Supreme Court of Ireland Decisions

1. The appeal in this case arises out of an action brought by the above named Plaintiff/Respondent, Proinsias de Rossa T.D. of 39 Pinewood Crescent, Ballymun in the City of Dublin (hereinafter referred to as the Respondent), and in which he claimed damages for libel against the above named Defendant/Appellant, Independent Newspapers Plc. (hereinafter called the Appellant).

2. The defamatory matter complained of was alleged to have been contained in an article published by the Appellant in the issue of the Sunday Independent dated the 13th day of December, 1992, which said article was set forth in toto in the schedule annexed to the Statement of Claim delivered on behalf of the Respondent.

3. The said article was written by a well-known journalist, Eamon Dunphy and was printed in a prominent position under the title “Throwing good money at jobs is dishonest”, in the said newspaper, which enjoys a large circulation.

4. The relevant portion of the said article is:-

5. In the Statement of Claim delivered on behalf of the Respondent on the 10th day of September 1993 it was alleged at paragraph 4 that:-

6. In the said Statement of Claim, it was alleged that as a result of the said publication, the Respondent had been injured in his character and reputation and had been exposed to odium, ridicule and contempt.

7. The Defence delivered on behalf of the Defendant on the 12th day of May, 1994 pleaded as follows:

8. Notice of Trial was served on behalf of the Respondent on the 21st day of July 1994.

9. In view of the history of the proceedings herein subsequent to the service of the said Notice of Trial, it is necessary to set forth in some detail that history.

10. By letter dated the 26th day of October, 1994 the Respondent’s solicitors sought the following particulars of the Appellant’s aforesaid Defence:-

11. It should be noted that some of the extracts marked as consisting of fact might be construed as consisting partly of comment and also some of the extracts marked as consisting of comment might be construed as consisting partly of fact.

12. By notice dated the 29th day of October 1996, the Appellants’ solicitors required the Respondent to admit the following facts:-

13. The Respondents action began before a Judge of the High Court and a jury on the 5th day of November 1996 and continued at hearing on the 6th, 7th, 12th 13th, 14th 15th and 19th days of November 1996.

14. On the 5th day of November 1996 the Appellant was given liberty to amend the second line of paragraph 2 of its Defence by substituting the words “had been” for the words “was now” and on the 12th day of November 1996 was given liberty to amend its particulars by including the following additional particular

15. By the said order the Appellant was given leave to amend its replies to Notice for Particulars and did so by letter dated the 12th day of February 1997.

16. In his reply to the amended Defence, the Respondent joined issue with the Appellant and in particular repeated his plea that the words complained of were published maliciously by the Appellant. This led to an exchange of letters dated respectively the 7th day of March 1997 and the 10th day of March 1997.

17. The Respondents action against the Appellant began again before a Judge of the High Court (Moriarty J.) and a jury on the 25th day of February

18. At the conclusion of the evidence, speeches and charge, the learned trial judge fixed the following questions for determination by the jury:-

19. The jury gave no answer to Question 1(a) and answered 1(b) No.

20. Answers to Questions (2) and (3) did not therefore arise.

21. The trial was begun again before a Judge of the High Court (Carney J.) and a Jury on the 15th day of July 1997 and continued on the 16th, 17th, 18th, 22nd, 23rd, 24th, 25th, 29th, 30th and 31st days of July 1997.

22. On this occasion the jury reached a verdict.

23. The following questions having been submitted to the jury were answered by them as follows:-

24. Having regard to such findings, the Court ordered that the Plaintiff/Respondent do recover against the Defendant/Appellant the sum of £300,000 and costs.

25. From these findings and order the Appellants have appealed to this Court.

26. The grounds of appeal relied on by the Appellant at the hearing of the Appeal were:

27. With regard to this latter ground viz, that the learned trial judge misdirected the jury on the issue of damages, it is conceded on behalf of the Appellant that he directed the jury in accordance with generally accepted practice but it is submitted -

28. As there was no objection to the learned trial judge’s charge in respect the role of the jury in assessing damages or no requisition in regard thereto it is desirable at this stage to set forth that portion of his charge which dealt with the issue of damages.

29. The learned trial judge stated:-

30. Now Mr. Justice Henchy in the case he was dealing with, said that the jury in that particular case wasn't given any real help as to how to assess compensatory damages, and he laid down a guide which could assist the Jury. He considered that in the case in question the jury could be asked to reduce the allegation complained of to actuality, and then to fit the allegation into its appropriate place in the scale of defamatory remarks to which the Plaintiff could be subjected.

