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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Hunter v. Gerald Duckworth & Co Ltd. & Anor [2003] IEHC 81 (31 July 2003)
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Cite as: [2003] IEHC 81
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Hunter v. Gerald Duckworth & Co Ltd. & Anor [2003] IEHC 81 (31 July 2003)
[1998 No. 8738P]
Between:
Plaintiff
Defendants.
[1998 No. 8739P]
Between:
Plaintiff
Defendants.
By order of this Court of the 31st May, 2001 the second defendant was directed to set down for trial the following issues:
1. Whether the second named defendant in writing the booklet which is scheduled to the Statement of Claim is entitled by reason of Article 40.6.1.i. and/or Article 40.3 of Bunreacht na hÉireann to the right to express freely the statements, convictions, opinions and ideas therein and each and every one of them and to impart all the information therein with the result that the publication thereof cannot give rise to a cause of action in defamation at common law or under statute;
2. Whether the second named defendant as a citizen of the European Union in writing the said booklet was by reason of articles 6 and 49 of the Treaty establishing the European Union free to provide such professional services within the European Union and/or was free to exercise in the State his right of freedom of expression under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms made in Rome on 4th November, 1950 to which the State is a signatory (hereinafter referred to as "the European Convention on Human Rights") with the result that the publication thereof cannot give rise to a cause of action in defamation at common law or under statute;
3. Whether the second named defendant in writing the said booklet is entitled by reason of Article 10 of the European Convention on Human Rights to the right to express freely the statements, convictions, opinion and ideas therein and each and every one of them to impart all the information therein with the result that the publication thereof cannot give rise to a cause of action in defamation at common law or under statute.
In the case of each of the plaintiffs it is pleaded in the Statement of Claim filed that the plaintiff in common with five other men known as "The Birmingham Six" was the victim of a miscarriage of justice in England arising out of the aftermath to the Birmingham pub bombing in 1974 in which atrocity upwards of 20 people were killed and injured. It is pleaded that the plaintiff Mr. Callaghan who resides in London is a published author and enjoys a wide reputation and that he has been widely written about in Irish newspapers and has appeared on the most popular radio and television programmes dealing with current affairs in Ireland. The first defendant is a publisher who published and distributed a booklet entitled "The Birmingham Six and Other Cases" and subtitled "Victims of Circumstances". The second defendant is the author of the booklet and is a Queen's Counsel.
It is pleaded that the booklet was maliciously printed, published and distributed of and concerning the plaintiff and that the publication is defamatory of the plaintiff. In particular it is complained that the following words either in their natural or ordinary meaning and/or by way of inference and innuendo meant that the quashing of the plaintiff's conviction did not and does not imply that the plaintiff is entitled to be presumed innocent and are defamatory of the plaintiff in seeking to deprive the plaintiff of the presumption of innocence arising from the quashing of his conviction:
"The successful Appeal against a guilty verdict by the Jury, so the argument runs, restores the Accused to the status of an innocent person which he is possessed at the beginning of the trial. That is not so. The law is, strictly speaking, unconcerned with guilt or innocence. Its concern is conviction or acquittal. Has the Crown proved its case? The Jury's verdict of not guilty is unequivocally and incontestably to maintain the presumption of innocence. It is the end of the affair. The Jury is unaccountable for any verdict of acquittal. But a Jury's verdict of guilt which is overturned by a Court of Appeal in law is only a wrongful conviction. The presumption of innocence which subsists only so long as the accused is unconvicted is not revivified."
In their natural or ordinary or meaning and/or by way of inference or innuendo the defendants and each of them are stating that the quashing of the plaintiff's conviction did not and does not imply that the plaintiff is entitled to be presumed innocent. In seeking to deprive the plaintiff of the presumption of innocence, arising from the quashing of his conviction, the defendants and each of them have defamed the plaintiff.
In advancing the defamatory thesis set out above, the defendants seek to contradict the judgment and decision of the English Court of Appeal in R. v. Michael Hickey, Vincent Hickey, James Robinson, Patrick Molley [1997] E.W.C.A .Crim 2028, known as the 'Carl Bridgewater case' wherein the Court said inter alia;
"If we concluded that the conviction were unsafe then the convictions would be quashed and the presumption of innocence which exists in favour of all convicted persons would be re-established".
The said defendant, having quoted the above passage at p. 66 of the booklet, states :
"This is a highly questionable statement of the law. Indeed, it is probably wrong. The presumption of innocence survives only unless and until there is a conviction at the hands of the jury; the presumption is thus displaced."
The above defamatory theme is repeated on the back cover of the said booklet in the following words:
"The presumption of innocence, which every accused is entitled to, abides until it has been overcome by evidence which convinces the jury of the guilt of the accused. Any conviction which is quashed on appeal does not revive the presumption."
Reference is made to fact that in the booklet questions the statement in the judgment of the Court of Appeal in England in the Karl Bridgewater case where it was stated:
"If we concluded that the convictions were unsafe then the convictions would be quashed and the presumption of innocence which exists in favour of all convicted persons would be re-established"
It is pleaded that it was stated by the author:
"This is a highly questionable statement of the law. Indeed, it is probably wrong. The presumption of innocence survives only unless and until there is a conviction at the hands of the jury, the presumption is thus displaced."
Furthermore it is stated:
"The presumption of innocence, which every accused is entitled to, abides until it has been overcome by evidence which convinces the jury of the guilt of the accused. Any conviction which is quashed on appeal does not revive the presumption."
Further in the Statement of Claim reference is made to the following passages at p. 81 of the booklet where it is stated:
"The judicial definitiveness about the propriety of the Birmingham Six's convictions were pounced upon by the supporters of the six men who, abetted by the media, succeeded in their incessant public efforts, not only ultimately to have the convictions set aside but in the process to undermine public confidence in English criminal justice. The former activity was laudable; the latter, opportunistic and misguided."
Further at p. 81 aforesaid the defendants published the following passage:
"This skilful attack has been sustained by public acceptance of the view that 'miscarriages of justice' had undermined confidence in the criminal justice system. Credence for that view was even accorded recognition in the address by Lord Woolf on the occasion of the thanksgiving for the life and work of Lord Taylor of Gosforth on 15 July 1997. Lord Woolf alluded to Lord Taylor's chief justiceship from 1992 to 1996 as having done, in Lord Woolf's view, much as to restore public confidence in criminal justice after some 'regrettable miscarriages of justice'."
The plain and ordinary meaning of the above words and/or the inference or innuendo is that by their successful campaign for the vindication of the innocence of The Birmingham Six both the plaintiff and his fellow members of the "Six" and their supporters undermine public confidence in the criminal justice system. The inference clearly is that it was not the English criminal justice system that was wrong, but the campaign for the release of six men who had spent more than sixteen years each in prison as a result of convictions obtained through defective forensic evidence and unreliable confessions. A further inference was that activities of the supporters of The Birmingham Six, including the Plaintiff herein, were "opportunistic" and "misguided" and they were in fact guilty of the offences for which they were wrongly convicted.
Further in the opening page of the prologue (at p. 7) the defendant criticise and deprecate the use of the phrase "regrettable miscarriage of justice" by the Master of the Rolls, Lord Woolf of Barnes, on the occasion of his address at the service of his thanksgiving in St. Paul's Cathedral for the life and work of Lord Taylor of Gosforth, the Lord Chief Justice of England from 1992 to 1996, who died on the 28th April, 1997. At p. 8 of the booklet the following passage appears:
"At the same time the Home Secretary, in the course of correspondence with the Birmingham Six over the level of the compensation offered, expressed his apologies for the miscarriage of justice they had suffered. And the distinguished writer and columnist in the Independent, Polly Toynbee, wrote, in welcoming Chris Mullin MP as the new chairman of the Home Affairs Select Committee, that 'with very little support', in the face of scathing indifference from many in his own party, he ploughed a lonely furrow in proving the innocence of the Birmingham Six' (italics supplied)."
The Plaintiff avers that the continuous attack in the pages of the booklet against those who supported his innocence and campaigned for his vindication and release represents both an overt and covert attack on the innocence of the Plaintiff.
It is pleaded that the plain and ordinary meaning of these words and/or the inference or innuendo is that by their successful campaign for the vindication of the innocence of the Birmingham Six both the plaintiffs and their fellow members of 'the Six' undermined public confidence in the criminal justice system. It is pleaded that the inference clearly is that it was not the English criminal justice system that was wrong, but the campaign for the release of the six men who had spent more than sixteen years each in prison as a result of the convictions obtained through defective forensic evidence and unreliable confessions, that the activities of the supporters of the Birmingham Six were "opportunistic" and "misguided" and their "attack" on the verdict "skilful" only if the Birmingham Six, including the plaintiffs were in fact guilty of the offences for which they were wrongly convicted.
The plaintiffs plea that what they allege to be a continuous attack in the pages of the booklet against those who supported their innocence and campaigned for their vindication and release represents both an overt and covert attack on the innocence of the plaintiffs.
It is further pleaded that a central and reinforcing theme as to the suggested guilt of the plaintiff is the strong reliance placed on the circumstantial evidence adduced by the Crown during the prosecution. It is pleaded that further passages quoted by the plaintiffs in the Statement of Claim in their plain and ordinary meaning and/or by way of inference or innuendo are a clear invitation to the student or public reader to convict the Birmingham Six on the basis of the circumstantial evidence alone in the case. It is pleaded that the quoted passage flies in the face of the statement by the trial judge who is alleged to have stated that the matters of circumstantial evidence did not go beyond raising a suspicion and fell a long way short of anything that anyone could possibly regard as proof of involvement in the pub bombings.
It is pleaded that in the face of the clear direction to the jury by the trial judge regarding the total lack of value of circumstantial evidence as not going beyond raising a suspicion, that the emphasis placed by the defendants on the possibility of the circumstantial evidence alone sustaining the conviction of the Birmingham Six is clearly defamatory in suggesting the guilt of the Birmingham Six, including the plaintiffs.
It is further pleaded that other words published are in context a direct suggestion that the plaintiffs were in fact guilty of the "horrendous crimes" with which they were originally charged. It is pleaded further that in their contradiction of the charge of the trial judge to the jury the defendants are leaving a decision on the guilt of the Birmingham Six in the hands of the student or the reader or the public on the basis of the circumstantial evidence and in doing so that they defame the plaintiffs by the clear inference that a proper view of the circumstantial evidence would have led to a reaffirmation of the conviction of the Birmingham Six including the plaintiffs, which it is pleaded involves a total contradiction of the summing up of the trial judge to the jury. It is further pleaded that criticism of the prosecution and/or the trial judge for absolving the jury of any need to return a verdict on the charge of conspiracy and/or an attempt to cause explosions is a reiteration of the suggestion that, whatever about the result of the Court of Appeal in their favour, the Birmingham Six, including the plaintiffs were guilty of offences of conspiracy and attempting to cause explosions.
