High Court of Ireland Decisions

1. Three motions have been brought before the Court in relation to this matter. Two have been brought by Mr Herbert on behalf of the Defendants, and these respectively seek in the first instance particulars of the financial losses alleged to have been suffered by the Plaintiffs in consequence of the libel complained of, with an additional Order for Discovery of relevant documentation. The second such application by Mr Herbert seeks an Order permitting him, with his amended Defence, pursuant to the directions of the Supreme Court, to lodge in Court with an appropriate admission of liability a sum that the Defendants consider is sufficient to meet the Plaintiffs' claim. The Plaintiffs have brought a cross motion and this seeks the maximum priority in the fixing of dates for the coming Michaelmas Term. The Judgement that was given in this matter in February last by the Supreme Court sets out in detail the quite convoluted dealings between the parties that gave rise to the present position. It is accordingly unnecessary that I should seek to reiterate in detail what was there very fully and concisely stated by O'Flaherty J. Suffice to say that certain differences arose between the Plaintiffs as practicing Insurance Brokers, and the Defendants as their parent association, in relation to the obligations imposed by the new professional regime that had been established. These differences came to a head when certain letters were written by the Defendants to interested parties in relation to the Plaintiffs, and these constitute the libel complained of by the Plaintiffs. At a trial last year, before Mr Justice Barron and a jury the substantive ground of Defence that was alleged by the Defendants was one of qualified privilege. Barron J took the view after hearing argument that this Defence was not satisfactorily substantiated and he disallowed it. The jury awarded a sum of £515,000 damages for the defamation to the Plaintiffs and each of them. The Defendants appealed, and the outcome of that appeal was set forth in the said Judgement of February last from O'Flaherty J with which the other members of the Court concurred. The Supreme Court ruled that Barron J had been correct in law in disallowing the Defence of qualified privilege, and further ruled that the damages that the Plaintiffs would appear to be entitled to had been so disproportionately measured by the jury as to necessarily require a further determination. It appears there may have been some discussion between the Court and the parties as to the most appropriate course, but in any event, rather than seeking to have the Supreme Court measure damages it was ruled that a retrial on the question of damages alone should take place. The Supreme Court made certain observations as regards the ambit of damages and stated inter alia that these would appear to be compensatory only, rather than on a basis of being aggravated and/or exemplary.

On the hearing of the motions some ten days ago, Mr Herbert, on behalf of the Defendants, referred to certain authorities, and in essence argued that, whether it be designated as general or special damages in strict law, a substantiative portion at least of the losses sought to be recouped by the Plaintiffs related to loss of income and diminution of turnover. In these circumstances Mr Herbert submitted that it would be an injustice to his clients if no particulars and/or discovery were directed so that the Defendants would be substantively on notice of the scale and nature of the case and damages that they were required to meet.

In relation to the second motion brought, Mr Herbert argued that in remitting the case as an assessment of damages as the Supreme Court had done, the parties were in effect in a position that was no different to that that would have arisen had a Defence been delivered with the option of a lodgement on foot of an admission of liability in the first instance. The Defendants, he said, had never alleged justification, but had merely argued qualified privilege and accepted that on foot of the Supreme Court's upholding of Barron J's disallowance this course was now precluded. In so as far as the Court had a discretion to permit a lodgement with an amended Defence, it would in Mr Herbert's submission accord not only with enabling the Defendants to exercise a procedure ordinarily available, but would also reflect the overall interests of justice in seeking to achieve finality in the litigation.

