Judgment Title: Talbot v Hermitage Golf Club & others
Neutral Citation:  IESC 57
Supreme Court Record Number: 492/12 & 223/14
High Court Record Number: 2006 850 P
Date of Delivery: 09/10/2014
Court: Supreme Court
Composition of Court: Denham C.J., Hardiman J., Charleton J.
Judgment by: Denham C.J.
Status of Judgment: Approved
THE SUPREME COURT
Appeal No. 223/2014
Hermitage Golf Club
The Golfing Union of Ireland, and Eddie Murphy
1. I agree with the judgment to be delivered by Mr. Justice Charleton, both the reasons given and the order proposed. Charleton J. has pointed out that delivery of this judgment today will constitute the 83rd day that the resources of the High Court and the Supreme Court have been directed towards this claim. There are some observations that I wish to make regarding case management.
2. The traditional practice in common law legal systems was that it was the parties and their lawyers who set the pace of a case. The courts did not intervene by actively managing the progress of the litigation process. This approach reflected the dominant laissez-faire attitude of the nineteenth century.
3. However, with the growth in the volume of litigation and the increasing complexity of cases, it became apparent that judges presiding in the courts must begin to proactively case manage cases and adopt case management practices and procedures.
4. Case management in civil litigation was developed in England and Wales in the mid 1990s. In Ireland an early initiative to introduce case management began in June 1996 by way of a High Court practice direction concerning personal injuries actions in which liability was not in dispute.
5. The adoption of case management in England and Wales came to the fore when the then Master of the Rolls, Lord Woolf, submitted two reports entitled Access to Justice, Interim Report, to the Lord Chancellor on the civil justice system in England and Wales (June 1995) and a Final Report (July 1996). Lord Woolf observed that:
11. Irish jurisprudence is also relevant. This Court stated in Gilroy v Flynn  IESC 98 at paragraph 13 that:
14. Further, case management assists a court in determining a case within a reasonable timeframe. This is important for all parties in an action.
15. In this case the appellant filed very comprehensive written submissions which the Court received. However, he insisted on reading them out to the Court, and objected to questions from the Court. This is inconsistent with the proper conduct of appeals where full written submissions have been filed. The main purpose of an oral hearing is for the Court to seek and obtain clarification on the submissions.
16. The learned High Court judge took great care to hear and determine the issues raised by the appellant. I agree with Charleton J. that the conduct of the learned trial judge was exemplary. However, I consider that the Courts would benefit by a further development and use of case management so that the best use may be made of scarce court resources for the benefit of all litigants.
This is an appeal from the judgment and order of Herbert J dated the 27th July, 2012,  IEHC 372, wherein he dismissed the plaintiff/appellant’s claim for damages against the defendant/respondents for defamation and for conspiracy. The plaintiff/appellant Mr Talbot represented himself at all stages and the notice of appeal is wide-ranging. In essence, every finding of fact of the learned trial judge is disputed by Mr Talbot. He pleads that there was evidence that he was defamed as to the integrity of his golf handicap. He claims that a conspiracy to destroy his character was effected successfully by a combination of all of the defendant/respondents, the Hermitage Golf Club, its handicap committee member and chairman Eddie Murphy and the Golfing Union of Ireland. In the result, he claims that he had to forego membership of Hermitage Golf Club, a privilege that he had enjoyed for 50 years. During the years 2001-2003, Mr Talbot believes that he had uncovered sharp practice in terms of finance and also waste of resources at Hermitage Golf Club. It was because, he says he believes, of the risk of him drawing that to the attention of the wider membership of the club, and outside the club, that the alleged conspiracy formed. Apart from what was alleged on the pleadings, he made allegations of malice, fraud and theft during the course of the hearing. There was not the slightest evidence to support any such allegation. In addition, Mr Talbot claimed that he had been maliciously prosecuted. There were no proceedings of any kind, civil or criminal, taken against Mr Talbot by any party to this appeal. Probably, Mr Talbot believes that he was maliciously persecuted. Only defamation and conspiracy are before the Supreme Court in this appeal. In addition to his disputation of the findings of law and fact of the learned trial judge, a general claim has been mounted by Mr Talbot that the trial was unsatisfactory.
