Supreme Court of Ireland Decisions

Cooper-Flynn v. R.T.E. & Ors [2004] IESC 27 (28 April 2004)

 
THE SUPREME COURT

Keane C.J.

Denham J.

M^cGuinness J.

Geoghegan J.

Fennelly J.

124/01

BETWEEN

BEVERLY COOPER-FLYNN

PLAINTIFF / APPELLANT

AND RADIO TELEFÍS ÉIREANN, CHARLIE BIRD AND JAMES HOWARD

DEFENDANTS / RESPONDENTS

[Judgments delivered by all members of the Court]

JUDGMENT delivered the 28^th day of April, 2004, by Keane C.J.

Introduction

This is an action for libel. It arises out of six television broadcasts by the defendants (hereafter "RTÉ") between 19^th June and 1^st July, 1998. In those broadcasts, it was alleged that the plaintiff / appellant (hereafter "the plaintiff"), a Dáil Deputy, when a member of the investment staff of National Irish Bank (hereafter "NIB"), had advised a retired farmer, not originally named, not to avail of the tax amnesty available at the time to taxpayers in default but to invest the monies in a scheme in the Isle of Man which would conceal its existence from the revenue authorities in this jurisdiction. The allegation was made in the course of news broadcasts and by the farmer concerned in interviews with the second named defendant. The retired farmer in question was identified as the third named defendant (hereafter "Mr. Howard") in a broadcast on 1^st July, 1998. The broadcast reported a denial by the plaintiff that she had ever spoken to the third named defendant or had any dealings or correspondence with him. In one of the broadcasts, the second named defendant said that, as part of their investigation, RTÉ had spoken to a number of customers of NIB who were brought into the same scheme by the plaintiff and had been told by her that the Revenue would never find out about their money in the Isle of Man.

The plaintiff having issued further statements in which she denied that she had ever encouraged either the third named defendant or anyone else to invest in financial products for the purpose of evading tax, correspondence ensued between the solicitors for the plaintiff, the solicitors for RTÉ and the second named defendant and the solicitors for the third named defendant. The plaintiff called upon RTÉ, the second named defendant and Mr. Howard to withdraw the allegations they had made, which each of them refused to do. These proceedings were then issued claiming damages for libel.

In the statement of claim, the transcripts of the broadcast in question were set out in full in the schedule. It was pleaded that the words meant, and were understood to mean, that the plaintiff had advised and encouraged Mr. Howard and other unnamed persons to evade tax and that inter alia she was a dishonest person who was not fit to be a member of Dáil Éireann. In their defence, RTÉ and the second named defendant denied that the words complained of were defamatory of the plaintiff. It was further pleaded, however, that insofar as they meant or were understood to mean inter alia that the plaintiff had advised and encouraged Mr. Howard to invest monies which had not been declared to the Revenue Commissioners and had assured other persons whom she was advising to invest in the scheme that the investments would remain hidden from the Revenue, the words were true in substance and in fact. It was further pleaded on their behalf that, insofar it was necessary for them to do so, they would rely on the provisions of s. 22 of the Defamation Act, 1961. The defence delivered on behalf of the third named defendant similarly denied that the statements attributed to him bore the defamatory meaning alleged, but pleaded that, insofar as they meant, or were understood to mean, that the plaintiff had advised and encouraged Mr. Howard to invest monies which he was aware had not been declared to the Revenue Commissioners and that she had assured Mr. Howard that the latter would never find out about such investments, the words complained of were true in substance and in fact. The third named defendant also relied on the provisions of s. 22 of the Defamation Act, 1961.

Particulars of the plea of justification in the defence of Mr. Howard were sought on behalf of the plaintiff. In the reply, it was stated that the facts relied upon were as set out in the defence. Shortly before the beginning of the trial, further particulars were delivered in which it was made clear that the defendant would rely in addition upon inter alia the dealings between the plaintiff and other customers of NIB.

The trial began before Morris P. and a jury on the 6^th February, 2001. During the course of the trial, the trial judge ruled that Mr. Howard was confined to the plea of justification in the defence and that he was accordingly restricted to relying upon the dealings between himself and the plaintiff.

The provisions of s. 22 of the Defamation Act, 1961 which, as already noted, were relied upon in both the defences, were the subject of much argument both at the trial and on the hearing of the appeal. The section provides that

"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 proved, 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."

