Supreme Court of Ireland Decisions

1. The plaintiff in this case is and was at all material times a Detective Superintendent in the Garda Síochána. On the 31st May 1998, the defendants published an article in the Sunday Tribune which purported to give an account of some of the circumstances surrounding a shooting incident which occurred when the County Registrar for Cavan, Mr. Thomas P. Owens, and two of his

2. The article was headed:

3. The article went on to refer to a so1icitor’s letter, which it said had been seen by the newspaper in which he informed gardaí that the occupant of the house, Gerrit Isenborger, had “an array of firearms” in his possession and asked that his house be searched. The letter said that this had been sent by solicitors acting on behalf of the owner of the house and that after the incident the gardaí recovered five rifles, a handgun and a bayonet from the house. It also said that the owner of the house had alleged that Mr. Isenborger had blackmailed him and threatened him over the phone. The article said that Garda Headquarters had issued a short statement saying that they would not comment on the matter at this time but that a spokesman for the solicitors had

4. The article added that the spokesman for the solicitors had said that the letter had been acknowledged by the gardaí but they had refused to explain why they had never acted on it.

5. The plaintiff who was, at the time of the shooting incident, the Superintendent in charge of the district in Cavan in which it occurred, issued proceedings against the defendants claiming damages for libel. It was alleged in the statement of claim that the article meant and was understood to mean inter alia

6. The plaintiff claimed that these words were greatly damaging to his reputation and that he had been brought into public scandal, odium and contempt.

7. In their defence, the defendants denied that the plaintiff was identified by the article in question and also pleaded justification and fair comment.

8. The action was tried in the High Court by Kearns J and a jury. The following questions were left to the jury

9. The jury answered the first question in the affirmative and, accordingly, judgment with costs was entered for the defendants.

10. The defendants have now appealed to this court seeking an order that the judgment dismissing the plaintiff’s claim be set aside and directing a retrial on all issues. The grounds of appeal can be summarised as follows:

11. The circumstances giving rise to the first ground of appeal are as follows. At the outset of his cross-examination of the plaintiff, counsel for the defendants referred to an answer the plaintiff had given in the course of his direct evidence, to the effect that he wanted “an apology among other things”. After the plaintiff had been pressed as to what the “other things” were, the questioning continued as follows: -

12. At that stage, counsel for the plaintiff intervened and indicated that he wished to raise a matter in the absence of the jury. The jury having retired, counsel submitted that, while he accepted that in any libel action it was permissible to call evidence that the plaintiff has recovered damages in respect of the same or a similar libel, it was not permissible to ask the witness whether he had sued in respect of any other matters. 1-le said that it was a plain invitation to the jury to treat the plaintiff as a “trigger happy enthusiast for taking libel actions” and, accordingly, could be seriously prejudicial to the plaintiff, while at the same time not being relevant to any issue which they had to decide.

13. Counsel for the defendant submitted that, in the light of the opening of the case by counsel for the plaintiff in which the latter was depicted as being reluctant to sue, he was entitled to draw the attention of the jury to the fact, if it were the fact, that the plaintiff had not exhibited a similar reluctance on

14. Having heard the submissions of counsel, the trial judge ruled as follows:

15. The cross-examination then resumed as follows:

16. Counsel then elicited from the plaintiff that he had received damages of £25,000 for the first libel, £18,000 for the second and £20,000 for the third

17. In his closing address to the jury, counsel for the defendants said:-

18. At a later stage in his address, counsel returned to this theme:

19. On behalf of the plaintiff, Mr. Paul O’Higgins, S.C. submitted that the questions which counsel for the defendants was permitted to ask in relation to other proceedings for defamation brought by the plaintiff were not relevant to any issue in the case, were seriously prejudicial and should not have been admitted. He said that the evidence was not relevant to the pleas of justification and fair comment or to the meaning to be attached by the jury to the article.

20. As to the possible relevance of the questions to the issue of mitigation of damages, Mr. O’Higgins submitted that the nature of the evidence which the defendant was entitled to call in mitigation of damages was set out at para. 33.25 and the following paragraphs in Gatley on Libel and Slander (9th edtn.) and was confined to the following six matters:

21. He submitted that the evidence sought to be elicited by cross-examination did not relate to any of these matters. Moreover, the exception permitted by s. 26 of the Defamation Act, 1961, under which the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages or has brought actions for damages for libel or slander in respect of the publication of words to the same effect, would be superfluous, if, as contended for on behalf of the defendant, the defendant was in any event entitled to adduce evidence of previous proceedings for defamation, whether arising out of the same or another alleged libel.