31. Now that particular case affords you great assistance in placing the nature of the defamation in a scale, because that case Mr. Justice Henchy was referring to, revolved around an allegation by a politician that a journalist [sic.] tweaked his beard. Now it related to the time of one of the pushes against Mr. Haughey, and after an abortive push against him, everybody was coming out to a crowded area of Leinster House, bustling out, and something was written in the Evening Herald which involved an allegation a politician tweaked the Evening Herald journalist’s beard. Now the Learned Trial Judge found that to be defamatory and directed there be an assessment of damages.

32. Going back to Mr. Justice Henchy’s observation, if you examine the words and put them in a scale of things, compare the

33. Now as Counsel told you, I am not allowed to suggest to you figures. and Counsel are not allowed suggest to you figures either. I have gone as far as I can to help in relation to that question. I don ‘t think anybody takes issue with the proposition if you are awarding damages they are going to be substantial. Mr. de Rossa at the time was leader of a political party. The political party was seeking to go into government. Damages will be substantial. It is all I can say to you. It is a matter for you to assess what they ought to be, if you are assessing damages.”

34. There was, during the course of the trial no criticism of the judge’s charge in this respect and no requisitions were made by counsel for the Appellant in regard thereto. In their submissions in this Court the Appellant

35. Two issues arise on this appeal viz:-

36. It is conceded on behalf of the Appellant that the learned trial judge in the course of his charge to the jury followed the general practice in cases of this nature which was that of confining his directions to a statement of general principles, eschewing any specific guidance on the appropriate level of general damages.

37. As stated by the then Master of the Rolls, Sir Thomas Bingham, in the course of his judgment in John .v. M.G.N. Ltd. [1996] 2 A.E.R. 35 at pp. 48-49:-

38. This approach was adopted by judges because the assessment of damages was peculiarly the province of the jury in an action for libel.

39. As stated by Finlay C.J. in the course of his judgment in Barrett .v. Independent Newspapers Ltd. [1986] IR 13 at p. 19 of the report the assessment by a jury of damages for defamation “has a very unusual and emphatic sanctity” and appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy.

40. As stated by Cockburn C.J. in Phillips .v. The South Western Railway Company [1879] 4 QBD 406 at 408:-

41. The importance of the role of the jury in the assessment of damages in defamation actions was further emphasised by the Court of Appeal in the John case.

42. Though in this case the Court of Appeal was recommending certain changes of practice, it emphasised that the ultimate decision, subject to appeal, was that of the jury who were not bound by the submissions made to them.

43. Before proceeding to deal with the Appellant’s grounds of appeal I have sought to illustrate the role or province of a jury in actions for defamation.

44. It appears from the judge’s charge to the jury in this case that counsel for both parties acknowledged that neither they nor the judge were allowed to suggest figures to the jury.

45. Counsel for the Appellant have adopted a different stance in the course of this appeal.

46. It is submitted on behalf of the Appellant that:-

47. The effect of the Appellant’s submissions is that in an action for damages for defamation counsel and the trial judge should be permitted, in the course of their submissions and/or charge to the jury on the issue of damages, to give to the jury the benefit of their views as to the appropriate level of damages, to inform the jury of awards made in other libel cases and in personal injuries cases for the purpose of comparison and to make reference to the purchasing power of any award which the jury contemplated making.

48. In addition it is submitted on behalf of the Appellant that the common law and the Constitution require an appellate court, viz, the Supreme Court, to subject large awards of damages to a more searching scrutiny than has hitherto been customary.

49. Under the principles presently applied, a court of appeal could not set aside a jury award in a libel case simply on the ground that it was excessive, but only if the award was so unreasonable that it could not have been made and must have been arrived at capriciously, unconscionably or irrationally.

50. As stated by Mr. Justice Henchy in Barrett’s ([1986] IR 13, at 24) case:-

51. It is submitted on behalf of the Appellant that this is not the proper test to be applied by an appellate court and that the proper test is that set forth by Neill L.J. in delivering the judgment of the Court of Appeal in Rantzen .v. Mirror Group Newspapers Ltd. [1993] 4 All ER 975, where he stated at p. 994 of the report that:-

52. This question or test differs substantially from the question or test which has hitherto applied, viz, was the award made by the jury so disproportionately high having regard to the injury suffered, that no jury acting reasonably and applying the law to all the relevant circumstances, could reasonably have awarded?

