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Murphy v. Times Newspapers Ltd. [2000] IESC 39 (17th January, 2000)

THE SUPREME COURT

280/98

Denham, J.

Barrington, J

Keane, J

Murphy, J.

Barron, J.

BETWEEN

PATRICK MURPHY

Plaintiff/Appellant

AND

TIMES NEWSPAPERS LIMITED, ANDREW NEIL, ANDREW HOGG, BARBIE PENROSE, CHRIS RYDER & ROWENA WEBSTER

Defendants/Respondents

[Judgments by Keane J. and Barron J.; Denham J., Barrington J. and Murphy J. agree]

Judgment delivered the 17th day of January, 2000, by Keane, J.

1. On the 30th June 1985, an article appeared in The Sunday Times (which is published by the first named defendants) under the title “Portrait of a check-in terrorist”. Underneath that heading, there was the following caption:-

“Last week the police announced that they had discovered an IRA plan to plant bombs in 12 seaside resorts. They detained over a score of people and appeared to have destroyed one of the Provisional IRA ‘s active service units, but the triumph has a dark side; there are more of these units. How are they created and how are they destroyed? A report by Andrew Hogg, Barrie Penrose and Chris Ryder.”

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2. The article which followed contained this paragraph:-

“In Ireland itself the planning of mainland campaigns is surrounded now by a more tightly knit security. The IRA ‘s Army Council last February appointed a farmer in the Republic called ‘Slab’ Murphy (which is not his real name), to be its operation commander for the whole of Northern Ireland He has no convictions for terrorist activities and this, plus the fact that he is on the other side of the border, makes him a security headache, hard to cure. Murphy is likely to have had to sanction certain key provisionals travelling to Britain to take part in this summer ‘s planned bombing campaign. It would have been a task made easier to keep secret by the fact that his farm is close to the small town of Dundalk where IRA men on the run can gain sanctuary and ‘safe houses’.”

3. Following the publication of the article, one Thomas Murphy instituted proceedings in the High Court against the defendants for defamation claiming that these words referred to, and were understood to refer to, him. In the statement of claim, it was pleaded that:-

“The said words in their natural and ordinary meaning and under the titles and in the context of the aforesaid meant and were understood to mean that:-

(a) the Plaint if was a prominent figure in the Provisional IRA, an unlawful organisation and an organisation associated in the public mind with unlawful violence, brutality and murder;

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(b) that the Plaintiff planned murder and the bombing of property;

(c) in particular, that the Plaintiff was prepared to sanction, plan and countenance the bombing of twelve seaside resorts in Britain.

(d) that the Plaint if sought, planned, sanctioned and aimed to cause indiscriminate slaughter at twelve seaside resorts in Britain.”

4. The statement of claim went on to say that, as a result, the plaintiff had been injured in his credit and reputation and had been brought into public scandal, odium and contempt and that his life had been endangered.

5. The plaintiff, who is a brother of Thomas Murphy, also instituted these proceedings, in which he makes a precisely similar claim, i.e. that the words complained of referred to and were understood to refer to him and meant and were understood to mean what I have already set out at (a) to (d) above. It is accepted on behalf of the defendants that the description of ‘Slab Murphy’ is applied by people living in the area to both Thomas Murphy and the plaintiff.

6. The defendants pleaded partial justification in both proceedings, claiming that the words complained of were true in so far as they asserted that each plaintiff was a member of the IRA. The defendants also pleaded, in mitigation of damages, that each plaintiff was, and was known to be, at all material times an active supporter of the IRA.

7. Both actions were heard before Lynch J and a jury in the High Court. The claim of Thomas Murphy failed, but that of the present plaintiff was successful and he was awarded damages in the sum of £15,000. On appeal, this court ordered that both actions be retried

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(Murphy v. Times Newspapers Limited & Ors. [1996] 1 IR 169). An application by the plaintiffs for separate trials of their actions having been granted by the High Court on the 3rd June 1997 and that order having been upheld by this court on the 21st October 1997, the High Court (McGuinness J) on the 3rd April 1998 made an order directing that Thomas Murphy’s action be heard first and further directing that the defendants adduce their evidence of justification after the plaintiff had adduced evidence of publication and identification.

8. The action of Thomas Murphy was heard before McGuinness J and a jury in May 1998. As a result of the evidence adduced in that hearing, the defendants conceded that Thomas Murphy had established that the words complained of had been understood by people to refer to him. In the issue paper the jury were asked whether the words complained of meant and were understood to mean that:-

“(a) Thomas Murphy was a prominent figure in the Provisional IRA, an unlawful organisation and an organisation associated in the public mind with unlawful violence, brutality and murder;

(b) Thomas Murphy planned murder and the bombing of property.”

