Appeal No. 2009/282

IpsofactoJ.com: International Cases [2015A] Part 8 Case 5 [SCIre]


SUPREME COURT OF IRELAND

Coram

Independent Newspaper (Ireland) Ltd

- vs -

Monica Leech

Murray J

McKechnie J

Dunne J

19 DECEMBER 2014


Judgment

Justice Dunne

  1. This is one of two appeals in respect of the litigation between the parties. Both appeals were heard on the same day. This appeal is brought on behalf of Independent Newspapers (Ireland) Limited (hereinafter referred to as the Newspaper) from the order of the High Court made herein on the 24th June, 2009 in which the plaintiff/respondent (hereinafter referred to as Ms. Leech) was awarded the sum of €1,872,000 by way of damages for libel together with an order for costs made herein on the 26th June, 2009.

  2. Background

  3. Ms. Leech in these proceedings sought damages for libel arising out of a series of articles in the Evening Herald newspaper owned and published by the Newspaper between the 30th November, 2004 and the 17th December, 2004. Ms. Leech instituted proceedings against the Newspaper on the basis that the articles in their natural and ordinary meaning meant that she was having an extramarital affair with Mr. Martin Cullen who was then the Minister for the Environment. Prior to the commencement of the proceedings, Ms. Leech worked as a Communications Consultant advising the Office of Public Works and subsequently, the Department of the Environment. Mr. Cullen was a junior minister in charge of the Office of Public Works and, subsequently, between 2002 and 2004 he was the Minister for the Environment.

  4. The trial of the proceedings took place before a judge and jury over seven days and at the conclusion of the evidence the following questions were put to the jury:

  5. 1.

    Did the articles mean that the plaintiff had an extramarital affair with Minister Martin Cullen?

    2.

    Did the articles mean that the plaintiff had travelled to New York with Minister Martin Cullen for a United Nations Conference and failed ever to attend it?

     

    If the answer to questions Nos. 1 and 2 is “No” proceed no further.

    If the answer to questions Nos. 1 or 2 is “Yes” assess damages.

  6. The jury brought in a verdict having answered the questions as follows:

  7. Question 1

    Yes

    Question 2

    No

    Damages

    €1,872,000

  8. Accordingly, judgment was entered for that amount on the 26th July, 2009 and it was further ordered that a sum of €750,000 on account of the damages awarded and the sum of €100,000 on account of the costs awarded be paid forthwith and a stay was granted in respect of the order in the event of an appeal together with a stay on the payment of the sums of €750,000 and €100,000 until the 31st July, 2009 or until further order.

  9. The appeal

  10. The Newspaper has appealed from the judgment and order of the High Court made herein and the notice of appeal sought inter alia:

  11. (1)

    An order directing a re-trial in the High Court on the issue of damages. The appeal in that respect was grounded on the following basis:

    The damages awarded against the defendant / appellant were of such a level that no reasonable jury could award and / or were disproportionate to the damage caused and / or constitute an unlawful interference with the defendant’s rights under the Constitution and / or under the European Convention on Human Rights.

  12. Complaint was also made as to the decision of the learned trial judge to direct the payment out of the sum of €750,000.

  13. Scrutiny of the award of damages by a jury

  14. This is a case which pre-dates the enactment of the Defamation Act 2009 which introduced new provisions, inter alia, in relation to damages particularly, in relation to the directions to be given to a jury by the trial judge in respect of a trial in the High Court and the matters to which regard shall be had in assessing damages. Prior to the 2009 Act, the trial judge was limited as to the directions that could be given to a jury on the subject of the quantum of damages. The assessment of damages was and remains a matter entirely for the jury but by virtue of the provisions of the 2009 Act it is now possible for the trial judge to give more detailed directions to a jury as to the assessment of damages. The position was different when these proceedings came to trial before the High Court. It is not suggested that there was any error on the part of the trial judge in his charge to the jury on the question of damages. Rather the complaint made is that the award of damages made herein is so disproportionately high that it ought to be set aside. However, it is important to point out that the fundamental task of this Court on an appeal from the verdict of a jury on the basis that the damages awarded were excessive, remains the same.

  15. The parties in their respective submissions have both referred to a number of the same authorities in which the difficult question as to the assessment of damages in defamation actions has been considered. The first of those is the Supreme Court decision in the case of Barrett v Independent Newspapers Limited [1986] I.R. 13. A passage from the judgment of Henchy J. in that case (at page 23) has subsequently found approval in a number of other decisions and for that reason it would be helpful to refer to the relevant passage in full. Henchy J. stated:

  16. In a case such as this in which there is no question of punitive, exemplary or aggravated damages, it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right-thinking people as a result of the words complained of. The jury have to be told that they must make their assessment entirely on the facts as found by them, and they must be given such directions on the law as will enable them to reach a proper assessment on the basis of those facts. Among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the plaintiff, the extent of the publication, the conduct of the defendant at all stages of the case, and any other matter which bears on the extent of the damages. The judge, quite properly, in this case told the jury to ignore all matters in the article save the allegation of an assault. Also, quite properly, he told the jury that they should not allow their assessment of damages to be affected by the fact that the plaintiff had agreed to donate the damages to charity. Indeed it is right to point out that no criticism was made at the trial by either side of any part of the judge's address to the jury.

    The fact remains, however, that the jury were not given any real help as to how to assess compensatory damages in this case. A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of, namely, that in an excess of triumphalism at his leader's success the plaintiff attempted to tweak the beard of an unfriendly journalist. The jury might then have been asked to fit that allegation into its appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected. Had they approached the matter in this way, I venture to think that having regard to the various kinds of allegations of criminal, immoral and otherwise contemptible conduct that might have been made against a politician, the allegation actually complained of would have come fairly low in the scale of damaging accusations. The sum awarded, however, is so high as to convince me that the jury erred in their approach. To put it in another way, if £65,000 were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exaltation, the damages proper for an accusation of some heinous and premeditated criminal conduct would be astronomically high. Yet, a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.

  17. Subsequently in the case of de Rossa v Independent Newspapers Plc [1999] 4 I.R. 432, Hamilton C.J. having quoted that passage commented:

  18. This passage emphasises:

    (a)

    that it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution of his standing among right-thinking people as a result of the words complained of;

    (b)

    that it is a fundamental principle of the law of compensatory damages that the award must always be reasonable and fair and bear a due correspondence with the injury suffered; and

    (c)

    that if the award is disproportionately high, it will be set aside and not allowed to stand.

    The obligations arising from the provisions of the Constitution and the Convention are met by the law of this State, which provides that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and by the requirement that if the award is disproportionately high, it will be set aside.

  19. One of the matters at issue in that case was the question of whether or not guidelines should be given to the jury as to the level of damages awarded in other libel cases and in relation to the level of damages in personal injuries cases but the Supreme Court in de Rossa rejected the suggestion. Counsel on behalf of Ms. Leech laid particular emphasis on a passage from the judgment of Hamilton C.J. (at page 462) where he stated:

  20. That does not mean that the discretion of the jury is limitless: the damages awarded by a jury must be fair and reasonable having regard to all the relevant circumstances and must not be disproportionate to the injury suffered by the injured party and the necessity to vindicate such party in the eyes of the public. Awards made by a jury are subject to a right of appeal and on the hearing of such appeal, the award made by a jury is scrutinised to ensure that the award complies with these principles.

  21. It was stated by Finlay C.J. in the course of his judgment in Barrett v Independent Newspapers Limited [1986] I.R. 13 (at page 19) that:

  22. With regard to the appeal against the amount of the damages, certain principles of law are applicable. Firstly, whilst the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy.

  23. The “sanctity” of such awards is recognised in the passage from the judgment of the Court of Appeal in John v MGN Limited [1997] QB 586 where it is stated at page 616 of the report as follows:

  24. The jury must, of course, make up their own mind and must be directed to do so. They will not be bound by the submission of counsel or the indication of the judge. If the jury make an award outside the upper or lower bounds of any bracket indicated and such award is the subject of appeal, real weight must be given to the possibility that their judgment is to be preferred to that of the judge.

  25. Both judgments recognise that the assessment of damages is a matter for the jury and that an appellate court must recognise and give real weight to the possibility that their judgment is to be preferred to that of the judge.

  26. Consequently, an appellate court should only set aside an award made by a jury in a defamation action if the award made is one which no reasonable jury would have made in the circumstances of the case and is so unreasonable as to be disproportionate to the injury sustained.

  27. It has been submitted on behalf of the defendant that larger awards should be subjected to a more searching scrutiny than has been customary in the past and that the test to be applied is:

  28. Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?

  29. If such were the test to be applied, it would remove from the jury award the “very unusual and emphatic sanctity” referred to by Finlay C.J. and the giving of “real weight” to the possibility that their judgment is to be preferred to that of the judge as stated by Sir Thomas Bingham M.R.

  30. Consequently, while awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.

  31. Thus it is clear that while the assessment by a jury of damages for defamation is not sacrosanct it does carry considerable weight such that appellate courts have been slow to interfere with the assessments by a jury and an appellate court should only set aside such an award if the appellate court is satisfied that the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made the award in all the circumstances of the case. Counsel on behalf of the Newspaper laid emphasis in his submissions on the requirement of proportionality. Reference was made to a further passage from the judgment of Hamilton C.J. in de Rossa at page 456 in the context of whether guidelines as to quantum by reference to figures should be given to a jury where Hamilton C.J. said:

  32. It is submitted on behalf of the defendant that the aforesaid guidelines should be given to the jury in a defamation action and that the giving of such guidelines are mandated by the Constitution and Article 10 of the Convention as being necessary to vindicate the defendant's rights under the Constitution and the Convention.