Mr Albert Dawson opposed both the Defendants motions on his own behalf, and on that of his brother, and amply demonstrated as a litigant in person the fluency and knowledge of the case that had already been commended by the Supreme Court. He did embark somewhat into terrain beyond the strict ambit of the present interlocutory issues, intimating that, notwithstanding the discharge of the first jury hearing of the matter by Kinlen J, by virtue of Mr Dawson's references in opening to massive alleged tax evasion by the Defendants, and the Plaintiffs' utter unpreparedness to become compliant in this, he still intended to raise this aspect in the retrial. He further intended that the jury hearing the retrial should consider matters allegedly stated by the Defendants subsequent to the matters complained of in the Statement of Claim which appeared to equate or identify the Plaintiffs with the former financial adviser Mr Tony Taylor. As to proceedings to date, Mr Dawson, whilst not aggrieved by having had a retrial ordered, expressed himself as somewhat disappointed at the hearing accorded to him in the Supreme Court, and evinced further concern as to some alleged irregularities in regard to fixing a date for his trial. That he was conducting the litigation on his own and his brother's behalf did not, he said, reflect any wish or preference on his behalf, as substantial outlay in respect of legal fees had been incurred towards his initial solicitors, but he had been beset by a combination of conflicts of interest and disinclination to discharge instructions in full on the part of legal advisers, and it was in this context that he came to appear in person. However, he had retained the services of the firm of Messrs Cullens of Wicklow, although the extent of such retainer was not made entirely clear to me.

As to the particular reliefs sought by the Defendants Mr Dawson stated that, given the nature of the libel, the Defamation Act 1961 provided that it was not necessary to prove special damage. Although the Plaintiffs had suffered substantial and ongoing losses of clients who had left the Plaintiffs to deal direct with insurance companies, and this would be borne out by comparative turnover figures, it was embarrassing to seek to procure the testimony of such lost clients, and impossible to speculate as to the identity of potential new clients lost. Accordingly special damages as such had never been claimed and it was sought only to recover general damages having regard to these factors. As to the Defendants motion for leave to make a lodgement with its amended Defence for purposes of the retrial on damages directed by the Supreme Court, Mr Dawson argued that, given the protracted history of a grossly damaging libel, and the complete absence of any retraction, apology, or offer of amends on the part of the Defendants, who had continued to contest liability until the Supreme Court Judgement, it was unfairly and unacceptably late for them now to be allowed recourse to this procedure. Even the relevant averments in the grounding Affidavit filed by the Defendants solicitor, referred only to a disposition to admit libel rather than setting forth an explicit admission of liability.

I inquired of Mr Dawson whether or not, even late in the day, there might be some merit in seeking by a realistic lodgement to finalize arduous and time-consuming proceedings on a basis of appropriate name clearance and damages. He reiterated that it was simply too late, that resumption of the family practice as heretofore was probably no longer feasible, and that, in any event, he believed that a new jury would award more than had the last one. On being further asked by me whether such an award might not merely recycle events to date, given the Supreme Court's findings on damages both in the specific case and in certain of its other decisions, he responded that the particular circumstances of the case made it a libel of quite exceptional dimensions.

Some authorities afford a measure of assistance in ruling on the motions. As to the particulars/discovery aspect, in Lewis v Daily Telegraph Limited [1963] 1 QB at 340, Holroyd Pearce LJ at page 376 stated as follows, "if a person libeled has suffered specific damage he can plead it as special damage and recover it. That claim will then have the advantage or disadvantage of a careful scrutiny supported by documents and oral evidence from which a Court can decide whether in truth a decline of business resulted from the libel. The Plaintiffs would then have to give particulars and facts and figures to support it. The Plaintiffs on their accountants could produce figures of turnover and graphs showing any sudden downward tendency such as for instance, that in the week after the libel orders noticeably declined and so forth. Managers, salesmen, and others could give supporting evidence, evidence could be called to show that the price of the shares and the stock market had declined and the Defendants would have an opportunity of calling evidence to counter the Plaintiffs claim for special damage. The Plaintiffs did not take this course, they did not plead any special damage, but even though the Plaintiffs plead no special damage they rely on a general loss of business, if the words were in their very nature intended or reasonably likely to produce a general loss of business (Ratcliff v Evans, Bowen LJ). That is a reasonable way of dealing with some general loss from a libel, which can reasonably be inferred and cannot be proved. Nevertheless, if large sums are to be attributed to loss of business from a libel, it is plainly desirable that they should be pleaded, particularized, and so far as possible, supported by evidence". Again in Calvet v Tomkies [1963] 3 All ER 610, a defamation claim brought by an actress, Russel LJ stated at page 613 "but if evidence of actual loss of earnings or decline in business even without any figures mentioned is to be put forward in the case such as this, I for my part as at present advised am inclined to think that it should be pleaded with consequential discovery". He also went on to say, which is relevant given the number of important legal rulings likely to be required of the trial judge in the retrial of the present case "Beyond that rathergeneral observation I agree that it would be quite wrong to attempt to define what questions may or may not be asked or answered at the further trial". In so stating he was upholding earlier dicta in the principal Judgement of Lord Denning MR. In that principle Judgement at page 112 Denning MR confirmed that the Plaintiff "Cannot introduce by a side wind evidence of special damage without pleading it".

