High Court of Ireland Decisions

Hanly v. Newsgroup Newspapers Ltd. [2004] IEHC 44 (10 March 2004)

 
THE HIGH COURT

RECORD NO: 2002/1327OP

BETWEEN

JOHN HANLY

PLAINTIFF

AND NEWSGROUP NEWSPAPERS LIMITED

DEFENDANT

JUDGMENT of Mr. Justice T.C. Smyth delivered 10^th March 2004.

1. The defendant by notice of motion dated 10^th July 2003 seeks an order pursuant to Order 19, r.27 of the Superior Courts 1986, as amended, striking out paragraphs 6, 7 and 8 of the Statement of Claim in this action delivered on 20^th February 2003, as being unnecessary or scandalous, or tending to prejudice, embarrass or delay the fair trial of the action.
2. The provisions of the Order and rule invoked provides as follows:-

"The Court may at any stage of the proceedings order to be struck out or amended any matter in any indorsement of pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action, and may in any such case, if it shall think fit, order the costs of the application to be paid as between solicitor and client."

3. The challenged material paragraphs in the Statement of Claim are as follows:-

"6".

Further and without prejudice to the a foregoing the Irish Sunday People on the 12^th day of May 2002 published a photograph of the Plaintiff with a series of articles with headlines which contained the following words:-

'G.A.A. Stars naked romp', 'G.A.A. Stars wrecked the ladies toilet, urinated all over a bed and paraded stark naked round hotel', 'One Roscommon player even seemed to chalk his own cue then carried on and potted the pink' 'Players to face discipline' and 'Roscommon stars in dock'.

"7"

As a consequence [of] this publication the plaintiff was injured in his character and reputation and exposed to ridicule and contempt. The plaintiff sought and obtained a fulsome apology from the Irish Sunday People which was published in that Newspaper on 12^th May 2002 (a date corrected in open correspondence to read 19^th May 2002) and in the following terms:-

In this paper last week we published a report concerning the behaviour of certain members of the Roscommon G.A.A. football team at a hotel in Derry. On page two of this report we published a photograph taken in the course of a match between Donegal and Roscommon. Mr. John Hanly was one of the players depicted in this photograph. We acknowledge that the use of this photograph in conjunction with the article could be understood by readers as suggesting that Mr. John Hanly, as a Roscommon player depicted in the photograph, was involved in the incidents described in the report. We fully accept Mr. Hanly was not involved in any way in the incidents described and that Mr. Hanly was not even at the hotel at the time of the incident. We accept that the article was defamatory of Mr. Hanly and caused him a significant distress and embarrassment. The Sunday People wishes to apologise sincerely to Mr. Hanly and his family for the grave hurt and upset caused as a result of this publication. We acknowledge that Mr. Hanly is a person of the highest character and reputation. The Sunday People has agreed to pay damages to Mr. Hanly and discharge his legal costs.

"8" The plaintiff hoped and believed that the aforementioned apology would vindicate and restore his good name, character and reputation but the publication by The Irish Sun of the defamatory material referred to herein a short time after the publication of the afore mentioned apology has neutralised the effect of this apology and further has aggravated the damage to the plaintiff's character and reputation and exposed him to further ridicule and contempt which has caused the plaintiff and his family severe distress, embarrassment and upset."

4. I will attempt to summarise the background facts relevant to the issues raised in this motion. In May 2002 a football match took place under the auspicious of the G.A.A. between counties Donegal and Roscommon. A number of players on the Roscommon team required or were given accommodation after the football match in a hotel in Co. Derry. Now, it would appear, that some members of the Roscommon team behaved in a disreputable, disgraceful and degusting manner. A report of this conduct appeared in the public press. The plaintiff who was a member of the Roscommon football team for the purposes of playing apparently returned to Dublin on the evening of the match – and was never in the hotel in Derry at the time of the matters reported in the press. Unfortunately by the juxtaposition of the team photograph and photographs and text depicting and describing the disreputable conduct the newspaper – The Irish Sunday People in their edition of 12^th May 2002 considered they left themselves open to a libel action and published an apology in their edition of 19^th May 2002 and paid agreed damages and costs to Mr. Hanly. Some two months after the apology of The Sunday People for the libel they admitted on the 19^th May 2002 – The Irish Sun published on July 19^th 2002 the libel complained of in these proceedings. The libel alleged is similar to that in respect of which the plaintiff has received an apology and damages from The Sunday People.
5. In these proceedings the plaintiff (inter alia) claims that the defendants article negatived and neutralised the effect of the apology of The Sunday People and as a consequence the plaintiff is entitled to aggravated damages.
6. The defendants position is that the first article and apology is inadmissible in the context of the instant proceedings and that the plaintiff is not entitled to aggravated damages, either by statute or at common law, by reason of the first article and apology; and that the inclusion of the details of The Sunday People article and apology at paragraphs 6, 7 and 8 of the Statement of Claim is inadmissible and unnecessary and only serves to prejudice and embarrass the defendant.
7. To date no defence has been delivered to the Statement of Claim.
8. If the plaintiff has a cause of action against the defendant in these proceedings it is based on a separate and distinct publication to that which existed as against The Sunday People and it is not the less separated and distinct because the alleged/incident(s) on which it is purportedly based are similar in many respects and details. Each publication even by the same newspaper can give rise to a separate cause of action.