    By virtue of the provisions of Article 40.6.1 of the Constitution, the defendant is entitled, subject o the restrictions therein contained, to exercise the right to express freely its convictions and opinions.

    The exercise of such right is subject however to the provisions of the Constitution as a whole and in particular the provisions of Article 40.3.1 and 40.3.2 which require the State by its laws to protect as best it may from unjust attack, and in the case of injustice done to vindicate the good name of every citizen.

    Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.

    The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen's good name (Hynes-O'Sullivan. v O'Driscoll [1988] I.R. 436). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.

  33. Counsel on behalf of the Newspaper also referred to the case of Independent News and Media & Independent Newspapers Ireland Limited v Ireland (Application No. 55120/00, judgment 16th June, 2005) in which complaint was made by the Applicant against Ireland arising out of the decision in de Rossa. The complaint made was that the safeguards provided in Irish law against disproportionately high jury awards in libel cases were inadequate. The European Court of Human Rights in its judgment (at para. 110) commented as follows:

  34. 110

    The parties also agreed, and indeed it was made clear in the Tolstoy Miloslavsky judgment (at para. 49), that an award of damages following a finding of libel must be ‘necessary in a democratic society’ so that it must bear a reasonable relationship of proportionality to the injury to reputation suffered. The jurisprudence does not provide for a shifting protection of the rights involved once libel is established (as suggested by the Government at paragraph 90 above): rather the Court assesses whether the compensatory response to a libel was a proportionate one by finding where the appropriate balance lies between the conflicting Convention rights involved (Von Hannover v Germany, no. 59320/00, para. 58, ECHR 2004 ....).

    111.

    However, the parties diverged on the question of whether the present award was proportionate. The applicants considered the award to be of such significance that the Court could not conclude as to its proportionality without examining the adequacy and effectiveness of the domestic safeguards against disproportionate awards and maintained that their application was indistinguishable from that of Tolstoy Miloslavsky. The Government were of the view that the issues raised were more complex than a mechanical application of that judgment and that, in any event, the present case was clearly distinguishable from the Tolstoy Miloslavsky case.

  35. The European Court of Human Rights concluded that it was not demonstrated, “that there were ineffective or inadequate safeguards against a disproportionate award of the jury in the present case”. Counsel on behalf of the Newspaper relied on those authorities and on the judgment of the European Court in the case of Scharsach v Austria, Application No. 39394/98, judgment of 13th November, 2003, to argue that a disproportionately large award was an interference with the rights of the other party under Article 10 of the Convention which of course provides for the right to freedom of expression. This, of course, was recognised by Hamilton C. J. in the case of de Rossa where he acknowledged that the law must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name as referred to in the passage cited above.

  36. Ultimately it was argued that having regard to the decision of the European Court of Human Rights particularly in the case of Independent News and Media Limited v Ireland that there was limited room on appeal for any special deference towards jury awards of damages. Counsel on behalf of Ms. Leech took issue with that submission and argued that in the light of the decision of the Supreme Court in de Rossa and having regard to the decision of the European Court of Human Rights in Independent News and Media v Ireland the position of the Supreme Court and indeed the European Court of Human Rights is that the Irish approach to scrutiny of the award of damages by a jury in cases such as this is compliant with the Irish Constitution and the Convention. It was further submitted that the decision of the European Court of Human Rights in Independent News and Media v Ireland did not alter or reconfigure Irish law in respect of awards of damages in defamation actions. I agree with that submission. As is clear from the authorities referred to above the position in Irish law is that an appellate court will be slow to interfere with the verdict of a jury on the assessment of damages but nevertheless awards by juries are subject to scrutiny and if an award is so disproportionate in the circumstances of the case having regard to the respective rights of freedom of expression on the one hand and on the other hand the requirement under the Constitution to protect the good name of every citizen that no reasonable jury would have made such an award then the award will be set aside on appeal.

  37. Factors to be taken into consideration

  38. It is obvious that in subjecting an award of damages to scrutiny, it will be necessary for an appellate court to examine the facts and circumstances of any given case as it is only by doing so that one can determine whether the award is disproportionate to the wrong done. What factors can be taken into consideration in this regard?

  39. The judgment of Hamilton C.J. in de Rossa is a useful starting point in considering this question. Both parties on this appeal have cited a passage from his judgment in which Hamilton C. J. quoted with approval a passage on this topic from the decision of the Court of Appeal in John v MGN Limited [1997] QB 586, at page 463:

  40. The factors to be taken into account in determining the damages to be awarded are clearly set out in many cases and in particular in the judgment of the Court of Appeal in John v MGN Ltd. [1997] QB 586 at page 607 of the report where it is stated as follows:

    The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation, the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation; but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way’.

  41. Hamilton C.J. in the de Rossa case then proceeded to consider the damages awarded in that case under a number of specific headings, namely, the gravity of the libel, the effect on the plaintiff, the extent of the publication and the conduct of the defendant. I propose to consider these factors later in the course of this judgment but before doing so there are two other matters to which I wish to refer.

  42. Compensatory damages

  43. Counsel on behalf of the Newspaper have pointed out that the damages awarded in this case are “compensatory” damages. It was accepted that the role of compensatory damages in defamation cases is not on all fours with the role of compensatory general damages in personal injuries cases. There is a “vindicatory” element to damages in defamation cases which is not a factor in general damages in a personal injuries case. Nevertheless, it was argued that the core purpose of compensatory damages in libel cases is to compensate the plaintiff for the injury actually suffered such as injury to reputation, distress, hurt and humiliation. It was pointed out that there was no award of aggravated or exemplary/punitive damages made in this case. By contrast, counsel on behalf of Ms. Leech stated that compensatory damages embrace a variety of elements. It was submitted that one of those elements involved what could be described as aggravating factors, such as the conduct of a defendant even if that was not expressly provided for in the award of the jury. Reference was made to a passage from McMahon and Binchy, Law of Torts (4th ed.) in which the learned authors, speaking of the position that pertained prior to the coming into force of the Defamation Act 2009, made the following observation (at para. 34.366):

  44. Punitive damages were available in defamation claims though they were rarely awarded expressis verbis. Many very substantial jury awards over the years can be explained only in terms of their punitive purpose.

  45. Juries in defamation actions are sometimes asked to assess not just compensatory damages but also aggravated damages under separate headings and, in an appropriate case, exemplary/punitive damages. This is not a case in which the matter went to the jury on the basis that the jury was asked to assess damages under separate headings of general damages, aggravated damages and/or exemplary/punitive damages. To that extent this case has to be viewed on the basis that the award was designed to meet the factors encompassed by way of compensatory damages. It is not necessary to repeat again the passage quoted by Hamilton C.J. in de Rossa from the judgment of Sir Thomas Bingham M.R. in the case of John v MGN which sets out in detail the nature of compensatory damages in defamation proceedings. As can be seen, a variety of factors require to be taken into consideration. Sir Thomas Bingham M.R. referred to the fact that compensatory damages could include an element to compensate for additional injury caused by the conduct of the defendant. To some extent there is an overlap with what is comprised in the category of aggravated damages. It is perhaps worth recalling the succinct description of damages given by Finlay C. J. in the case of Conway v Irish National Teachers Organisation [1991[ 2 I.R. 305 in which he gave the following analysis of damages:

  46. In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my view, potentially relevant to any particular case. They are: –

    1.

    Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.

    2.

    Aggravated damages, being compensatory damages increased by reason of

    (a)

    the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or

    (b)

    the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or

    (c)

    conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.

    Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.

    3.

    Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court's particular disapproval of the defendant's conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered.

  47. Thus, it can be seen that aggravated damages are an element of compensatory damages increased by reason of such matters as were spelt out by Finlay C.J. There is a degree of overlap between ordinary compensatory damages and aggravated damages in defamation actions. The fact that a separate question did not go to the jury herein asking them to assess aggravated damages does not mean that when the jury were assessing damages having regard to the circumstances of the case, they could not consider the conduct of the defendant both in relation to the publication at issues, the lack of an apology and the manner in which the case was defended. In other words, their award could properly encompass an element of damages designed to compensate for those matters which, in an appropriate case, could be dealt with by way of a separate heading of aggravated damages.

  48. The learned trial judge herein in his charge to the jury explained the purpose of damages as having three functions, namely:

  49. Consolation for the distress caused by the defamatory statement; to repair the harm to his or her reputation, and that includes business reputation, .... and a vindication of the person’s reputation.

  50. He went on to tell the jury that they could consider, inter alia, the conduct of the plaintiff, her position or standing in society in Waterford, in Dublin, in her business community. He told them that they could consider the nature of the libel which in this case contained the suggestion that “She was immoral, that she was unfaithful to her husband, that she was a person of – the phrase is ‘loose morals’, that she had betrayed her marriage, that she had betrayed her family”. He told them that they could consider the mode and extent of the publication. He also advised them that they were entitled to take into account the absence of an apology if the jury considered that to be appropriate. He pointed out that the jury would be entitled to take into consideration, if they took the view that this was a gross defamation, the fact that the Newspaper had maintained that defamation “right up to what would be the bitter end”. These are factors that the learned trial judge told the jury they were entitled to consider. There was no issue raised by the defendant in this appeal regarding the charge to the jury.