9. Both questions were answered in the affirmative by the jury. They then went on to find, however, in their answers to the next two questions on the issue paper that the defendants had proved that the words complained of were true in substance and in fact. The claim of Thomas Murphy was, accordingly, dismissed.

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10. The plea of justification in the defence delivered in the present proceedings was as follows:-

“If the description Slab Murphy is applied to the Plaintiff which is denied, the words complained of are true in substance and in fact, in so far as they assert that the Plaintiff was a prominent member of the Provisional IRA.”

11. Further and better particulars had been sought of this plea on behalf of the plaintiff. The replies which were furnished on behalf of the defendants on a number of occasions were relatively lengthy and need not be set out in full. For the purpose of this judgment, they can be summarised as follows:-

(1) the plaintiff attended a Provisional IRA Social/Fund Raising Event in late 1983, attendance at which was strictly confined to active members and active supporters of the organisation;

(2) the plaintiff was present in late 1983 at a known Provisional IRA ‘safe house’ in which two members of the Provisional IRA were also present;

(3) the plaintiff was involved in a profitable smuggling business, including the smuggling of fuel in the border area of the Republic of Ireland and Northern Ireland, with the acquiescence, knowledge or support of the Provisional IRA;

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(4) the plaintiff associated with convicted terrorists and in particular provided a ‘safe house’ to one Brendan Byrne;

(5) an arms bunker was found on or adjacent to the plaintiffs land on the 23rd April 1998;

(6) the plaintiff told a customs officer on the 7th April 1999 that a car was being called to take him to Crossmaglen to be killed;

(7) the plaintiff facilitated the escape of an IRA man through his property on the 19th May 1984 following an incident during which two IRA members opened fire on a British Army patrol, and one of them, Frank McKenna, was shot and wounded and subsequently sentenced to eight years imprisonment for his part in the incident;

(8) when an audit was being carried out in his premises on behalf of the Revenue Commissioners, it was thought necessary to have members of the security forces present;

(9) a number of men assaulted officers of the Northern Ireland Customs and Excise in the vicinity of the plaintiffs premises;

(10) the RUC inspector in charge of Crossmaglen Station, Armagh, observed a large number of armed men carrying rifles in the plaintiffs premises;

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(11) the smuggling activities of the plaintiff were at all times carried out with the knowledge and assistance of his brother, Thomas Murphy.

12. A motion was brought on behalf of the plaintiff seeking an order that the plea of partial justification contained in the defence be struck out. When the plaintiffs claim came on for hearing before O’Higgins J. and a jury, that application was dealt with first.

13. It was submitted on behalf of the plaintiff that the plea of justification was inconsistent with the plea in the defence that the words complained of did not apply to the plaintiff and, in any event, could not be maintained at this stage by the defendants, having regard to the verdict of the jury in the proceedings brought by Thomas Murphy that the words applied to him and were true in substance and in fact. This application was dismissed by the learned High Court judge. In the ordinary way the case should then have gone on before the jury, but, a member of the jury having become ill, it was adjourned and it remains to be heard. In the meantime, the plaintiff has appealed to this court against the ruling of the trial judge.

Submissions on behalf of the parties

14. On behalf of the plaintiff, Mr. Turlough O’Donnell, SC submitted that, since the article in its terms was intended to refer to one person only, it could be true of one person only. Its truth in the case of Thomas Murphy having been established by the defendants, they could not now, under the guise of the plea of partial justification, seek to reopen that issue in these proceedings by asserting that it was true of the plaintiff. While conceding that the doctrines of issue estoppel and res judicata did not apply in the circumstances of the present case, he said that the raising of the plea was nonetheless an abuse of the process of the court

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and cited in support the recent decision of this court in McCauley v. McDermot [1997] 2 ILRM 486.

15. Mr. O’Donnell further submitted that the defendants were not entitled to rely on a plea of partial justification in the circumstances of this case, where the libel consisted of a single broad charge, i.e. that the plaintiff was the operations commander and had sanctioned the particular bombing campaign, rather than a series of severable allegations. In such circumstances, s.22 of the Defamation Act, 1961, (hereafter “the 1961 Act”) which allowed a defence of partial justification in defined circumstances, had no application. In any event, the defendants, if they intended to rely on s.22, should have included a plea to that effect in the defence, but had not done so.

