H288
Judgment
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Neutral Citation: [2015] IEHC 288 THE HIGH COURT [2012 No. 6977 P] BETWEEN CORNELIOUS M. CAGNEY PLAINTIFF AND
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND DEFENDANT DECISION of Mr. Justice Hedigan delivered the 7th of May 2015 1. I have acceded to the defendant’s application to withdraw the plaintiff’s case from the jury. The following are my reasons for doing so. 2. The principle which should guide the court in an application such as this is straightforward. It may be stated as follows; the jury are the judges of the facts in any case submitted to them for their determination. A judge sitting in a case being tried by a jury will be very reluctant to interfere with a jury’s unique function. As a general principle, it is only when the judge is satisfied that, on the undisputed facts, no case in law exists, that he may withdraw the case from the jury. When he is so satisfied however, he must, in justice to the defendants withdraw the case from the jury. See Paul Reid v. The Commissioner of An Garda Síochána and Others, High Court, 9th May 2014 and Lydia O’Hara v. The Board and Management Scoil Chriost Rí and Another, High Court 8th July 2014 para. 3. 3. The plaintiff’s claim herein is for damages for defamation. He alleges that the bank caused two entries to be made in the Irish Credit Bureau (ICB) against his name, according to him categories “K” and “L”. These categories mean respectively that his credit card had been revoked and that he had settled an account for less than the amount due. The bank denies that it defamed the plaintiff and relies upon the defence that it communicated this information to the Bureau on occasions that were of qualified privilege. It pleads that the letters complained of were published; -
(2) In the protection or furtherance of an interest to a body which had a common or a corresponding duty or interest to receive them and/or (3) In the protection of a common interest to a body sharing the same interest. 5. Section 18 (2) of the Defamation Act 2009 provides that it shall be a defence to a defamation action for the defendant to prove that: -
(i) had a duty to receive, or interest in receiving, the information contained in the statement, or (ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and (b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.” Section 18 (7) of the 2009 Act defines “duty” as “a legal, moral or social duty” and “interest” as “legal, moral or social interest”. 6. Qualified privilege is helpfully defined in Cox and McCullough’s Defamation Law and Practice at para. 8-01 as follows: -
7. The defence of qualified privilege is not lost because the statement complained of is untrue. Gatley on Libel and Slander 12th edition at para 14.18 states in this regard: -
8. It seems clear from the judgment of Palles CB in Fitzsimons v. Duncan and Kemp 1908 2 I.R. 42 that fair and reasonable enquiries as to credit, made by traders and consequently the furnishing of such details is an occasion that is privileged. The learned Chief Baron said: -
9. This privilege may be defeated by a plaintiff where he can establish that the communication was made with malice. This means that the defendant acted with an improper motif on the privileged occasion. See Cox and McCullough (cited above) at paragraphs 8.103 and 8.104. The plaintiff has not pleaded malice and has not sought during the hearing to establish malice. Indeed the plaintiff himself said on a number of occasions that he did not know why the bank had communicated the information to the Irish Credit Bureau. Moreover it was manifestly clear from the evidence of John Ruddy of the Bank of Ireland, who made the decision to communicate with the Bureau, that he did not even know the plaintiff. It was quite clear that he simply acted in the normal way on the information that was communicated to him. Thus the occasion of qualified privilege has been established and no defamation can arise from the communication in question. 10. The plaintiff has many bitter complaints about the way in which he was treated by the bank. This case however is solely concerned with the question as to whether the bank defamed him when it communicated the bureau the information that resulted in his being accorded a status of “K” and “L”. As I have decided that the communication was on an occasion of qualified privilege, that claim must fail. I find that on the undisputed facts no case in law exists and thus I was compelled to withdraw the case from the jury. |