THE SUPREME COURT

72/2002

Geoghegan J
Fennelly J
McCracken J

Between:

Joseph Mangan
Plaintiff/Respondent

AND

Independent Newspapers (Ireland) Ltd
Defendant/Appellant

Judgment of Mr Justice McCracken delivered the 31st day of January 2003. [Nem diss.]
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Background
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The plaintiff, who is a judge of the District Court, sued the defendant for libel arising out of an article published in the Sunday Independent on 22nd March 1998.  The defendant defended the action on three grounds, namely, that the words did not bear the meaning for which the plaintiff contended, that they were fair comment on a matter of public interest and that they were true in substance and in fact.  

The action came on for trial on 8th November 2000, before Barr J and a jury.  On the second day of the trial Counsel for the plaintiff objected to certain elements of the opening of the defence by Counsel for the defendant and asked that the jury be discharged. Barr J accepted the validity of the objection, and there was considerable discussion as to whether the jury should be discharged or whether the learned Judge should attempt to rectify the situation by addressing the jury.  In the end the learned trial Judge decided to discharge the jury and he awarded the costs of the hearing to the plaintiff.  

The defendant appealed this order to the Supreme Court and by order of the Supreme Court dated 25th July 2001, the appeal was allowed and the Supreme Court discharged so much of the order of the High Court as ordered the defendant to pay the plaintiff’s costs and further ordered that the plaintiff pay the defendant the costs of the appeal.  In relation to the costs of the hearing of the High Court the Supreme Court order provided:-

“IT IS ORDERED that the costs of the hearing in the High Court do abide the outcome of the retrial directed in the said order.”

The retrial commenced on 12th February 2002, before Carroll J and a jury, and after a hearing lasting for six days the jury found in favour of the plaintiff and awarded him damages in the sum of €25,000.  In the course of the retrial the learned trial Judge had withdrawn the defences of fair comment and justification from the jury.  Argument then took place before the learned trial Judge in relation to both the costs of the trial which had just taken place and the costs of the aborted trial before Barr J.  The learned trial Judge reserved her decision on the question of costs overnight and on 27th February 2002, decided that the plaintiff should recover the costs of the entire action on the Circuit Court scale and should also recover the costs of the aborted trial on the Circuit Court scale.  In both cases with a certificate for Senior Counsel.  She also refused to make an order under s.17 (5) of the Courts Act 1981.  The defendants have appealed the decision of the learned trial Judge in relation to costs.

Three issues have arisen on this appeal which I propose to deal with separately.

Costs of Trial before Carroll J.
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Section 17 (1) of the Courts Act 1981, as amended by s.14 of the Courts Act 1991, reads as follows:-

“(1)	Where an order is made by the court in favour of the plaintiff or applicant in any proceedings …. and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the said lowest court.”

In pursuance of this subsection, the learned trial Judge, quite correctly, limited the costs of the plaintiff to Circuit Court costs.  However, the defendant further argues that the costs awarded should also be limited to the costs of a three day hearing on the basis that a trial before a judge alone in the Circuit Court would have been completed within that period.  The defendant argues that, by awarding the plaintiff the costs of the full seven days before the High Court, the plaintiff was in fact going to recover more costs than he would have been entitled to recover if the proceedings had been heard in the Circuit Court.  In relation to this argument the learned trial Judge held:-

“It is not always possible to predict how long a case may take and counsel constantly get it wrong and it is equally impossible to say with hindsight.

In my view a lot of time was taken up in the High Court because the defendant pursued three defences, two of which fair comment and justification were disallowed, because the article did not disclose the full facts.  That is, that the phone call was taken by Judge Mangan in discharge of his official duties.  In my view, the plaintiff is entitled to Circuit Court costs in respect of the entire trial with a certificate for Senior.”

There is no doubt that the course as suggested by the defendant would have been open to the trial Judge in her discretion, had she thought it proper to take that course.  It is not uncommon for a trial judge to limit the costs to a specified number of days for reasons to do with the conduct of the trial, or because the successful party may have failed on certain issues.  However, the defendant has not been able to point to any authority whereby the costs should be limited because the trial might have taken a shorter time in a lower court.  

There is no doubt, that all things being equal, the probability is that the case would not have lasted as long in the Circuit Court, but there could be no certainty as to this.  The defendant has pointed to certain elements in the trial which might not have taken place had it been held in the Circuit Court, such as the charge to the jury, but against this must be weighed the impossibility of estimating with any accuracy the length of time which a trial will take.  Apart from anything else to do so with any accuracy would require the identification of the judge who would hear the trial, as some judges conduct their business much more slowly than others.

I also think that the wording of s.17 (1) certainly does not make it mandatory on the learned trial Judge to disallow some days of the hearing.  The section provides that the plaintiff shall not recover more costs than he would have been entitled to recover in the Circuit Court, but the order in the Circuit Court almost certainly would have simply been an order for the costs of the entire trial.  That is the order that has been made by the learned trial Judge in the High Court and therefore is one which she perfectly entitled to make.   In my view, while she had a discretion which would have allowed her to limit the number of days of hearing, she correctly exercised her discretion in refusing to speculate on the length of a Circuit Court hearing, and also on the basis that a lot of time was taken up by reason of the unjustifiable defences raised by the defendant, which is a certainly a matter she was entitled to take into account in the exercise of a discretion.