  51. It is long established that the jury in assessing damages can take into account relevant aspects of the conduct of the defendant from the time of publication up to the conclusion of the case, including such matters as the nature of the defamation, the extent of the publication, the absence of an apology or persisting in a plea of justification which is not supported by the evidence. These factors can be considered under the heading of compensatory damages or in an appropriate case, aggravated damages. There is no basis in this case to support the contention that in assessing compensatory damages, the jury took into account matters which did not arise under the heading of compensatory damages or that the jury was restricted in making the award of compensatory damages by reason of the fact that there was no separate heading of aggravated damages on the issue paper that went to the jury.

  52. Comparisons with other awards

  53. It was urged on the Court on behalf of the Newspaper that in considering the issue of proportionality it was open to this Court to consider awards that had been set aside as being too high in other defamation cases. Reliance was placed on the judgment of Keane C.J. in the case of O’Brien v Mirror Group Newspapers Limited [2001] 1 I.R. 1 where he said at page 18:

  54. .... I think it is important to bear in mind that there is nothing in the judgments of Henchy J. in Barrett v Independent Newspapers Ltd. or Hamilton C.J. in de Rossa v Independent Newspapers plc. to indicate that this court is precluded, on the hearing of an appeal, from determining the appeal in the light of awards in other defamation cases which have been the subject of appeals to this court.

  55. Undoubtedly, some assistance may be derived from a comparison of other cases in which awards have been set aside. Nevertheless one has to be careful in taking that approach. As Keane C.J. went on to say (at page 18):

  56. No doubt a degree of caution is called for in making such comparisons, since in cases of defamation, more perhaps than in almost any other action in tort, the facts which have to be considered by the jury vary widely from case to case. Moreover, as Lord Hailsham pointed out in Broome v Cassell and Co. [1972] A.C. 1027 at p. 1071, when drawing the distinction between damages in defamation cases and damages for personal injuries: –

    What is awarded is .... a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.

    Provided those qualifications are borne in mind, some assistance may be obtained from the views expressed by this court as to the damages awarded in particular cases when those awards were either upheld or set aside.

  57. The Court in that case proceeded to compare the damages awarded to the plaintiff in those proceedings as against the damages awarded in the de Rossa case. Keane C.J. went on to comment:

  58. In the present case, the article complained of stated that the plaintiff had paid £30,000 to a government minister by way of a bribe for the purpose of securing a licence for a radio station and obtained the licence as a result of the bribe, that he had also secured a licence for ESAT Digifone in circumstances giving rise to a suspicion of bribery or corrupt practices and that the activities warranted investigation by the Flood Tribunal. These were undoubtedly seriously defamatory statements which justified the award of substantial damages. However, the case must be approached, in my view, on the basis that the damages awarded are in the highest bracket of damages appropriate in any libel case. They are comparable to the general damages awarded in the most serious cases of paraplegic or quadriplegic injuries and, relatively speaking, are in the same bracket as the damages awarded in de Rossa v Independent Newspapers plc. [1999] 4 I.R. 432. The libel, however, although undoubtedly serious and justifying the award of substantial damages, cannot be regarded as coming within the category of the grossest and the most serious libels which have come before the courts.

  59. In the O’Brien case, the jury had awarded the plaintiff £250,000 by way of damages. The verdict of the jury was set aside and a re-trial was ordered. Ironically, the re-trial resulted in a decree of €750,000, a sum considerably more than that previously found to be excessive. No doubt the passage of time between the date of the original libel trial and the date of the subsequent libel trial had some bearing on the difference in the sums awarded. The passage of time elapsed between awards in other cases together with the wide variations possible in the factual matrix necessitates that some degree of caution must be exercised in determining whether an award of a jury is disproportionate by comparison of that award with other awards set aside on the basis of being excessive. Nevertheless, comparisons with other cases may provide some assistance in assessing the gravity of the libel.

  60. It was also urged on the Court by counsel on behalf of the Newspaper that in considering the level of damages to be awarded in defamation actions, the Court should have regard to the highest level of general damages that may be awarded in the most serious personal injuries cases. It was argued that such an approach would be of assistance in assessing the proportionality of the damages awarded. Reliance was placed on the Supreme Court decision in the case of M.N. v S.M. [2005] 4 I.R. 461, a case involving a trial by judge and jury in which the sum of €600,000 was awarded to the plaintiff in respect of injuries suffered by her by reason of the sexual abuse of the defendant over a number of years culminating in rape. The Supreme Court in that case set aside the award of €600,000 and substituted a sum of €350,000 by way of general damages on the basis that the sum of €600,000 was so far in excess of a reasonable award of compensation that it was disproportionate and needed to be set aside. One of the factors of relevance in that case was noted by Denham J. at page 467 of her judgment:

  61. It appears that this is the first award of damages for sexual abuse by a civil jury. It is the first appeal before the Supreme Court from such an award which raises the issue of the sum to be awarded in general damages for sexual assault, sexual abuse and rape in a continuum, of a teenage girl. Consequently, there are no precedents to guide the court. However, there is information from other sources which may inform the court and which may be of assistance.

  62. Denham J. went on to comment in the course of her judgment at page 475 as follows:

  63. At issue on this appeal is the award of general damages by a jury. In assessing the level of general damages, there are a number of relevant factors to consider. Thus an award of damages must be proportionate. An award of damages must be fair to the plaintiff and must also be fair to the defendant. An award should be proportionate to social conditions, bearing in mind the common good. It should also be proportionate within the legal scheme of awards made for other personal injuries. Thus the three elements, fairness to the plaintiff, fairness to the defendant and proportionality to the general scheme of damages awarded by a court, fall to be balanced, weighed and determined.

  64. She went on to observe:

  65. Having considered the facts and all the circumstances of the case, including the nature of the injuries of the plaintiff, the law on general damages for personal injuries, noting (but not applying) the Residential Institutions Redress Act 2002 and making reference to the conduct of the defendant in admitting his guilt at an early stage of the criminal proceedings, I am satisfied that the sum of €600,000 awarded by the jury is so far in excess of a reasonable award of compensation that it is disproportionate and should be set aside.

  66. Accordingly she allowed the appeal on the question of damages. She also expressed the view that she was satisfied that there “should be a rational relationship between awards of damages in personal injuries cases”.

  67. I think it is apparent that there is a close relationship between an action for personal injuries and an action for damages for assault arising out of sexual abuse such as that described in M. N. v S. M. Both such actions are, in reality, a form of action for damages for personal injuries. There is an obvious correlation between the type of damages that can be awarded in a personal injuries case and in a sexual assault case. It is not so easy to see an obvious correlation between an award in a personal injuries action and an award in an action for defamation. McMahon and Binchy, Law of Torts, make the following observation as to the difficulty in making an analogy between the situation in personal injuries awards and those in defamation cases at paragraph 34.364:

  68. It seems probable that, over time, a rough judicial ‘tariff’ will emerge as the Supreme Court translates broad generic ascriptions, such as ‘very serious’ and ‘most serious’, into actual numbers of euros. In England the courts have applied what is ‘in effect a ceiling’ figure, now of the order of £275,000.

    We suggest that the Supreme Court should hesitate before following that lead. The English courts have been affected by the analogy of damages awards in personal injuries claims, where a ‘cap’ for general damages applies, as it does in Ireland. But that cap is based on considerations of principles and policy relating to personal injuries which has no direct parallel with those relating to defamation, where the function of damages ranges beyond compensating the feelings of the plaintiff to vindicating his or her good name.

  69. The authors went on to refer to the provisions of s. 31(7) of the 2009 Act which permits the Court to award special damages for financial loss suffered by a plaintiff as a result of injury to his or her reputation and observed:

  70. It may be that compensation for future economic losses will be incorporated into a global award of general damages and in any event the boundaries between special and other compensatory damages are somewhat porous.”

  71. One of the arguments made in the de Rossa case was that juries should be told about the level of awards in personal injuries cases. Hamilton C. J. stated as follows at p. 459:

  72. On the issue as to whether or not references to awards in personal injuries actions should be permitted, I prefer the conclusion reached by the Court of Appeal in Rantzen v Mirror Group Newspapers Ltd. [1994] Q.B. 670 to that reached in John v M.G.N. Ltd. [1997] Q.B. 586 and accept the reasoning contained in the following passage from the judgment of Lord Hailsham L.C. in Broome v Cassell & Co. [1972] A.C. 1027, where he stated at p. 1071:-

    In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. As Windeyer J. well said in Uren v John Fairfax & Sons Pty Ltd. (1966) 117 C.L.R. 118 at 150: ‘It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public, and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.’ This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’. In a sense, too, these damages are of their nature punitive or exemplary in the loose sense in which the terms were used before 1964, because they inflict an added burden on the defendant proportionate to his conduct, just as they can be reduced if the defendant has behaved well – as for instance by a handsome apology – or the plaintiff badly,

  73. Hamilton C.J. was dealing with the question or whether or not the jury should be told about the type of awards that could be made in personal injuries cases but the reasoning contained in the passage set out above demonstrates why there is a problem in trying to make a comparison between the awards of damages in personal injuries cases with the awards of damages in defamation cases. I have come to the conclusion that the analogy of awards in personal injuries cases may be of some assistance in the area of injuries caused by reason of sexual abuse but is not so useful an analogy in the case of awards in respect of defamation actions for the reasons explained above.