With regard to the Defendants motion to make a lodgement with its amended Defence, it appears to me that the changes in rules and procedures in this regard introduced by order 22 of the present Rules of the Superior Courts do not materially alter the issue to be addressed. The leading case remains that of Ely (an infant) v Dargan [1967] IR 89, a decision of the Supreme Court primarily concerned with ensuring that, if leave was to be granted to the Defendant to increase a lodgement in anticipation of a retrial on damages only, it could only be done on a basis of such terms as fairly took account of all prior proceedings and the interests of the infant Plaintiff. As such, much of the Judgement of O'Dalaigh CJ has only limited application to the present case, but it is highly material that in regard to the antecedent and analogous rule he stated at page 94 "The rule is in the widest terms and it clearly allows of an application being made to the Court before a retrial as well as before a trial". And later, before dealing with the particular circumstances of that case "The Defendant was right to urge that the public interest is served by allowing a Defendant even at the 11th hour to proffer to the Plaintiff under the lodgement machinery of the courts a sum that the Defendant considers adequately meets the Plaintiffs claim".

I have considered all the legal and factual matters raised by both sides in conjunction with the directions and reasoning comprised in the Supreme Court Judgement, in particular what was stated by O'Flaherty J at pages 23 and following in relation to damages. I am satisfied that each of the three motions brought should be acceded to. However, the components of damages may be designated,the Plaintiffs clearly seek a potentially immensely high award and propose to stress to the jury the number of clients lost by them and the curative downturn in income and turnover experienced by them in consequence of the libel. It would, in my opinion, be unfair and unsatisfactory to expect the Defendants to meet this claim without having some realistic intimation of the scope and scale of the claim it must meet. It also seems clear to me that in accordance with the basic principals enunciated in the Supreme Court in Ely (an infant) against Dargan, the Defendants should be permitted to make a lodgement with the amended Defence. Insofar as this represents an exercise of discretion I bear in mind,

(A) No justification was ever pleaded, the only substantive Defence initially raised being that of qualified privilege,

(B) The Plaintiffs will have access in relation to any lodgement made to the advises of Mr Laurence Cullen, a skilled and experienced litigation lawyer and,

(C) There is no question here of a background of settlement discussions or other negotiations having enabled the Defendants to know the Plaintiffs' hand to a level of potential unfairness with regard to a lodgement, such as influenced the Court to refuse leave for a late lodgement in Brennan against Iarnrod Eireann 1993 ILRM at page 134.

Lastly I am quite satisfied from the motion brought by Mr Dawson that given the important issues and urgency of the matters raised, appropriate priority should be ensured in the Michaelmas listing of jury trials.

Now gentlemen, that concludes my substantive ruling and I am now perhaps primarily concerned with mechanics. It had occurred to me Mr Herbert, that I must obviously seek to provide a scheme of things that is manageable but at the same time brisk, and it did occur to me in the context, to seek to have you put on notice of the essential figures of the claim that you have to meet that it may be that in effect given the time factors and in all other matters the particulars are considerably subsidiary to discovery, and it seems to me that it might meet the justice of the case if I were to make an Order in terms of directing that the Plaintiffs discover on oath, all documentation for a three year period prior to the events complained of, and subsequently that will contain the relevant data in relation to diminished turnover and loss of clients. It seems to me, if I also add on the particulars procedure it may make it difficult to adhere to the time scale of seeking to get priority hearing in the Michaelmas Term.

