Supreme Court of Ireland Decisions

1. This is an action for libel. The plaintiff is a well known and successful businessman: he holds, among others, the positions of Chairman of Esat Digifone, Esat Telecom and 98 FM. The first named defendant is the publisher of a newspaper called the Irish Mirror, of which the second named defendant is the Editor in Chief. The third and fourth named defendants are respectively the editor of the Irish edition and a journalist employed by the newspaper who wrote the article which gave rise to the action.

2. The article in question appeared in the issue of the newspaper of the 10th June 1998 under the heading

3. It was on the front page and began as follows:

4. The article went on to refer to a total of eleven questions which had been sent to the plaintiff’s office concerning the allegations. The plaintiff was not prepared to answer four of the questions. Of the remaining questions, four were of particular relevance to these proceedings: the questions and answers were as follows:-

5. The article went on to refer to the possible political implications of the allegation being made against the plaintiff and concluded:-

6. The article also gave details of Mr. O’Brien’s career and stated that the awarding of the licence to Esat Digifone would be examined by the Tribunal of which the sole member is Moriarty J. and which is at present investigating certain payments to politicians. It concluded, however, that

7. The plaintiff thereupon instituted these proceedings claiming damages for libel and pleading that the words meant, and were understood to mean, that

8. In their defence, the defendants denied that the words complained of bore or were understood to bear or capable of bearing these meanings. They pleaded that the words complained of meant or were understood to mean that an anonymous letter had been sent to the Flood Tribunal making the allegation in question, that the Flood Tribunal would investigate the allegation and that the award of a mobile telephone licence to Esat Digifone had previously been investigated without any impropriety being found. To that extent, they pleaded that the words complained of were true in substance and in fact.

9. The action came on for hearing before McGuinness J. and a jury in the High Court. The following questions were left to the jury:

10. The jury answered each of the questions 1 - 5 in the affirmative and assessed damages at £250,000. Judgment was accordingly entered for that sum and costs. The defendants have now applied to this court, by way of appeal, for an order setting aside so much of the verdict as assessed the damages at £250,000 and ordering a new trial of the action on this issue or, in the alternative, substituting a lower amount for the amount of £250,000.

11. The plaintiff has cross appealed against the refusal of the learned trial judge to leave the issues of aggravated, punitive and/or exemplary damages to the jury and has sought the assessment by this court of such damages or, in the alternative, in the event of an order directing a retrial, an order that these issues be also tried by the jury. He has also appealed against an order of the learned trial judge making no order as to the costs of a previous trial and seeks an order awarding him the costs of that trial.

12. The grounds set out in the defendant’s notice of appeal can be summarised as follows:-

13. As was made clear in the written and oral submissions on behalf of the defendants, in relying on grounds (4) to (6) above the defendants were inviting this court to depart from its recent decision in De Rossa .v. Independent Newspapers Plc. Supreme Court, 30 July, 1999, unreported. In that case, to which it will be necessary to refer in considerably more detail at a later stage, a majority of the court (Hamilton C.J., Barrington J., Murphy J. and Lynch J.) declined to apply in this jurisdiction the decision of the English Court of Appeal in John .v. MGN Limited [1996] 2 All ER 35 in which it was held that guidance of this nature on the assessment of damages should be given by trial judges to juries. In a dissenting judgment, Denham J. concluded that guidance of this nature should be provided.

14. As to ground (4), it was conceded on behalf of the defendants that the learned trial judge had properly charged the jury in this case in accordance with the law as stated by this court and that no criticism could be made of the directions on law which she gave to the jury.

15. There are, accordingly, five possible issues which arise for consideration:

16. Clearly, if the defendants’ appeal is successful in relation to both (1) and (2) above, that, of itself, will require the setting aside of the jury’s verdict.

17. Further guidance on the topic is to be found in the judgment of Henchy J. in Mogul of Ireland .v. Tipperary (NR) County Council [1976] IR 260 at p. 272:-

18. The court is not in this case concerned with a pure question of statutory interpretation. However, I am satisfied that the observations of Henchy J. in that case should not be confined to cases in which the courts are concerned with the interpretation of a statute. It is, accordingly, necessary to consider the application of those principles, and the statement of the law by Kingsmill Moore J. in the earlier decision, to De Rossa .

19. The plaintiff in that case brought proceedings for libel arising out of an article published in the Sunday Independent which he said meant, and was understood to mean, that he was aware of criminal activities of a serious nature on the part of a political party of which he was the leader and had tolerated those activities. At the time the article was published, the plaintiff was engaged in negotiations with leaders of other political parties with a view to participating in a proposed coalition government, a fact which was referred to in the article itself. In their defence, the defendants admitted that the words complained of meant that the plaintiff was now the leader of a party which had previously received funds raised as a result of criminal activities, but, save to that extent, denied that words complained of bore, or were capable of bearing, the meanings assigned to them by the plaintiff.

20. There were three trials of the action. The first lasted eight days, at which stage the jury were discharged because of the actions of the defendants. The second trial lasted fifteen days and resulted in a disagreement by the jury. The third trial lasted eleven days. During the course of each of the trials, the plaintiff was subjected to what were described in the judgment of Hamilton C.J. as

21. The following questions were submitted to the jury and answered by them as follows:-

22. The defendants appealed against the assessment of damages by the jury. On the hearing of the appeal, it was conceded on their behalf that the trial judge had directed the jury in accordance with the generally accepted practice, but it was submitted that this was a practice which was inconsistent with the provisions of the Constitution and of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was submitted that, in order to bring the law into conformity with the

23. Constitution and the Convention, specific guidelines should be given by the trial judge and counsel to the jury in defamation actions and that they should include

24. The defendants relied in support of those submissions on the decision of the English Court of Appeal in John .v. MGN Ltd . and of the Court of Human Rights in Tolstoy Miloslavsky .v. The United Kingdom, [1995] 20 EHRR 442.