16. Mr. O’Donnell urged that, in these circumstances, any evidence tending to show that the plaintiff was a prominent member of the Provisional IRA, if such existed, should be adduced solely on the issue as to mitigation of damages.

17. On behalf of the defendants, Mr. Paul Gallagher, SC submitted that it had been settled law since the decision of the House of Lords in E Hulton & Company v. Jones. [1910] AC 20 that the intention of the defendant was not material in determining whether the impugned publication was understood by people to refer to the plaintiff. It followed that different plaintiffs could sue in respect of the same publication, as had happened here, because, as it was claimed, different groups of people understood it as referring to Thomas Murphy rather than the plaintiff and vice versa . But the proposition that, in such circumstances, the defendant was precluded from pleading that the words, if applicable to the plaintiff, were true in substance and in fact because they had successfully contended in other proceedings that the words were also true in substance and in fact of another person to whom they were found applicable was unsustainable. On the contrary, he submitted, to preclude the defendants in

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these proceedings from pleading that the words, if applicable, were true would be to enable the plaintiff to recover damages, because the statement was found by the jury to be applicable to him, although the statement was true. That would entirely frustrate the object of the law of defamation, he submitted, which was to afford redress in respect of defamatory statements which were untrue. He submitted that, in these circumstances, the defendants could not be said to be in any sense abusing the process of the court by raising a legal defence which was open to them and that the decision in McCauley v. McDermot was of no relevance. Mr. Gallagher further submitted that, if the plaintiff succeeded in his attempt to have this plea struck out, the defendants would be prevented from presenting to the jury in this case detailed information from which the jury might infer that the plaintiff was indeed a prominent member of the Provisional IRA and would be unable to adduce that evidence on the issue of mitigation of damages, since it was clear that evidence of particular acts, as distinct from evidence of general reputation, could not be led by a defendant in order to mitigate damages.

18. Mr. Gallagher submitted that where, as here, the plaintiff chose to plead distinct and separate meanings which he claimed could be, and were, attributed to the words complained of, there was no reason why the defendant should not be entitled to plead justification in respect of some only of the allegedly defamatory meanings. That was the position at common law and under s.22 of the 1961 Act. In the event of the defendant establishing the truth of the allegation that the plaintiff was a prominent member of the Provisional IRA, it would be for the jury to determine whether the words not proved to be true materially injured the plaintiffs reputation, having regard to the truth of the remaining charge. As to the claim that the defendants had not pleaded s.22, the only obligation on the defendant was to plead the material facts on which he relied and not the law, and in any event s.22 is not a legal

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defence as such: the actual defence was justification, s.22 merely laying down legal rules as to when the defence is made out and the effect of its being established.

Conclusions

19. It has for long been the law that the intention of the publisher of a statement is irrelevant in considering whether it is defamatory. Any uncertainty as to this being the law was dispelled by the leading case of E Hulton & Company v. Jones where Lord Loreburn LC said:-

“A person charged with libel cannot defend himself by shewing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff if in fact he did both. He has none the less imputed something disgraceful and has none the less injured the plaintiff A man in good faith may publish a libel believing it to be true, and it may be found by the jury that he acted in good faith believing it to be true, and reasonably believing it to be true, but that in fact the statement was false. Under those circumstances he has no defence to the action, however excellent his intention. If the intention of the writer be immaterial in considering whether the matter written is defamatory, I do not see why it may be relevant in considering whether it is defamatory of the plaintiff... Just as the defendant could not excuse himself from malice by proving that he wrote it in the most benevolent spirit, so he cannot shew that the libel was not of and concerning the plaintiff by proving that he never heard of the plaintiff”

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20. The difficulties created for authors by the law as so laid down and emphasised by cases such as Cassidy v. Daily Mirror Newspapers Limited [1929] 2 KB 331 and Newstead v. London Express Newspaper Limited. [1940] 1 KB 377 led to the enactment of s.21 of the 1961 Act, providing for the making of an offer of amends in cases of unintentional defamation, modelled on a corresponding provision in the English Defamation Act of 1952. We are concerned here, however, somewhat unusually, with a case in which, although the article complained of was clearly in its terms referring to a specific individual, two plaintiffs have brought proceedings claiming that the words complained of were capable of referring, and did refer, to each of them. The plaintiff in these proceedings now seeks to preclude the defendants from proving, if they can, the truth of one of the defamatory meanings assigned to the article.