It is further pleaded that a comparison of the Birmingham Six and Guildford Four cases is used to defame the plaintiffs.
It is pleaded that passages dealing with the alleged facts were maliciously selected from the mass of evidence and were specific to the respective plaintiffs. It is pleaded that in the premises and relying on all the passages quoted and generally on the tenor and thrust of the entire of the booklet, and the back cover, the plaintiffs have been defamed and their right to a good name pursuant to the Constitution has been violated. It is pleaded that the words both in their ordinary and natural meaning, and the context in which they were published, and further and in the alternative by way of inference and innuendo, meant and were understood to mean various specified matters alleged to be defamatory of the plaintiffs.
A full defence has been filed to the plaintiffs' claims herein including a plea that the second named defendant was entitled as a matter of public right to write and publish the booklet and each and every statement contained therein. It is pleaded that the booklet contains an analysis of English law on the function of the Court of Appeal in England in allowing an appeal against conviction, the position of circumstantial evidence in English law and the system of trial by judge and jury in English law. It is pleaded that as stated in the booklet, the second defendant has made this analysis principally but not exclusively in relation to the Birmingham Six and he has looked only at the transcripts of appeals heard in public in relation to the said case and in the Court of Appeal in 1987 and 1991 and checked facts with the book by Mr. Chris Mullin M.P. "Error of Judgment: the truth about the Birmingham Bombings" published in 1986 and revised in 1997.
It is pleaded that the Court of Appeal freed the plaintiffs because it decided that the verdict of the jury in the Birmingham Six case could not stand due to flawed forensic evidence and due to the inadmissibility of statements made to the police which had been obtained improperly. It is pleaded that in its judgment the Court of Appeal stated that it was neither entitled nor obliged under its statutory powers to say whether the plaintiffs were innocent; as that court was concerned solely with whether the verdicts of the jury at their trial could stand. It is pleaded that the verdict of the jury at the trial could not stand as being "unsafe or unsatisfactory". It is pleaded that that court concluded that its role in quashing a wrongful conviction was a point of great constitutional significance meaning of great constitutional significance in England and Wales. It is pleaded that the second defendant in the booklet seeks to explain the point of constitutional significance, stating therein that no one can properly say that either plaintiff was guilty.
It is pleaded that in writing the booklet the second defendant was exercising his right to freedom of expression including the freedom to hold and express the opinions and convictions and impart the information and ideas expressed therein and each and every one of them, in particular and without prejudice to the generality of the foregoing, to study and express his views and opinions upon the legal issues and matters before the Court of Appeal in England in 1987 and 1991 relating to the Birmingham Six case.
The second defendant further pleads by reference to Article 40.6.1 of the Constitution to the right to express freely the statements, convictions, opinions and ideas therein and each and every one of them and to impart all of the information contained therein. It is pleaded that in writing the booklet he has exercised this right. It is further pleaded that the second defendant has under Article 40.3 of the Constitution a personal right to his freedom to express each and every statement, conviction, opinion and idea contained in the booklet and to impart all the information contained therein. It is pleaded in these premises that the publication thereof was not as a matter of law, defamatory of the plaintiffs or either of them as alleged or at all.
The second defendant further pleads that under Article 49 of the Treaty Establishing the European Union he was free to provide such professional services within the European Union and/or was free to exercise in the State his rights of freedom of expression under Article 10 of the European Convention on Human Rights.
The second defendant pleads that by reason of Article 6.2 of the Treaty on European Union the European Union shall have respect for fundamental rights guaranteed by the European Convention on Human Rights and by reason of same a citizen of the European Union has the rights guaranteed by the Convention specifically with regard to the provision of professional services by such a citizen in the Member States. The second defendant invokes his rights as a citizen of the European Union and in particular his rights under Article 10 of the Convention and/or his rights under Article 49 of the Treaty Establishing the European Community and pleads that in the premises the publication of the booklet was not as a matter of law defamatory of the plaintiffs as alleged or at all. It is pleaded that in the alternative under the law of the State there is an obligation to grant to a citizen of the European Union the rights under the Treaty Establishing the European Union and/or the European Convention of Human Rights when such citizens are defendants before the Courts of a state other than that in which they are domiciled by reason of the Brussels convention and in the premises it is pleaded that the publication of the booklet was not as a matter of law defamatory of the plaintiffs either as alleged or at all.
It is pleaded that in the premises the plaintiffs have no cause of action as pleaded or otherwise and the second defendant denies each and every allegation of defamation.
Submissions
On behalf of the second defendant (hereinafter referred to as 'the defendant')it is submitted by Mr. Michael Ashe Q.C. that the essential issue is whether the constitutional guarantee to express freely convictions and opinions prevails over the constitutional protection afforded to one's good name. It is submitted that the defendant is entitled to express freely his convictions and opinions as appear in the booklet. It is submitted that what is at issue is the balance between Article 40.6.1 and 40.3.1 of the Constitution and Article 40.3.2. of the Constitution. The question posed is whether and to what extent the common law of defamation, which has been developed over centuries, reflects and implements an appropriate constitutional balance. It is submitted that the action herein represents a disproportionate interference with the right of freedom of expression. It is submitted that the right of the defendant to express freely his convictions and opinions about matters of importance is fundamental in a democratic society and the defendant's contention is that the booklet represents such an expression on matters which are public property and further the booklet represents legal analysis and comment. Having regard to the provisions of Article 40.3.2 of the Constitution it is submitted that while an attack on the character is possible the Constitution is concerned with unjust attacks. It is submitted that the instant actions represent a disproportionate interference with the freedom of expression which pre-dominates as a constitutional right.
It is submitted that if the defendant is correct on the issue of freedom of expression, there can as a matter of law be no action in defamation in either case.
It is submitted that the appropriate balance is not achieved by the law of defamation as generally perceived and that the concomitant restrictions on the right to freedom of expression are invalid under the Constitution.
Counsel submits that the question is whether (and if so, to what extent) the common law of defamation, which has been developed over the centuries, reflects and implements an appropriate constitutional balance. It is submitted that whatever the rights of the plaintiffs, the present actions are a disproportionate intereference with the right to freedom of expression.
It is submitted that the booklet is about functions, powers and systems of evidence and trial in the courts of England and Wales. The defendant contends that the right to express freely his convictions and opinions about matters of importance is fundamental in a democratic society. Court proceedings are public property and the media have two distinct functions in relation to court proceedings. The first is the reporting and recording of proceedings as they unfold, in circumstances where at the time opinion and comment have to be avoided, and secondly, legal analysis and comment which has to await the conclusion of the proceedings. It is submitted that pure comment and opinion regarding legal proceedings are, when the proceedings have concluded, as important as reporting those proceedings while they are continuing.
Counsel concedes that the plaintiffs may be upset and annoyed at the revisiting of an awful event in their lives, but that in light of the freedom of expression enjoyed by the defendant the plaintiffs do not have a right of action against him.
Counsel refers to In re Hibernia National Review [1976] I.R. 389 where at p. 391 Kenny J. in delivering the judgment of the Supreme Court stated, inter alia, as follows:
"The Court wishes to emphasise that criticism of the retention of the death penalty, of the Offences Against the State Acts or of any of their provisions, and of the establishment of the Special Criminal Court are not a contempt of court. These are matters which may be debated in public even if the comments are expressed in strong language or are uninformed or foolish."
With regard to the fact that the law of defamation is subject to constitutional limitations reliance is placed upon the dicta of Denham J. in O'Brien v. Mirror Group Newspapers Ltd. [2001] 1 I.R. 1 where she stated inter alia at pp. 32 and 33:
"The matters at issue are important in a democracy. The right to communicate, the right to information and the right to freedom of expression, guaranteed by Article 40.3.1° and 40.6.1°(i) of the Constitution of Ireland, are similar to the right of freedom of expression guaranteed by art. 10 of the European Convention on Human Rights. The rights guaranteed in the Irish Constitution are not absolute, neither are the rights of the European Convention. Both documents require that a balance be achieved and that balance going to matters of reputation, information, communication and
the freedom of expression is a matter of importance in a democracy and is of public interest."
It is submitted that the standard of constitutional guarantee in Ireland is the standard against which the common law of libel has to be measured.
Further reliance is placed upon the dicta of Barrington J. in Irish Times Ltd. v. Ireland [1998] 1 IR 359 at pp.403 and 404 where he stated:
"The right to freedom of expression is one of the personal rights of the citizen which the State is bound to defend and vindicate, as far as practicable, in accordance with the provisions of Article 40.3 of the Constitution. It is of course surrounded by many reservations and safeguards. But it is a positive right which the State is pledged to defend and the function of the court is to preserve the balance between the guarantee and the reservations in such a way as to give to the right guaranteed life and reality. The position is totally different from the position in a common law country where the citizen is entitled to say anything he wishes as long as it is not illegal."
Counsel submits that guidance as to the underlying philosophy of the right to freedom of expression can be gained from the jurisprudence of other countries including the United States of America. It is submitted that an award of damages in a libel suit represents a penalty on speech and raises the deterrent or chilling influence upon the exercise by citizens of their constitutional right to express freely their convictions and opinions. Counsel refers to New York Times v. Sullivan 376 U.S. 254 (1964) where Brennan J. in a seminal judgment of the United States Supreme Court stated, inter alia,
"[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.
Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth - whether administered by judges, juries, or administrative officials - and especially one that puts the burden of proving truth on the speaker. Cf. Speiser v. Randall,. The constitutional protection does not turn upon "the truth, popularity, or social utility of the ideas and beliefs which are offered." N. A. A. C. P. v. Button, …. That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the "breathing space" that they "need . . . to survive," N. A. A. C. P. v. Button, …. Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error…. If judges are to be treated as "men of fortitude, able to thrive in a hardy climate," Craig v. Harney, supra, , surely the same must be true of other government officials, such as elected city commissioners. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.
If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central meaning of the First Amendment.
What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute.
…
The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous statements honestly made is no less essential here than was the requirement of proof of guilty knowledge which, in Smith v. California, we held indispensable to a valid conviction of a bookseller for possessing obscene writings for sale.
…
A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions - and to do so on pain of libel judgments virtually unlimited in amount - leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred…. Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." … The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.
The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" - that is, with knowledge that it was false or with reckless disregard of whether it was false or not….[W]e consider that the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for respondent under the proper rule of law."
Counsel submits that the freedom to advocate an idea is a core guarantee of Articles 40.6.1. and 40.3.1. of the Constitution. Counsel refers to the jurisprudence of the U.S. Supreme Court relating to the freedom of expression guaranteed by the First Amendment of the U.S. constitution as opposed to the common law on defamation.