25. The arguments advanced in that case, on behalf of the defendants, were, accordingly, virtually identical with those advanced on behalf of the appellants in the present case. In a lengthy written judgment with which Barrington J., Murphy J. and Lynch J. agreed, Hamilton C.J., having cited in full the relevant provisions of the Constitution and the Convention and cited extensively passages from earlier judgments of this court, of the Court of Appeal and House of Lords in England and of the Court of Human Rights in Tolstoy, concluded that the existing practice was not inconsistent with the Constitution or the Convention and that the guidelines proposed by the English Court of Appeal should not be adopted in this jurisdiction. He went on to deal with the alternative argument on behalf of the appellants - that the award of damages was in any

26. In a dissenting judgment, Denham J., who also reviewed at some length the relevant authorities in this and other jurisdictions, concluded that the guidelines recommended by the Court of Appeal in John should be adopted in this jurisdiction. She was also satisfied that, in any event, the award of damages in that case was excessive and, on principles of reasonableness and proportionality, would have reduced it to £150,000.

27. It was not suggested by counsel for the appellants in the present case that the majority decision in De Rossa was given in ignorance of an earlier authority of compelling validity or that a relevant point had been entirely overlooked or conceded without argument. The decision was, however, criticised on two grounds.

28. First, it was submitted that, although the decision of the European Court of Human Rights in Tolstoy Miloslavsky .v. United Kingdom , which had been strongly relied on on behalf of the defendants in that case, was discussed in the judgment of Hamilton C.J., the judgment had insufficient regard to some important features of the decision and in particular to paragraphs 46 to 51 inclusive of the judgment.

29. Secondly, it was submitted that, while the judgment also considered the decision of the Court of Appeal in John, it proceeded on what was said to be the erroneous basis

30. In considering these criticisms, it is necessary to refer at the outset to Tolstoy. The plaintiff in the proceedings which gave rise to the case in the European Court, Lord Aldington, had been awarded damages for libel of £1,500,000 by a High Court jury. The defamatory statements appeared in a pamphlet written by the applicant and it was not in issue in that court that the defamation was of so serious a nature as to justify a very substantial award of damages.

31. The first ground of challenge to the award in the European Court was that the law in England as to the respective roles of the judge and jury in libel actions was such that it would have been impossible for his legal advisers to predict that an award of these dimensions would have been made and that, accordingly, the interference with the applicant’s right to freedom of expression which the award constituted was not “prescribed by law” within the meaning of Article 10(2) of the Convention. This argument was rejected by the court.

32. The second ground of challenge was that the interference with the plaintiff’s right to freedom of expression constituted by the award was not “necessary in a democratic society” within the meaning of Article 10.2, since the amount of the damages awarded was disproportionate to the legitimate aim of protecting Lord Aldington’s

33. In the course of the judgment, the court, having observed that the approach adopted in the different Contracting States in this area may differ greatly from one state to another and that the competent national authorities, being better placed than the European Court to assess the matter, should enjoy a wide margin of appreciation, summed up their conclusions as follows:-

34. In his judgment in De Rossa Hamilton C.J., having cited in full the passage I have just quoted from the judgment of the court in Tolstoy, summarises the effect of the passage as follows:

35. I find it difficult to understand, in the light of that passage, how it can seriously be suggested that the judgment of the learned Chief Justice in De Rossa rested on any misunderstanding whatever as to the nature of the decision in Tolstoy.

36. As to the second ground of criticism, it is certainly the case that, having set out in full the observations of Henchy J. in Barrett .v. Independent Newspapers Ltd. in which he made it clear that the test for determining whether an award should be set aside as being excessive was whether it was so disproportionately high that it should not be allowed to stand, Hamilton C.J. went on to say:

37. It is clear that, in arriving at that view, the learned Chief Justice was influenced by the fact that, as is beyond argument, two factors determined the outcome of the decision in Tolstoy, i.e. the size of the award and the state of the law before Rantzen. If the award had been significantly lower and could be regarded as being proportionate to what was admitted to be a very serious libel indeed, the result might have been different.

38. That is a view of the decision in Tolstoy, with which, of course, issue can legitimately be taken. But that is not what is urged upon us in this case. We are being

39. The court, moreover, was invited to overrule the decision less than a year after it was pronounced. There is, of course, no guarantee whatever that, were it to be so overruled, within a relatively short period of time the court might not be persuaded that this decision in turn was “clearly wrong” and must itself be overruled. The stage would have been reached at which the doctrine of stare decisis in this court would have been seriously weakened and the certainty, stability and predictability of law on which it is grounded significantly eroded.