The function of pleadings is to ascertain with precision the matters upon which the parties differ and the points on which they agree, and thus to arrive at certain clear issues on which both parties require a judicial decision. (see Odgers on Pleadings). Only the material facts and not the evidence on which they are to be proved should be pleaded. Notices for particulars and replies thereto are not pleadings in the strict sense of the word but merely information exchanged between the parties for their own information.

In my judgment the matters referred to in paragraphs 6, 7 and 8 are in the nature of evidence, are referable to unrelated proceedings with a different party and are scandalous in that they seek to introduce immaterial matters which would lead to the introduction of irrelevant evidence at the trial of the action. In my judgment the entitlement of the plaintiff to claim aggravated damages must be related to or connected to the original subject of the cause or matter of the publication of 19^th July 2002. The instant case is referable to a publication of The Irish Sun not The Sunday People. In Quinn v Hessian [1878] 4 L.R.Ir. 35 in which the plaintiff moved the court to set aside a counter claim on the grounds that elements of it were an embarrassment and that the other elements of it did not appear to be connected to the action between the plaintiff and the defendant, Palles, C.B. at p.40 pronounced as follows:-

"The 3rd and 4th paragraphs of this counter claim must be struck out. They are obviously introduced by the pleader to make some connection between the causes of action in the Statement of Claim and counterclaim, but they bring in matters such as the disputes of the wives of the plaintiff and the defendant wholly immaterial. There immateriality is admitted, and they could not but prove embarrassing upon the trial, because they would lead to the production of irrelevant evidence."

There is no concession of immateriality in the instant case.

9. The plaintiff is entitled to advance a case for aggravated damages in evidence subject to any ruling by the trial judge as to relevance, materiality and admissibility. What the plaintiff may not do in pleadings is set out in extensio by way of evidence matters referable to another unconnected action. I do not consider this to be an application of "intelocutory jockeying for forensic advantage" (Dwek v McMillan Publishers [2000} E. L. 284 at 294 per Sedley, L.J.).
10. This is not a case of striking out of the plaintiffs case or any part of it against the defendant, for I accept that such a draconian step "should only be done in clear and obvious cases" Aspro Travel Limited v Owners Abroad Group (C.A. [1996] 1. W.L.R. 132 at 140 per Schiemann L.J.): nor is it a case of a claim being struck out where the essential facts and matters going to liability would be the same as those already raised in earlier proceedings which were brought by the same claimant against another defendant and in respect of a similar publication in which either failed or abandoned by the claimant." (Oates v Mirror Group Newspapers, unreported, May, 2000. C.A. – referred to in Gatley on Libel and Slander). his is not an abuse of process case.
11. Outside s. 26 of the Deformation Act, 1961 the defendant in this case cannot seek to show that the plaintiffs reputation has/had been damaged by publication in The Sunday People of 12^th May, 2002, if to the same effect (see Associated Newspapers v Dingle [1964] A.C. 371) which considered the equivalent legislative provision in England to wit s. 12 of the Defamation Act, 1952).
12. In these proceedings the plaintiff claims:-

a. Aggravated damages –

The Plaintiff may rely on the conduct of the defendant, his/her conduct of the case and his state of mind as aggravating the damages. In Dawson ( t/a. A.E. Dawson & Sons) v Irish Brokers Association (Supreme Court 6^th November 1998) O'Flaherty J. stated at p. 8 and 9 of his judgment –

". . . while aggravated damages are distinct, they are still meant to compensate the plaintiff and so they should be regarded as a sub-head of compensatory damages awarded to the plaintiff."

b. Exemplary damages:

These are intended to punish the defendant for the deliberate or wilful commission of a tort. It is unnecessary for present purposes to analysis the differences in the jurisprudence in this jurisdiction and in the courts of England following on from Rookes v Barnard [1964] A.C. 119.

Continuing the passage from the judgement of O'Flaherty J. immediately before cited – he states:-

". . . exemplary (or punitive) damages are a separate category. They are not compensatory at all. In this jurisdiction it is not necessary to plea in regard to exemplary damages in the Statement of Claim . . . though it is a requirement in England under that country's Rules of court."

In the light of the fact that the plaintiff, the respondent in the motion relied on this judgement of O'Flaherty J. it is difficult to understand the opposition to the striking out of paragraphs 6, 7 and 8 of the Statement of Claim.

In my judgment it is not permissible for a plaintiff in a Statement of Claim in an action such as this to seek to set forth in the pleadings in an narrative form intended factual evidence in anticipation of or pre-emptive of possible evidence in mitigation of damages that may be tendered at trial arising from matters in a defence yet to be formulated. The material in the paragraphs of the Statement of Claim is scandalous, prejudicial and embarrassing in the legal sense of those terms. Accordingly relief will be granted in the terms of the Notice of Motion.

In making this determination I express no view one way or the other on the entitlement or otherwise of the plaintiff to aggravated and/or exemplary or any damages or any aspect of liability.

The plaintiff will be entitled to deliver an amended Statement of Claim with the omissions of paragraphs of 6, 7 and 8 and whatever other amendments (as he may be advised) within 14 days of this date.