Counsel submits that the political function of free speech is of paramount importance in our constitutional democracy. Counsel refers to O'Brien v. Mirror Group Newspapers [2001] 1 I.R. 1 in which Denham J. indicated that the Constitution and the European Convention on Human Rights require that a balance be achieved, and that balance going to matters of reputation, information, communication and the freedom of expression is a matter of importance in a democracy and is of public interest. Counsel further refers to Kelly v. O'Neill in which Denham J. stated that:
"…[f]reedom of expression is not an absolute right under the Constitution, however, it is a fundamental right of great importance in a democratic society." In the same case Keane J. stated that "…[f]reedom of expression is undoubtedly a value of critical importance in a democratic society, but like every other right guaranteed, either expressly or by implication, by the Constitution it is not an absolute right."
It is submitted that the freedom of expression recognised by the Constitution must not be inhibited by a deterrent factor of the law of defamation and that if the inhibition goes too far it may undermine the constitutional right to freedom of expression.
It is submitted that the freedom of expression involving the advancement of knowledge in the 'market place of ideas' is essential in a democratic society.
Counsel further refers to the judgment of Barrington J. in Irish Times Ltd. v. Ireland [1998] 1 IR 359 in which, having quoted Article 10 of the European Convention on Human Rights he stated, inter alia, as follows:
"It appears to me also that it is important to look at the context in which the right of the citizens to express freely their convictions and opinions is placed in the Constitution. Article 40.6.1° deals with three rights, the right of the citizens to express freely their convictions and opinions, the right of the citizens to assemble peaceably and without arms and the right of the citizens to form associations and unions. All of these relate to the public activities of the citizens and to the practical workings of a democratic society. They are part of the dynamics of political change. They are at once both vitally important to the success of a democracy and potentially a source of political instability. That is why the Constitution and the European Convention both assert and circumscribe them. That is also why it is so important to get the balance right in interpreting them.…. It therefore appears to me that the right of the citizens "to express freely their convictions and opinions" guaranteed by Article 40 of the Constitution is a right to communicate facts as well as a right to comment on them. It appears to me also that when the European Convention on Human Rights states that the right to freedom of expression is to include "freedom . . . to receive and impart information" it is merely making explicit something which is already implicit in Article 40.6.1° of our Constitution.
This interpretation appears consistent with the judgment of O'Higgins C.J. in Cullen v. Toibin [1984] I.L.R.M. 577, when, lifting an injunction on the publication of an article by a witness at a trial which purported to contain a description of how the accused had carried out the murder of which he had been convicted, while the accused's appeal was still pending before the Court of Criminal Appeal, he said at p. 582:-
"There is . . . the matter of the freedom of the press . . . guaranteed by the Constitution and which cannot be lightly curtailed."
….
Costello J. accepted that a "a right to communicate" was one of the unspecified rights of the citizen protected by Article 40.3 of the Constitution, and he reiterated this view in Kearney v. Minister for Justice [1986] I.R. 116 at p. 118. I would be prepared to accept that such a right exists as one of the unspecified rights of the citizen but, if such a right exists, it must include not only the right to communicate facts but also the right to communicate convictions opinions and even feelings. The question then arises of what is the relationship between this right and the right of freedom of expression guaranteed by Article 40.6 of the Constitution.
In some respects the two rights may overlap and may be complimentary. But the right of freedom of expression is primarily concerned with the public statements of the citizen. When the Constitution guarantees the citizen liberty for the exercise of this right it is guaranteeing to him that he will not be punished by the criminal law or placed under any unconstitutional restriction for freely stating in public his convictions and opinions, be they right or wrong. A fortiori it guarantees him, but again subject to the same constitutional restrictions, the right to state the facts on which these convictions and opinions are based. The Constitution guarantees to the organs of public opinion liberty for the criticism of government policy. But it would be absurd to suggest that the press enjoys constitutional protection under Article 40.6.1° (i) when criticising government policy but not when reporting the facts on which its criticism is based.
The sister rights guaranteed by Article 40.6.1° are the right of the citizens "to assemble peaceably and without arms" and the right of the citizens "to form associations and unions" but it would be absurd to suggest that the right of the citizens "to assemble peaceably and without arms" guaranteed the right of the citizens to assemble but not their right actually to hold a meeting or that the right of the citizens "to form associations and unions" guaranteed the right of the citizens to "form" associations but not their right to manage or run them for any particular purpose. Likewise it seems to me absurd to suggest that the constitutional right of the citizens to express freely their convictions and opinions does not also protect, subject to constitutional exceptions, their right to state facts. In this context it is important to remember that we are construing, not a revenue statute, but a constitution.
The freedom of expression guaranteed by Article 40.6.1° of the Constitution includes criticism of government policy. A fortiori it includes criticism of other aspects of State activity including the working of the courts. Apart from particular statutes designed to protect privacy or the weaker members of the community there are only two kinds of restrictions on publicity or criticism concerning the courts. Both exist to protect the administration of justice. The first kind of restriction is on publicity which tends to deny to an accused person a fair trial and the other is on the kind of irresponsible and malicious criticism which damages the administration of justice by bringing the courts into contempt."
Counsel further refers to New York Times v. Sullivan 376 U.S. 254 (1964) and Mills v. Alabama 384 U.S. 214 (1966) insofar as they refer to the constitutional right of free expression as enshrined in the First Amendment as being directed to the free discussion of governmental affairs.
Counsel further submits that one of the core functions of the constitutional guarantee of freedom of expression is to provide refuge for unpopular, unorthodox and provocative opinions. In support of this submission counsel refers to an academic work and to an authority of the U.S. Supreme Court in Terminiello v. Chicago 337 U.S. 1 (1949) in which Justice Douglas in delivering the majority opinion of the Court stated, inter alia, as follows:
"Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571 to 572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to reduce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest Counsel submits that the common law of defamation was not developed or formulated to reflect the delicate balancing exercise which the Constitution requires when there is a conflict between the constitutional right to freedom of expression and the constitutional protection of one's good name. It is submitted that works of the nature of the subject booklet are written to put forward a view, provoke debate and evoke criticism, both favourable and unfavourable."
It is submitted that the defendant should not be required to demonstrate that either his booklet attracts some privilege (which it is conceded is unlikely) or that the booklet is a matter of fair comment on a matter of public interest. As the defence of fair comment requires that the truth of the facts alleged or referred to in the words complained of to be proved by the defendant objectively in order to asset his freedom of expression, it is submitted that the law of defamation as currently recognised wholly fails to achieve an appropriate and proportionate balance between the right to freedom of expression and the protection of one's good name from unjust attack. It is submitted that if an appropriate balance were to be achieved the defendant would not be subject to the law of defamation in respect of the booklet at issue. It is submitted that the common law must submit to the constitutional guarantee of freedom of expression if the reality of the democratic state referred to in Article 5 of the Constitution is fully to be realised. It is submitted that such a state is characterised by robust and open debate with society capable of accepting (even if not agreeing with) a plurality of views. It is submitted that commentators ought not to be inhibited from being vigorous in their opinions and should not be deterred from voicing their criticism even if such criticism and opinions offend. It is submitted that Article 40.6.1. of the Constitution recognises this, while the common law barely tolerates it. It is submitted that a person's right to freedom of expression must prevail unless a plaintiff can establish to the satisfaction of the court that the publication constitutes an unjust attack on his good name such as to warrant the limitations on the former right inherent in an action in defamation.
It is submitted that the approach of the United States Supreme Court is similar to the recognition given to the freedom of expression under the Irish constitution. At the same time counsel stresses that he is not urging this court to reach the same conclusion as the U.S. Supreme Court in the case of New York Times v. Sullivan. However, it is submitted that the same philosophy applies in that case and under the Constitution in this jurisdiction.
Counsel refers to Article 10 of the European Convention on Human Rights ('the Convention') which provides:
"Article 10 – Freedom of expression
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
It is submitted that Article 10 involves a similar concept to that found in Article 46 of the Constitution albeit differently expressed. Counsel refers to portion of the judgment of Barrington J. in Irish Times Ltd. v. Ireland [1998] 1 IR 359 at p. 404 where he stated "…[i]f one compares Article 40.6.1o (i) of the Irish Constitition with art. 10 of the European Convention on Human Rights (which deals with freedom of expression) one finds significant similarities as well as important differences."
Later at pp. 404 and 405 he stated as follows:
"It appears to me also that it is important to look at the context in which the right of the citizens to express freely their convictions and opinions is placed in the Constitution. Article 40.6.1° deals with three rights, the right of the citizens to express freely their convictions and opinions, the right of the citizens to assemble peaceably and without arms and the right of the citizens to form associations and unions. All of these relate to the public activities of the citizens and to the practical workings of a democratic society. They are part of the dynamics of political change. They are at once both vitally important to the success of a democracy and potentially a source of political instability. That is why the Constitution and the European Convention both assert and circumscribe them. That is also why it is so important to get the balance right in interpreting them.
Article 40.6.1° (i) is unique in conferring liberties and rights upon the "organs of public opinion". "Organs" are not capable of having rights so
this reference must be taken to mean a reference to those persons whether natural or artificial (such as the applicants in the present action) who control the organs of public opinion. These rights must include the right to report the news as well as the right to comment on it. A constitutional right which protected the right to comment on the news but not the right to report it would appear to me to be a nonsense. It therefore appears to me that the right of the citizens "to express freely their convictions and opinions" guaranteed by Article 40 of the Constitution is a right to communicate facts as well as a right to comment on them. It appears to me also that when the European Convention on Human Rights states that the right to freedom of expression is to include "freedom . . . to receive and impart information" it is merely making explicit something which is already implicit in Article 40.6.1° of our Constitution.
This interpretation appears consistent with the judgment of O'Higgins C.J. in Cullen v. Toibin [1984] I.L.R.M. 577, when, lifting an injunction on the publication of an article by a witness at a trial which purported to contain a description of how the accused had carried out the murder of which he had been convicted, while the accused's appeal was still pending before the Court of Criminal Appeal, he said at p. 582:-
"There is . . . the matter of the freedom of the press . . . guaranteed by the Constitution and which cannot be lightly curtailed." "
Counsel refers to the jurisprudence of the European Court of Human Rights in relation to Article 10 of the European Convention on Human Rights ('the Convention') in De Haes and Gijsels v. Belgium (1998) 25 EHRR 1 and Bladet Tromso and Stensaas v. Norway (1999) 29 E.H.R.R. 125. In the former case the Court reiterated that "freedom of expression is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb the State or any section of the community. In addition journalistic freedom also covers possible recourse to a degree of exaggeration or even provocation." The court added that Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. In the latter case the Court stated, inter alia, as follows:
"One factor of particular importance for the Court's determination in the present case is the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest …. In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation …. In cases such as the present one the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of "public watchdog" in imparting information of serious public concern."