40. In addition, the court is urged to overrule the decision on the ground that, apart altogether from the two criticisms advanced of the reasoning in the majority judgment, the court should in any event have followed the decision of the Court of Appeal in John as to do otherwise would be to fail to give effect to the guarantees of freedom of expression contained in the Constitution and the Convention. The observations I have already made as to the two grounds of criticism apply with equal force to that submission. Having cited extensively from the judgments of the Court of Appeal in Rantzen and John, Hamilton C.J. said:-

41. The learned Chief Justice went on to express his preference for the conclusion reached in Rantzen’s case to that reached in John’s case on the question as to whether or not references to awards in personal injuries actions should be permitted. The view in the former case had been that they should not be referred to and the learned Chief Justice pointed out that in Cassell and Co. Limited .v. Broome [1972] 1 All ER 801 at

42. Finally, the learned Chief Justice drew attention to what he considered an important feature of the decisions in Rantzen and John, i.e. that they followed the enactment in England and Wales of s. 8(2) of the Courts and Legal Services Act, 1990 and the introduction of RSC Order 59, r. 11(4) empowering the Court of Appeal for the first time to substitute for the sum awarded by the jury such sum as appeared to the court to be proper. In this jurisdiction, of course, the court has for some time now been prepared in actions for damages for personal injuries to substitute for the sum awarded by the High Court such sum as the court thinks appropriate. That power, however, has never been exercised by the court in cases of defamation.

43. Again, a different view could legitimately be taken from that expressed by Hamilton C.J. and assented to by the majority. However, for the reasons I have already given when considering the first ground of criticism, I have no doubt that that fact of itself could not justify this court in overruling the decision.

44. In my view, accordingly, the appeal in the present case should be dealt with on the basis that the law is as stated in the judgment of Hamilton C.J. in De Rossa . It follows, as was conceded on behalf of the defendants, that the award in this case cannot be set aside on the ground that the learned trial judge did not follow the guidelines laid down by the Court of Appeal in John and directed the jury as to the law in accordance

45. The second issue is as to whether the award should in any event be set aside, applying the law as laid down in Barrett and De Rossa . In considering that issue, I think it is important to bear in mind that there is nothing in the judgments of Henchy J. in Barrett or Hamilton C.J. in De Rossa to indicate that this court is precluded, on the hearing of an appeal, from determining the appeal in the light of awards in other defamation cases which have been the subject of appeals to this court. No doubt a degree of caution is called for in making such comparisons, since in cases of defamation, more perhaps than in almost any other action in tort, the facts which have to be considered by the jury vary widely from case to case. Moreover, as Lord Hailsham pointed out in Cassell and Co. Limited .v. Broome , when drawing the distinction between damages in defamation cases and damages for personal injuries

46. Provided those qualifications are borne in mind, some assistance may be obtained from the views expressed by this court as to the damages awarded in particular cases when those awards were either upheld or set aside.

47. The general principle which must be applied is as stated by Henchy J. in Barrett in the following passage:-

48. It is accepted that the award of damages in this case, if it is not set aside by this court, will be the second highest award of damages so upheld, the highest being the award in De Rossa . In my view, subject again to the qualifications, I have emphasised, it is legitimate to compare the award in this case with De Rossa for the purpose of determining whether it is so disproportionately high that it should not be allowed to stand.

49. The award can also, in my view, be legitimately compared with the award in McDonagh .v. Newsgroup Newspapers Limited Supreme Court, 23rd November, 1993, unreported, where the article complained of was found by the jury to mean inter alia that the plaintiff, who is a member of the Bar and who had attended an inquest (as an observer on behalf of the Irish government) into the deaths of three members of the Provisional IRA who had been shot by the British Army in Gibraltar, was a sympathiser with terrorist causes. They assessed damages at £90,000. An appeal having been brought to this court on the ground inter alia that the damages were so

50. It should also be noted that, in declining to set aside the award in De Rossa Hamilton C.J. said that:

51. In the present case, the article complained of stated that the plaintiff had paid £30,000 to a Government Minister by way of a bribe for the purpose of securing a licence for a radio station and obtained the licence as a result of the bribe, that he had also secured a licence for ESAT Digifone in circumstances giving rise to a suspicion of bribery or corrupt practices and that the activities warranted investigation by the Flood Tribunal. These were undoubtedly seriously defamatory statements which justified the award of substantial damages. However, the case must be approached, in my view, on the basis that the damages awarded are in the highest bracket of damages appropriate in any libel case. They are comparable to the general damages awarded in the most serious cases of paraplegic or quadriplegic injuries and, relatively speaking, are in the same bracket as the damages awarded in De Rossa . The libel, however, although undoubtedly serious and justifying the award of substantial damages, cannot be regarded as coming within the category of the grossest and the most serious libels which have come before the courts.

52. In this context, a comparison with De Rossa is to some extent at least illuminating. In the latter case, the libel complained of could not have been of a more serious character, alleging, as it did, that the plaintiff supported some of the vilest activities of totalitarian regimes in the twentieth century and was personally involved in or condoned serious crime. On any view, that is a significantly more damaging and

53. A comparison with McDonagh - where, as already noted, the damages were described by Finlay C.J. as being “at the top of the permissible range” - is also of some assistance. The plaintiff in that case, although a member of the Bar in good standing, would, like many other barristers in a similar category, be almost wholly unknown outside the legal profession. In terms of his public reputation, the plaintiff in the present case would undoubtedly enjoy a more extensive reputation with the general public than the plaintiff in McDonagh, but, as I have already indicated, a significantly

54. Ultimately, however, this case has to be decided having regard to its own particular facts and circumstances. I am conscious of the care which must be exercised by an appellate court before it interferes with the assessment of damages by a jury in a case of defamation, but, having weighed up all the factors to which I have referred, I am satisfied that the award in this case was disproportionately high and should be set aside.

55. It was submitted on behalf of the plaintiff that the learned trial judge was wrong in not leaving the issue of punitive or exemplary damages to the jury.