The minutes, the learned trial judge accepted on the evidence, were kept secure in the clubhouse in the men’s competition room, to which only the members of the sub-committee have access. Only Mr Talbot opened the note. No one outside the committee prepared either the minutes or the note. At that time, however, from April 2003 the club was engaged in computerising its records and among its most important records are those of the handicap that members are playing off. A computer firm called Genesys was engaged in designing the relevant software. The learned trial judge was satisfied that communication of a terse note as to Mr Talbot and his handicap, containing the words “handicap building”, was published to some anonymous computer programmer working for that firm. A notice to vary judgement was filed by the defendants/respondents. The argument advanced is that there was no publication to anybody outside the sub-committee and that the learned trial judge had erred in holding that any reference to Mr Talbot and handicap building had come to the attention of anyone in the computer firm. This is not accepted. In the first place, on the transcript of the hearing it is not at all clear as to who did the computer programming or when that was entirely finished. Secondly, it is not credible to believe that the learned trial judge was not aware of patching and updating of computer programs which, of necessity, requires access to the program at later dates by such a specialist.
On 8th November, 2004, Eddie Murphy drove into the car park of the Hermitage Golf Club and noticed Mr Talbot speaking to another member. He apparently turned in the direction of Eddie Murphy and said “It’s that f- -ing idiot there”, or words to that effect. Eddie Murphy replied that he hoped that the comment was not addressed at him; to which Mr Talbot is supposed to have replied “Put it in writing and I will see you in court.” This incident later resulted in a disciplinary hearing at Hermitage Golf Club and the result was the suspension of Mr Talbot from the Club for three months. The suspension of a member, the learned trial judge noted, had only happened twice in the previous 40 years and then for serious incidents involving the abuse of club property and for singing songs with inappropriate words “in mixed company”.
On 10th December, 2004, the annual general meeting of Hermitage Golf Club took place. This was a heavily attended gathering as it was a matter of considerable interest to members. Mr Talbot was at that meeting fortified with notes that were produced on this appeal. He gave the learned trial judge a very full account of what he said there. He insisted in reading out his notes at the trial. Among the items debated at the meeting was a report from the captain. One of the items was new members. The captain proposed that in order to protect the integrity of membership in the Club “a system of interviewing prospective candidates” was to be “added to the screening process.” To this, apparently, Mr Talbot added his own spoken observation. He testified at the trial about his contributions to the meeting and he also asked numerous questions about this meeting of other witnesses. At trial he also recited from his notes and so what he said at the meeting was likely to be similar to the note produced in court, and on this appeal, which read:
The Golfing Union of Ireland, or GUI, regulates this sport in Ireland. There were two audits in consecutive years of the handicapping system by the Leinster branch of the GUI. These happened to cover the 2002 and the 2003 playing seasons. The learned trial judge accepted evidence from John Ferriter, which was backed by evidence from Seamus Smith, both of the GUI, that any decision to audit and the result of any such audit were taken entirely independently of Hermitage Golf Club. In particular, the learned trial judge accepted that no golf club can call for itself to be audited. Furthermore, the nature of the audit may involve persons from the GUI who are also members of the club being audited. The reason for this is simply to save time and travelling expense. There is no stipend involved in this voluntary work. Mr Talbot believes that these audits occurred for the purposes of whitewashing the malicious work of the handicap sub-committee. The evidence at trial was, however, to the effect that the general system was what was looked at and not individual handicap scores. Mr Talbot’s handicap would have been of no interest to the GUI. Furthermore, reasons were given at trial as to why audits could take place in consecutive years and these related to such matters as success in competitions.