While it had been pleaded in both defences that the words complained of did not bear the defamatory meanings attributed to them by the plaintiff, that defence was not relied on at the trial and much of the evidence adduced at the trial related to the pleas of justification relied on in both defences. In addition to the plaintiff, the second named defendant and Mr. Howard, a number of other witnesses gave evidence at the trial, including four customers of NIB who gave evidence on behalf of the defence that the plaintiff had encouraged them to invest in the Isle of Man Scheme and had assured them that the existence of the monies invested by them in the scheme would never become known to the Revenue Commissioners. Evidence was also given by tax experts and by officials, or former officials, of NIB.

The case was at hearing for 29 days. At the conclusion of the evidence, the following questions were left by the trial judge to the jury:

"(1) Have the defendants proved that the plaintiff induced [Mr. Howard] to evade his lawful obligation to pay tax by not availing of the tax amnesty?

If the answer is "NO" proceed to question 2. If the answer is "YES" proceed no further.

(2) Have the defendants proved that the plaintiff advised or encouraged other persons – being those referred to in the evidence – to evade tax?

If the answer is "NO" proceed to question 4 to assess damages. If the answer is "YES" proceed to question 3.

(3) In view of the finding to question 2, has the plaintiff's reputation suffered material injury by reason of the matters published relating to [Mr. Howard]?

(4) If the answer to question 1 and 2 is "NO" assess damages.

(a) General damages _________________

(b) Aggravation of such damages _______________

(c) Total _______________

(5) If the answer to question 1 is "NO" and to questions 2 and three is "YES" assess damages to the material injury to the plaintiff's reputation

(a) General damages ___________________

(b) Aggravation of such damages ________________

(c) Total _________________"

The jury answered the first question "NO", the second question "YES" and the third question "NO". Although in the form in which it was presented to them, it did not appear that any answer was accordingly required to either question 4 or 5, following a brief discussion with the trial judge they answered question 5 as follows:

"(a) General damages: NONE

(b) Aggravation of such damages: NONE"

The defendants were awarded the costs of the action against the plaintiff.

The plaintiff has now appealed to this court and, on the hearing of the appeal, has confined the relief she seeks to an order directing a new trial of the proceedings and an order setting aside the order of costs in favour of Mr. Howard. While a considerable number of grounds were contained in the notice of appeal, those on which the plaintiff relied at the hearing, apart from the ground relating to costs, were as follows:

(1) The trial judge erred in law and in fact in allowing RTÉ and the second named defendant to introduce into evidence, and cross-examine the plaintiff on, documents which were not admissible, contrary to the rules of evidence, were of no probative value and were gravely prejudicial to the plaintiff.

(2) The trial judge erred in law and in fact in allowing Mr. Howard to rely upon questions 2 and 3 and thereby to rely upon the contention in support of his justification plea that the plaintiff advised or encouraged persons other than Mr. Howard to evade tax, whereas he ought properly to have formulated the questions so as to direct the jury to assess damages against Mr. Howard if the answer to question 1 was "NO".

(3) The trial judge erred in law and in fact in

(a) permitting counsel for RTÉ and the second named defendant to requisition him on the morning of day 28 in respect of matters on which he had already ruled in response to their requisitions on the previous afternoon;

(b) giving a second charge to the jury on day 28, immediately before the jury retired to consider its verdict, which was, it was said, wholly one-sided in favour of the defendants, destroyed the balance of the charge and was gravely unfair and prejudicial to the plaintiff,

(c) put to the jury, in the course of his second charge, matters allegedly relating to the credibility of the plaintiff which were not in accordance with the evidence and which had not been put to the plaintiff during the course of her evidence.

(4) The trial judge erred in law and in fact in

(a) failing properly or adequately to direct the jury on the issue of majority voting having regard to the questions put to it;

(b) directing the jury that, where there was a majority of them in favour of the plaintiff on question 1, all twelve members of the jury should go on to consider question 3 when it should only have been those who found in the plaintiff's favour on question 1.