56. It is undoubtedly the case that exemplary damages, to use the description now generally in use, may be awarded by a court in an action for defamation. Lord Devlin in his celebrated and much criticised speech in Rookes .v. Barnard [1964] AC 1129, had said that exemplary damages could only be awarded in three limited categories, a view of the law assented to by the other law lords, but not followed in other common law jurisdictions, including Ireland. (See Conway .v. Irish National Teachers Organisation and Others, [1991] ILRM 497.) It has been held in those jurisdictions that the courts are not confined to those three categories.

57. One of the categories referred to in Lord Devlin’s speech was:-

58. As was made clear by the House of Lords subsequently in Cassell and Co. .v. Broome , a plaintiff in an action for defamation who established that the defendant had published the words complained of because of a calculation that the profits resulting from the publication would exceed any damages he might have to pay would be entitled to exemplary damages since the case would come within this category. Since, as held by this court in Conway .v. Irish National Teachers Organisation , the jurisdiction of the court to award exemplary damages is not confined to the three categories referred to by Lord Devlin, it would follow that there may be other cases in which such damages could be awarded, e.g. where there was an intention to publish defamatory matter which was intended to refer to the plaintiff and which was known to be false. In the case of such a calculated breach of the constitutional right of the plaintiff to his good name, it might well be that, in the light of Conway .v. Irish National Teachers Organisation , a plaintiff would be entitled to exemplary damages. In the present case, there is nothing to indicate that the defendants published the offending article intending to defame the plaintiff and in the knowledge that it was untrue. I am satisfied that the trial judge was, accordingly, correct in her decision not to leave the issue of exemplary damages to the jury.

59. The plaintiff also cross appealed against the refusal of the learned trial judge to award him the costs of an earlier abortive trial before O’Sullivan J. and a jury. On the second day of the trial, the trial judge recalled that he had advised one of the companies with which the plaintiff was associated some years before when he was at the Bar. He so informed the parties and counsel for the plaintiff indicated that they had no objection to the trial proceeding. However, the defendants indicated that they were not happy with the trial proceeding before O’Sullivan J. and he discharged the jury. At the conclusion of the trial before McGuinness J. and a jury, counsel for the plaintiff applied for the costs of the abortive trial. The learned trial judge declined to award the plaintiff those costs. I am satisfied that she was in error in so doing. The collapse of the first trial was not in any way the responsibility of the plaintiff and he was in no different position than if the jury had disagreed in that trial. I am, accordingly, satisfied that the defendants must pay the costs of the first abortive trial.

60. I would allow the appeal and order a new trial on the issue of damages only. I would dismiss the cross appeal, save in relation to the costs of the trial before O’Sullivan J. and a jury. I would vary the order of the High Court and order that the defendants pay the costs of the trial before O’Sullivan J. and a jury.

61. This is an appeal by Mirror Group Newspapers Limited, Piers Morgan, Neil Leslie and Karl Brophy, the defendants/appellants, hereinafter referred to as the defendants, from the order of the High Court made on 11th November, 1999 which assessed and awarded damages for libel payable to the plaintiff/respondent, hereinafter referred to as the plaintiff, at £250,000. Thus it is an appeal on quantum only.

62. This case arose out of an article which appeared in the Irish Mirror on 10th June, 1998. The action was heard before a judge and jury. The jury determined that the article meant:

63. The jury assessed damages for the plaintiff at £250,000 and judgment was entered for that amount and costs. From that assessment the defendants appealed.

64. The grounds of appeal of the defendants were:

65. The plaintiff has cross-appealed seeking orders that the learned trial judge erred in refusing to allow the jury decide on the issues of aggravated or punitive or exemplary damages. Further, he has cross-appealed seeking an order for the costs of the previous trial.

66. The defendants acknowledged that many of the grounds raised in the Notice of Appeal were considered and rejected in a majority decision of the Supreme Court in De Rossa v. Independent Newspapers Plc. Supreme Court, 30th July 1999, unreported, hereinafter referred to as De Rossa . The defendants submitted that that decision was in part incorrect and ought to be revisited; that the award of £250,000 was made without adequate safeguards and that it constituted a breach of the defendants’ rights under Article 40.6.1 .i of the Constitution. Further, it was submitted that, while the European Convention on Human Rights is not part of domestic law, the rights protected by Article 10 of the European Convention are, for the most part, rights protected by Article 40.3.1 and 40.6.l.i of the Constitution. Also, that the limitations on exercise of those rights, the interest of the common good, correspond largely to the limitations expressly permitted by Article 10 of the Convention. Consequently, it was submitted, the starting point for a consideration of the appropriate balance between the quantum of damages for defamation and the right to freedom of expression is Tolstoy Miloslavsky v. U.K. [1995] 20 EHRR 442, hereinafter referred to as Tolstoy. The defendants submitted that the Supreme Court should reconsider its decision in De Rossa and they argued for a different conclusion in law. In the alternative or in addition, it was submitted that the award made by the jury was excessive. It was argued that the awards in De Rossa and this case are simply incompatible, unreconcilable and could not form part of any rational system of compensation as envisaged under the Constitution. To seek to reconcile such awards is to clothe the body of a series of random and arbitrary jury awards with the raiment of a rational scheme of compensation for libel.