Following a hearing in the Supreme Court on 29th February, 2008, Mr Talbot was ordered to list each and every document which he claimed defamed him; to produce copies of each of such documents if requested; to state to whose attention these documents came; and to state the nature of the conspiracy he alleged, listing each and every act known to him which he alleged was done in pursuance of the conspiracy. In addition to the handicap certificate that mentions “handicap building” addressed to Mr Talbot of 30th July, 2003 and the three letters of complaint following on the annual general meeting of 10th December, 2004, two other documents were referenced in clarification of the defamation allegation. The first is a letter dated 14th May, 2007 which was addressed by John Corcoran, the honorary secretary of Hermitage Golf Club, to all members and headed “High Court Action”. This read:
These are the basic facts in respect of which the trial took place over 20 days in the High Court. There was much other correspondence which was referenced at the trial and on this appeal, including a solicitor’s letter on Mr Talbot’s instructions to Hermitage Golf Club and the reply, and several other documents. These are not germane either. At the trial, Mr Talbot insisted on calling every witness, including ones who clearly were not likely to be helpful to his case because they had a contrary account of events, for example Eddie Murphy. These were examined and cross-examined by him, sometimes at astonishing length and in a bewildering fashion.
Boundaries to an appeal
2. If the findings of fact made by the trial judge supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes LJ in “Gairloch,” The S.S., Aberdeen Glenline Steamship Co. v Macken  2 I.R. 1, cited by O'Higgins C.J. in The People (Director of Public Prosecutions) v. Madden  I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or a recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
Proof that defamatory words were published may be defended where the person who makes the communication has an interest or duty, legal, social or moral, to address it to the person to whom it is made and that person has a reciprocal interest or duty to receive such information; Henwood v Harrison  LR 7 CP 602 at 622. Actual malice, meaning an improper motive for the communication, which arises naturally where the person disseminating the words knows them not to be true, defeats this defence of qualified privilege. An inference of malice is rebutted prima facie from a statement that attacks the character of a prospective plaintiff where a situation of privilege is proven and thus requires the plaintiff at trial to show that the communicator of the statement was motivated by personal spite or ill will; Wright v Woodgate  2 CMR 573 at 577 and Harris v Arnott (No 2)  26 LR Ir 55. The law presumes that communications on an occasion of privilege were believed to be true. This is rebutted by proof of malice. Malice is shown where a plaintiff at trial proves that the defendant did not honestly believe the truth of what was communicated or was indifferent to its truth or falsity; Horrocks v Lowe  AC 135 at 149-151.
All of the above was recited and ostensibly applied in the judgment of the learned trial judge. As a statement of the principles underpinning the law on defamation over more than a century, it is unimpeachable.
The learned trial judge’s findings were based on a solid foundation of fact. None of the witnesses called by Mr Talbot agreed with any allegation of malice, ill-will, spite or conspiracy that he put to them. On the contrary, there was abundant evidence that no-one in Hermitage Golf Club could ever have been motivated by anything other than disappointment. A striking incidence of this occurred on the evidence of Andrew Brennan, who had been vice-captain of the Club in 2004, captain in 2005 and vice-president in 2006. He was asked by Mr Talbot as to why a new standing order had been brought in following the annual general meeting in 2004 concerning the conduct of meetings. Mr Talbot put it to him that this was done in order to interfere with democratic rights; and in particular his. He answered:
The evidence established that there are over one thousand members in the Club and that the handicap sub-committee was solely responsible for ensuring that the playing handicap of each such member was constantly reviewed and validated in accordance with the requirements of the Standard Scratch Score and Handicapping System then in force. The work of the sub-committee was subject to random audit by the second defendant. In the performance of this exacting and onerous task, the handicap sub-committee needed to constantly refer to the individual records of each playing member of the Club. The evidence established that a failure on the part of the handicap sub-committee to carry out their task efficiently and accurately could result in serious consequences for the Club, including the suspension or loss of handicaps so that members could no longer participate in the game of golf within the CONGU system.