53. In support of his submissions, counsel on behalf of the Appellants has relied on the provisions of Article 40.6.1 of the Constitution, the provisions of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the decision of the European Court of Human Rights in Tolstoy Miloslavsky .v. United Kingdom [1995] 20 EHRR 442 and a number of cases including in particular:-

54. While the Appellant relies on the provisions of Article 40.6.1 of the Constitution in support of its submissions, it is accepted that the right of freedom of expression enjoyed by the press is not absolute and is subject not only to the restrictions contained in the said article but must also be considered in the light of the provisions of Article 40.3.1.

55. As stated by Henchy J. in the course of his judgment in Hynes-O’Sullivan .v. O’Driscoll [1988] IR 436 at p. 450, [1989] ILRM 349 at 361:-

56. There does not appear to be any conflict between Article 10 and the common law or the Constitution.

57. The effect of the provisions of Article 10 of the Convention was considered by the European Court of Human Rights in Tolstoy Miloslavsky .v. United Kingdom (1995)20 EHRR 442.

58. This was a case where the jury in a libel case in England had awarded £1.5 million, by way of damages against the applicant, Count Nikolai Miloslavsky, to one Lord Aldington. The applicant, Count Miloslavsky appealed to the Court of Appeal against the findings and award of the jury. The said appeal was dismissed by the Court of Appeal because of the applicant’s

59. The applicant claimed that the award of £1,500,000 and the injunction granted by the High Court violated his right to freedom of expression as guaranteed by Article 10 of the Convention.

60. The Applicant’s claim under Article 10 was held to be admissible by the Commission.

61. In the course of its opinion the Commission stated at Paragraphs 52 and 53:-

62. As appears from the judgment of the Court, it had to consider two issues, viz.

63. The findings of the Court on the first issue are set forth in paragraphs 36-44 of its judgment which are set forth at pp. 467 to 470 of the report.

64. This issue was considered by the Court having regard to the common law prevailing at the time of the making of the award as set out in the judgment of the court.

65. The Court stated:-

66. It is clear from the foregoing that the European Court would not consider that the award made in the instant case was not “prescribed by law” .

67. The Court then proceeded to deal with the second issue viz, whether the size of the award had been disproportionate to the aim of protecting Lord Aldington’s “reputation or rights” and thus had not been “necessary in a democratic society” , as required by the Convention.

68. In the course of considering this issue the Court stated (paragraphs 49-51 at pp. 472-473):-

69. It is clear from the foregoing that the primary reason for the Court’s decision was the size of the award and the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. It recognised, however, that an award of damages must bear a reasonable relationship of proportionality to the injury to reputation suffered.

70. The Court gave approval to the guidance to be given to a jury as laid down by the Court of Appeal in Rantzen ‘s case.

71. The Court went on to state (at p. 997) that:-

72. While the aforesaid changes of practice were therein described as “modest”, they are not only important but fundamental and radically altered the general practice with regard to the instructions or guidance to be given to a jury as to the manner in which they should approach the assessment of damages in a defamation action.

73. It had been the invariable practice in the past that neither counsel nor the judge could make any suggestion to the jury as what would be an appropriate award.

74. It is further submitted that the award made by the jury in this case was so high as to amount to a restriction or penalty on the freedom of expression of the Appellant contrary to Article 10 of the Convention and that there was a lack of proportionality between the award and the damage it sought to compensate for.

75. It is submitted on behalf of the Appellant that the aforesaid guidelines should be given to the jury in a defamation action and that the giving of such guidelines are mandated by the Constitution and Article 10 of the Convention as being necessary to vindicate the Appellant’s rights under the Constitution and the Convention.

76. By virtue of the provisions of Article 40.6.1 of the Constitution, the Appellants are entitled, subject o the restrictions therein contained, to exercise the right to express freely their convictions and opinions.

77. 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.

78. Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.

79. 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] IR 436, [1989] ILRM 349). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.

80. 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:-

81. As appears from the passage of the judgment of the European Court of Human Rights already quoted herein and which states ((1995)20 EHRR 442 at p. 472):-

82. 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 “.

83. 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.

84. 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.

85. The present law applicable in this State is as stated by Mr. Justice Henchy in the course of his judgment in Barrett .v. Independent Newspapers Ltd. [1986] IR 13, pp. 23 and 24 of the report where he said:-

86. This passage emphasises:

87. The obligations arising from the provisions of the Constitution and the Conventions 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.

88. 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 Appellant.

89. The guidelines recommended by the Court of Appeal in John’s case were based not on the Convention nor, obviously, on the Irish Constitution but were in the view of the Court of Appeal a development of the Common Law.