  74. The gravity of the libel

  75. I now propose to examine the factors that should be taken into account when considering the proportionality of the award of damages in this case, starting with the gravity of the libel. The starting point for this consideration has to be the meanings ascribed to the words complained of by the jury. It is clear from the answer to the questions posed to the jury on the issue paper that the jury accepted the thrust of Ms. Leech’s case to the effect that the article meant that:

  76. (a)

    she, a married woman with two children, had an affair with the Minister;

    (b)

    that as a result of that affair, she got lucrative Government contracts;

    (c)

    that she was someone who was prepared to have an adulterous affair to advance her business career;

    (d)

    that she betrayed the trust of her husband and children.

  77. Undoubtedly the articles complained of by Ms. Leech in these proceedings amounted to a serious and sustained attack on her business and personal integrity. I think one could fairly compare the libel in this case with that in the O’Brien case which contained an allegation that the plaintiff had paid a £30,000 bribe to a Government Minister to procure a lucrative radio licence. In effect Ms. Leech was accused of engaging in an adulterous relationship for the sake of obtaining lucrative contracts. Such a defamation would undoubtedly have a serious effect on an individual’s business and personal reputation. I accept that the defamation in this case could not be described in the same terms as that in the de Rossa case which was described as coming within the category of “the gravest and most serious libels which have come before the courts” but it is nonetheless a very serious libel. Given the allegations of adultery made in respect of Ms. Leech, this must have been a source of real hurt and distress to Ms. Leech.

  78. The extent of the Publication

  79. The articles complained of in this case were published in the Evening Herald newspaper between the 30th November, 2004 and the 17th December, 2004. In all, the plaintiff sued in relation to eleven articles in nine editions of the Evening Herald newspaper over that period of time. This was described by Ms. Leech’s lawyers as a “deliberate press campaign”. A reference to a number of the headlines over some of the articles complained of give a flavour of the nature of the publications complained of. On the 30th November, 2004, the headline stated: “Minister’s P.R. friend on €1,200 every day”; on the 1st December, 2004, the headline read: “Cullen gave pal a SECOND top job”; also on the 1st December, 2004, the headline over an article was as follows: “Insiders reveal the luxury lifestyle of €1,200 a day political guru”. Over the following days headlines included the following: “Minister to face Fine Gael grilling over Leech controversy”; and “Cullen faces music over crony claim” and “Heat on Minister as Leech job offer is probed”; “Why inquiry must get to the bottom of Monicagate” and “Cullen paid Monica an extra €43,000”. A number of other articles focused on the role of the Minister. It can be seen that there was a sustained campaign over a number of days. The Evening Herald newspaper is a newspaper that circulates widely within the State having a circulation of approximately 90,000 newspapers sold per day. Further, the readership of the newspaper would be in excess of that number. This was not a one-off publication in a newspaper but rather was part of a sustained campaign building up over a period of just over two weeks. At the end of that period, Ms. Leech had gone from a person who would not have been known to the general public at all to someone who was notorious. The proportionality of the damages therefore has to be considered on the basis that the publication of the defamation in this particular case was particularly extensive and widespread.

  80. The conduct of the defendant

  81. The Newspaper in this case in the course of its defence pleaded a number of defences including justification (although it has to be said that the Newspaper did not seek to justify the meanings contended for by Ms. Leech but approached the matter by seeking to justify the articles on different meanings), fair comment, and what is now known as “Reynolds” privilege. The defence of Reynolds privilege was dropped during the course of the trial. This is a case which went to the jury on the basis of the two questions set out above. Insofar as the question of justification is concerned it is clear that the jury did not accept the arguments put forward on behalf of the defendant and accepted the meanings contended for by the plaintiff as set out in the first question put to the jury. To run a defence of justification on any basis and to fail is a matter which can be taken into account by the jury in the assessment of damages. It is, as was described in the course of submissions on behalf of Ms. Leech, a high risk strategy for a defendant.

  82. That this is so can be seen from the judgment of Hardiman J. in the case of Bradley v Independent Star Newspapers [2011] 3 I.R. 96 at page 122 where Hardiman J. stated:

  83. 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.

  84. Such a course did not occur in these proceedings. However, the point is that the Newspaper pleaded justification albeit not of the meanings contended for by Ms. Leech. This is, as was pointed out, a risky strategy and one which did not succeed, clearly.

  85. It was also pointed out on behalf of Ms. Leech that no apology was offered by the defendant at any stage. Reference was made to the remarks of Geoghegan J. in the course of the decision in O’Brien which he said at page 43 of the judgment:

  86. In addition to the points which I have already made I think it relevant also to observe that no apology was made at any stage and that the jury may well have taken the view and could legitimately have taken the view that the article was very carefully crafted both to hint at wrongdoing on the part of the plaintiff and thereby titillate the public while at the same time engage in a damage limitation exercise with a view to avoiding libel. If the newspaper did adopt this exercise it was unsuccessful but it would have been open to the jury to take the view that they had done so. The award had to be of a level that the plaintiff would feel reasonably compensated.

  87. Thus, obviously, one of the factors that can be and may well have been taken into consideration by the jury in this case was that at no stage was there any offer of an apology to Ms. Leech by the Newspaper.

  88. A newspaper that published no photographs would be a very dull newspaper, indeed. It is often the case that newspaper articles are accompanied by photographs which illustrates the article in which they appear. A further aspect of the conduct of the defendant complained of in these proceedings relates to the manipulation of the photographs which accompanied the newspaper articles at issue in these proceedings. One of the photographs was originally a photograph with four people in it including Ms. Leech and the Minister. It was cropped to show just the Minister and Ms. Leech and she complained that it was cropped in such a way as to give the impression that she and the Minister were “holding hands”. (See Day 4, page 103 of the transcript). She made this complaint about the photograph accompanying the article set out in Schedule 5 and again at Schedule 7 of the series of articles. She also complained of a photograph that showed her with a backdrop of New York. In that case there was a photograph of Ms. Leech the original of which was at a function in Waterford. It would perhaps be helpful to quote directly from the transcript of her evidence in this connection which is at page 103 of the transcript on Day 4, commencing at line 13:

  89. Then if you go all the way to this photograph, I was wearing this dress at a private function in Waterford, whereas behind me is the New York skyline. That takes an awful lot of effort, an awful lot of skill and a huge amount of intent on the part of the Herald to portray me in New York in a dress with the Minister. This time the Minister has been removed and a new version of him in a lounge suit is put in to make it look again as if I actually cavort during the day on government business in a dress like this. Then that brings me to the dress. Again, the photograph has been with great intent, with great skill has been manipulated to make my hand, which is down by my side, appear like my thigh. The dress has been manipulated, the photograph has been manipulated to now give me a dress that is slit to the waist, something I would never wear. Certainly this is not a way I ever appeared on government business.

  90. There is no doubt that the photographs used in the various articles were taken from real photographs of Ms. Leech with the Minister albeit in company with others. Equally there is no doubt that the photographs were cropped and manipulated. The photograph of Ms. Leech displayed against the background of New York certainly gave the impression that the type of dress being worn by Ms. Leech was one slit to the thigh. The fact that the photographs were manipulated and altered or cropped in the way described is something that the jury were asked to take into consideration in their deliberations on behalf of Ms. Leech and it was contended to the jury that the purpose of doing this was to suggest that Ms. Leech and the Minister were having an affair. It seems to me that the jury were entitled to take that aspect of the matter into account in the course of their deliberations. It was open to the jury to consider that the manner in which the photographs were manipulated was designed to lend force to the implication contained in the articles to the effect that Ms. Leech got her contracts by virtue of the fact that she was having an affair with the Minister. Therefore, this was an aspect of the conduct of the Newspaper that could be taken into consideration by the jury and, if considered by them to be appropriate, to mark it in their assessment of the damages.

  91. The impact of the defamation

  92. Defamation can impact on an individual in a number of ways. The defamation can impugn someone’s moral character. It can also impugn a person’s business, trade or professional standing. It can impact on other aspects of their status as a person, calling into question personal qualities such as honesty, loyalty, honour, thus impugning an individual’s personal integrity.

  93. The defamation in this case was far reaching in the sense that it attacked Ms. Leech in respect of her personal and professional life. She was a married woman with two children. The implication of the articles was that she was unfaithful to her husband and that she had a part to play in the break-up of the marriage of Mr. Cullen and his wife.

  94. The defamation attacked her professional integrity in that it conveyed to the world at large the impression that she was prepared to engage in an adulterous relationship in order to advance her professional standing and career. Running through the case was a question mark over the capability of Ms. Leech for the tasks for which she was engaged. Thus, the articles attacked not just her moral character but also her professional reputation.