In these circumstances I find that the third defendant and the other members of the handicap sub-committee had a reasonable and a genuine interest in seeking out the computer software system which they considered was best suited to assist them in their task. For this purpose, the third defendant and the other members of the handicap sub-committee of the Club had an interest in communicating with Genesys and, having chosen that particular system, he and they had an interest in ensuring that a complete and accurate database was set up. This, as the minute’s record, necessarily involved transferring all existing handicap details of members, including the details relating to the plaintiff, to this new system.
Other documents were claimed to be defamatory. Among these were the three letters about the annual general meeting of 10th December, 2004. The letters are quoted above. They speak for themselves. The facts of the meeting and the evidence of several witnesses, among them that of Andrew Brennan quoted above, who had witnessed the situation tended to the same effect; that the entire incident was unfortunate but that it was also unacceptable. It is not defamatory for someone to be responded to with complaints where they make allegations at an important club meeting. Such complaints are expressions of opinion. Nothing in the three letters attacked the credit or reputation of Mr Talbot. All they said was that the interventions should not have happened, certainly not in the form in which they occurred. The learned trial judge also held that the occasion on which the letters had been written and the limited audience to which the letters were addressed was on an occasion of qualified privilege. Before the learned trial judge and on this appeal, Mr Talbot claimed that by mentioning or inferring in the complaints that he was suffering from illness meant that he was insane. A reference to illness occurs in the letter from Seán Óg Ó Ceallacháin. The text of the relevant letter, however, can be read only as suggesting that excuses for such conduct as had occurred at the meeting should not lightly be accepted. This reading was the entirely sensible approach of the learned trial judge. On the issue of these letters, his finding on defamatory meaning and on privilege was thus:
It is clear that the members of an unincorporated association have an interest in whatever litigation may burden the property that is held in contract of membership between them. This litigation has been long and expensive. It also has resulted in Mr Talbot making very serious and derogatory comments about a multiplicity of officers and members of Hermitage Golf Club and a range of other people. None of these were anything other than unsound. Mr Talbot’s comments were made on an occasion of absolute privilege in court and were related to the litigation and so were not actionable. To this allegation was added the hearsay account from Mr Talbot’s brother. This did not constitute a proven statement, much less defamation. Nonetheless, the learned trial judge facilitated the allegation by allowing it to be made as part of the general case on the letter and the circular by treating it as another letter. The learned trial judge dealt with the matter thus:
2. An agreement or combination of two or more persons to carry out a purpose lawful in itself but by using unlawful means is actionable, in circumstances where the act in question might not be actionable against the individual members of the combination, as individuals.
Nothing beyond the basic definition of civil conspiracy is relevant here. Mr Talbot put his allegation of conspiracy on a multiplicity of factors. These included three letters of complaint following upon the annual general meeting of 10th December, 2004 which Mr Talbot alleges were directed by officers of Hermitage Golf Club; that the Golfing Union of Ireland conducted audits in 2003 and 2004 in order to “whitewash” what Mr Talbot regarded as the attack on him; that everything that was done as regards his handicap was for the purpose of giving him “an evil reputation as regards handicaps”; that the Golfing Union of Ireland was somehow in collusion with Hermitage Golf Club; that solicitors letters emanating from Hermitage Golf Club and from John Ferriter of the Golfing Union of Ireland showed collusion; and that disciplinary proceedings were initiated against him for improper reasons. All of this is extremely hard to follow and even harder to accept.
Following on from a hearing in the Supreme Court, on 29th February, 2008, Mr Talbot was directed to state precisely what overt acts he alleged in pursuance of the conspiracy against. He pleaded three factors:
2) The aforesaid three letters [from Messrs O’Donnell, Ó Ceallacháin and Cullen], that came about [by] design to collude in injuring me.
3) The collusion in both John Ferriter, GUI 5th June, 2005, and Ian O’Herlihy, member of and solicitor to Hermitage and Murphy 3rd June, 2004, coming to exactly the same conclusion and explanation.