MR HERBERT: I think My Lord, certainly if we were to have full cooperation in the matter of discovery, I think Your Lordship is probably right, there is no necessity to have particulars from the point of view I suppose of limiting the issues which the trial judge will have to address and the point of view I suppose of each party knowing exactly that in which they must address evidence particulars have their function. So I think they will accept their function quite apart My Lord, from discovery. To that extent, I think I urge Your Lordship to also refer to particulars when the issues come to be tried, the learned trial judge having to direct the jury, and to address his mind to the issues does need to know particularity what is exactly before him and between the parties, and without that we are faced with a broad and general claim. I think it would be difficult for the trial judge at that stage to rule on what matters are pertinent and relevant, and what matters are not. So I think it does My Lord, fulfill a very important function altogether and apart from separate of the discovery totally side by side but I will submit to Your Lordship that if Your Lordship grants both the particulars and discovery they can go on simultaneously and side by side. In other words, not for us to wait until the particulars are furnished before seeking discovery, we should immediately seek discovery and go ahead with it.

MR JUSTICE MORIARTY: What I envisaged and without hearing Mr Dawson, it is his understandable anxiety, that it become a priority trial in the Michaelmas Term and if needs be pleading in the Long Vacation. What I envisage is effectively a two month period from this week for these discovery and particular aspects to be finalized and perhaps a period of then two to three weeks thereafter for you to consider all matters and make your amended Defence with, if you chose, the lodgement on the appropriate basis and then there will be sufficient time for Mr Dawson, ideally with the assistance of Mr Cullen, to consider this aspect and still attend to ensure his priority listing for fixed dates.

MR HERBERT: Yes My lord, we will have, I am sure, full cooperation from the Dawson brothers in this matter, we would then have sufficient time to seek inspection of whatever documents which we will need to seek inspection before October. I think we are all anxious, it is agreed that this matter ought to have whatever priority the Court can give in the next term, we will work to that, we will hope to have every cooperation of Mr Cullen and Messrs Dawson, which I believe we will have.

MR JUSTICE MORIARTY: Lastly again before troubling Mr Dawson on it, I think it clearly follows, Mr Herbert, indeed you implicitly conceded it, that at least on the lodgement motion plainly you have no answer to Mr Dawson getting his costs of that.

MR HERBERT: Not at all.

MR JUSTICE MORIARTY: It seems to me on the other matters that perhaps little or any costs relate to the priority trial argument, but on the particulars and discovery, the normal Order that I would normally be disposed to make, subject to whatever Mr Dawson may say, would be to reserve that to the trial judge.

MR HERBERT: I think so My Lord, I think very much justice would be served by that, and I think the Order for general discovery is best here, rather than trying to particularize what exactly type of documents are necessary, Your Lordship did specify and it is all relevant documents and within that period.

MR JUSTICE MORIARTY: Well I am just wondering Mr Herbert, whilst of course I can only make Orders and I can not make recommendations, it had occurred to me and without in the slightest way seeking to be patronizing, about the exceptionally able way that Mr Dawson has conducted the substantive phases of case here and in the Court above, it does occur to me that perhaps Mr Cullen's involvement would be particularly beneficial on as technical and intricate an aspect of discovery, and whilst I don't think I can make any order, it had occurred to me to propose that perhaps Mr Cullen might be able to diminish the area of controversy by some form of liaison with your solicitors.

MR HERBERT: Again My Lord we hope that anything that advances the hearing and promotes justice will be done. So Your Lordship is making the Order in respect of any loss of income or other financial loss alleged to be attributed is libel.

MR JUSTICE MORIARTY: Yes well, Mr Dawson?

MR A DAWSON: The Defendants legal advisers have a habit of asking for particulars.

MR JUSTICE MORIARTY: Yes.

MR A DAWSON: And was last Friday, they asked for particulars of the particulars and then brought a motion to exclude what they had asked for.

MR JUSTICE MORIARTY: Yes.

MR A DAWSON: When they looked for discovery we have given them all the papers we have.

MR JUSTICE MORIARTY: Yes.