  95. Immediately prior to the appearance of this sequence of articles Ms. Leech had set up a consultancy business with another individual. That business was launched at the annual dinner of the Waterford Chamber of Commerce in November 2004. Following the publication of the articles, the individual with whom she had set up the business consultancy pulled out of the partnership with Ms. Leech. The business she had hoped to establish at that stage simply never got off the ground. In addition, at the conclusion of the contract with the Department of the Environment, her contract was not renewed.

  96. Ms. Leech in the course of her evidence also described her own personal hurt and distress over the series of articles that appeared. She described not only her stress but also the effect that the articles had on her sons and on her husband. One of her sons had to change school during his Leaving Certificate year because of the articles. I think it is undoubtedly the case that the articles caused a great deal of stress to Ms. Leech and her family. In addition, she described how she was personally abused in Waterford as a result of the articles. Overall, it would be no exaggeration to say that the series of articles published by the Newspaper in respect of Ms. Leech had a profound effect on her in every aspect of her family and professional life. This is also a factor that can be taken into consideration by a jury.

  97. Freedom of expression

  98. The point was made on behalf of the Newspaper that the Court in considering the question of damages should have regard to the freedom of expression of the Newspaper. The argument was that extremely large awards of damages in cases such as this have a chilling effect on the freedom of the press and therefore should be subject to careful scrutiny. In this context, reliance was placed on the decision of the Supreme Court in the case of Dawson v Irish Brokers Association, the Supreme Court, Unreported, 27th February, 1997, in which O’Flaherty J. observed at page 25 of the judgment:

  99. There may be cases where the circumstances of the case will call for the consideration of an award of aggravated or exemplary damages. But this was not such a case. The damages, as far as this case is concerned, could be compensatory only. The jury were entitled to award damages for loss of reputation, as well as for the hurt, anxiety, trouble and bother to which the plaintiffs had been put. However, the defendants in defamation cases should never be regarded as the custodians of bottomless wells which are incapable of ever running dry. The opposite has proved true in the publishing sphere in this and other countries – with sad consequences for those who lost employment as a result of untoward awards. Further unjustifiably large awards, as well as the cost attendant on long trials deals a blow to the freedom of expression entitlement that is enshrined in the Constitution.

  100. It is the case that an award of damages must be fair to the plaintiff and to the defendant. That cannot be gainsaid. However, freedom of expression is not an entirely unrestricted freedom. In the context of defamation proceedings it must be balanced by the provisions of Article 40.3.2 of the Constitution which provides that the State “shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen”. The matter was expressed trenchantly by Hamilton C.J. in the de Rossa case when he said at page 456:

  101. Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.

  102. Nevertheless it was accepted by Hamilton C.J. in that case in a passage referred to previously in the course of this judgment that the existence of the right of freedom of expression and the obligation on the State by its laws to protect as best it may from unjust attack and in the case of injustice done to vindicate the good name of every citizen necessarily involves what Hamilton C.J. described as “a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name”. It is from that balancing exercise that he identified the concept of proportionality. Accordingly, I am satisfied that an award of damages cannot be so disproportionate as to have the effect of not just vindicating the good name of the citizen but of restricting the freedom of expression of a newspaper.

  103. Damages

  104. The award of damages in this case in the sum of €1, 872,000 is a very large award by any standard. The defamation in this case consisted of a series of articles over a period of two and a half weeks which impugned the character of Ms. Leech in every aspect of her life. It is clear that the effect of the defamation in this case was considerable. It appears to have had a real and long lasting impact on her professional life. Her contracts were not renewed and the business which she had just set up with another individual collapsed almost as soon as it had begun. The defamation also impacted on the life of her family to an extent that must have increased the stress and personal hurt felt by Ms. Leech. The extent of the loss in terms of her business life was never quantified and there was no claim in respect of special damages but, of course, it would be open to a jury to include in an award of general damages an element of damages in respect of loss of business opportunity. Overall, I am satisfied that the defamation in this case was a very serious defamation. Undoubtedly, if one was to place the defamation in this case on a scale of seriousness, it would certainly be towards the higher end of the scale. A somewhat unusual feature of this case was the sustained campaign in the Evening Herald in respect of Ms. Leech The consequences of it affected her in her day to day life, personally and in her business life. Her newly launched business was destroyed before it could become established. I have no doubt that from her point of view it was a very serious matter. Nevertheless, I do not think it could be classed as one of the most serious libels to come before the Courts, such as that in the de Rossa case. That said, the award made to Ms. Leech in this case was one of the highest ever awards made in a case of this kind in this country. Even accepting that this case is one that comes towards the higher end of the scale, I am satisfied that the award made by the jury in this case was excessive and must be set aside.

  105. I am conscious of the firm instructions of Ms. Leech to her legal representatives that in the event that this Court came to the conclusion that the amount of the award was excessive that the Court should in those circumstances remit the matter to the High Court for assessment by a jury again. Whilst I understand those to be her instructions I am satisfied that in the context of this case it would be desirable for all parties to bring an end to the litigation between the parties and in those circumstances it seems to me that the approach to be taken by the Court should be to set aside the verdict of the jury on damages and to substitute a sum in the figure of €1,250,000 for damages.

  106. In the circumstances it is not necessary to address the argument made on behalf of the Newspaper as to the correctness or otherwise of the order made by the learned trial judge directing the payment out of the sum of €750,000 by way of damages and the sum of €100,000 by way of costs on an interim basis pending the appeal.

  107. Accordingly, I would allow the appeal of the Newspaper and would substitute the sum of €1,250,000 by way of damages for the sum awarded by the jury in this case.

  108. Justice McKechnie

  109. The plaintiff/appellant (Ms. Leech) is a married woman with two sons. For a period of time prior to the commencement of these proceedings, she worked as a communications consultant advising the OPW and subsequently, the Department of the Environment. The Minister for the Environment from 2002 until 2004 was Martin Cullen, TD. Ms. Leech became the subject of widespread media coverage around November and December 2004 concerning her work with the Department.

  110. On the 16th December, 2004, RTE Radio 1 broadcast as usual the Liveline programme, a live phone-in programme which involves members of the public phoning in and speaking to its presenter live on radio. That day, a caller to the programme identifying himself as “Norman” made a number of comments on live radio suggesting that Ms. Leech was performing sexual favours for the Minister for the Environment as part of her job. The following day, an article bearing the headline “Gasps and Blushes as Norman turns Joe’s show into Vileline’” appeared in the Irish Independent newspaper published by the defendant/respondent. The article contained an account of the conversation between “Norman” and the presenter of the programme, Joe Duffy, save that in the article some of the words spoken by Norman were edited. It would be useful to refer to a short passage from the article which appeared in the edition of the Irish Independent for Friday, 17th December, 2004:

  111. During a discussion on the rights and wrongs of her appointment to the €127,775 – year – job, presenter Joe Duffy took a call from a person who called himself Norman and who said he was from Cork and a member of the Progressive Democrats.

    Norman: ‘Well I think Martin Cullen has done a good job. And Monica Leech, for all we know, is not being overpaid at all.’

    Joe interjected: ‘Keep defending.’

    Norman: ‘We really don’t know what she’s been doing anyway. Maybe she’s been doing other things for him besides constituency work – maybe she’s ‘s.... his c.’.

    Joe Duffy, immediately cutting in: ‘We’ll cut the line’. An advertisement break followed.

    Last night, RTE said it disassociated itself from ‘Comments made on today’s Liveline in relation to Martin Cullen and Monica Leech and to apologise for any offence caused’.

  112. Ms. Leech issued proceedings claiming damages for defamation against the defendant/respondent (hereinafter referred to as “the Newspaper”) on the 10th February, 2005. Following an exchange of pleadings the proceedings ultimately came on for hearing before a judge and jury on the 26th June, 2007. The proceedings were dismissed on the 28th June, 2007 in accordance with the verdict of the jury which found that:

  113. (a)

    The article did not bear the meaning that the plaintiff, a married woman, had had adulterous relations with Minister Martin Cullen.

    (b)

    The article did not bear the meaning that the plaintiff, a married woman, had performed deeply intimate sexual favours, namely oral sex, for Minister Martin Cullen for the sake of a well paid and beneficial contract.

    Grounds of appeal

  114. Ms. Leech has appealed from the verdict of the jury and the order made on foot of the verdict on a number of grounds which can be summarised as follows:

  115. (a)

    No reasonable person and in particular Ms. Leech, could believe that the verdict was properly reached in circumstances where it was arrived at on foot of a charge to the jury which the learned trial judge himself accepted was in error.

    (b)

    The trial was, in any event, unsatisfactory as a result of erroneous rulings of the learned trial judge which prejudiced Ms. Leech.

    (c)

    The learned trial judge failed to discharge the jury when he ought to have done so on the request of Ms. Leech.

    The pleadings

  116. In order to understand the issues in the case, it is necessary to make some reference to the pleadings. Ms. Leech in the statement of claim pleaded that the article complained of in its natural and ordinary meaning bore the meanings, inter alia, that Ms. Leech had had an extramarital affair with the Minister, that she had had adulterous sexual relations with the Minister and that she had prostituted herself for the sake of a well paid and beneficial contract. The Newspaper in its defence as originally pleaded denied the meanings contended for by Ms. Leech and went on to plead justification as follows:

  117. 5.

    Further or in the alternative, the defendant pleads that the said material, in its natural and ordinary meaning, but not in the meanings pleaded by the plaintiff, was true in substance and in fact.