Entitlement to jury trial
An allegation of defamation on its own is tried by a jury. Here, as the learned trial judge patiently explained on many occasions to Mr Talbot, it was he who insisted in joining on the tort of conspiracy to his defamation claim and in so doing joined the Golfing Union of Ireland as the party with whom Hermitage Golf Club and its handicap sub-committee chairman Eddie Murphy were allegedly, as he put it on this appeal, “in collusion” to damage his interests. In terms of what is now before this Court, a notice of trial was served by Mr Talbot on 27th April, 2007 for trial by judge and jury. After a hearing before McMahon J in the High Court, by order dated 1st November, 2010, that notice of trial was set aside on the application of the Golfing Union of Ireland. It was also ordered that any further notice of trial provide for the proceedings against the Golfing Union of Ireland to be determined by a judge sitting alone and for the defamation and the conspiracy proceedings against all defendants to be heard together. This order was not appealed. On a motion before Ó Néill J on 14th March, 2011, on the application of Hermitage Golf Club and Eddie Murphy, it was ordered that the issues between Mr Talbot and those parties be heard before a judge alone and tried together with the action against the Golfing Union of Ireland. That order was not appealed.
Trial by judge sitting alone was thus appropriately ordered and not appealed when the matter came on for trial before Herbert J on 13th December, 2011.
Conduct of the trial
The learned trial judge, for instance, held that the non-identification of the database of golf handicaps by Mr Talbot should not prejudice his case. Had Mr Talbot been a represented litigant it is more than doubtful that such latitude would have been given. Another striking instance is the inclusion for analysis of a letter from Mr Talbot’s brother referencing a comment by another person. This instance of dúirt bean liom go ndúirt bean léi demonstrates not that the learned trial judge elided the hearsay rule but that the learned trial judge was determined to deal with every single issue raised by Mr Talbot. The learned trial judge expressed his attitude thus:
Among the unenumerated rights in Article 40.3 of the Constitution is the right to have access to the courts for the purpose of litigation. This was described by the Supreme Court in Tuohy v Courtney  3 IR 1 at 45 as “the right to achieve by action in the courts the appropriate remedy upon proof of an actionable wrong causing damage or loss as recognised by law.” The resources of the courts are there for litigants. Those resources are not, however, unlimited. No litigant is entitled to more than what is reasonably and necessarily required for the just disposal of a case within the context of the other demands on court time. Whether it is an unrepresented litigant or not, the resources which the courts decide to assign to a case must depend upon: the importance of the legal issues involved; the gravity of the wrong allegedly suffered by the moving or counterclaiming party; the monetary sum involved; and the public interest in the outcome of the case. Courts are entitled, and indeed are required, to foster their resources. This is both a matter of public and private interest. Court resources used in litigation are funded by public money. In addition, the parties pay for legal representation. Litigants should not be faced with cases that are longer or more expensive than they need to be for a fair resolution. In many instances, costs if awarded against a losing party may not be recovered. In that regard, putting reasonable limits on submissions in terms of time and allowing a measured number of hours or days for each side to litigate their case is both right and appropriate. The calling of repetitive expert evidence may and should also be curtailed. Many motions can be brought in apparent aid of certainty as to nature of each side’s case. This needs to be vigilantly watched by the courts. The Rules of the Superior Courts are there to aid in the just disposal of litigation and are not to be over-used in such a way as to overwhelm the central core of what a case is actually about. Clear focus on that is required from the start; IBB Internet Services Limited and Others v Motorola Limited  IEHC 541 (Unreported, High Court, Charleton J, 19th November, 2013) at paragraph 3 refers.
There can be problems beyond what are usual in litigation. Where a lay litigant is involved, pleadings may be confused. Traditionally, in every court, judges have done all that they can constitutionally do to assist. It would help in many cases, both with lay litigants and in complex cases where the parties are represented, for a case management hearing to take place before a judge who, after hearing the parties, can have the parties agree the issues for trial or can set these. This can avoid the unnecessary use of discovery and particularisation as the judge may then and there make such orders as are necessary for the just disposal of the case. The core purposes of case management are that it allows the court to focus on necessary issues and to set fair limits as to the resources of the courts that can be allocated to litigation.