90. The judgment of the Court of the Appeal is not binding on this Court but is deserving of consideration by it.

91. If the practice as outlined in Rantzen’s case and extended as outlined in John’s case were to be followed, the jury would be buried in figures, figures suggested by counsel for both parties as to the appropriate level of damages, a figure from the judge representing his opinion as to the appropriate level of damages, figures with regard to damages made or approved by the Court of Appeal in previous libel actions and figures with regard to damages in personal injuries actions and at the same time be subject to the direction of the trial judge that it is not bound by such figures and must make up its own mind as to the appropriate level of damages.

92. It is accepted by all that, even if the giving of such guidelines and figures were permissible, the jury would not be bound by such figures and was under an obligation to make up its own mind as to the appropriate level of damages.

93. I am satisfied that the giving of such figures, even though only by way of guideline, would constitute an unjustifiable invasion of the province or domain of the jury.

94. The assessment of damages in a defamation action instituted in the High Court was always a matter for the jury and that was not in any way altered by the provisions of the Courts Act 1988, which provided that certain actions, including claims for damages for personal injuries, should not be tried by a jury.

95. On the issue as to whether or not references to awards in personal injuries actions should be permitted, I prefer the conclusion reached by the Court of Appeal in Rantzen’s case to that reached in John’s case and accept the reasoning contained in the following passage from the judgment of Lord Hailsham L.C. in Cassell & Co. Ltd. .v. Broome [1972] 1 A.E.R. 801 where he stated at page 824 of the Report:-

96. I do not accept that the invariable practice that neither counsel nor the judge could make any suggestion to the jury as to what would be an appropriate award should be altered and accept the statement contained at p. 574 in the judgment of the Court of Appeal in Ward .v. James [1965] 1 A.E.R. 563 already cited herein.

97. As already emphasised herein and stated by Henchy J. in Barrett’s case, the jury must base their assessment entirely on the facts as found by them. Departure from this principle would lead to utter confusion.

98. With regard to the recommendation that reference may be made to awards made or approved of by the Court of Appeal it is clear from the judgment of the Court of Appeal in John’s case [1996] 2 A.E.R. 35 that the change brought about by the provisions of the British Courts and Legal Services Act of 1990 in the powers of the Court of Appeal was fundamental to the recommendation therein contained that it would be open to the trial judge to refer to awards which had been made or approved by the Court of Appeal in previous awards in defamation cases and that in the absence of such change no such recommendation would have been made.

99. In the course of its judgment, the Court stated at page 51 of the report that:-

100. Both judgments recognise that the assessment of damages is a matter for the jury and that an appellate court must recognise and give real weight to the possibility that their judgment is to be preferred to that of the judge.

101. Consequently, an appellate court should only set aside an award made by a jury in a defamation action if the award made is one which no reasonable jury would have made in the circumstances of the case and is so unreasonable as to be disproportionate to the injury sustained.

102. It has been submitted on behalf of the Appellant that larger awards should be subjected to a more searching scrutiny than has been customary in the past and that the test to be applied is:

103. If such were the test to be applied, it would remove from the jury award the “very unusual and emphatic sanctity” referred to by Finlay C.J. and the giving of “real weight” to the possibility that their judgment is to be preferred to that of the judge as stated by Sir Thomas Bingham M.R.

104. Consequently, while awards made by jury must, on appeal be subject to scrutiny by the appellate court, that Court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.

105. It is submitted on behalf of the Appellant that the damages awarded by the jury were excessive and wholly disproportionate to any damage done to the Respondent.

106. The factors to be taken into account in determining the damages to be awarded are clearly set out in many cases and in particular in the judgment of the Court of Appeal in John ‘s case at pp. 47 and 48 of the report where it is stated as follows:-

107. The jury found that the words complained of by the Respondent meant that the Respondent

108. The Appellant has not appealed against such findings, is bound by them and must abide by the consequences thereof.

109. To publish of any person words meaning that he or she was involved in or tolerated serious crime and personally supported anti-Semitism and violent Communist oppression would, if untrue, constitute the gravest and most serious libel: it is hard to imagine a more serious one.

110. To publish such words in relation to the Respondent, a politician dependent on the support of his constituents and his colleagues and at a time when he was engaged in negotiations, as was well known to the Appellant at the time of publication, which might lead to his participation in Government, renders such publication more serious and grave, particularly when they might

111. One of the most important factors in the assessment of damages is the effect of the libel on the plaintiffs feelings.

