misdeeds, they will know of it. If it is a reputation which has been destroyed at one blow by a single conviction, they will know of it too. Either way, if you call those who know him well, you are likely to get the truth .... But if you go beyond these, you immediately get into the realms of reports and rumours, often enough spread by busybodies who know nothing of the man, or indulged in by newspapers for the benefit of their circulation ....
Again, the early part of that passage prompts the query: are we speaking of evidence of character or evidence of reputation? I believe the evidence must be of the latter variety. Lord Denning’s reference to “a settled reputation which has been accumulated over a period by a series of misdeeds” runs a very real risk that a witness will start to speak of those specific misdeeds, evidence which is firmly excluded by Scott v Sampson. On the other hand, it has to be acknowledged that evidence strictly related to general reputation may run the corresponding risk of being based on hearsay or rumour, evidence of what others say they think.
The matter was addressed in very clear terms by Barrington J, speaking for this Court in the first Murphy case, Murphy v Times Newspapers  1 IR 169. The plaintiffs, two brothers, sued the defendants for defamation in a newspaper article in which it was alleged that a "farmer in the Republic" known as "Slab Murphy" was the Operations Commander for the IRA in Northern Ireland and was"likely to have had to approve" a bombing campaign in seaside resorts. The defendants pleaded partial justification, claiming that the words complained of were true insofar as they asserted that each plaintiff was a member of the IRA and also pleaded, in mitigation of damages, that each plaintiff was, and was known to be, at all material times actively supportive of the IRA.
Barrington J pointed out that the second line of defence was concerned with the plaintiffs' reputation or standing in the community and was an endeavour to prove that their reputation or standing in the community was so low that the article did them little or no damage. Further, he emphasised that “evidence which would support the conclusion that a man had a bad reputation in the community would not necessarily support, or even be admissible to support, a plea of justification.” The learned judge ruled, at page 181, that the defendants had been entitled to adduce evidence of the plaintiffs’ “reputation with the security forces on both sides of the border with a view to presenting an alternative picture of their general reputation.”
In an important passage, he laid particular stress on the distinction between the function of evidence as justification of the truth of the libel and evidence of bad reputation which is relevant only in mitigation of damage. At page 182 he said:
Mr. Sutton, for the defendants, has pointed out that evidence admitted under the head of reputation was properly before the jury even though it might not have been admitted if the jury was concerned only with the questions of justification. This is quite so. But the evidence did not change its nature simply because it got before the jury on the question of reputation. Even if the jury were satisfied that Thomas Murphy had the reputation of being a man of violence and a member of the Provisional IRA that did not prove that he was a man of violence or a member of the Provisional IRA nor was it even an issue which the jury was entitled to take into consideration in deciding whether he was a man of violence or a member of the Provisional IRA. A fortiori, if, under the heading of reputation, evidence crept in which was merely opinion evidence or based on hearsay it was essential that the jury should have been told that this evidence was of no value and that they should attach no weight to it.
Thus, Barrington J was particularly concerned that the trial judge had not made it sufficiently clear to the jury that evidence which was relevant to the issue of reputation was not evidence on the justification issue and evidence of mere opinion or hearsay was of no value at all.
As might be expected and as is clear from experience, it is inevitably exceptionally difficult in practice to draw the line between evidence of reputation in the strict sense and evidence of rumour or hearsay, which may, to use the phrase of Barrington J, “creep in”. Equally, it will be difficult to prevent witnesses, without appreciation of fine legal distinctions, to resist referring to specific instances. The present case illustrates the problem of framing suitable questions inviting witness to give evidence of a person’s reputation. The task of cross-examining a witness as to the bad reputation of the plaintiff will be hazardous and may be impossible. Counsel must be particularly careful about the questions asked both in examination in chief and cross-examination. All this calls for a high level of vigilance from the trial judge.
Nonetheless, the evidence of bad reputation is, in principle, admissible. I turn to consider the complaints advanced on behalf of the appellants. I emphasis that I do so on the assumption that similar problems may arise at a retrial.
As to the first two complaints, there is no requirement that the witness know the plaintiff personally. This is clear from the Murphy case. It suffices if the witness knows the plaintiff by reputation. That postulates a sufficient degree of connection with the area in which the plaintiff lives, is known and operates. That is a matter for the trial judge to consider, if necessary in a voir dire. It is a question of fact. For example, Fr Ahern was Parish Priest of Finglas South, not where the plaintiffs lived but gave evidence of knowledge of Finglas generally.
Evidence of rumour or hearsay is, in principle, inadmissible. It is not clear to me that Detective Inspector Sherry gave his evidence on the basis of hearsay. In the final analysis, evidence of general reputation is necessarily founded on what people in the community think about the plaintiff. As Barrington J observed in Murphy v Times Newspaper, at page 179, “a man’s reputation is a fact which rests on the opinion of other people concerning him but it is not the same as that opinion.” The trial judge at a future trial will have the task of seeing that evidence of rumour or hearsay is not given but that does not exclude evidence of reputation.
It emerges from all the authorities that evidence of bad reputation must not be allowed to become confused with justification. The Murphy case illustrates the problem very well. Certain parts of the evidence given by Detective Inspector Sherry seem to me to be particularly problematic. Where a garda officer of the high rank of the Detective Inspector gives evidence of the reputation of the plaintiffs for committing precisely the types of crime of which the newspaper article accused them, a jury are either going to believe that the plaintiffs were actually involved in committing those crimes or, at least, be prejudiced against the plaintiffs. Moreover, the Detective Inspector was not so much giving evidence of the general reputation of the plaintiffs in the community as evidence of the opinion and belief of the members of the police force: “we believe they are involved in serious crime.” This last statement is evidence of opinion.
The appellants complain that the reputation evidence suggested that they were involved in dealing in illegal drugs, although there was no such suggestion in the article. Moreover, it is difficult to resist the observation that neither of the plaintiffs was ever even charged with such offences or, indeed, with any of the sorts of crimes attributed to them by the article. The reputation evidence must relate to the plaintiffs’ reputation in the area of character with which the alleged defamatory publication is concerned. For example, if a publication accused a person of dishonest dealing or of marital infidelity, it would scarcely be permissible to call evidence that he was an excessive drinker or that he was notoriously inefficient in his work. It would be a matter of degree and judgement. I am not sure and would prefer not to say definitively whether drug dealing is so far away from the sort of criminality alleged in the article as to render reputation for that activity inadmissible. That would be a matter for the trial judge after full argument.
Finally, the learned trial judge directed the jury to ignore the evidence of Fr Ahern, apparently on the ground that it did not relate to the time of the publication complained of. This point was made powerfully by counsel for the plaintiffs at the trial and accepted by the trial judge. I have to say that the authorities to which we have been referred do not appear to lay down any such requirement and I am not clear why they should. The underlying principle is that a person should not be compensated for loss of a reputation he does not have, a principle which would appear to be applicable just as much to the time of trial as to time of publication.
I would allow the appeal, set aside the verdict of the jury and order a retrial.
I would add that it seems obvious that the actions arising from the two articles should be heard together or consolidated. It would be quite wrong to permit the plaintiffs to continue with two separate actions arising from substantially the same libel. All future procedural steps are a matter for the parties and for the High Court.
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