21. The first ground on which they do so is that, since the jury in the first action have found that, so far as the imputation that the plaintiff in that action was a prominent member of the Provisional IRA was concerned, it was true in substance and in fact, the defendants should not be allowed to maintain in these proceedings that it is also true in substance and in fact concerning the plaintiff in these proceedings. The article, they say, was plainly written about one person only and it would be an abuse of process for the defendants in these proceedings to say that it was true in substance and in fact concerning this plaintiff.

22. That proposition is, in my view, wholly unsustainable. If the defendants are in the position that two plaintiffs in successive actions can satisfy the jury that an article, although clearly written about one person was capable of being understood, and was, understood, to refer to each of the plaintiffs, the defendant is entitled to rely on whatever defences are open to him at law, including a defence in these proceedings that, although he never intended the words to refer to the plaintiff in these proceedings, they are nonetheless true concerning him,

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so far as the allegation of being a prominent member of the IRA is concerned. That conclusion flows inevitably from the fact that the intention of the writer is immaterial when one is determining whether the words complained of are not only defamatory but were understood to refer to the particular plaintiff concerned. If the proposition contended for represented the law, the plaintiff in these proceedings, assuming that he satisfied the jury that the words were understood by one or more persons to refer to him and were defamatory, could recover damages, although the defendants were in a position to adduce evidence before the jury that the allegation in question was true. The object of the law of defamation is to compensate plaintiffs about whom defamatory statements have been published which are untrue: not to compensate them for defamatory statements which are true.

23. It is conceded on behalf of the plaintiff that no question of issue estoppel or res judicata arises. Nor is it a case in which the defendants in any sense can be said to be abusing the process of the court by invoking the defence of justification, as they did in the earlier case. It is the plaintiffs in the two sets of proceedings who elected to sue claiming, in each instance, as was their right, that the words complained of were published of and concerning them and, in each case, claiming that they were capable of meaning and did mean inter alia that the plaintiff concerned was a prominent member of the Provisional IRA. The defendants in pleading partial justification in the second proceedings brought by a different plaintiff are in no sense seeking to circumvent a decision in an earlier case, as happened in McCauley v. McDermot and similar authorities which have been referred to in the arguments.

24. As to the submission on behalf of the plaintiff that the defendants should not be allowed to plead partial justification in a case where, as it is said, there is simply one broad charge, i.e. that the plaintiff was the operations commander for the whole of Northern Ireland and had planned a bombing campaign in Britain, that again is clearly unsustainable. The

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statement of claim pleaded that the words complained of had four distinct defamatory meanings and were understood to have those meanings. At common law, where the words complained of contained more than one charge or were otherwise severable, the defendant could justify part only of the defamatory words but remained liable to pay damages in respect of the part not justified: see Clarke v. Taylor. (1836) 2 Bing NC 654. Since the enactment of s.22 of the 1961 Act, again modelled on a corresponding provision in the English Defamation Act of 1952, partial justification may now provide a complete defence in the following circumstances set out in the section:-

“In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff a defence of justification shall not fail by reason only that the truth of every charge is not provided, if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.

In the present case, the defendants seek to prove the truth of one only of the charges. If they fail to establish the truth of that charge, the jury will go on to consider the question of damages. If they succeed, it will then be a matter for the jury to decide whether the charges they have not proved do not materially injure the plaintiffs reputation, having regard to the truth of the charge which they have established.

There remains the submission on behalf of the plaintiff that the defendants cannot rely on s.22 of the 1961 Act since it is not expressly pleaded in the defence. I am satisfied that the submission of the defendants on this issue is also correct. Under Order 19(3) of the Rules of the Superior Courts:-

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“Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved..”

25. That has been done in the present case and extensive particulars furnished in addition. The defendants are not required to plead matters of law which are well within the knowledge of the plaintiffs legal advisers.

26. I would dismiss the appeal.

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No. 280/9 8

Denham J.

Barrington J.

Keane J.

Murphy J.

Barron J.

THE SUPREME COURT

BETWEEN:

PATRICK MURPHY

Plaintiff/Appellant

and

TIMES NEWSPAPERS LIMITED, ANDREW NEIL, ANDREW HOGG, BARRIE PENROSE, CHRIS RYDER AND ROWENA WEBSTER

JUDGMENT delivered on the 17th day of January 2000 by BARRON J.

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(2)

27. I agree with the judgment which has been delivered by Mr. Justice Keane but would like to add some observations of my own.