112. The Respondent has given evidence, during the course of three trials, of the distress, hurt and humiliation caused to him by the said publication and of his determination to vindicate his personal and political reputation. It is not necessary to set forth such evidence in the course of this judgment as his evidence in this regard was obviously accepted by the jury and it is easy to imagine the hurt and distress which allegations of this nature would cause.

113. A clear indication of such hurt is to be found in his answer to Question 26 on p. 13 of the transcript for the 16th day of July, 1997 where he stated:-

114. The desire to vindicate his reputation is patently obvious from such passage.

115. The article complained of was published by the Appellant in the issue of the Sunday Independent dated the 13th day of December 1992.

116. It is conceded by both parties that the Sunday Independent has a wide circulation throughout the State and is read each Sunday by over a million people.

117. Consequently, the publication of the defamatory matter was widespread and extensive and this is a factor which the jury was entitled to take into account in their assessment of the damages to which the Respondent was entitled.

118. A jury is also entitled to take into account the whole conduct of the Appellant from the time when the libel was published down to the very moment of their verdict.

119. They may take account of the conduct of the Appellant before action, after action and in Court at the trial of the Action and the fact that no apology, retraction or withdrawal was made in this case.

120. The fact that no apology, retraction or withdrawal of the allegation made in this case at any stage of the proceedings is of considerable importance.

121. Its importance is highlighted by the following extracts from the proceedings in the second trial and the third trial.

122. In the transcript of the proceedings held on the 28th February 1997 the following exchanges between the Respondent and counsel for the appellant appear on Page 33 thereof and the following pages:-

123. A. It is my case in the first place Mr. MacEntee that I am here in this Court suing the Sunday Independent for a gross libel against me, that I am criminal, that I am a drug pusher, that I am a pimp, a forger, and a bank robber. That is my case, that I have been libelled by the Sunday Independent. You clearly have no way of proving that otherwise you would not be putting me thorough this kind of nonsensical cross examination about history. I want the Sunday Independent to withdraw these serious allegations about me. I am not a criminal, I have never been a criminal, I have never been accused of being a criminal in any court. I have never been convicted of being a criminal in any court. That is all I want you to do, is to simply withdraw those gross allegations against me.

124. A. Well what is this [INDICATING] what is this, what is this?

125. A. The article says Mr. MacEntee, the article says -

126. A. The article says -

127. A. That is a direct accusation of me being a criminal.

128. These passages clearly disclose that what the Respondent required was a withdrawal of the allegations contained in the article and the continued refusal of the Appellant to withdraw such allegations and apologise therefor on the grounds that the article did not allege or mean that the Respondent was a criminal.

129. This was the attitude adopted by the Appellant from the beginning and which obliged the Respondent to institute proceedings for the purpose of vindicating his good name and reputation which he did by the issue of the plenary summons on the 19th day of August 1993.

130. I have in the earlier portion of this judgment set forth the history of the proceedings. It is not necessary for me to repeat this history other than to repeat that the Respondent was forced to undergo three trials in order to secure vindication of his reputation.

131. The first trial began on the 5th November 1996, lasted 8 days and was aborted by the trial judge because of the actions of the Respondent.

132. The second trial, began on the 25th February 1997, lasted 15 days and proved inconclusive.

133. The third trial, began on the 15th July 1997 and lasted 11 days.

134. During the course of each of those trials the Respondent was subjected to immensely prolonged and hostile cross-examination by counsel for the Appellant.

135. While denying that the words complained of were capable of the meaning alleged by the Respondent that he was a criminal, the Appellant still sought to damage the Respondent by association and made no effort to withdraw the allegation.

136. Right to the very end of the trial the Appellant contested the right of the Respondent to damages and vindication of his right to his reputation and challenged his motives in bringing the action and his honesty and credibility.

137. In the course of his closing address to the jury, counsel for the Appellant stated, inter alia:-

138. These selected extracts from counsel’s closing speech clearly illustrate that throughout the trial the Appellant attacked the bona fides of the Respondent’s claim and his credibility.

139. The Respondent is entitled to recover, as general compensatory damages such sum as will compensate him for the wrong which he has suffered and that

140. The jury found that the words complained of by the Respondent meant that the Respondent was involved in or tolerated serious crime and personally supported anti-Semitism and violent Communist oppression.

141. If these allegations were true, the Respondent was guilty of conduct, which was not only likely to bring him into disrepute with right-minded people but was such as to render him unsuitable for public office.

142. No more serious allegations could be made against a politician such as the Respondent herein.

143. Having regard to the serious nature of the said libel, its potential effect on the career of the Respondent, and the other considerations as outlined herein, it would appear to me that the jury would have been justified in going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.