22. Mr. O’Higgins further submitted that the rationale for pursuing this line of questioning proffered to the trial judge, i.e. that the defendants were not seeking to adduce any evidence but were merely cross-examining the plaintiff, as they were entitled to do, was specious. If the party being cross-examined gives truthful answers to the questions which he is being asked, as he is obliged to do, his answers will then be evidence which the jury will be entitled to take into account and it is immaterial whether that evidence is directly adduced by the defendants or elicited by them in cross-examination.

23. As to the trial judge’s ruling that the questioning was admissible as going to the credit of the plaintiff, Mr. O’Higgins submitted that this was clearly wrong. The purpose of cross-examination as to credit was to undermine the credibility of a particular witness so that, in a case such as the present, the jury would be slow to accept either his assertions or his denials. Since, however, the plaintiff had never claimed that this was the first proceeding he had taken for defamation, eliciting from him the fact that he had instituted such proceedings could not conceivably go to his credit, unless it was suggested that the mere fact of the institution of proceedings was of itself discreditable, which clearly was not the case.

24. On behalf of the defendants, Mr. Seán Ryan, S.C. submitted that the questions were clearly relevant to the assessment of damages, since the jury were entitled to have regard to the effect of publication on the plaintiff and, in considering that aspect of the case, were entitled to know that the plaintiff had instituted proceedings for defamation on a number of previous occasions and that, accordingly, being involved in such litigation would not have been as traumatic for him as the jury might otherwise have thought. In this context, Mr. Ryan said that it was noteworthy that counsel for the plaintiff had dwelt in his opening address on the damaging effect the publication of the alleged libel had on the plaintiff.

25. Mr. Ryan further submitted that there was no legal prohibition against asking questions as to previous claims for libel and that s. 26 of the Defamation Act 1961 could not be read as, by implication, prohibiting such questioning.

26. In the alternative, Mr. Ryan submitted that the questioning did go to the credit of the plaintiff and that the trial judge was correct in so holding.

27. Order 36, Rule 36 of the Rules of the Superior Courts provides that

28. Since that rule is applicable only where justification has not been pleaded, it might be thought that it has no relevance where, as here, justification was pleaded. That, however, is not necessarily the case. In Plato Films Limited .v. Speidel [1961] AC 1090, Lord Denning commented as follows on the corresponding English rule:

29. However, it was acknowledged in Plato Films Limited .v. Speidel , where the law lords declined an invitation to review the decision in Scott .v. Sampson that it was sometimes difficult to draw the borderline between evidence of general bad reputation and evidence of specific misconduct which has led to it. Moreover, in Goody .v. Odhams Press [1967] 1 QB 333, it was held that evidence of previous convictions for certain offences was in a different category from evidence of specified acts of misconduct which had not resulted in convictions.

30. It should also be said that the law in Ireland on this difficult topic cannot be regarded as settled beyond doubt. In Kavanagh .v. The Leader , (decided by the former Supreme Court on the 4th March 1955 and still astonishingly

31. I have considered at some length the law on this topic because, while there may indeed be cases where a rigid application of the rule in Scott .v. Sampson might lead to the exclusion of a specific act of misconduct which would be plainly relevant in establishing that the plaintiff was claiming damages to a reputation which he did not have, the reasons which have led the courts both here and in England to lean against the introduction of evidence as to specific acts of misconduct in mitigation of damages would also point to the exclusion of evidence that the plaintiff has instituted in the past proceedings for defamation arising out of other publications relating to wholly different

32. This must apply with even greater force where the acts of which evidence is sought to be given, i.e. the institution of other proceedings for defamation, are not of themselves discreditable. The defendants, as I have said, have sought to meet that difficulty in the present case by claiming that the evidence was being introduced, not in relation to the reputation of the plaintiff, but to the injury and distress which the publication had caused to him personally.

33. That, of course, is undoubtedly one of the matters which the jury is entitled to take into account in assessing the damages in an action for defamation, But it would be anomalous, in my view, if a defendant were to be,

34. That conclusion seems to me to be strongly reinforced by the provisions of s. 26 of the Defamation Act 1961. Under that provision (which is in identical terms to s. 12 of the English Defamation Act 1952).