28. The plea of justification in an action for defamation is a plea that what has been alleged by the plaintiff to be false in relation to him or her is in fact true. In an action for defamation the plaintiff does not put his or her whole reputation in issue. The plaintiff sets the scene by claiming that specific meanings or imputations in the statement when applied to him or her are false and thereby damage a particular aspect of his or her reputation.

29. The plaintiff in order to succeed in an action for defamation must establish that the published statement has been understood to refer to him or her, and that it held him or her up to hatred, ridicule or contempt. The falsity of the statement is presumed. The defendant can defend by putting the plaintiff on proof of the matters to be established by the

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(3)

plaintiff, but may also allege the truth of the statement. If so, such truth must be established by the defendant. These are principles which apply to all forms of proceedings. The pleadings determine the facts in issue and by which party the various facts have to be proved. An action in defamation is no different.

30. The defendants are deprived by the principles of law enunciated in E. Hutton and Company v. Jones [1910] AC 20 of a defence that they did not intend to refer to the plaintiff, but there is nothing which deprives them of the right not only to put the plaintiff on proof of his averments but also to show that what is “prima facie” said to be false of the plaintiff is in fact true of him.

31. The plaintiff, in effect, says his reputation has been damaged by your statement. The defendant can defend on the basis that the statement could not have been understood to refer to the plaintiff, or if it did that it

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(4)

did not hold him up to hatred, ridicule or contempt; or if it did that it was true. It is only the latter plea with which we are dealing.

32. As a consequence, it is not what the plaintiff stated nor, unless malice is pleaded, what was intended which is at issue. It is the effect of what was stated so that the issue is whether the reputation has been damaged in the way claimed.

33. It is not a question of who did the defendant intend to refer to. The issue, once justification is pleaded, is, are the meaning or meanings of which the plaintiff complains true or false in relation to the plaintiff. So it is immaterial that the same statement may have been claimed by someone else to have referred to him and equally immaterial that in an action brought by such person the defendant pleaded that if the statement could be understood to have referred to that other person it was true of him.

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(5)

In E. Hulton and Company v. Jones (19101 A.C. 20, the article was written about a supposedly fictitious person. Nevertheless, a real person maintained that it was understood to have referred to him and that it was false. He succeeded.

34. In the present case the plaintiff submitted that since the article only referred to one person, the defendants could not say that it referred to two different persons. He further submitted that by doing so the purported defence was an abuse of process.

35. There is no substance in these submissions. The first is clearly refuted by Hulton v. Jones and the principles to which I have referred. The second deals with the wrong issue. The issue in the present case is whether the plaintiff’s reputation has been damaged in the way which he claims. That issue has not been decided before. What has been decided is an identical issue in relation to the plaintiff’s brother and it is

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(6)

immaterial that such issue was decided in favour of the defendant just as it would have been immaterial if it had been decided in favour of the plaintiff’s brother. The cases which have been cited in relation to abuse of process relate to a different situation. They relate to a case where a party makes a particular case on the facts which is not accepted. In such circumstances, it is an abuse of process to attempt to set up the same facts in a different action.

36. The significance of the issue in the instant case relates to the nature of the evidence which the defendants may call in their defence. A defendant who pleads justification is entitled to adduce evidence to prove the truth of the meanings or imputations complained of, but cannot adduce evidence of other aspects of the plaintiff’s reputation. If the defendant cannot justify, such defendant not only cannot call evidence to establish specific matters but also cannot call evidence as to the plaintiff’s

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(7)

reputation in relation to such matters. Such defendant is limited to calling evidence of general reputation in relation to the area in issue. The appellant also submits that the defendants should not be entitled to plead partial justification. He submits that there is only one imputation or sting or charge contained in the article and that it is no defence to establish that some only of the allegations contained in it are true. Accordingly, he submits that since the defendants do not purport to justify the entire article, they may not seek to justify any part of it.

37. The defendants, on the other hand, submit that the article contains two charges, the first that the person referred to is a prominent member of the IRA and the second that he is an operations commander of that organisation. They seek to justify only the first of these charges.

38. I do not accept the submission of the plaintiff. Again, this submission is made to limit the nature of the evidence which the defendant

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(8)

made use at the trial. In the present case, what the defendant seeks to justify is a meaning pleaded by the plaintiff. Whether this meaning is the sole sting or one of more than one sting in the Article will be a matter for the trial Judge. However he or she may decide, there is no basis upon which the defendant can be denied the right to adduce evidence to establish the truth of a meaning alleged by the plaintiff.

39. I would dismiss the appeal.