MR A DAWSON: They have a letter from us which they didn't reply to or didn't set their solicitor to reply to on the 19 March, 1992, and I pointed out to them then that we are cash broke. We have no turnover figures before the act commenced on the 1 October, 1990. We have no accounts before that date, because we deal strictly for cash. We collect and this is all in this letter, we collect cash, pay the companies their share, and the other is our personal income, but we don't keep accounts of what goes on in the past, just finish once we take in a bar of chocolate, sell it, and give Cadbury's their money, that is the end of it as far as we are concerned. We have no records, no turnover figures, and that is in our letter in April or March, 1992. We can give them hundreds and hundreds of names and addresses of people that have left us. Who died we don't know, and who emigrated we don't know, but we can give them that, providing these names are not used by the Defendants to the claim once more, and we can even give them the letter we wrote to the Guardian, asking the Guardian to tell their staff not to be spreading defamation, and when we got a letter back from the Guardian's solicitors Matheson Ormsby Prentice, saying they would do no such thing, that they wouldn't tell their staff not to be spreading defamation. We can give them letters we wrote to managers of companies pointing out that the Defendants officers and directors were taking part in serious crimes. We can give them all of that, but I have a feeling that when we give them that, there will be a motion that they don't want the jury to see them because they are very damaging. We cannot give what is impossible to give, we have given them the turnover figures we have, which were required by a code of conduct from the 1 October, 1990. And another thing, either our turnover has reduced by a quarter they know they have to be certified, either they accept that there is some other reason which they can raise for reduction and they accept that if we lose a quarter of our turnover which they have got the figures for, that there has to be hundreds of people lost because that is the nature of things, and before October we are going to have another turnover figure for the end of September 1997, but we can't give them what is impossible to give. We have no accounts, we are private individuals, not a company, so that would be our position. We don't mind giving them what we have, but we can't give what we do not have.

MR JUSTICE MORIARTY: Plainly Mr Dawson, particularly if you simply do not have or never had documents that fulfill a particular requirement the procedures in the Affidavit of the discovery to be sworn, will enable that aspect to the communicated. It is obviously my very profound hope that the parties can as realistically as possible seek to deal with these aspects in such a fashion as will avert further applications and will ensure the priority, I am quite anxious the case be given, that it will get on promptly in the Michaelmas Team. These are matters that have to be dealt with in the course of discovery. As of now I am satisfied that I should make an Order that concurrently in a period of, I will perhaps date the period from let us say, the Friday of this week by which time I will have no doubt the copy which I will approve and have circulated to the parties within a period of eight weeks or such further time to be agreed between the parties that there will be,

(A) Such particulars as can be given of the turnover for a period of three years prior to the libel and thereafter, and also of all financial losses alleged to have been suffered as best the Plaintiffs can formulate them in consequence of the libel, and that there be a Discovery Order similarly in general terms and I can take it Mr Dawson, on the basis of the Order that I have made you would be the person who would be swearing such an Affidavit. It is a matter without being in the slightest patronizing it does seem to me that Mr Cullen would be beneficial. It is a difficult aspect, and if it transpires you simply do not have documents, but can vouch some of the aspects Mr Herbert is concerned about then Mr Cullen will advise you to the appropriate plea to that effect. I am disposed to make an Order of particulars and discovery on the basis of eight weeks from Friday next and is it necessary that I make an Order as to pleading in the non-vocation?

MR HERBERT: No. Then do I understand Your Lordship to say I have the same period, eight week period to make the lodgement?

MR JUSTICE MORIARTY: What I had intimated what was the two month period, eight weeks from next Friday which means that people can get set about things today to some degrees in anticipation of the written Judgement being distributed or such time which may be agreed between the parties, thereafter I think I will allow a period of three weeks thereafter upon completion of discovery and particulars for the Plaintiffs to defend and lodge in accordance with the Order. Liberty to apply to both sides, costs of the discovery of the lodgement, motion in favor of Mr Dawson's costs on the other motions reserved to the trial judge for the substantive hearing.

MR HERBERT: Thank you.

MR JUSTICE MORIARTY: Perhaps Mr Dawson for the time being I am sure it would be of use to you, the volume of documents that you kindly made available to me, I will return.