35. The reason for this provision is obvious. It would be clearly wrong that a jury should be required to assess damages for a libellous publication without being aware that the plaintiff had already been compensate in respect of virtually the same libel, although appearing in another publication. However, if

36. It is, of course, possible for either the draftsman of legislation or parliament in its collective wisdom to legislate under a misapprehension as to the state of the existing law. But it seems to me that the provision in question is a clear indication that the generally accepted view of the law at the time of the enactment of the English provision, on which s. 26 of our Act is based, was that such evidence was not in general admissible.

37. It remains to be emphasised that, as I have already indicated, no useful comparison may be drawn, in this context with the conduct by a trial judge of actions for personal injuries. In such cases, evidence of previous proceedings instituted by the plaintiff is frequently relevant under two headings. First, the defendants may be contending that there is some overlap between injuries he sustained in a previous accident and for which he has already been

38. The alternative ground - and the one which found favour with the trial judge - on which the defendants sought to justify the cross-examination question was that it went to credit. I am satisfied that this ground also is unsustainable. The purpose of cross-examination as to credit is to undermine the credibility of a particular witness, and, in a case where the plaintiff had not suggested in any way in his direct evidence that this was the first proceeding he had brought for defamation, eliciting from him that he had in fact instituted such proceedings could not in any way affect his credibility. Again, it would be remarkable if a defendant would be precluded from cross-examining as to specific acts of misconduct, but could be allowed, under the guise of a cross-examination as to credit, to introduce evidence of conduct which could not be said to be, of itself, discreditable.

39. I am satisfied that the trial judge erred in law in permitting cross-examination on matters which were not relevant to the assessment of damages or to credit, but which could have been seriously prejudicial to the

40. The other grounds of appeal relied on may be disposed of more shortly.

41. It was urged that the trial judge should have directed the jury that the plaintiff could not as a matter of law have issued a search warrant or similar order on foot of the letter sent to him by the solicitor. Alternatively, it was submitted that he had failed adequately to direct the jury as to the considerations to be taken into account by them in arriving at a conclusion as to whether the plaintiff could have issued such a search warrant or search order.

42. The plaintiff in evidence said that he could not act on foot of the letter in question by issuing a search order himself under the relevant legislation or have applied to the District Court for a search warrant because he was unable to assess the reliability of the information he had been given. It was for that reason, it was said, that he immediately wrote back to the solicitor to ascertain what substance there might be in the earlier letter.

43. All these matters were fully debated in front of the jury. It was not in issue that, whatever might have been the legal capacity or incapacity of the plaintiff to issue a search order himself, there was nothing to prevent him from applying to the District Court for a search warrant and inviting the District Judge to issue such a warrant on the basis of the information contained in the letter from the solicitor. It was entirely a matter for the jury to consider whether, in those circumstances, the plaintiff had neglected to take steps which might have averted the shooting incident which subsequently took place. I am satisfied that the trial judge instructed the jury perfectly adequately in relation to all these matters and that this ground of appeal must fail.

44. The second ground of appeal was that the trial judge had failed to put the case made by the plaintiff to the jury. In particular, he is criticised for having reminded the jury of the significance they could attach to the fact that the plaintiffs information as to the possible possession by the occupant of the house of a range of lethal weapons had been transmitted to him by a solicitor, who might be presumed to be a responsible person, and that, in those circumstances, the jury might conclude that the plaintiff should have given more weight to it than he in fact did. I am satisfied that the trial judge was perfectly entitled to draw the attention of the jury to aspects of the evidence which seemed to him to be of importance when they came to consider their

45. The next ground was that the trial judge had failed adequately to direct the jury following the asking by the foreman of the jury of questions prior to their retirement. The foreman of the jury had pointed out that no witnesses had been called for the defendants and he asked whether it was possible for counsel for the plaintiff to call witnesses from the defendants. The trial judge in response had pointed out that it was possible for the plaintiff s advisers to have subpoenaed witnesses from the defendants, but that this would have presented them with the difficulty that they would be unable to cross-examine those witnesses. That seems to me to have been a fair and adequate response to the question put by the foreman and I am satisfied that this ground has not been made out.

46. Finally, it was submitted that the trial judge had intervened in the cross-examination by counsel for the plaintiff of the solicitor at what was described as “a critical juncture” in such a way as to deprive the cross-examination of its force. While I would have no hesitation in accepting

47. For the reasons stated, I am satisfied that the trial judge was wrong in law in permitting the cross-examination by counsel for the defendant of the plaintiff as to previous proceedings for defamation instituted by him. I would, accordingly, allow the appeal and substitute for the order of the High Court an order directing a new trial on all issues.