In Bladet Tromso and Stensaas v. Norway (1999) 29 E.H.R.R. 125 the Court indicated, inter alia, at para. 65 of its judgment:
"65. Article 10 of the Convention does not, however, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of paragraph 2 of the Article the exercise of this freedom carries with it "duties and responsibilities", which also apply to the press. These "duties and responsibilities" are liable to assume significance when, as in the present case, there is question of attacking the reputation of private individuals and undermining the "rights of others"…. By reason of the "duties and responsibilities" inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism."
In that particular case the Court found that there had been a violation of Article 10 of the Convention as there was no reasonable relationship of proportionality between the applicant journalists' right to freedom of expression and the legitimate aim pursued of protecting the reputation of the plaintiffs in defamation proceedings who were seal hunters. In regard to the instant case counsel relies upon the fact that the defendant's booklet is self contained and comprehensive and relies on other material including transcripts and other publications. Counsel relies upon the fact that in the instant case the matters complained of are the opinions of the defendant. It is submitted that in writing a reflective booklet in relation to the case in which the plaintiffs were involved, the defendant was imparting his views and ideas on a matter of public interest given the notoriety of the case over a number of years. It is submitted just as press function is essential so is this function of imparting comment and opinion, even on matters that might offend.
It is submitted that in the booklet the defendant was imparting his views and ideas on a matter of public interest given the notoriety of the cases over a number of years and that just as press freedom is essential so is the function of imparting comment and opinion even on matters that might offend.
It is submitted that the jurisprudence of the European Court of Human Rights demonstrates the importance of the right of freedom of expression under the Convention. It does not ignore the legitimate protection of a good name. It is submitted that the approach is to limit the right of freedom of expression only where it exceeds the bounds of permissible criticism and that it does not require the maker of a statement to justify his freedom to express his comments and opinions. It is submitted that this is the approach of the Constitution. It is submitted that the booklet cannot be an unjust attack on the good name of either plaintiff. It is submitted that the cases referred to by counsel demonstrate the development of the case law of the European Court of Human Rights.
Counsel refers to Handyside v. The United Kingdom (1976) E.H.H.R. SeriesA no.24 in which it was stated, inter alia, as follows:
"Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator ("prescribed by law") and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force ….
49. Nevertheless, Article 10 para. 2 does not give the Contracting States an unlimited power of appreciation. The Court, which, with the Commission, is responsible for ensuring the observance of those States' engagements is empowered to give the final ruling on whether a "restriction" or "penalty" is reconcilable with freedom of expression as protected by Article 10 (art. 10). The domestic margin of appreciation thus goes hand in hand with a European supervision. Such supervision concerns both the aim of the measure challenged and its "necessity"; it covers not only the basic legislation but also the decision applying it, even one given by an independent court. In this respect, the Court refers to Article 50 (art. 50) of the Convention ("decision or ... measure taken by a legal authority or any other authority") as well as to its own case-law.
The Court's supervisory functions oblige it to pay the utmost attention to the principles characterising a "democratic society". Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society". This means, amongst other things, that every "formality", "condition", "restriction" or "penalty" imposed in this sphere must be proportionate to the legitimate aim pursued.
From another standpoint, whoever exercises his freedom of expression undertakes "duties and responsibilities" the scope of which depends on his situation and the technical means he uses. The Court cannot overlook such a person's "duties" and "responsibilities" when it enquires, as in this case, whether "restrictions" or "penalties" were conducive to the "protection of morals" which made them "necessary" in a "democratic society"."
Counsel refers to Nilsen and Johnson v. Norway in which the Court added at para. 43 of its judgment:
"As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.
The test of "necessity in a democratic society" requires the Court to determine whether the "interference" complained of corresponded to a "pressing social need", whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see the Sunday Times v. United Kingdom (no. 1) judgment of 26 April, 1979, Series A no. 30, p. 38, § 62). In assessing whether such a "need" exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Bladet Tromsø and Stensaas v. Norway."
With regard to this jurisprudence and the decision in New York Times v. Sullivan 376 U.S. 254 (1964) counsel submits that the defendant should not be subject to a test of strict liability. It is submitted that the right of freedom of expression should only be taken away by fault where it is shown. It is submitted that it is not right to force the defendant to defend his expression of opinions in the absence of fault. It is submitted that where it is shown that the defendant acted in bad faith or unreasonably this may amount to an unjust attack on the plaintiffs' reputation. In this context counsel submits that acting unreasonably might include negligence. On this basis it is submitted that a correct approach of the law would be to require the plaintiff to establish fault on the part of the defendant. It is submitted that where an opinion is so unreasonable it should not be protected by the right of freedom of expression.
With regard to the law of the European Union it is submitted that as fundamental rights form an integral part of European Union law, including Article 10 of the Convention and national rules falling within the scope of European Union law. It is submitted that the defendant is providing a service within Article 49 of the E.U. Treaty and is entitled to exercise his rights under Article 10 of the Convention a and to be treated in accordance with a common code of fundamental values throughout the Union.
It is submitted that insofar as the common law does not reflect the freedom of expression recognised by the Constitution it has not been carried forward under Article 50 of the Constitution as it is inconsistent with it.
It is submitted that the booklet is there to provoke a reaction and in it the defendant expresses freely opinions on matters of public importance. It is submitted that the conclusions in the booklet are not about any particular individual. It is submitted that the defendant's opinion is what is important and not whether people agree with it.
It is submitted that the defendant's position is not protected under the existing law of privilege or fair comment. It is submitted that the defendant should not have to go to court to assert his right to freedom of expression. It is submitted that if a fair balance was struck in the law of defamation having regard to the Constitution, the defendant would not be subject to defamation proceedings in respect of the opinions contained in the booklet. It is submitted that the right to freedom of expression must prevail over the common law. It is submitted that the existing law puts the defendant "on the back foot" and that this is not consistent with the constitutional right to freedom of expression.
On behalf of the plaintiffs it is conceded that Article 10 does not form part of the domestic law of the State but the Court can have regard to its provisions. Counsel refers to the judgment of Hamilton C.J. in de Rossa v Independent Newspapers plc. [1999] 4 IR 432 where he stated at p. 450:
"Although the European Convention on Human Rights is not part of Irish municipal law, regard can be had to its provisions."
Geoghegan J., in the course of his judgment in Murphy v. I.R.T.C. [1997] 2 ILRM 467 stated at p.476:-
"Although the European Convention on Human Rights is not part of Irish municipal law, regard can be had to its provisions when considering the nature of a fundamental right and perhaps more particularly the reasonable limitations which can be placed on the exercise of that right."
Counsel further refers to Hynes-O'Sullivan. v. O'Driscoll [1988] I.R. 436 where Henchy J. stated, inter alia, at p. 450
"the law as to qualified privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen's good name."
Counsel refers to Article 10 of the Convention and submits that it is clear that it recognises that the exercise of the freedoms referred to in it may be subject to such restrictions and penalties as a prescribed by law in the States which are party to the Convention and which are necessary in a democratic society for the protection of the reputation and rights of others. Counsel notes that regard may be had by this court to the provisions of the Convention, although not part of the municipal law of the State. Counsel refers to portion of the judgment of Hamilton J. in de Rossa v Independent Newspapers plc. [1999] 4 IR 432 where he stated at p. 450:
"There does not appear to be any conflict between Article 10 and the common law or the Constitution."
Counsel further refers to portion of the judgment of O'Hanlon J. in Desmond v. Glackin [1993] 3 I.R. 1 at pp. 28 and 29 where he stated:
"As Ireland has ratified the Convention and is a party to it, and as the law of contempt of court is based (as was stated by Lord Reid) on public policy, I think it is legitimate to assume that our public policy is in accord with the Convention or at least that the provisions of the Convention can be considered when determining issues of public policy. The Convention itself is not a code of legal principles which are enforceable in the domestic courts, as was made clear in In re Ó Láighléis [1960] I.R. 93, but this does not prevent the judgment of the European Court of Human Rights from having a persuasive effect when considering the common law regarding contempt of court in the light of the constitutional guarantees of freedom of expression contained in our Constitution of 1937."
With regard to de Rossa v. Independent Newspapers plc. [1999] 4 IR 432 it is submitted by reference to Tolstoy Milolavsky v. United Kingdom (1995) 20 EHRR 442 that while Article 10 may come into play in regard to the quantum of damages awarded in a defamation suit insofar as an award of damages must bear a reasonable relationship of proportionality to the injury to the reputation suffered, there is no legal basis for suggesting that that Article 10 of the Convention can displace a jury trial on an allegation of defamation by an Irish citizen.
Counsel refers to portion of the judgment of Hamilton C.J. in de Rossa v. Independent Newspapers plc where he stated at p. 456:
"By virtue of the provisions of Article 40.6.1° of the Constitution, the defendant is entitled, subject to 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.
The right to freedom of expression is guaranteed by Article 10(1) of the Convention but the exercise of such a right is subject to the restrictions contained in Article. 10(2), the relevant provision of which reads as follows:-
"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ..."
As appears from the passage of the judgment of the European Court of Human Rights already quoted herein and which states at p. 472:-
"... under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered."
Both the Constitution and the Convention guarantee the right to freedom of expression but also recognise the right of the citizen to his "good name" and "reputation".
The only remedy open to a person whose right to his good name or reputation has been damaged or wrongfully interfered with is by way of an action for damages.
The obligation placed on the State is to ensure that the substantive law applicable in the State is designed to ensure a requirement of proportionality and that any award of damages made was proportionate to the damage which the plaintiff had suffered and was a sum which was necessary to provide adequate compensation and to re-establish his reputation."
Counsel further refers to portion of the judgment of the Chief Justice at p. 458 where he added:
"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.Neither the Constitution nor the Convention requires that the guidelines to be given to juries should be changed in the manner argued for by the defendant."
It is submitted that this statement, with which the majority of the Supreme Court agreed demonstrates how regard is to be had to the Convention. It is submitted that the defendant's right to express freely statements, convictions, opinions and ideas in the booklet at issue is subject to the limitations arising under the common law relative to defamation arising on the balancing of rights under the Constitution between Articles 40.6.1. and Article 40.3., having due regard to the Convention and that the defendant cannot impugn these proceedings as they are presently constituted.
It is submitted that the plaintiffs have a cause of action, which does not amount to saying that they will succeed in their actions.
The plaintiffs apprehend that the defendant will seek to raise a defence of qualified privilege and in this regard refer to the decision of the Court of Appeal in Reynolds v. Times Newspapers Ltd. [1998] 3 AllER 961 and to the subsequent decision of the House of Lords at [1999] 4 All ER 609 in which Lord Nicholls expressed the view at p. 625 of the report that the common law approach to the issue of qualified privilege accorded with the then present state of the human rights jurisprudence.