    Particulars.

    The conversation described in the article took place between the presenter and the caller to RTE’s Liveline show. RTE and the presenter reacted in the manner described, and made the statements described, in the article. The balance of the article is also true.

  118. There was also a plea of fair comment in which the matter of public interest was stated to be the failure by a national broadcaster to prevent the airing of inappropriate material. Finally there was a plea of qualified privilege to the effect that “The material was published on an occasion of qualified privilege pursuant to the Constitution and/or at common law”.

  119. Arising out of a motion before the High Court (O’Donovan J.) on the 21st November, 2005, an amended defence was delivered containing the following plea of justification:

  120. Further or in the alternative the defendant pleads that the said material, in its natural and ordinary meaning but not in the meanings pleaded by the plaintiff was true in substance and in fact.

    Particulars.

    The defendant pleads that the article bears the following natural and ordinary meaning:

    (a)

    That a caller to RTE’s Liveline had made offensive remarks about the plaintiff and Martin Cullen and that RTE and the programme’s presenter had immediately apologised for, and disassociated themselves from, those remarks.

    In support of the above plea, the defendant relies on the fact that the conversation reported in the article took place and that RTE and the presenter reacted in the manner described and made the statements described in the article. The defendant also relies on the other matters of fact as set out in the article.

  121. Thus, when the case came on for trial, the Newspaper relied on defences of justification, fair comment, and qualified privilege.

  122. RTE proceedings

  123. Ms. Leech also brought proceedings against RTE arising out of the broadcast and those proceedings were compromised by Ms. Leech and RTE in terms that an apology to Ms. Leech was read out in court and a substantial sum by way of damages was paid to her. An order was also made for the payment of her costs of those proceedings, to be taxed in default of agreement.

  124. The trial

  125. At the commencement of the trial and before the case was opened to the jury, a number of legal issues were canvassed before the learned trial judge. In the course of legal argument it was indicated to the Court on behalf of the Newspaper that it no longer wished to rely on the defence of fair comment.

  126. Secondly, it was made clear that the Newspaper did not wish to put forward the defence of justification as such, rather it was intended to rely on the particulars furnished under the heading of “Justification” in the amended defence to the effect that there had been a broadcast in the terms described and that it had been dealt with by RTE by way of an apology. The net effect was that the action proceeded on the basis that the Newspaper’s defence consisted of a dispute as to the meanings contended for by Ms. Leech together with a plea of qualified privilege.

  127. Thirdly, the learned trial judge made the following ruling:

  128. We come to the second issue then which is: is the Plaintiff in opening this case to make reference to a large quantity of other material which is in many cases the subject of other litigation by way of saying that the true meaning that the defendant wished to put forward in relation to the article was not one of a report but one of deliberately attacking her character. At the moment I feel that the right thing to do is to simply rule that that matter should not be opened to the jury at this point.

  129. The case was then opened to the jury on behalf of Ms. Leech. On the following day, before going into evidence, an issue arose as to the status of the “Reynolds” defence of qualified privilege in Ireland (Reynolds v Times Newspaper Ltd. 1999 1 All ER 609) and submissions were heard on that subject. The learned trial judge concluded that there was a public interest or “Reynolds” defence of qualified privilege available in this jurisdiction but he did not wish to rule on the availability of the defence in this case before hearing evidence. It was observed that particulars of that defence ought to have been furnished with the defence but in circumstances where particulars had not been sought by Ms. Leech prior to the trial, he declined to require the Newspaper to formulate such particulars at that stage. During the course of the submissions before the learned trial judge on the issue of the “Reynolds” defence, the Newspaper declined to say whether it would go into evidence in support of that defence.

  130. Following the ruling of the learned trial judge, Ms. Leech commenced her evidence. She described her personal circumstances, her work experience in marketing and communications and how, ultimately, she became self-employed. She explained how she had become acquainted with Mr. Cullen in various capacities, when she worked in local radio and when she was involved in the Waterford Chamber of Commerce particularly in her position as President of the Waterford Chamber of Commerce.

  131. Ms. Leech described how she did a number of jobs for the Office of Public Works when Mr. Cullen was Junior Minister with responsibility for the Office of Public Works. Following the 2002 election, Mr. Cullen became Minister for the Environment. Initially Ms. Leech was offered a short-term contract in relation to the communications needs of the Department. Thereafter, she participated in a full tender process and was successful in obtaining a further contract to work for the Department. She described the nature of her work for the Department.

  132. Ms. Leech explained how she heard the broadcast on Liveline and her reaction to it. The following day she found out about the article in the Irish Independent the subject matter of these proceedings and she told the jury about her reaction to that article.

  133. Ms. Leech was then cross-examined extensively. During the course of the cross-examination, her counsel objected to the breadth of the cross-examination on the basis that it sought to go outside the parameters permissible having regard to the plea of qualified privilege based on the public interest that had been flagged in the course of earlier submissions. Complaint was made that the Newspaper was “pleading justification through the back door”. The learned trial judge permitted the cross-examination of Ms. Leech to continue stating as follows:

  134. The issue as to a public interest defence is objected to on the basis that if Mr. McCullough (counsel for the Newspaper) suggests there is some substance to a controversy, that in those circumstances he is in fact pleading justification through the back door. I think the reality in relation to a public interest defence is that it can be wrong, but a matter can be fairly ventilated in the public interest and I think he is entitled to explore that. I therefore do not see that there is anything wrong with the question.

  135. Thus the cross-examination continued and in the course of cross-examination a number of points were put to her:

  136. It was suggested to Ms. Leech that there was a concern that the tender process was irregular;

    +

    suggested to Ms. Leech that there was a concern that the tender process was contrary to European procedures;

    +

    suggested to Ms. Leech that there was a concern that her presence on foreign trips had been irrelevant;

    +

    suggested to Ms. Leech that, as the articles stated, a senior civil servant had been appointed to investigate all of these matters.

  137. Ms. Leech was then cross-examined as to the proceedings brought by her against RTE arising out of the comments made by “Norman” on Liveline. Following the cross-examination on that issue, the cross-examination concluded. The following day, an issue was raised by counsel on behalf of Ms. Leech as to her cross-examination on the subject of the settlement of her proceedings against RTE. Section 26 of the Defamation Act 1961 was referred to in this context. An issue arose as to whether in circumstances where reliance was placed on the fact that Ms. Leech had obtained damages from RTE that in order to lead that evidence it was necessary for counsel on behalf of the Newspaper to concede liability. Section 26 provides:

  138. In any action for libel or slander the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication.

  139. Counsel for Ms. Leech sought that the Newspaper either admit that the words complained of were to the same effect as the meanings pleaded by Ms. Leech against RTE or if it was contended otherwise, that the jury be discharged. The learned trial judge declined to discharge the jury and said that he would seek the assistance of counsel in relation to the appropriate direction to be given to the jury in relation to the question of damages.

  140. As a result of that ruling, Ms. Leech was re-examined in relation to the settlement of her proceedings with RTE.

  141. The rulings in relation to the breadth of cross examination and as to the refusal of the trial judge to discharge the jury in respect of the s.26 issue are amongst the issues raised in this appeal on behalf of Ms.Leech.

  142. Following the conclusion of the evidence of Ms. Leech on the third day of the trial, it was indicated that the Newspaper would not be going into evidence. There were submissions from counsel as to the effect of not calling evidence on the “Reynolds” defence. The test required to be met before that defence could be relied on, particularly the requirement to establish that the defendant in publishing the article met the standard of responsible journalism, was canvassed. The learned trial judge ruled that in order to establish the “Reynolds” defence, there should have been evidence to establish the steps taken prior to publication which would have amounted to responsible journalism. He ruled that the defence of qualified privilege arising from the public interest could not go to the jury. Accordingly, given that the Newspaper had abandoned its plea of fair comment and justification at the commencement of the trial and was no longer permitted to rely on the “Reynolds” defence, the case went to the jury on the issue of the meaning of the article and damages on the basis of the following questions:

  143. Did the article of Friday, 17th December, 2004 published by the defendant bear the following meanings or either of them?

    (a)

    That the plaintiff, a married woman, had had adulterous sexual relations with Minister Martin Cullen ....

    (b)

    That the plaintiff, a married woman, had performed deeply intimate sexual favours, namely oral sex, for Minister Martin Cullen for the sake of a well paid and beneficial contract ....

  144. The jury were then asked to assess damages if the answer to No. 1(a) or (b) was yes.

  145. The jury’s deliberations

  146. Counsel’s speeches to the jury and the judge’s charge having been concluded, the jury retired at 4.19pm to consider their verdict. Following the learned trial judge’s charge to the jury, counsel for both Ms. Leech and the Newspaper made requisitions in relation to the charge. The Newspaper made a requisition in relation to that part of the charge as to the evidence of meaning. In turn, counsel on behalf of Ms. Leech had a requisition as to the law in relation to a repetition of a libel and the fact that it was not sufficient in repeating a libel to then repeat a disassociation from the libel. The learned trial judge agreed to recall the jury and at 4.28pm the learned trial judge re-charged the jury briefly on the matters that had been raised by way of requisition. The jury went out again at 4.31pm to continue their deliberations.