67. The plaintiff submitted that the only real issue on the appeal is whether a reasonable jury could have awarded the sum of £250,000 to the plaintiff in the circumstances of the case. It was submitted that the size of the award in damages was in every way commensurate with the extreme seriousness of the particular libel and the major coverage which it was given. The libel went to the very essence of the plaintiffs worth both as an individual and as a businessman. It was submitted that the Irish law of libel represents a fair, logical and constitutional approach to the balancing of competing objectives, of the right of freedom of expression and of that of the individual citizen to his good name. In every respect the law is in accordance with Article 10 of the Convention of Human Rights and has not ever resulted in an award of damages of the size which has been suggested by the Court of Human Rights to represent an impermissible restriction on the right of freedom of expression. It was submitted that the libel in this case was of the highest category of prominence, seriousness and reckless irresponsibility having been published on no greater information that that contained in an anonymous letter and in face of unqualified denial by the plaintiff. It was submitted that whilst it is not in general a useful exercise to compare one libel with another this was one which had the capacity to create enormous damage on the plaintiff who was compensated no more than reasonably by the award of damages by the jury.

68. Decisions of the Supreme Court are final: Article 34.4.6 of the Constitution of Ireland, 1937. The Supreme Court follows previous decisions of its court. This is a policy for the purpose of maintaining continuity and certainty in the law. However, there are exceptions to the rule. These were described in State (Quinn) v. Ryan [1965] IR 70 by

69. The matter was further analysed in Attorney General v. Ryan’s Car Hire Ltd. [1965] IR 642. Kingsmill Moore J. stated at pp. 653-4:

70. Thus, a previous decision of the Supreme Court may not be followed by the Supreme Court if it is determined that it was erroneous, if there is a compelling reason, or there are compelling reasons, not to follow the earlier decision. Precedent is followed save for exceptional cases. Thus, it is necessary to apply this test to the De Rossa case. It is necessary to determine if De Rossa should be followed or if exceptional circumstances exist so that the case should not be followed.

71. A fundamental plank of the De Rossa decision of the Supreme Court was the Tolstoy decision of the European Court of Human Rights. In the De Rossa judgment emphasis is laid on the Tolstoy judgment. The applicant in Tolstoy succeeded in his claim that the award of damages was contrary to Article 10. The Court held at paragraphs 46-51:

72. Thus, the court held that the award of damages was a breach of Article 10 of the European Convention on Human Rights. This decision was based on the size of the

73. At the relevant time in England and Wales the decision of Rantzen v. Mirror Group Newspapers (1986) Limited and Ors. [1993] 4 All ER 975 , hereinafter referred to as Rantzen had not been handed down. Nor had that of John v. M.G.N. Ltd. [1996] 2 All ER 35 , hereinafter referred to as John.

74. He referred to the fact that the European Court had given approval to the guidance to be given to a jury as laid down by the Court of Appeal in Rantzen v. Mirror Group Newspapers (1986) Limited and Ors. [1993] 4 All ER 975 and as extended in John v. M.G.N. Ltd. [1996] 2 All ER 35. Of the changes introduced by these cases, he held at p.44:

75. On the issue of guidelines on the award of damages to the jury he referred at p.47 to the concepts of balancing and proportionality required:

76. Hamilton C.J. pointed out that the only remedy to a person whose good name had been damaged was an action for damages, reference was made to Barrett v. Independent Newspapers Ltd. [1986] IR 13, pp. 23 and 24. It was held that neither the Constitution nor the European Convention requires that guidelines be introduced, that the guidelines introduced in England and Wales were a development of common law. Hamilton C.J. held:

77. In a dissenting judgment I expressed the view that juries should be given further guidelines, including information, for example, on previous libel awards confirmed or determined by the Supreme Court, on the level of damages in personal injury cases and on the level of award deemed appropriate by parties. This would aid a jury in arriving at a reasonable and proportionate decision on the assessment of damages. Guidelines would inform the jury. Further, guidelines would be a protection against disproportionate awards.

78. The decision of the majority in De Rossa sets out the law. The defendants have asked the court not to follow the De Rossa decision. The first query is as to whether the decision was erroneous. As is clear from my dissenting judgment in De Rossa I held a view contrary to the majority of the court. However, that of itself is not sufficient to determine that De Rossa should not be followed. To disagree with a decision is not sufficient to invoke the exception to the policy of the court to follow precedent. It is necessary also to determine if there exists a compelling reason not to follow De Rossa .

79. The matters at issue are important in a democracy. The right to communicate, the right to information and the right to freedom of expression, guaranteed by Article 40.3.1 and 40.6.1(i) of the Constitution of Ireland, are similar to the right of freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. The rights guaranteed in the Irish Constitution are not absolute, neither are the rights of the European Convention. Both documents require that a balance be achieved and that balance going to matters of reputation, information, communication and the freedom of expression is a matter of importance in a democracy and is of public interest.

80. The facts of this case raise different circumstances. While once again in this case a balance is sought to be achieved between the plaintiffs right to his good name, as protected in the law of defamation, and the right of freedom of expression, the circumstances are not the same. The issue is quantum. However, quantum can not be considered in a vacuum. The facts of the case are relevant. The facts of this case raise a different scenario.

81. There should be a rational relationship between schemes of awarding damages. To have payments for damage to reputation grossly in excess of payments for serious personal injury raises for consideration the rationale of both schemes for awarding damages. Indeed, if the amount awarded in damages in defamation cases exceeds greatly the amounts awarded in general damages for severe personal injuries it has the appearance of punitive damages. This fundamental issue - the rationale for the level of awards of damages - is important.