Counsel further refers to Gately on Libel (9th Ed.) on the same topic.
It is submitted that the plaintiffs are private citizens who have the right to protect their good name by invoking the jurisdiction of this court in regard to the alleged defamation. It is submitted that the jurisprudence of the European Court of Human Rights in relation to qualified privilege circles around the issue of political affairs. Counsel stresses that the plaintiffs are private citizens
Counsel refers to McMahon & Binchy insofar as it is indicated that the approach of the courts has been that the common law principles in the law of defamation do not require to be modified in the light of the Constitution. In this regard reference is made to the judgment of Geoghegan J. in Foley v. Independent Newspapers [1994] 2 I.L.R.M. 61 where he stated that any consideration of Article 40.6.1.(i) would have to be balanced by consideration of Article 40.3.2. which requires the State by its laws to protect as it may from unjust attack and in the case of injustice done vindicate the good name of every citizen.
In conclusion counsel submits that the Irish courts see no difference between the common law, the Constitution and Article 10 of the Convention and the English courts see no difference between the common law and Article 10. It is submitted that the common law is clear and that subject only to the defence of privilege, a person is liable under current law for any untrue statement of fact which tends to lower another in the eyes of the average right-thinking person.
Mr. Eoin McCullough S.C. on behalf of the Attorney General submits that essentially the preliminary issue to be tried by this court relates to the balancing of conflicting rights afforded to citizens under Articles 40.6.1 (i) and 40.3.1 of the Constitution dealing with freedom of expression and the right of every citizen to their good name and whether in the circumstances of this case the constitutional guarantee to express freely convictions and opinion prevails over the constitutional protection of a good name.
The Attorney General agrees that a legal balance has to be maintained between the guarantee of freedom of expression and the protection afforded to one's good name, both of which are constitutionally enshrined. The issue is to which right superior recognition is to be given in the case of a conflict. Counsel refers to Foley v. Independent Newspapers [1994] 2 I.L.R.M. 61 and Hynes-O'Sullivan. v. O'Driscoll [1988] I.R. 436 insofar as the Superior Courts had previously addressed the issue of these competing rights.
The Attorney General submits that when balancing these constitutional rights one must examine the circumstances of the particular case and evaluate the qualifications and/or exceptions to the rights under the Constitution. The Attorney General takes issue with the submission made on behalf of the defendant that the freedom of expression under the Constitution is paramount. It is submitted that nowhere does the defendant indicate the basis upon which criticism would be evaluated where he submits that freedom of expression "ought not to be curtailed unless it exceeds the bounds of permissible criticism", for the purpose of determining whether the criticism in question is permissible or otherwise. On this basis the Attorney General submits that the full extent of the rights claimed by the defendant are not available to him.
Nevertheless the Attorney General acknowledges that the protection provided by the traditional law of defamation may be inadequate to meet the requirements of the Constitution. It is submitted that the rights embodied in the Constitution are not derived from the common law. It is submitted that the requirements of the Constitution are not necessarily met by the pre-existing common law of defamation. The correct balance between the competing rights is to be found in the Constitution itself which may be interpreted in the light of general international norms and standards. In this regard it is submitted that the provisions of the Convention are particularly significant, albeit not part of the domestic law of the State.
Counsel refers to the jurisprudence of the European Court of Human Rights and in particular to cases illustrating the protection afforded by Article 10 of the Convention to statements made on matters of public concern, where the same are made in good faith – Lingens v. Austria (1986) 8 EHRR 407; Oberschlick v. Austria (1995) 19 EHRR 389; Oberschlick v. Austria (No. 2) (Judgment 1 July, 1997) and Torgeirson v. Iceland (1992) 14 EHRR 843. It is recognised that insofar as expressions of opinion are concerned, the Convention does not require either that they be proved to be true or that the underlying facts be proved to be true. Even in respect to a statement of fact as opposed to expressions of opinion it is not always necessary for a defendant to prove the truth of same. If a statement is made in bad faith or without any attempt to check the facts of the matter, then Article 10 does not require that the statement be protected. Vide Prager and Oberschlick v. Austria (1996) 21 EHRR 1; De Haes and Gijsels v. Belgium (Judgment 24th February,1997). It is submitted that if the provisions of the Constitution are in accordance with Article 10 then free speech about affairs of public interest are in accordance with Article 10 of the Convention and free speech about affairs of public interest may require a greater degree of protection than has traditionally been understood to be provided by the pre-Constitution common law relating to qualified privilege. In particular, speech on matters of public concern consisting wholly or largely of the expression of opinion may not require in all cases to be justified and the truth of the facts underlying such opinion may not require in all cases to be proved.
Counsel for the Attorney General refers to developments in other common law jurisdictions tending to enlarge upon the range of material that can legitimately be published without fear of attracting liability, in some cases based upon a development of the common law and in other cases having a constitutional origin.
Counsel refers to the First Amendment to the U.S. Constitution and to the decision of the United States Supreme Court in New York Times v. Sullivan 376 U.S. 254 (1964) insofar as a restriction has been placed on the right of public officials to succeed in a claim for defamation where a plaintiff must be able to show "by clear and convincing evidence" that the defendant published the statement with knowledge of its falsity or in reckless disregard of its truth or falsity. This protection has now been extended to claims by "public figures". The Attorney General does not contend that the good name of the individual guaranteed protection in the Constitution would be adequately vindicated by the adoption of such an approach in this jurisdiction.
Counsel refers to recent jurisprudence of the Australian courts in the cases of Theophanous v. Herald and Weekly Times (1994) 182 C.L.R. 104 and Lange v. Australian Broadcasting Corporation (1997) 182 C.L.R. 104. While there is no explicit guarantee in the Australian Constitution to freedom of speech, the courts have recognised that freedom of communication on matters of government and politics is an indispensable incident of Australian law. It has been determined that the law must be compatible with the guarantee of freedom of political discussion. There has been a development of the law with particular regard to the concept of qualified privilege. The common law in Australia has now recognised publication on a "government or political matter" as an occasion of qualified privilege, with reciprocity between the media and the public. The privilege covers political affairs at all levels and may extend to cover discussion of matters of a similar nature in other countries. There is an obligation on the defendant to show that he has satisfied the requirements of reasonable conduct. As a general rule a defendant must show that he/she had:
"reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open to verify the accuracy of the material and did not believe the imputation to be untrue. The defendant's conduct will not be considered reasonable unless the defendant has sought a response from the person defamed and published a response made (if any) except in cases where the seeking of publication of a response was not practicable or it was unnecessary to give the plaintiff and opportunity to respond."
The plaintiff will succeed if malice can be established. It is recognised that in the case of the subject publication that this development of the law might not avail the defendant as it is submitted that the publication at issue is at best marginally connected with the political process.
Counsel further refers this court to the development of the common law in New Zealand. In Lange v. Atkinson [1998] 3 N.Z.L.R. 424 and [2000] N.Z.L.R. 385 the Court of Appeal held that the defence of qualified privilege applies to generally published statements made by the actions and qualities of those currently or formerly elected to parliament and those with immediate aspirations to be members, so far as those aspirations and qualities directly affected the capacity to meet their public responsibilities. The Court held that the defamatory statement must bear on the actions and qualities of the politician which directly affect his/her capacity to meet his/her public responsibilities. The Court held that it was necessary to look at the circumstances of the publication, including the identity of the publisher, the context, the likely audience and the content of the statement.
This decision is subsequent in time to Lange v. Australian Broadcasting Corporation and refers to the decision in that case as well as to the provisions of the Convention and jurisprudence of the European Court of Human Rights. Having reviewed the law in a number of Commonwealth jurisdictions and also in the United States of America the court concluded on the issue of privilege and political statements as follows at p. 467 and 468 :
"14. Qualified privilege and political statements: conclusion
(a) Political statements may be protected by qualified privilege
Our consideration of the development of the law leads us to the following conclusions about the defence of qualified privilege as it applies to political statements which are published generally:
(1) The defence of qualified privilege may be available in respect of a statement which is published generally.
(2) The nature of New Zealand's democracy means that the wider public may have a proper interest in respect of generally-published statements which directly concern the functioning of representative and responsible government, including statements about the performance or possible future performance of specific individuals in elected public office.
(3) In particular, a proper interest does exist in respect of statements made about the actions and qualities of those currently or formerly elected to Parliament and those with immediate aspirations to such office, so far as those actions and qualities directly affect or affected their capacity (including their personal ability and willingness) to meet their public responsibilities.
(4) The determination of the matters which bear on that capacity will depend on a consideration of what is properly a matter of public concern rather than of private concern.
(5) The width of the identified public concern justifies the extent of the publication.
(As appears from para. (3) above this judgment is limited to those elected or seeking election to Parliament.)"
In this case the Court of Appeal rejected the concept of reasonableness as applied by the Australian High Court in the Lange case.
Counsel refers to the recent decision of the House of Lords in Reynolds v. Times Newspapers Limited [2001] 2 AC 127 in which it recognised that there might be privilege in respect of the general communication of political information, which included not only information per se but extended to opinion and arguments concerning government or political matter that affect the people of the United Kingdom. It held that the questions of whether there is a duty and interest giving rise to qualified privilege falls to be determined on the basis of a number of factors, including inter alia, the seriousness of the allegation, the nature of the information , the source of the information, the steps taken to verify the information, the status of the information, the urgency of the matter, whether comment was sought from the plaintiff, whether the article contained the gist of the plaintiff's side of the story, the tone of the article and the circumstances of the publication. It was indicated that this list is not exhaustive and that the weight to be given to these and any other relevant factors will vary from case to case. The court indicated that the decision on whether, having regard to the admitted or proven facts, the publication was subject to qualified privilege is a matter for the judge.
Gately points out that from a reading of the speeches in this case the following points emerge:
"[T]here is unanimous rejection of a "generic" qualified privilege for "political speech" and in this regard the House of Lords rejected the approach of New York Times v. Sullivan. Lord Nichols stressed that reputation "forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad."
It was indicated that qualified privilege can only be defeated by the claimant establishing malice.
Counsel further submits that if one combines the Convention with the common law one must come to an altered view of the common law of defamation. Counsel submits that the law in Ireland properly viewed allows for qualified privilege for widely published statements on subjects of public interest, subject to restrictions, such as those imposed in Australia to deal with matters of reputation. It is submitted that on the basis of the law of fair comment it is not necessary for the defendant to prove the truth of all statements of fact upon which he relies.
It is submitted that the common law, properly understood, is to be seen in this or in a similar way. Counsel submits that on this understanding of the law there is no reason why the defendant should not defend the claim herein on the basis of the ordinary law of defamation.