144. The jury assessed damages in the sum of £300,000. This is a substantial sum but the libel was serious and grave involving an imputation that the Respondent was involved in or tolerated serious crime and that he personally supported anti-Semitism and violent Communist oppression.

145. Bearing in mind that a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and not be disproportionate thereto, I am not satisfied that the award made by the jury in this case went beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded and is not disproportionate to the injury suffered by the Respondent.

146. I would dismiss the appeal.

147. The issues on this appeal relate to the level of damages. The facts have been fully stated by the Chief Justice. The Appellant raises three issues for determination: (a) whether the charge to the jury by the judge should contain further guidance on the level of damages; (b) whether the appellate court should subject large awards of damages to a more searching scrutiny than has hitherto been customary; and (c) whether the award of £300,000 was excessive.

148. The Appellant submits that further guidelines on the level of damages should be given to the jury by the judge and by counsel in libel cases. The Appellant proposes a more active role for the judge. Under common law the judge’s role on the issue of the level of damages is minimalist. Historically, the role of the jury in libel actions has been that they are the decision-makers of fact - including the level of damages. It has long been considered that the issue of damages in a libel case is quintessentially a jury function and that its discretion should be unfettered. However, in other jurisdictions in recent times judges have determined on a more active approach. In general, this changed approach has arisen to aid consistency in the administration of justice. In particular, the role of the judge in libel cases has been reconsidered in light of high jury awards in certain jurisdictions.

149. The Respondent submits that the only real issue on this appeal is whether a reasonable jury could have awarded the sum of £300,000 to the Respondent in the circumstances of the case. Counsel submitted that no decision of the European Court of Human Rights suggests that the amount awarded in this case was excessive. Further, it was submitted on behalf of the Respondent that, to the knowledge of the jury, in this case there was a failure by the Appellant to apologise, an attempt at justification, a plea of fair comment was used to introduce evidence damaging by association to the Respondent, there was prolonged and hostile cross-examination over various trials, there were suggestions that the

150. Respondent was dishonest in the presentation of his case and there were three lengthy trials together with a commission in Moscow at the behest of the Appellant which delayed the start of the third trial following the swearing of the jury and which involved a major escalation of the cost of the proceedings.

151. The learned trial judge gave a charge to the jury in accordance with the current law. No specific guidelines were given in relation to the level of damages;

152. The Appellant submitted that the absence of specific guidelines from the judge on the level of damages, the absence of figures, leads to excessive and/or unpredictable jury awards. It was submitted that the practice of not giving guidelines, inter alia , violates the protection of the freedom of expression guaranteed in the Constitution. On the appropriate level of damages, it was submitted that counsel and the judge ought to be permitted to refer to (a) the purchasing power of any award which the jury might make and the income it would produce, (b) a comparison with the level of awards in personal injury cases, (c) previous libel awards made or approved by the Supreme Court, and (d) the level of award deemed appropriate.

153. The law and practice of the court must enable a due balancing of the constitutional right of freedom of expression and the constitutional right to protection of a person’s good name. The right of freedom of expression is expressly stated in Article 40.6.1 ⁰i of the Constitution of Ireland. There are also relevant unspecified rights protected by Article 40.3.1 ⁰ of the Constitution, such as the right to information. On the other hand, there is the State’s obligation to vindicate the good name of every citizen in the case of injustice. The law of defamation has a key part to play in the protection of the constitutional right to the vindication of the good name of a citizen. In a defamation case the judge should act to achieve a balancing of these constitutional rights.

154. While the European Convention on Human Rights is not part of the domestic law of the State it is appropriate to consider the Convention when analysing fundamental rights. The rights protected by Article 10 are similar to the rights of freedom of expression and freedom to be informed under the Constitution. In Tolstoy Miloslavsky v. United Kingdom (1995)20 EHRR 442 the European Court of Human Rights held that the Applicant’s rights under Article 10 of the Convention had been violated having regard to the size of the award (which was £ 1,500,000) in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. The Court held (at p.472):

155. Other common law jurisdictions (other than Ireland and the United Kingdom) are not subject to the European Convention on Human Rights. However, in those

156. After some varying approaches the courts in England and Wales have introduced a new guide for the trial judge. In John v. MGN Ltd. [1996] 2 All ER 35 the Court of Appeal held that in assessing compensatory damages in a defamation case a jury could in future properly be referred (a) by way of comparison to the conventional compensation scales in personal injury cases, (b) to previous libel awards made or approved by the Court of Appeal, and (c) there was no reason why the judge, in his charge to the jury, or counsel in their submissions, should not indicate to the jury the level of award which they considered appropriate. It was considered that these changes would buttress the constitutional role of the libel jury by rendering the proceedings more rational and so more acceptable to public opinion.