  147. As pointed out above, complaint has been made in this appeal as to a number of rulings made in the course of the trial but what occurred next gives rise to the main ground of appeal. Some time after the jury had retired to consider their verdict following the re-charge, the Court sat again in the absence of the jury. Apparently the jury had indicated that they had a question and they were also concerned as to how long they were going to be kept deliberating on their verdict. It is not precisely clear at what time the Court sat but it appears from the transcript that the learned trial judge commented “We are close enough to 5.30 now” and he indicated to counsel that he was going to direct the jury at that stage as to a majority verdict.

  148. When the jury returned there was a brief discussion between the learned trial judge and the foreman of the jury as to how much longer the jury would continue on its deliberations that evening. The foreman then asked the question which was troubling the jury – “What does ‘bear the meaning’ mean?” The learned trial judge responded as follows:

  149. Bear the meaning simply means ‘means’. That is all it means.

  150. The exchange between the learned trial judge and the jury continued with a further question asked this time by another member of the jury:

  151. It is not could it bear the meaning to carry an inference?

    Mr. Justice Charleton then responded:

    Inference has not been mentioned in this case, but inference is a fact in the same way, it is within the scope of your duty to find facts and I do not think you should get hung up as to the difference between inference and facts. A fact is that something happened. An inference that you draw from a fact is that by reason of the existence of one fact, you conclude another fact happened. The example that I gave you is that if you see your child in the kitchen and he or she comes in crying at three or four years of age and they have skinned knees, you are entitled to infer from that, that this child has fallen and skinned its knees. You do not have to look for weird explanations in relation to matters. In other words, an inference is a fact from which you can deduce or conclude that another fact exists. Now both facts and inferences from facts are within your province. By ‘bear the meaning’, it means ‘does it mean’? That is all.

    Foreman of jury: That is ok.

    Mr. Justice Charleton: Does that cause you a difficulty?

    Foreman of jury: No, alright, thank you.

  152. The jury then withdrew. Counsel for the plaintiff took issue with the response given and submitted that the word “inference” as explained by the trial judge had a difference use and that the jury were asking if they could draw an inference from the article as a whole or as it was put by counsel:

  153. That if they believe that the message of the article, taking it as a whole between the lines, is to either of the effects pleaded, then they are entitled to act on that and that is wholly different from drawing inferences of the kind which the court has mentioned.

  154. There was a discussion between counsel for the plaintiff and the learned trial judge on the subject. Counsel for the defendant submitted that the answer to the question was correct and was opposed to any re-charge being given to the jury. Counsel for the plaintiff then referred the trial judge to a passage from Gatley on Libel and Slander, 10th Ed. at para. 3.12 to 3.16 on the subject of the meaning of words.

  155. Having considered the submissions, the learned trial judge indicated that he would re-address the jury to point out that “The natural and ordinary meaning also include implications or inferences as set out in paragraph 3.15 of Gatley”.

  156. The jury was recalled by the learned trial judge and when they re-appeared in court, they were wearing their coats. The trial judge began to address them and explain that what he was going to do was “to try and do is tell them what does the question, does the article mean mean?” (sic). At that stage, the foreman intervened and said: “We actually have made a decision.” The learned trial judge asked the jury to listen and go back and consider their decision. He added that he was taking it that there was no decision. He then addressed the jury in the following terms:

  157. Sometimes the meaning can be absolutely clear as where the article says, so and so is a murderer and sometimes where an ordinary person reading the article as a whole would take from it or would infer that the plaintiff is a murderer. That is the allegation. Those things constitute the meaning of the article. What is specifically stated and what an ordinary person reading it as a whole will take from it. Now that is the best I can do in relation to that. Would you like to go back briefly please. I am asking you to go back and then come back, if necessary, in five minutes and give us your decision.

  158. The jury retired again. Counsel on behalf of the plaintiff at that stage requested that the jury be discharged given that the jury had said they had arrived at a decision on the basis of the original charge in response to their question. After some brief discussion, the trial judge refused to discharge the jury. The jury returned almost immediately and brought in a verdict for the defendant. The question that now arises is whether the verdict reached by the jury in answering “No” to both questions on the issue paper is unsafe in the circumstances described above.

  159. The verdict of the Jury

  160. A number of issues have been raised on this appeal in relation to the conduct of the trial and a number of rulings given in the course of the trial but as I have already said the main issue surrounds the arguments on behalf of Ms. Leech to the effect that the verdict of the jury was unsafe. The difficulty arose from the question asked by the jury seeking assistance as to the meaning of the phrase “bear the meaning”. On being asked that question the trial judge gave a definition of the word “inference”. The explanation given by the trial judge was not correct in the context of the meaning of words used in an article. Following submissions on the point, he accepted that the response he gave was not appropriate and on that basis he decided to re-charge the jury. As can be seen from the sequence of events described previously, by the time the submissions had concluded and when the jury came back for the purpose of being re-charged, the jury had actually made a decision as indicated by the foreman. In those circumstances the learned trial judge requested the jury to go back and consider their decision and continued his re-charge. Apart from any issue with the manner in which the learned trial judge then re-charged the jury, it is contended on behalf of Ms. Leech that there was bias on the part of the jury in the sense that the jury had clearly reached their decision prior to the final re-charge and thus the verdict of the jury could not be regarded as being unbiased. Reference was made to the decision in the case of The People (DPP) v Tobin [2001] 3 I.R. 469, a decision of the Court of Criminal Appeal in respect of an appeal from a conviction for rape and sexual assault. During the course of the trial the foreman of the jury in that case disclosed to the Court that as the jury were deliberating, a member of the jury related a personal experience of sexual abuse. The foreman of the jury assured the Court that it was not affecting the impartiality of that person in any way but explained that the jury believed they should report the matter to the Court. The trial judge in that case declined to discharge the jury. The case was certified for appeal by the trial judge on the ground “That the Court failed to discharge the jury when it was brought to the attention of the Court by the foreman of the jury that a member of the jury had disclosed during the course of their deliberations that a particular member of the jury had a prior experience of sexual abuse”. In his judgment, Fennelly J. considered the appropriate test to be applied and it was concluded by the Court of Criminal Appeal in allowing the appeal that the test to be applied was an objective one, namely, whether there was a “reasonable apprehension” of bias, which was the test which applied to the judiciary and a fortiori applied to the case of a challenge alleging bias in a jury. The Court further held that, in the special circumstances of the case, a reasonable and fair-minded observer would consider that there was a danger in the sense of a possibility that a juror might have been unconsciously influenced by his or her personal experience and for that reason the appellant might not receive a fair trial. Fennelly J. in the course of his judgment reviewed a number of authorities including Webb v The Queen (1993 -1994) 181 C.L.R. 41, Sander v United Kingdom [2000] Crim. L.R. 767 and Reg. v Gough [1993] A.C. 646. For example in the case of Sander, the issue that arose was the fact that a note had been sent to the judge expressing concern at the expression of racist sentiments by a member of the jury in respect of a case involving a British citizen of Asian origin. Having reviewed those authorities, Fennelly J. (at p. 477) observed:

  161. The rich and growing body of case law in this jurisdiction regarding complaints of bias in decision-making bodies (including the courts themselves) contains very few instances of alleged juror bias and none of the type which arises in this case. It seems, however, that our courts have, in other cases of alleged bias, preferred the second of the two formulations of the objective test set out in Reg. v Gough [1993] A.C. 646 .... On this basis Denham J. in her judgment in Bula Ltd. v Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412, stated at p. 439:

    Thus, there is well settled Irish law that the test is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not receive a fair trial of the issues.

    She went on to compare Reg. v Gough [1993] A.C. 646 and Webb v The Queen (1993-1994) 181 C.L.R. 41. She quoted in extenso from the judgment of Mason C.J. in the latter and she adopted his reasoning.

    Bula Ltd. v Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412 of course, was concerned with allegations of bias at the highest levels of the judiciary. It is notable, therefore, that the ‘reasonable apprehension’ test applies even there. A fortiori, therefore it applies to the case of a challenge alleging bias in a jury. The additional admonition recalled in nearly all of the cases and cited by counsel for the appellant in the present case is Lord Hewart C.J.'s celebrated dictum from R. v Sussex JJ., ex p. McCarthy [1924] 1 K.B. 256 at p. 259, ‘.... that justice must not only be done, but should manifestly and undoubtedly be seen to be done’. In the end, of course, the application of the test is a matter for decision of the court on the facts of the individual case.

  162. It was contended on behalf of Ms. Leech that in the circumstances that had occurred and despite the direction of the learned trial judge that the jury should go back and consider the decision which they had already reached, no reasonable person could have had anything other than a reasonable apprehension that the subsequent decision of the jury, minutes later, might have been affected by pre-judgment in circumstances where the foreman of the jury had interrupted the learned trial judge in his re-charge to indicate that the jury had reached a decision.