The Attorney General submits that the Constitution, properly interpreted, may give rise to a wider form of entitlement to publish statements concerning matters of public concern than has hitherto generally been recognised. In light of the constitutionally recognised right of freedom of expression and freedom to communicate it is submitted that the limits placed on the expression or communication of material in relation to matters of public interest may legitimately differ from the limits to be placed on the expression or communication of other material. It is submitted that this distinction arises, inter alia, from the democratic nature of the State and the right to freedom of expression enshrined in the Constitution and is echoed in the jurisprudence of other jurisdictions and of the European Court of Human Rights. It is furthermore submitted that the limits to be placed on the expression or communication of statements of opinion may perhaps legitimately differ from the limits to be placed on expression or communication of factual statements. It is submitted that in a democratic society it is legitimate to place greater emphasis on the right to freely express one's opinion than on the right freely to express or communicate statements of fact. Secondly, it is submitted that expressions of opinion are of necessity less damaging to the individual's reputation than statements of fact, since they are perceived as being merely the opinion of the person that speaks them.
In respect of expressions of opinion on matters of public interest, the Attorney General submits that the appropriate constitutional balance does not protect statements made in bad faith or for an indirect purpose. It is submitted that insofar as expressions of opinion are concerned, it may not be constitutionally required of a defendant in every case to prove either the truth of the opinion or of the facts that underlie it. It is acknowledged that the rule applicable to statements of fact on matters of public interest does not arise in an acute form in the instant case, but it may nevertheless be the proper constitutional approach to provide that statements of fact on matters of public interest should be protected, where they are made in good faith or not for an indirect purpose and furthermore where reasonable attempts have been made to check on their truth and where they are made in circumstances that otherwise renders their publication reasonable.
The Attorney General submits that the right to freedom of expression is fundamental in a democratic society. One exception arises as a result of the constitutional protection afforded to Irish citizens under Article 40.3.2. It is submitted that the right to one's good name must be balanced against the conflicting right in the context of the facts of each case. It is submitted that this is the process that should be followed in the instant case. It is submitted that it would not be appropriate for this court to assert that one particular constitutional right – the right to freedom of expression – should be considered and/ or declared to be paramount to another constitutional right. It is submitted that the correct method of dealing with this contention is that the Court should seek to balance both rights having due regard for the consequences which the exercise of these rights will have on the respective parties. It is submitted that the law of defamation as generally understood prior to the developments in judicial thinking in the United Kingdom, Australia and New Zealand together with the recent jurisprudence of the European Court of Human Rights may not adequately express the requirements and values of the Constitution and the Attorney General presents his observations in an attempt to suggest an appropriate test by which the respective rights of the parties to litigation such as this can be balanced.
In reply to the submissions made on behalf of the Attorney General and the plaintiffs, counsel for the defendant refers to the concession made on behalf of the Attorney General, and refers to the fact that in the light of the jurisprudence of the European Court of Human Rights the Court indicated that a "careful distinction needs to be made between facts and value judgments" and statements of opinion. Counsel submits that this is the thrust of Article 46.1.1 of the Constitution and it is submitted that harmony has to be achieved between the right freely to express opinions and the right to one's good name.
Counsel submits that at common law the predominant aspect is the protection of reputation. Counsel submits that the common law approach is one of 'strict liability' and that the approach of the common law gives insufficient recognition to the right to freedom of expression or the right to make a value judgement.
Counsel submits that a reading of the Constitution shows that a distinction has to be drawn between an attack on one's reputation and an unjust attack such that some fault must be established. Counsel submits that the freedom of expression recognised by the Constitution is not overshadowed by what he refers to as the 'litigation chill factor' by the fact that one has to vindicate this right solely by means of a defence to a claim for defamation. Counsel refers to the fact that the Attorney General's submission amounts to saying that the defendant cannot rely upon the Constitution unless he can show that the existing law fails to vindicate his rights or amounts to an inadequate vindication of his right to freedom of expression.
Counsel submits that the remedy suggested by the Attorney General amounts to saying that the defendant must defend the case by pleading, albeit in a refashioned sense, qualified privilege or fair comment. The Attorney General submits that this Court should follow the Australian case of Lange v. Australian Broadcasting Corporation (1997) 182 C.L.R. 104 and refashion in an unspecified way the defence of qualified privilege to allow a person to express freely his opinions.
Counsel refers to the judgment of Henchy J. in Hanrahan v. Merck, Sharp and Dohme [1988] ILRM 629 at p. 636 where he stated:
"So far as I am aware, the constitutional provisions relied on, have never been used in the courts to shape the form of any existing tort or to change the normal onus of proof. The implementation of those constitutional rights is primarily a matter for the State and the courts are only entitled to intervene where there has been a failure to implement or, where the implementation relied upon is plainly inadequate, to effectuate the constitutional guarantee in question."
Counsel submits that while the approach of the Attorney General is different to that of the defendants, their approach is no more revolutionary.
Counsel refers to W. v. Ireland [1997] 2 IR 141 and to portion of the judgment of Costello P. at p.167 where he said:
"The courts are required by the Constitution to apply the law and the causes of actions it confers and when these adequately protect guaranteed rights they are not called upon, in order to discharge their constitutional duties, to establish a new cause of action—indeed it would be contrary to their constitutional function to do so. Furthermore, to do so would be otiose. If a cause of action for damages for infringement of the constitutional right of bodily integrity were granted to the injured plaintiff in the example I have given, the court would have to consider whether there was any breach of the duty which the driver of the army lorry owed to the pedestrian (for the right is not an absolute one) and, in considering the nature and scope of the duty, would decide whether the lorry driver had failed to take proper care for the plaintiff's safety, whether the pedestrian failed to take care for his own safety, apportion liability as required by the Civil Liability Act, 1961, assess damages in accordance with established principles, and in certain circumstances consider whether the claim was statute barred—in other words apply the law of tort to the new cause of action. There is therefore no need to construe the Constitution as conferring a new and discrete cause of action for damages in those cases in which the acts or omissions which constitute the alleged infringement also constitute an actionable wrong at law for which damages are recoverable. Of course, a provision of the law to be applied might not, in a given case, adequately protect the guaranteed right (for example the law might contain a limitation period which in the particular circumstance trenched unfairly on a guaranteed right and thus deprive the plaintiff of a right to compensation, as in O'Brien v. Keogh [1972] I.R. 144, then the law would be applied without the provision, which would be rendered invalid by the Constitution)."
It is submitted that the defendants have put the inadequacy of the law at the forefront and proposed, given the constitutional imperative, how the matter should be dealt with in this area. Counsel submits that there is an inadequacy with the remodelling proposed by the Attorney General.
Counsel submits that if one starts to refashion defences in the law of defamation one has to view the freedom of expression through the eyes of the law of tort. Counsel submits that the common law is premised on the existence of privileges. It is submitted that to put the defendant on the back foot is wrong. It is submitted that the defendants' approach is to look at the right to freedom of expression through the lenses of the Constitution, to examine the right itself and then examine what limitations may be placed on the right. It is submitted that the common law of defamation puts 'the cart before the horse' and that this is not harmonious with the Constitution as it puts the protection of reputation first. It is submitted that in this way it fails to establish the necessary balance.
Counsel refers to the approach of the common law and refers to portion of the speech of Lord Nicholls in Reynolds v. Times Newspapers Ltd. [2001] 2 AC 127 at p.192 where he said:
"Defamation and truth
The defence of qualified privilege must be seen in its overall setting in the law of defamation. Historically the common law has set much store by protection of reputation. Publication of a statement adversely affecting a person's reputation is actionable. The plaintiff is not required to prove that the words are false. Nor, in the case of publication in a written or permanent form, is he required to prove he has been damaged. But, as Littledale J. said in M'Pherson v Daniels (1829) 10 B & C 263 at 272, 109 E.R. 448 at 451: '... the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not, to possess.' Truth is a complete defence. If the defendant proves the substantial truth of the words complained of, he thereby establishes the defence of justification. With the minor exception of proceedings to which the Rehabilitation of Offenders Act 1974 applies, this defence is of universal application in civil proceedings. It avails a defendant even if he was acting spitefully.
The common law has long recognised the 'chilling' effect of this rigorous, reputation-protective principle. There must be exceptions. At times people must be able to speak and write freely, uninhibited by the prospect of being sued for damages should they be mistaken or misinformed. In the wider public interest, protection of reputation must then give way to a higher priority."
It is submitted that the premise upon which the common law operates is the opposite to that of the Constitution.
Counsel refers further to the speech of Lord Nicholls where he states at p.194:
"Over the years the courts have held that many common form situations are privileged. Classic instances are employment references, and complaints made or information given to the police or appropriate authorities regarding suspected crimes. The courts have always emphasised that the categories established by the authorities are not exhaustive. The list is not closed. The established categories are no more than applications, in particular circumstances, of the underlying principle of public policy. The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson's dictum, in Adam v Ward [1917] AC 309 at 334, [1916-17] All ER Rep 157 at p.170170, is much quoted:
'... a privileged occasion is ... an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.'
It is submitted by counsel that the House of Lords was wrestling with the system which starts from the wrong premise.
Dealing with the question of reputation Nicholls J. stated at p. 201 as follows:
"Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognise that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others.
The crux of this appeal, therefore, lies in identifying the restrictions which are fairly and reasonably necessary for the protection of reputation. Leaving aside the exceptional cases which attract absolute privilege, the common law denies protection to defamatory statements, whether of comment or fact, proved to be actuated by malice, in the Horrocks v Lowe sense. This common law limitation on freedom of speech passes the 'necessary' test with flying colours. This is an acceptable limitation. Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth.
In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation. Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based."
Counsel submits that a written constitution is alien to English law and as a result the thought process in approaching the law in England is radically different to that in Ireland. On this basis it is submitted that the decision in Reynolds v. Times Newspapers Ltd. is not an appropriate starting point. With regard to the decision of the Australian Courts in Lange v. Australian Broadcasting Corporation (1997) 182 C.L.R. 104 counsel refers to the fact that there is no express guarantee given to the freedom of expression. While the Court attempted to re-mould the common law, it is the common law which is the basic law of the land, albeit a Constitution Act has been enacted. It is submitted that the approach of the common law is to start with the premise that the statement complained of is a defamatory statement. It is submitted that the Australian approach is one of re-fashioning the law with regard to qualified privilege. It is submitted that the approach of the Australian court was based upon a reciprocity of interests.