82. In the kernel of the De Rossa decision is an analysis of the European Convention and decisions referred thereto. The European Convention for the Protection of Human Rights and Fundamental Freedoms is not part of the domestic law of Ireland: In Re O’Laighléis [1960] IR 93. However, decisions of the European Court of Human Rights on the said European Convention may be persuasive authority in the analysis of similar constitutional rights, in the same way as decisions of other constitutional courts: Norris v. Attorney General [1984] IR 36, Henchy J. at p.69. It was determined in De Rossa that the existing practice in Ireland were not contrary to the Convention. The defendants submit that the decision was partially in error. The nub of the defendants’ submission is that the Irish practice rule violates Article 10 of the Convention. In light of the current practice whereby decisions of the European Court of Human Rights may have persuasive authority on issues where the Convention and Constitution are similar, in light of the fact that Ireland was one of

83. The defendants submitted that there should be a departure from the previous decision of the Supreme Court in De Rossa . It was argued that while in the De Rossa case there was reference to Rantzen that the court had not directed its mind to the relevant and necessary portion of Tolstoy especially the above quoted paragraphs 46-51. It was submitted that the court, while it adverted to Tolstoy, did not direct its mind to the essential elements of Tolstoy. In analysing Tolstoy it appears that the earlier common law of England and Wales was considered to be contrary to the European Convention. It appears to me that there is considerable similarity to Irish law now and the law of England and Wales prior to the decisions in Rantzen and John. Consequently there is a real issue as to whether the scope of judicial control at the trial and on appeal offers adequate and effective safeguards against disproportionately large awards of damages. It thus raises the issue as to whether there is a breach of the Convention. In all the circumstances it is appropriate that the matter be reopened, reanalysed and reassessed.

84. At the core of the issues in this case is a decision of a jury. A modern jury brings its own common knowledge to the decisions. It decides whether the statement is a libel. That is not in contest on this appeal. That is the most important decision of the jury -as to whether it is a libel or not - and that decision is solely for the jury. The jury decided also on the amount of damages. At issue is whether on this latter decision further information and guidance should be given to the jury. As with other aspects of juries, their decisions

85. The discretion of the jury is not limitless. There is the requirement of proportionality in this jurisdiction but it is not assisted by specific guidelines on the assessment of damages. The issue of damages, and rules related thereto, is a matter which may be addressed by the Oireachtas. In the absence of such legislation the court may use its common law jurisprudence to assist the jury and the trial.

86. In conclusion, I am satisfied that there are compelling reasons to reconsider the De Rossa decision. These reasons include: (a) the cogent arguments made by the defendants as to the interpretation and effect of the Tolstoy decision, the analysis in De Rossa the fact that the issue is one of importance in a democracy and is of public interest; (b) the issue of quantum cannot be considered in a vacuum and the facts of this case inform the analysis; (c) there should be a rational relationship between schemes of awarding damages which should be analysed in the context of the award; (d) the issue of principles and guidelines to juries, in the context of complex modern litigation; are all compelling reasons which taken together are sufficient to raise the exception to the precedent rule. For all these reasons I am satisfied that there are compelling reasons to reconsider De Rossa . Such a review after a relatively short time is not barred in the presence of compelling reasons to review the decision.

87. There is no necessity to tie analysis to decisions of the Court of Appeal of England and Wales. Persuasive authority may be considered from our constitutional

88. As to the substantive issue, 1 remain of the view I expressed in De Rossa . I am satisfied that guidelines to a jury on the assessment of damages are appropriate. At the least, reference could be made to the level of damages in previous libel cases decided by the Supreme Court and to the level of awards in serious personal injury cases, as has been introduced in other common law countries. Such judicial guidelines may be a safeguard against a disproportionate award. In the absence of such guidelines, merely to require the award to be proportionate is an inadequate protection against a disproportionate award.

89. In light of the decision of the majority of this court that it will not depart from the decision in De Rossa and consequently that De Rossa states the law, the next issue is whether the jury’s assessment of damages should be set aside as being excessive. In McDonagh v. News Group Newspapers Limited Supreme Court, 23rd November, 1993, unreported, Finlay C.J. said of an award of £90,000:

90. This was a most serious libel, of a barrister, as stated by Finlay C.J.:

91. On the issues of aggravated, exemplary or punitive damages I agree with the Chief Justice. I would not allow the cross-appeal. The trial judge did not err in refusing to leave these matters to the jury.

92. Costs follow the event. Consequently, if the respondent succeeds he is entitled to costs, including the costs of the first trial.

93. I am satisfied that the instructions to the jury on quantum should be altered so as to give a greater degree of guidance and assistance to the jury. Also, that there should be a

94. I would allow the appeal, determine that there are compelling reasons to reconsider the De Rossa decision, consider guidelines for the jury as to the assessment of damages, determine that the award was disproportionate and excessive and should be set aside, and reserve for another occasion the issue as to whether the Supreme Court could substitute an award of damages on appeal. On the matters raised in the cross-appeal I would dismiss the cross-appeal, except in relation to the costs of the first trial.

95. The Chief Justice in his judgment has set out in considerable detail both the background facts relating to this case and its procedural history. I adopt his account of these matters and therefore any repetition would be superfluous.

96. In a recent decision of this Court in De Rossa v Independent Newspapers Plc Supreme Court 30th July 1999, unreported, the Court in the form of a judgment per Hamilton C.J. with whom three other members of the Court agreed restated the traditional principles long followed by trial judges in libel actions as to how such a judge should address the jury in relation to the assessment of damages. Specifically the Court disapproved of the decision of the English Court of Appeal in John v MGN Limited [1996] 2 All E.R. 365 that thenceforth guidance should be given by the trial judge to the jury on the assessment of damages in the form of comparison with precedent awards in both personal injury and libel cases and to the purchasing power of a particular award and to the level of awards suggested

97. It has been argued in this appeal on behalf of the Appellant that De Rossa should be reconsidered and that on various grounds as set out in the Chief Justice’s judgment this Court should now depart from it. The Chief Justice has dealt with the submission at some length in his judgment and has formed the view that this Court should not now entertain arguments to the effect that De Rossa was wrongly decided. I am in complete agreement both with the conclusion of the Chief Justice in this regard and his reasons for arriving at such conclusion. There is nothing more which I can usefully add.