157. In Australia the New South Wales Law Reform Commission (Report 75, September, 1995) recommended that defamation damages should always be assessed by a Judge and not a jury. In Carson v. John Fairfax & Sons Ltd. [1993] 178 C.L.R. 44 Brennan J. held that an attempt to compare awards made in respect of disparate heads of damage is more likely to confuse than to correct. However, the majority of the High Court of Australia said at pp.59-60:

158. In New Zealand, of the statement cited above Lord Cooke said in Television New Zealand Ltd. v. Quinn [1996] 3 N.Z.L.R. 24 at p.35:

159. The principle of maintaining an appropriate relationship between damages awarded for personal injuries and those awarded for defamation was referred to in Crampton v. Nugawela, (1996)41 N.S.W.L.R.176 (a decision of the Supreme Court of New South Wales, Court of Appeal) by Giles AJA who stated:

160. The place of the jury in our legal system as the decision-maker on the issue as to whether there has been a defamation or not has been keenly guarded by the common law. That is not in issue in this case.

161. This appeal raises issues as to the level of damages. The three issues raised by the Appellant relate to the quantum of the damages and the information which may be given to the jury.

162. In principle it is open to the court to provide guidelines on the charge to be given by a judge to a jury in libel cases. No law precludes the giving of guidelines. Whereas this issue was raised in the High Court it was not pursued for reasons explained by counsel. However, it has been argued on appeal and, in the special circumstances of the case, is a matter for decision.

163. In general, I favour the giving of guidelines to a jury on the level of damages. Information does not fetter discretion. If this is perceived as a more active approach by the judge I believe it is in the interest of justice. The legislature could legislate but in its absence more guidelines would, I believe, help juries and the administration of justice. Guidelines would assist in achieving consistent and comparable decisions, which would enhance public confidence in the administration of justice.

164. There is a benefit to the administration of justice in such an approach. Whilst maintaining at all times the paramount position of the jury in determining the damages, specific information would aid decision-making and the maintaining of an appropriate relationship with the awards of damages in other areas. Such information as is deemed appropriate could be given in more specific guidelines.

165. Information should be given to the jury of previous awards in libel cases made or affirmed by the Supreme Court. Already a court may refer to the type of libel in another case. Thus, the learned High Court judge referred to a case ( Barrett v. Independent Newspapers Ltd. ) and said it afforded the jury great assistance in placing the nature of the defamation in a scale, because that revolved around a statement by a journalist that a politician pulled at his beard. It is a short, but useful, extra step to refer to the award. In view of the fact that this is a small jurisdiction and because of the lack of technology to date to keep full and comparative statistics, there would not be very many cases, but I believe they would assist a jury. For example, in this case the words of Finlay C.J. in McDonagh v. News Group Newspapers Limited Unreported, Supreme Court, 23 November, 1993 are relevant and are referred to later in this judgment.

166. The jury should be able to compare the value of what courts usually award to people in personal injury actions. Compensation is a notional remedy in both instances. The lame do not walk after an award of compensation. The defamed do not cease to have been defamed after an award of damages. An order of damages is an artificial form by which a court gives a remedy to an injured person.

167. It is quite reasonable to have proportionality in the wider scheme of damages. Thus, a reference to a case which imposes a cap on general damages, might be useful. However, rather than reference to general damages in catastrophic injury cases, where there may be issues of consciousness etc., the tariff for injuries such as an eye, a leg or an arm may be helpful. It is entirely reasonable that there be a degree of uniformity, consistency, a sense of comparability, of rationality, in the wider scheme of damages.

168. The place of the jury, which is at the core of a trial on libel, is not diminished by informing it of issues relevant to the proportionality of damages. It does not detract from its function but rather enhances it. In John v MGN Ltd . [1996] 2 All ER 35 Sir Thomas Bingham M.R. stated at pp. 48-49:

169. In Ireland a jury is a well-educated and a conscientious body. It is the decision-making body. However, every person in arriving at a decision is aided by

170. There are difficulties in obtaining adequate and correct information on court cases pending modern information technology and modern management of cases and their awards in the Irish court system. There are difficulties arising because of the small nature of the jurisdiction and the consequent lack of volume of cases, in comparison to the volume of cases which arise in a jurisdiction such as England and Wales. There is the variability of the cost of living and related prices. However, the principle that juries be given information, on previous libel awards confirmed or determined by the Supreme Court, on damages in personal injury cases, on the purchasing power of an award and the income it might produce and on the level of award deemed appropriate, may be valuable tools for a jury arriving at a reasonable and proportionate decision. There is nothing in principle which precludes figures being given by counsel or a judge. A comparative study of figures, where appropriate, may be very useful. Consequently, on the first issue - whether the charge to a jury should contain further guidance on the level of damages - I would uphold the Appellants’ submission.