  163. By contrast, counsel on behalf of the Newspaper submitted that on an objective assessment of the facts there was no basis for any case of real or perceived bias on the part of the jury. It was pointed out that following the re-charge by the trial judge he stated to them that they were “to listen to this and go back and consider your decision. You have not been asked as yet for your decision, I am taking it that there is no decision”. It is the Newspaper’s case that that is precisely what the jury did. Reliance was placed on the decision in Dawson v Irish Brokers Association [1998] IESC 39 at page 6 where it was stated:

  164. Once again, it is necessary to reiterate, as this Court is doing with increasing frequency, that the question of having a jury discharged because something is said in opening a case or some inadmissible evidence gets in should be a remedy of the very last resort and only to be accomplished in the most extreme circumstances. Juries are much more robust and conscientious than is often thought. They are quite capable of accepting a trial judge’s ruling that something is irrelevant, or should not have been given before them, as well as in the face of adverse pre-trial publicity. See D v Director of Public Prosecutions [1994] 2 IR 465; Z v Director of Public Prosecutions [1994] 2 1R476 and Irish Times Limited v Murphy [199812 ILRM 161.

  165. Relying on that authority, it was submitted that it must be assumed that the jury did what it was asked to do, namely to go back and consider its decision in the light of the further re-charge by the learned trial judge.

  166. It was further submitted that the jury spent further time deliberating following the final re-charge by the learned trial judge. On that basis it was submitted that there was no case to suggest that there was actual or perceived bias on the facts or as a matter of law.

  167. The appropriate test to be applied in this case is the test identified in the decision of the Court of Criminal Appeal in The People (DPP) v Tobin referred to above, namely an objective one as to whether there was a “reasonable apprehension” of bias. The question to be asked is whether a reasonable and fair-minded observer would consider that there was a danger in the sense of a possibility that the jury, having already indicated that they had a decision made did not in fact re-consider their verdict in the light of the further re-charge by the learned trial judge.

  168. The circumstances of this case are unusual. When the jury was re-called for the purpose of the final re-charge, the jury were already wearing their coats and when the Judge began to address them by way of the re-charge, the foreman of the jury interrupted to say that they had in fact reached a decision. The jury were then further re-charged and asked to go back and consider their decision. The precise length of time that they re-considered the verdict is not clear from the transcript which only makes reference to a short adjournment. It appears to have been a matter of minutes. What is clear is that the jury did not spend any lengthy period of time reconsidering their verdict following the re-charge.

  169. This is not a case in which there is a suggestion that there was some form of bias in the sense of prejudice towards an accused person or undue sympathy for a victim of a crime as in the cases of Sander v United Kingdom or Webb v The Queen. It is a case in which the issue is as to whether or not there was pre-judgment on the part of the jury in reaching a decision. The jury had reached a decision by the time the trial judge sought to re-charge them following further submissions from counsel. Reference was made in the course of the submissions to “the robust commonsense of juries” (see D. v Director of Public Prosecutions [1994] 2 I.R. 465 and Kelly v O’Neill [2000] 1 I.R. 354). I agree with the general proposition that juries have robust commonsense. It is for that very reason that we have trial by jury in criminal matters and in a limited number of civil actions. The system of trial by jury has stood the test of time. I accept that as a general rule, a jury is capable of following a judge’s directions to ignore a piece of irrelevant evidence or adverse pre-trial publicity, for example. Nevertheless, the most unusual circumstances of this case must give rise to a real concern as to the safety of the verdict where the jury had told the learned trial judge that they had made a decision, were re-charged and told to go back and consider their decision and proceeded to deliver their verdict minutes later. Applying the test identified by Fennelly J. in Tobin, I am driven to the conclusion that a reasonable and fair-minded observer would consider that there was a danger, in the sense of a possibility, that by the time of the final re-charge by the learned trial judge, the jury had already made up their minds. On that basis, I am satisfied that the verdict of the jury in this case is unsafe.

  170. Other issues

  171. Even if I were not satisfied that the verdict of the jury in this case was unsafe for the reasons set out above, I would have come to the same conclusion having regard to the direction given to the jury as to the meaning of the phrase “bear the meaning”. When the jury asked the question .... “could it bear the meaning to carry an inference?”, the learned trial judge gave an explanation as to inference which was subsequently accepted by him not to be correct in the light of further submissions. In the course of those submissions, the learned trial judge accepted that when one is considering the natural and ordinary meaning of words complained of, the natural and ordinary meaning includes implications or inferences as described in Gatley on Libel (10th Ed.) at paragraphs 312 to 316. The matter is set out succinctly at paragraph 315 where it is stated:

  172. The natural and ordinary may also include implications or inferences.

  173. The learned trial judge did not use that phrase but told the jury the following during the re-charge:

  174. Sometimes the meaning can be absolutely clear as where the article says so and so is a murderer and sometimes where an ordinary person reading the article as a whole would take from it or would infer that the plaintiff is a murderer. That is the allegation. Those things constitute the meaning of the article. What is specifically stated and what an ordinary person reading it as a whole will take from it.

  175. The jury were looking for an explanation as to whether they could draw an inference from the words used in the article complained of as to the natural and ordinary meaning of those words. The subsequent re-charge seems to me to have fallen short of providing the jury with a clear explanation as to whether or not the natural and ordinary meaning of the words could also include implications or inferences such as those contended for by Ms. Leech. The purpose of the judge’s charge to the jury is to give directions on the issues of law that arise in the case with a view to assisting the jury to reach a verdict. In Walsh on Criminal Procedure, the author said at p. 934:

  176. the judge should aim to translate the relevant rules and principles into workable standards which could be applied by a layman and avoid broad disquisitions on the law which are aimed at an academic or professional audience.” This applies with equal force to the judge’s charge in a civil action.

  177. I sympathise with the view of the learned trial judge that it would not be appropriate to read lengthy passages from a textbook to a jury in the course of a charge but sometimes a clear and straightforward text book explanation may be of assistance. I am of the view that what was stated by the learned trial judge in the course of the re-charge did not undo the confusion caused by the earlier explanation of an inference and did not go far enough in explaining to the jury, to use the words used by Mr. O’Higgins, “That if they believe that the message of the article, taking it as a whole between the lines, is to either of the effects pleaded, then they are entitled to act on that.” and accordingly for that reason also the verdict of the jury is unsafe.

  178. This case was the first case in which the so-called “Reynolds” defence of qualified privilege was raised. At the end of the day that defence did not go to the jury in circumstances where one of the tests for relying on that defence, namely the test of demonstrating that there was fair and responsible journalism in the publication of the article complained of could not be met as the Newspaper chose not to go into evidence. Nevertheless there was much argument in the course of the case on this issue and one of the complaints made on behalf of Ms. Leech was that there was an error on the part of the learned trial judge in not ruling that the defence was unavailable before Ms. Leech commenced her evidence unless the Newspaper confirmed at that stage that it was going into evidence. Complaint was made that the Newspaper was allowed to cross-examine Ms. Leech relying on its defence of “Reynolds” qualified privilege even though subsequently, it did not go into evidence resulting in that defence not going to the jury. The provisions of s. 26 of the Defamation Act 2009 now incorporate a defence of “fair and reasonable publication on a matter of public interest”. Section 26(1) provides:

  179. It shall be a defence (to be known, and in this section referred to, as the ‘defence of fair and reasonable publication’) to a defamation action for the defendant to prove that -

    (a)

    the statement in respect of which the action was brought was published –

    (i)

    in good faith, and

    (ii)

    in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit,

    (b)

    in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient, and

    (c)

    in all of the circumstances of the case, it was fair and reasonable to publish the statement.

  180. Sub-section (2) goes on to set out a number of matters to be taken into account when considering whether it was fair and reasonable to publish the statement concerned. In this case, counsel on behalf of Ms. Leech sought a ruling on the “Reynolds” defence prior to her going into evidence. It may well be that an application to rule out such a defence could be made at the outset of a case on the basis that the matters pleaded could not in any circumstances give rise to such a defence, be it, the “Reynolds” defence or the defence as now provided for in s. 26 of the 2009 Act. However, where such a defence is open on the pleadings, it would appear to be premature to rule out such a defence prior to evidence being given. Even if the defendant indicated clearly at the outset of the trial that he or she was not going into evidence, it may be possible for the evidence to come from the Plaintiff or the Plaintiff’s witnesses. The arguments in this case centred on the lack of particulars contained in the defence as to how the “Reynolds” defence might arise and the learned trial judge accepted that particulars ought to have been given in relation to the “Reynolds” defence. However where there were extensive notices for particulars and replies to particulars and no notice for particulars was raised in relation to the public interest defence, he took the view that it was not appropriate to shut out the “Reynolds” defence at that stage by reason of the absence of particulars. At the conclusion of the evidence, he ruled out that defence given that in the absence of evidence the test required to give rise to the defence in relation to responsible journalism had not been met. I am satisfied that the approach of the learned trial judge in not ruling out “Reynolds” defence at the commencement of the trial was more than appropriate.

  181. Conclusion

  182. The main ground of appeal in this case centred on the events that occurred towards the end of the jury’s deliberations. The fact that the jury returned to court wearing their coats, having been recalled by the court for a further re-charge, were told by the learned trial judge that he wished to say something else to them, that the foreman of the jury announced that the jury had made a decision, that the learned trail judge re-charged them, asked them to go back briefly and then come back and give a decision, coupled with the fact that the jury returned with a verdict within a matter of minutes, has led me to the conclusion that a reasonable and fair-minded observer would consider that there was a danger, in the sense of a possibility, that by the time of the final re-charge by the learned trial judge, the jury had already made up their minds and had done so on the basis of an erroneous charge. I am satisfied that the verdict of the jury was unsafe on this ground. Accordingly, I would allow the appeal.


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