Costs of the Abortive Trial
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The learned High Court Judge undoubtedly erred when she stated in her judgment that the plaintiff did not ask the trial judge to discharge the jury.  This Court has had the benefit of the transcript of the arguments before Barr J in the abortive trial, and it is quite clear that the initial objection taken by Counsel for the plaintiff included a specific request to discharge the jury.  However, this was not the only basis on which the learned trial Judge awarded the costs of the abortive hearing.  

In this Court after the decision had been given to allow the appeal against the dismissal of the jury by Barr J it was argued by Counsel for the defendant that it would be unjust for the defendant to have to pay the costs of the abortive trial.  Equally, Counsel for the plaintiff argued that it would be unjust for those costs to be awarded against the plaintiff as he might well succeed in the action.  Quite clearly this Court took the view that it ought not to consider the question of such costs at that time, and made the order that those costs would abide the outcome of the retrial.  It is particularly relevant that the costs were not reserved to the trial Judge in the retrial.  While I do not consider it appropriate to try to construe an order of a differently constituted  Supreme Court in this action, however, it is certainly arguable that in effect the Supreme Court decided that the costs of the abortive trial would, as it is sometimes put, “follow the event”.  

Whether that is so or not, it seems to me that the learned trial Judge’s decision was correct.  If the plaintiff had to bear his own costs of the abortive trial, and certainly if he had to bear both sets of costs, then the entire award of damages to him would be eaten up in paying those costs.  In this case the plaintiff was seriously libelled and the jury considered the proper compensation to him was €25,000.  They would have been totally unaware that that money would not go to the benefit of the plaintiff, but would be used to pay costs. This would certainly seem to me to tip the balance of any discretion in the learned trial Judge in favour of the plaintiff.  I think it is also very relevant that, while it was held that the learned trial Judge erred in discharging the jury the Court did not find that the objection was unjustified, but rather considered it unnecessary to rule on the point.

While the decision is certainly unfortunate from the point of view of the defendant, and one must have some sympathy for it, nevertheless it is probably in accordance with the intentions of the Supreme Court and certainly could not be said in any way to be an improper exercise of the discretion of the learned High Court Judge.  I appreciate that under the decision in Vella .v. Morelli [1968] 1 IR 11 this Court may substitute its own discretion in place of that of the learned trial Judge, nevertheless I think this is a power which this Court should exercise sparingly.  I am of opinion that this Court ought not to interfere with the decision of the learned trial Judge.  

The decision in O’Brien .v. Mirror Group Newspapers Ltd & Ors [2001] 1 IR 1 was opened to the Court.  In that case there had also been an abortive trial in a libel action, and the learned trial judge had refused to award the plaintiff the costs of the abortive trial.  While the appeal was largely concerned with the question of damages, Keane CJ also dealt with the costs of the earlier trial at page 23, and Denham J did so at page 37.  In both judgments it was held that the plaintiff ought to have been awarded the costs of the first trial.  While Keane CJ to some extent based his decision on  the fact that the collapse of the first trial was not in any way the responsibility of the plaintiff, which could not be said of the present case as the plaintiff sought the collapse of the trial, Denham J took the more straightforward view and said:-

“Costs follow the event.  Consequently, if the respondent succeeds he is entitled to costs, including the costs of the first trial.”

Claim Under Section 17 (5)
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Section 17 (5) of the Courts Act 1981 as amended reads:-

“Where an order is made by a court in favour of the plaintiff or applicant in any proceedings (not being an appeal) and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the judge concerned may, if in all the circumstances he thinks it appropriate to do so, make an order for the payment to the defendant or respondent in the proceedings by the plaintiff or applicant of an amount not exceeding whichever the following the judge considers appropriate……..”

It is quite clear from the phrase “if in all the circumstances he thinks it appropriate to do so” that the section confers a discretion on the trial judge.   In her judgment in the present case the learned trial Judge referred to a number of matters which she clearly took into account in the exercise of her discretion.  While she did not comment on the matters individually, and merely found that in all the circumstances of the case it was not appropriate to make an order under the subsection, nevertheless she clearly was aware of the matters which it was relevant to take into account.  There therefore does not appear to be any error by her in the exercise of her discretion.
I also think it is relevant to consider that this is a libel action in which damages are determined by a jury.  It is not an action for a liquidated sum, nor is it an action for general damages in a negligence action which would be determined by a judge alone.  In those cases, the plaintiff’s legal advisors in deciding in which Court to initiate the claim should be able to estimate within reasonable parameters the probable level of damages should the plaintiff succeed.  The situation is very different in a libel action where the views of juries can differ enormously on the question of damages.  In the present case, the plaintiff’s advisors obviously considered that the plaintiff would obtain reasonably substantial damages if he succeeded.  As it transpired, the plaintiff in fact recovered damages within the Circuit Court jurisdiction, but they were still reasonably substantial damages and it could not be said that the plaintiff was in any way unreasonable or irresponsible in bringing the proceedings in the High Court.  Indeed, had the plaintiff been awarded only a slightly higher amount the learned trial Judge would have had the discretion to allow the plaintiff full High Court costs under s.17 (2).  In all these circumstances I consider it was proper to refuse to make an order under s.17 (5).

Conclusion
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For all the reasons stated above I would dismiss the defendant’s appeal.