171. The second issue raised by the Appellant, as to whether the appellate court should subject large awards of damages to a more searching scrutiny than hitherto has been the custom, follows logically from the first issue. The Appellant submitted that the correct approach under the common law and the Constitution was that set out by Neill L.J. in Rantzen v. Mirror Group Newspapers (1986) Ltd. [1993] 4 All ER 975 at p.994:

172. The necessity to be more specific on the concepts of a reasonable decision and proportionality was referred to by Carswell LCJ in McCarton Turkington and Breen v. Times Newspapers Ltd. [1998] N.I. 358 , 381 , after reviewing the changes in the law of the United Kingdom:

173. The Court of Appeal in Northern Ireland compared the publication in question with others published and considered carefully the award in each. The Court analysed other decisions of the Court of Appeal in England on excessive damages and compared and contrasted the amounts therein, before determining that the amount was excessive in that case.

174. The principle of Irish law regarding an appeal against the amount of damages was described in Barrett v. Independent Newspapers Ltd . [1986] IR 13 by Finlay C.J. at p.19 as follows:

175. However, in spite of the special sanctity referred to of the jury assessments Irish law requires that the decision of the jury be reasonable and proportionate. In Barrett v. Independent Newspapers Ltd . Finlay C.J. determined at p.20:

176. In the same case Henchy J. stated at p.23:

177. Henchy J. referred to the lack of help given to the jury in assessing damages. He stated at pp. 23-24:

178. He then referred to the sum awarded and held at p.24:

179. The necessity of reasonableness and fairness was noted by Henchy J. He stated at p.24 that:

180. In these statements Henchy J. is making a comparative analysis of awards in jury cases. I can see no reason in principle why this should not be available to a jury. I agree with the approach of Henchy J. and adopt it. Whilst there is a special sanctity in respect of jury assessments in libel trials the decision must be reasonable and proportionate. It may be reviewed on appeal on such criteria.

181. The quest to determine in the appellate court whether the decision is reasonable and proportionate could be supported by guidelines on damage levels to the jury in the High Court, which could be replicated in the appellate court. This approach enables the system to be more consistent and comparative and to be seen to be more rational.

182. On the third issue - whether the award of £300,000 was excessive - a recent decision of the Supreme Court is most helpful. In McDonagh v. News Group Newspapers Limited (Unreported, Supreme Court, 23rd November, 1993) which was a case where, inter alia, the words were determined to mean and be understood to mean that the Plaintiff was a sympathiser with terrorist causes, Finlay C.J. pointed out at p.15 of his judgment:

183. He also pointed out that by reason of the person involved the seriousness may be somewhat aggravated, saying, again at p.15:

184. Having described the function of a lawyer in the situation he continued at p. ¹ 6:

185. Of the amount of damages awarded by the jury, £90,000 for libel, he concluded at p.17:

186. There are strong similarities between the facts of that case and this case. Both plaintiffs have a standing of importance in the community. Both sets of words related to very serious defamatory matters. However, the award in the McDonagh case was considered to be at the top of the permissible range. There were additional aggravating matters in this case, as set out previously. But even allowing for the aggravating factors in this case it is clear that the award is “beyond that range in the sense that it is so incorrect in principle” that it should be set aside.

187. In light of the principles as previously set out I am satisfied that the amount was excessive and should be reduced to £150,000.

188. In principle it is open to the Court to provide guidelines on the charge to be given by a judge to a jury in libel cases. Guidelines on levels of damages given by a judge would aid the administration of justice. Guidelines would give relevant information and aid comparability and consistency in decision-making. Such guidelines would relate only to the level of damages - not the kernel issue as to whether or not there had been defamation. Thus, such guidelines would not impinge of the area traditionally viewed in common law jurisdictions as a matter quintessentially for the jury. More specific guidelines on the level of damages would help juries and the administration of justice by bringing about more consistent and comparable awards of damages and awards which would be seen as such. Specific guidelines would also inform an appellate court in its determination as to whether an award is reasonable and proportionate. The award in this case was excessive and on the principles of reasonableness and proportionality I would reduce it to £150,000.