98. I therefore now turn to the question of whether the award should be set aside as being disproportionately high. I will start by making a simple comment. In my view this was an extremely serious libel. It is important to consider the context in which the offending article came to be written. First of all the Moriarty and Flood Tribunals were hitting the headlines. Payments to politicians were being investigated. It would be a gross understatement to say that in the mind of the public there was a sniff of corruption in the air. Indeed as McGuinness J. pointed out when conducting the trial and in reference to some discussion about a particular question that was being asked, even payments by companies to political parties were at that stage becoming tainted with corruption in the minds of the public. But the public for the most part would have no knowledge as to the character of Mr Denis O’Brien the Plaintiff/Respondent in this case. Yet at the same time he was well known as a new emerging and major figure in the business world having regard in particular to the considerable controversy surrounding the granting to companies promoted by the Plaintiff of relevant land line and mobile telephone licences placing him through his companies as effectively the only competition to the then Telecom Eireann. These licences were granted by the then Minister

99. Mr Lowry although there were much larger international companies which had applied for the licences. No matter how many enquiries or investigations there may have been into the granting of these licences and upholding their propriety the Plaintiff who was a relatively “unknown quantity” in the eyes of the public was clearly vulnerable to attacks on his character.

100. Secondly the offending article was published at a stage when the Plaintiff was in the United States of America making exhaustive efforts with different financial institutions to raise the funds necessary for the appropriate investment in the telephonic enterprise. The Plaintiff explained in evidence (which I must assume was accepted by the jury) that he was extremely upset at hearing from Dublin about the questions he was being asked and the obvious intention to write an article and that this upset particularly related to the business sensitivity involved at that time when he was trying to raise money. It is true of course that the evidence established that his business was progressing successfully. But at Question 233 counsel for the Defendants/Appellants suggested to the Plaintiff “quite specifically” that the article had had no effect whatsoever on the growth of his projects and the expansion of his business. The Plaintiffs answer was as follows:

101. It was suggested to the Plaintiff that the Irish Mirror did not have a large circulation and that at any rate the type of person that he would be dealing with in business etc. would not be a reader of that paper. I do not find this argument very convincing though I do accept of course that circulation is a factor which may be relevant in the assessment of damages in a libel action. But as Mr Cooney pointed out in cross-examination and with which I agree the

102. It is true that only part of the article is contained in that front page but if the natural temptation of the browser to say nothing of the buyer of the paper to turn to page 3 was succumbed to it is clear that there were references not merely to the radio licence but to what to my mind was a much more serious matter, the Esat Digifone competition. One of the questions which had been put to the jury by the trial judge was the following:

103. The jury answered that question as it did to the other four in the affirmative. It is important at this stage again to recall that at the time the article was published the Plaintiff was engaged in the difficult round of negotiations with financial institutions with the crucial aim of raising the necessary investment. I suspect the jury took the view that such an allegation coming at

104. I have already referred in part to the wider circulation that such an article would have than merely the sales or readership figures of the Irish Mirror might suggest. The Plaintiff himself laid emphasis on the damage to his reputation among his workforce. But there is a still more important factor to which quite clearly from the transcript the Plaintiff attached very considerable significance. As he explained, if you are a “player” in the business or financial world and are trying to attract international investment what is said about you or your companies on the Internet obviously assumes considerable importance. He gave evidence to the effect that there were agencies which gathered newspaper clippings about business enterprises all round the world and that these can very easily find their way into the Internet so that they are read by any person looking into or investigating the enterprise concerned. Counsel for the Defendant/Appellant Mr MacMenamin put it to the Plaintiff that the article was “not even on the Internet” . The Plaintiff was unable specifically to answer the question but he pointed out that there are different data bases for different articles. The trial judge McGuinness J. intervened to ask Mr MacMenamin whether when Mr MacMenamin was suggesting that it was not on the Internet did he simply mean that it was not on the Mirror website. Mr MacMenamin confirmed that that was what he was suggesting namely that it was not on the Mirror website. The Plaintiff when he heard that went on to explain that he did not think the business community looked at the Daily Mirror but that there were newspaper clipping services that go through every newspaper and every article produced all over the world so that when a potential investor goes and looks up the word “Esat” as he put it “the Daily Mirror, the Guardian, the Irish Times, the New York Times all come together.”

105. Finally towards the end of the cross-examination of the Plaintiff Mr MacMenamin put to him that so far as the level of investment and borrowings are concerned in his various enterprises, that continues unimpeded. The Plaintiff agreed with that. He was then asked whether he had no abnormal anxieties on that score. He answered that he had many anxieties but he was again asked whether he had any abnormal anxieties and his answer to that was as follows:-

106. Given the context in which the libels were published and the contents of the libels the question arises is the award so high that it ought to be set aside? Various formulations of words have been used by appellate Courts in Ireland and England as to when an appellate Court in a libel action can interfere with a jury award. Although the language is sharper and stronger in some cases than in others I am not sure that there was ever any intended difference and I am inclined to think that the form of words adopted by Henchy J. in Barrett v Independent Newspapers Limited [1986] IR 13 is the most helpful. The learned judge stated as follows:

107. One point of interest about this statement of principle is that it is not confined to damages for libel. It is intended as a principle to apply to compensatory damages in all cases. This might at first sight seem difficult to reconcile with the many judicial dicta to the effect that appellate courts will be extraordinarily reluctant to interfere with jury awards in libel actions. Indeed in the Barrett case Finlay C.J. said the following:

108. There is no dissent from this view in the judgment of Henchy J. and I doubt very much that the two judges were intending to say anything different. The true principle would seem to be that in all cases of compensatory damages whether in libel or in personal injuries or otherwise an appeal court will not interfere merely because its own judges thought the award too high. The court will only interfere if the award is so high that it is above any figure which a reasonable jury might have thought fit to award. But although that principle is the same in all cases of compensatory damages, the application of the principle will necessarily be different in the case of libel from the case of personal injuries. In the case of personal injuries an appeal court can determine with some confidence what would be the range of awards which a reasonable jury (or nowadays a reasonable judge) might make. This the appeal court can do because although every personal injury case is different from every other personal injury case there are also great similarities. A broken hip case relates to some

109. It is I think relevant also to cite the passage from the same speech referred to in the written submissions of Counsel for the Plaintiff and Respondent:

110. Unlike personal injury cases every libel action is completely different from every other libel action and therefore the guidelines available to an appeal court in settling the reasonable parameters of an award are much more limited.

111. As the Chief Justice has pointed out, one such guideline may well be previous awards approved of by the Supreme Court. But I think that there are problems about over reliance on that criterion. One of the arguments of Hamilton C.J. in his judgment in the De Rossa case against a practice of counsel and the trial judge analysing other comparative libel actions when comparing the awards in them was the sheer practical difficulty of comparison. Before one begins to consider De Rossa or any other comparison it is important in my view that the Supreme Court should thoroughly consider the case before it in isolation of comparisons. If for instance the De Rossa case had never occurred, the mind set of this Court might be very different in viewing the claim of the Plaintiff Mr O’Brien. I have already given reasons why in my view the libels in the offending article were extremely serious from the point of view of the Plaintiff I have little doubt that if it was not for De Rossa , I would have no hesitation about leaving the jury award stand even though it is more than I personally would have awarded. But having regard to the diffidence with which an appeal court should approach the possible setting aside of a jury award in a libel action, I could not have formed the view that the jury award was beyond reason. In addition to the points which I have already made I think it relevant also to observe that no apology was made at any stage and that the jury may well have taken the view and could legitimately have taken the view that the article was very carefully crafted both to hint at wrongdoing on the part of the Plaintiff and thereby titillate the public while at the same time engage in a damage limitation exercise with a view to avoiding libel. If the newspaper did adopt this exercise it was unsuccessful but it would have been

112. Interestingly in the course of the opening of the case by Mr Cooney Counsel for the Plaintiff, he referred to the fact that the readership of the Irish Mirror in June 1998 varied between 180,000 and 195,000 people. Exception was taken by Mr MacMenamin Counsel for the Defendants to these actual figures being given to the jury because as he put it “in my respectful submission, that is an attempt by the back door to place numbers into the minds of the jury as regards a level of damages, and I take great exception to that.” Mr Cooney in response commented as follows:

113. It would be unfair to draw any inference from this little bit of unusual dialogue that Mr Cooney was conceding that figures in that order were excessive but even if such an inference could be drawn it would be irrelevant. For the very same reason that it is difficult for an appeal court to arrive at a correct level of damages for libel it is almost impossible for counsel for the Plaintiff to make any worthwhile prediction.

114. As I have already indicated, I have come to the conclusion that if I do not have to consider De Rossa I would not concur with this Court interfering with the award. However De Rossa undoubtedly presents problems. As the Chief Justice has pointed out, the £300,000 awarded in that case was the highest in this jurisdiction to be approved by the Supreme Court.

115. He has also summarised in his judgment the extremely serious allegations which were made against the prominent politician Mr Proinsias De Rossa. The Chief Justice has clearly taken the view that the defamation in this case was much less serious and that the discrepancy is so great that if £300,000 was considered by the Supreme Court to be about the most that could have been allowed in De Rossa £250,000 cannot be allowed for Mr O’Brien.

116. I take a somewhat different view. It would seem to me that the two cases are so completely different that worthwhile comparisons are not achievable. It is impossible to know what were the aspects of each individual case to which the respective juries attached importance. I think that in comparing the two cases (if such comparison is relevant at all) one must take serious account of the fact that the allegations in the De Rossa case were essentially all past history. On the other hand the allegations in Mr O’Brien’s case related to his more or less current behaviour. Secondly Mr De Rossa was extremely well known to the public and even in the eyes of his political opponents he had a fine reputation as a parliamentarian. In one sense given his publicly established good reputation it could be argued that it was all the more serious that that should be dented by allegations relating to an alleged criminal and murky past. On the other hand it could also be argued that while the damage was serious and would have to be compensated on a serious basis there would be no substantial danger of permanent injury to his reputation it being so public and well established. Mr O’Brien by contrast was not well known to the public and yet was sufficiently well known as somebody involved in controversy. There would have been no knowledge at all virtually as to his good or bad character and he was at the time of the libels in the process of raising funds for the most important business venture that he had been engaged in. The innuendoes against his good character were liable to be published across the Internet. As a major new entrepreneur on the Irish scene his reputation in the eyes of both the business world and the public in

117. In all the circumstances therefore I would dismiss the appeal.

118. In relation to the cross-appeals I agree with the judgment of the Chief Justice that the cross-appeal in respect of the issue of punitive or exemplary damages should be dismissed for