In Lange, the Court added, at p. 570 of the report:
"The basis of this common law rule is that reciprocity of interest or duty is essential to a claim of qualified privilege at common law. Only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public. However, the common law doctrine as expounded in Australia must now be seen as imposing an unreasonable restraint on that freedom of communication, especially communication concerning government and political matters, which "the common convenience and welfare of society" now requires. Equally, the system of government prescribed by the Constitution would be impaired if a wider freedom for members of the public to give and to receive information concerning government and political matters were not recognised. The "varying conditions of society" of which Cockburn C.J. spoke in Wason v Walter now evoke a broadening of the common law rules of qualified privilege."
Counsel submits that the fact that the words published may be considered hurtful of the plaintiffs does not render same an abuse of the Constitutional position contended for. It is submitted that the defendant was entitled to opine in the manner done, which it is submitted is a fundamental aspect of his freedom of expression.
With regard to the submissions of counsel for the plaintiffs it is submitted that the words complained of amount to an opinion on English law. It is submitted that nothing has been asserted in the pleading that makes the words defamatory as a matter of law, unless it can be shown that the words were published in bad faith or unreasonably. It is submitted that letting the matter go to the jury in the present format is wrong in law. Counsel re-iterates that the words cannot be defamatory. Counsel submits that the issue is not a moot. It is submitted that it would be preposterous for the defendants to go through the entire trial procedure on the basis of a re-fashioning of the common law.
Counsel submits that as the words complained of cannot amount to an unjust attack on the basis of the pleading that the matter should not be allowed to go to the jury.
Counsel submits that the manner contended for of approaching the Constitution gives a harmonious approach to the balancing of the respective constitutional rights at issue, as opposed to an approach of re-modelling the common law such as done in Australia.
Conclusion:
This court must recognise the fact that the Constitution gives recognition and expression both to the freedom of expression and to the right to a person's good name. It is accordingly necessary that the law should balance these rights in an appropriate manner. The necessity for such a balance has been amply stated in the judgments of Denham J. in O'Brien v. Mirror Group Newspapers Ltd. [2001] 1 I.R. 1 and of Barrington J. in Irish Times Ltd. v. Ireland [1998] 1 IR 359. In this regard it is appropriate to repeat what was stated by Barrington J. when he stated at p.404:
"Article 40.6.1° deals with three rights, the right of the citizens to express freely their convictions and opinions, the right of the citizens to assemble peaceably and without arms and the right of the citizens to form associations and unions. All of these relate to the public activities of the citizens and to the practical workings of a democratic society. They are part of the dynamics of political change. They are at once both vitally important to the success of a democracy and potentially a source of political instability. That is why the Constitution and the European Convention both assert and circumscribe them. That is also why it is so important to get the balance right in interpreting them.
…. It therefore appears to me that the right of the citizens "to express freely their convictions and opinions" guaranteed by Article 40 of the Constitution is a right to communicate facts as well as a right to comment on them. It appears to me also that when the European Convention on Human Rights states that the right to freedom of expression is to include "freedom . . . to receive and impart information" it is merely making explicit something which is already implicit in Article 40.6.1° of our Constitution."
I am satisfied that no essential difference exists between the provisions of the Convention and the provisions of Article 40.6.1o of the Constitution. What is relevant is how they should be interpreted. It is clear that the Convention does not provide as such for the protection of one's reputation. However, Article 10 recognises that the protection given to freedom of expression may be curtailed and may be subject to restrictions as a prescribed by law and as are necessary in a democratic society for a variety of interests including the protection of the reputation or rights of others. It is, however, necessary to assess whether the common law of defamation as traditionally interpreted in this jurisdiction meets the requirements of the Constitution. In interpreting the Constitution this Court can have regard to the interpretation of the Convention insofar as it indicates how Article 40.6.1o may be interpreted.
It is clearly not the function of this Court to enter into the realm of policy formulation by suggesting reform of the law of defamation. In this regard I am influenced by the approach of Henchy J. in Hynes-O'Sullivan. v. O'Driscoll [1988] I.R. 436 where he stated at p. 450:
"I am of the opinion that the suggested radical change in the hitherto accepted law should more properly be effected by statute. The public policy which a new formulation of the law would represent should more properly be found by the Law Reform Commission or by those others who are in a position to take a broad perspective as distinct from what is discernible in the tunnelled vision imposed by the facts of a single case. That is particularly so in a case such as this, where the law as to qualified privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen's good name. The articulation of public policy on a matter such as this would seem to be primarily a matter for the legislature.
Finally and perhaps most crucially, the suggested restatement of the law should in my opinion not be made in this case because it is not necessary for the purpose of doing justice."
However, this court must assess the arguments put forward on behalf of the defendant and must assess whether it is necessary to conclude that the law of defamation as traditionally understood represents a violation of the right to freedom of expression enshrined in the Constitution and whether it should result in a fundamental re-appraisal of same or whether the law of defamation should be tempered to deal with the right to freedom of expression relied upon by the defendant.
I am not satisfied that the correct approach is to say that the right to freedom of expression should be viewed as paramount to the right to one's reputation. I am satisfied that the right to freedom of expression may result in a situation where in the context of a democracy the position of the press and other organs of public opinion have to be respected and protected, having due regard to the right to one's reputation. Accordingly, it is clear that the circumstances in which the right to freedom of expression is invoked may differ from one case to another and the relationship between that right and the right to one's reputation may change depending on those circumstances.
Accordingly, I am satisfied that I must assess the right invoked by the defendant in this action on the basis of the assertion of that right advanced by him in his defence and must assess that situation and consider whether the law of defamation as traditionally understood represents a violation of that right and whether it should result in a fundamental re-statement of that law or a tempering of same.
The defendant in his defence has pleaded that the words published by him, the subject matter of the action against him, form part of an analysis of English law on the function of the Court of Appeal and that the analysis was largely made in relation to the 'Birmingham Six.' The defendant indicates that he engaged in research in writing the booklet and looked at transcripts of appeals heard in public and other source material. Clearly, the defendant advances his case on the basis that the booklet represents a work in which he asserts that he puts the case for an unbiased perspective on the trial of the Birmingham Six and other appeals. He is a Queen's Counsel and the author of other works. In the prologue to the booklet the author indicates what he has attempted to address in the book itself, including the role of circumstantial evidence and the role of the Court of Appeal. He indicates that the motivation of the book has been the desire to redress the balance in the public perception of the criminal justice system. He states that the book explores the public perception about, and the professional failure to explain the function of, the Court of Appeal.
I am satisfied that I should assess the issue before this Court without determining the issues which remain to be determined before the court trying the substantive issues between the parties, but rather on the basis of the defendant's assertions. I believe that I should assess his defence and determine whether it should permit him to raise a defence to the plaintiffs' claims and whether the same is such as to preclude a valid claim being maintained by the plaintiffs. While the defendant asserts his entitlement to express his opinion as set forth in the book at issue, in exercise of his right to freedom of expression, the issue remains whether such an exercise precludes a valid claim for damages for defamation.
While the law of defamation at common law contains a "chill factor" such as may act as a disincentive to the freedom of expression, it is clear that any law which tempers the right to freedom of expression may have such an effect. It is also true that the common law may have the effect of putting a defendant 'on the back foot' such that a defendant may have to establish his right to raise a particular defence. Nevertheless, the defendant's main contention is that the law as currently understood does not give sufficient recognition to the right to freedom of expression which he contends is paramount.
I am satisfied that I should only adopt the defendant's contention as to how the law should be construed if the law of defamation cannot be construed in a more conventional manner such as to satisfy the requirements of the Constitution.
The jurisprudence of the European Court of Human Rights has largely been concerned with the right of freedom of expression of the press and the freedom to express opinions with regard to persons who are in public life. As indicated in the case of Litgens v. Austria, the limits of acceptable criticism are wider as regards politicians than for private individuals. The requirement of protecting the reputations of others has to be weighed against the interests of open discussion of political issues.
I am satisfied that in any given case it is necessary to establish whether the publication at issue is one which can be said to fall within the realms of freedom of expression this being one of the essential foundations of a democratic society. The necessity in a democratic society has to be assessed in the light of the restriction based on the protection of reputation and in this regard one must assess whether this is proportionate to the legitimate aim pursued.
In assessing whether it is appropriate to enlarge upon the traditional view of the law on defamation so as to permit a defendant such as the defendant in the case in question to write a booklet such as that at issue, I believe that guidance can be obtained from the decision of the House of Lords in Reynolds v. Times Newspapers Limited [2001] 2 AC 127 and in the decisions of the Australian and New Zealand courts referred to herein. I believe that the Reynolds case is of some assistance, being a persuasive authority especially insofar as it considered the common law in the light of the provisions of the European Convention of Human Rights. While the facts of that case were very different from the instant case, it does indicate that the law with regard to qualified privilege should be expanded to something close to a general public interest defence. It clearly recognises a wide interest of the public in receiving information from the press.
Insofar as the publication at issue in these proceedings largely comprises expressions of opinion, it appears that these can be addressed under the law as to fair comment, but that that law should be construed liberally to afford a proportionate right to freedom of expression of opinion, even when such expressions may give offence.
The approach of the High Court of Australia in Lange v. Australian Broadcasting Corporation (1997) 182 C.L.R. 104 is instructive insofar as that court considered it necessary to change the common law rules to reflect the requirements of the Constitution. The Court stated that it was necessary that the common law rules of qualified privilege should be developed to reflect the requirements of the Constitution. The court stated as follows at p. 571:
"Accordingly, this court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion -- the giving and receiving of information -- about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government.
Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level. Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable. Thus, the extended category of common law qualified privilege ensures conformity with the requirements of the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend."
Dealing with the conditions for a plea of qualified privilege the Court stated:
"At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by malice in making the communication. n85 But, apart from a few exceptional cases, n86 the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. n87 Because privileged occasions are ordinarily occasions of limited publication -- more often than not occasions of publication to a single person -- the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation. As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory. But a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers.No doubt it is arguable that, because qualified privilege applies only when the communication is for the common convenience and welfare of society, a person publishing to tens of thousands should be able to do so under the same conditions as those that apply to any person publishing on an occasion of qualified privilege. But the damage that can be done when there are thousands of recipients of a communication is obviously so much greater than when there are only a few recipients. Because the damage from the former class of publication is likely to be so much greater than from the latter class, a requirement of reasonableness as contained in s 22 of the Defamation Act, which goes beyond mere honesty, is properly to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires.
Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege. It is a concept invoked in one of the defences of qualified protection under the Defamation Codes of Queensland and Tasmania. And it was the test of reasonableness that was invoked in the joint judgment in Theophanous. Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege."
Further it is to be noted that in New Zealand case of Lange v. Atkinson [1998] 3 N.Z.L.R. 424 the Court of Appeal held that qualified privilege applied to generally-published statements made about the actions and qualities of those currently or formerly elected to Parliament. The court held that there was no requirement of reasonable care for the defence of qualified privilege to be invoked. As indicated earlier in this judgment, in this regard there is a distinction between the approach of the courts in Australia and those in New Zealand.
While the requirements of the Constitution and of the Convention may require a similar approach to be taken in a like case, I consider it virtually impossible to define a right of a universal nature that will accommodate all cases where a contest exists between a claim of right to freedom of expression on the one hand and a right to the protection of one's reputation on the other hand.
Were the Court to adopt the Australian approach to a case such as that seen in Lange v. Australian Broadcasting Commission, the issue would arise whether a concept of reasonableness should also be adopted.
With regard to whether the law should incorporate a concept of reasonableness, I believe that this is essentially a matter for legislative intervention if it is to be incorporated into the law in a manner akin to that in Australia, where it has had a legislative basis. In this regard I am conscious of the New Zealand decision of Lange v. Atkinson. This decision was decided in light of the New Zealand Bill of Rights which gives protection to the freedom of expression subject to limitation in the context of the protection of reputation. The Court of Appeal stated as follows, at pp. 468 to 470 of the report:
"(b) The protection of private reputation: the role of s 19
The emphasis just placed on the requirement that the statements relate to matters of proper public concern provides some protection for private rights and reputation -- to return to that critical balancing factor. It is clear from s 5 of the Bill of Rights read with arts 19(3) and 17 of the covenant that the law must have regard to that matter. Section 19(1) of the Act also provides such protection. To repeat, it provides that the defence of qualified privilege fails if the plaintiff proves that, in publishing the matter:
". . . the defendant was predominantly motivated by ill will towards the plaintiff or otherwise took improper advantage of the occasion of publication" (Elias J at p 34).
The "Report of the (McKay) Committee on Defamation" (1977) paras 148-155, 195-201 and 269-278 on which the 1992 Act was based makes it clear that the proposed changes to the common law of malice were changes of terminology rather than substance, designed to avoid the difficulty for the jury of distinguishing between the popular and legal meanings of "malice". The cases on the common law concept, it was expected, would remain relevant; see to the same effect Rt Hon Justice McKay, Laws NZ, Defamation, para 123, and Todd, The Law of Torts in New Zealand, para 16.11.3.
Lord Diplock's speech in Horrocks v Lowe is generally accepted as the leading authority. He stated at pp 149-150 three propositions relevant to the "ill will" part of s 19. The first and especially the second provide some protection to reputation:
1. "If it be proved that [the defendant] did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person."
2. "If [the defendant] publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false."
3. "But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men."
So far as the "improper advantage" element of s 19 is concerned, Lord Diplock said this at p 150:
"Even a positive belief in the truth of what is published on a privileged occasion -- which is presumed unless the contrary is proved -- may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames."
(c) The reasonableness of the defendant's conduct
Lord Diplock's propositions 2 and 3 above are relevant to the question, touched on earlier in the discussion of the Australian Lange case, whether reasonable care or conduct on the part of the defendant is a part of the law of qualified privilege. He makes it plain that he does not consider that it is. While indifference to the truth defeats the privilege, carelessness does not. This Court has similarly said that negligence has no role in the law of defamation (except for damages): Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148 at pp 155-157, Balfour v Attorney General [1991] 1 NZLR 519 at p 529 and South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 at pp 298-299, 309 and 319. This is not an action brought in negligence as was Spring v Guardian Assurance Plc [1995] 2 AC 296 where Lord Woolf affirmed at p 350 that "Negligence has always been an irrelevant consideration (I am not referring to quantum of damages) and it will remain irrelevant in an action for defamation".
Our review of the law as it has developed over the last two centuries or more confirms us in that conclusion. In particular neither the cases nor the legislation incorporate any requirement of reasonable care into the defence of qualified privilege. The very section which gives statutory protection by reference to the common law makes no reference to a duty of care and at the same time it saves the common law. The basis of qualified privilege is that the recipient has a legitimate interest to receive information assumed to be false. How can that interest differ simply because the author has failed to take care to ensure that the information is true? Next, any such reasonableness requirement would essentially make the statutory restatement of malice redundant.
As well, the introduction of a requirement of care in respect of political statements would raise the question whether it should not also apply in all other areas -- with a consequent huge change in the balance of the law against freedom of expression in an area of law where the balance has been carefully and methodically worked out over a long period. And if instead a line is to be drawn between the present category of case and others, which we would doubt, principle might suggest that it would be drawn so as to advantage and not disadvantage political statements, given their importance."
Proceeding to the case of Reynolds v. Times Newspapers Ltd. [2001] 2 AC 127, I believe that it is appropriate to quote certain passages from the speech of Lord Nicholls. At p. 201:
"The crux of this appeal, therefore, lies in identifying the restrictions which are fairly and reasonably necessary for the protection of reputation. Leaving aside the exceptional cases which attract absolute privilege, the common law denies protection to defamatory statements, whether of comment or fact, proved to be actuated by malice, in the Horrocks v Lowe sense. This common law limitation on freedom of speech passes the 'necessary' test with flying colours. This is an acceptable limitation. Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth.
In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation. Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based.
With defamatory imputations of fact the position is different and more difficult. Those who read or hear such allegations are unlikely to have any means of knowing whether they are true or not. In respect of such imputations, a plaintiff's ability to obtain a remedy if he can prove malice is not normally a sufficient safeguard. Malice is notoriously difficult to prove. If a newspaper is understandably unwilling to disclose its sources, a plaintiff can be deprived of the material necessary to prove, or even allege, that the newspaper acted recklessly in publishing as it did without further verification. Thus, in the absence of any additional safeguard for reputation, a newspaper, anxious to be first with a 'scoop', would in practice be free to publish seriously defamatory misstatements of fact based on the slenderest of materials. Unless the paper chose later to withdraw the allegations, the politician thus defamed would have no means of clearing his name, and the public would have no means of knowing where the truth lay. Some further protection for reputation is needed if this can be achieved without a disproportionate incursion into freedom of expression.
This is a difficult problem. No answer is perfect. Every solution has its own advantages and disadvantages. Depending on local conditions, such as legal procedures and the traditions and power of the press, the solution preferred in one country may not be best suited to another country. The appellant newspaper commends reliance upon the ethics of professional journalism. The decision should be left to the editor of the newspaper. Unfortunately, in the United Kingdom this would not generally be thought to provide a sufficient safeguard. In saying this I am not referring to mistaken decisions. From time to time mistakes are bound to occur, even in the best regulated circles. Making every allowance for this, the sad reality is that the overall handling of these matters by the national press, with its own commercial interests to serve, does not always command general confidence."
Dealing with the approach of the Court of Appeal in that case, Lord Nicholls continued as follows at p. 202:
"As highlighted by the Court of Appeal judgment in the present case, the common law solution is for the court to have regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends upon its quality as well as its subject matter. This solution has the merit of elasticity. As observed by the Court of Appeal, this principle can be applied appropriately to the particular circumstances of individual cases in their infinite variety. It can be applied appropriately to all information published by a newspaper, whatever its source or origin.
Hand in hand with this advantage goes the disadvantage of an element of unpredictability and uncertainty. The outcome of a court decision, it was suggested, cannot always be predicted with certainty when the newspaper is deciding whether to publish a story. To an extent this is a valid criticism. A degree of uncertainty in borderline cases is inevitable. This uncertainty, coupled with the expense of court proceedings, may 'chill' the publication of true statements of fact as well as those which are untrue. The chill factor is perhaps felt more keenly by the regional press, book publishers and broadcasters than the national press. However, the extent of this uncertainty should not be exaggerated. With the enunciation of some guidelines by the court, any practical problems should be manageable. The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse. An incursion into press freedom which goes no further than this would not seem to be excessive or disproportionate. The investigative journalist has adequate protection."
At pp. 204 and 205 Lord Nicholls states his conclusion in principle to the matters discussed when he stated as follows:
"Conclusion
My conclusion is that the established common law approach to misstatements of fact remains essentially sound. The common law should not develop 'political information' as a new 'subject matter' category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern. The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern.
Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. (1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. (2) The nature of the information, and the extent to which the subject matter is a matter of public concern. (3) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. (4) The steps taken to verify the information. (5) The status of the information. The allegation may have already been the subject of an investigation which commands respect. (6) The urgency of the matter. News is often a perishable commodity. (7) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. (8) Whether the article contained the gist of the plaintiff's side of the story. (9) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. (10) The circumstances of the publication, including the timing.
This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up."
In considering the various authorities open to this Court I am persuaded that the flexible approach represented by the decision of the House of Lords in Reynolds v. Times Newspapers Ltd is the most appropriate way of approaching the problems in the instant case, in the absence of a clear legislative framework. It is clear that in the context of Ireland being a democratic state, clear recognition has to be given to the right to freedom of expression. I believe that this right should not be undermined by the provisions of the Constitution relating to the protection of one's reputation. It is clear that the rights have to be construed on a harmonious basis. Nevertheless, it is clear that in certain cases, in the context of the democratic nature of the State, primacy may have to be given to freedom of expression. The approach adopted by the House of Lords has the merit of enabling the law to be developed on a case by case basis having regard to the requirements of the Constitution and the Convention which may inform the court in its approach to the interpretation of the Constitution. One must proceed on the assumption that the courts in addressing individual cases will have regard to the circumstances of each case and the nature of the rights pleaded by the parties and will be able to assess whether the right to freedom of expression contended for in any case is such that the defendant may rely upon a plea of privilege or fair comment having regard to the evidence in any given case. I am fully conscious of the 'chill factor' referred to in the speech of Lord Nicholls and in particular I agree with his observation where he said:
"The chill factor is perhaps felt more keenly by the regional press, book publishers and broadcasters than the national press."
Insofar as judges are familiar with construing the law in light of the Constitution, and insofar as the decision whether to allow defences, including that of fair comment or privilege to go to a jury in any given case is one that is vested in the judge conducting the trial, I am confident that a judge can adequately deal with the requirements of the Constitution in reaching any such decision and, as circumstances ordain, in charging a jury in any particular case. It is for this reason that I believe that the flexible approach adopted in Reynolds v. Times Newspapers Ltd. is the best way in which the Courts, in the absence of legislative reform in this area, can protect the constitutional rights of parties coming before the Court where the rights such as those at issue in these proceedings are at issue.
In conclusion, I believe that I must rule against the defendant on the issue insofar as the same was formulated. Nevertheless, I am satisfied that the defendant has raised issues of particular importance on the trial of this issue, which have not been fully addressed previously. However, I believe that the issues raised on the trial of the issue before me are such that the defendant should be permitted to amend his defence in light of the ruling of this Court, with liberty to the plaintiff to plead to any such amended defence. I will hear counsel in relation to any time that may be required for such amended pleading.