Events at the trial

The first ground of appeal essentially related to a document which came to light as a result of third part discovery made in the proceedings by NIB. This document was in the form of a memorandum dated the 30^th July, 1990 and signed by Mr. Patrick Cooney, who was at the time in charge of the Financial Advice and Services Division of NIB of which the plaintiff was a member. The first paragraph read

"Just a brief note to accompany this month's investment bulletin on funds which we should be concentrating on at present."

The second last paragraph read

"Finally, we have the people who have money invested offshore already or whose money is 'hot'. In this scenario, we should in almost all cases, direct the monies into our new bond, 'The Emerald International Portfolio', which is a combination of the above funds."

Counsel for RTÉ and the second named defendant indicated, in the absence of the jury, that he proposed to put this document, together with other documents, to the plaintiff in cross-examination. It was submitted that the document appeared to have been addressed to the plaintiff and that, if she denied having received the letter, she would be cross-examined on the basis that she was not telling the truth. It was further submitted that in any event the letter was admissible as to the policy within the bank as to how the particular scheme was to be sold and that the author of the document had been subpoenaed and would be called to give evidence in relation to the letter. Counsel for the plaintiff objected to the plaintiff being cross-examined in relation to the letter, but the trial judge ruled that it was admissible.

On day four of the trial, counsel on behalf of the defendants cross-examined the plaintiff about this letter. Copies having been distributed to the jury, he read the entire letter and asked the witness whether it had gone to her. She said that she had never received it, but agreed that it might well have been addressed to the five people who were selling products for and on behalf of the Financial Services Division and that she had been engaged in selling the products identified by Mr. Cooney. She said that the expression "hot" had two meanings for her: it meant either undeclared money or a person who was "hot" for investment or a pension, "somebody basically who is about to do the business".

Counsel then proceeded to move to another topic, and counsel for the plaintiff inquired whether he was going to put to the witness what Mr. Cooney would say about the letter. Counsel responded that Mr. Cooney had been subpoenaed to give evidence and that he would be called in relation to the matter. He also said that Mr. Cooney, as he was entitled to do, had chosen not to speak to the plaintiff's counsel.

The author of the letter, Mr. Patrick Cooney, gave evidence on day 20. He said that the letter had not been sent out because, before the investment bulletin had been completed, the invasion of Kuwait by Iraq began and a period of turmoil followed in the stock markets. He accordingly left the letter on the file. In the absence of the jury, counsel on behalf of the plaintiff submitted that, in the circumstances, the letter should be withdrawn from the jury and they should be directed that they were no longer to pay any regard to the letter. Counsel for the plaintiff submitted that his obligation was to prove the letter which he had done. He further submitted that he was entitled to ask the witness whether the letter reflected a practice in operation in the section of NIB in which the plaintiff worked.

The jury having returned, the trial judge said that he wanted to warn them "in the strongest possible terms" that, although the plaintiff had been cross-examined on the basis that she had received the letter, they should consider the cross-examination in the light of the evidence now before them that she had never in fact received the letter. Mr. Cooney then resumed his evidence and said in answer to counsel for the plaintiff that the reference to "hot money" in the letter was to money which was held by people who were keen to invest.

During the course of the trial, four persons who had been customers of NIB gave evidence as to their dealings with the plaintiff. They were Patrick Duff, Joy Howe, Seán Roe and Joan Quigley. The first said that in 1993, when he was considering availing of the tax amnesty, he was advised by the plaintiff that he should not and that if he invested the money in the Isle of Man no one would know about it. Ms. Howe said that the plaintiff advised her to put money in a numbered account on which her name would not appear and to which the Revenue Commissioners would not have access. Mr. Roe said that he had made a lot of money from repairing engines, but was uneasy about it, and was advised by the plaintiff to put it in an offshore account since that would mean that it would be tax-free. Ms. Quigley said that her husband had money in Newry which had not been declared to the Revenue and that the plaintiff advised her against availing of the amnesty but rather to invest the money in the Isle of Man Scheme. In her evidence, the plaintiff denied having given any advice of this nature to any of these persons.

In the course of his charge which began on the afternoon of day 27, the trial judge summarised this evidence and also referred to various criticisms which had been made on behalf of the plaintiff of the evidence in question. At the conclusion of his charge, Mr. Feeney S.C. on behalf of RTÉ and the second named defendant raised a number of requisitions in relation to the charge. As to the evidence to which I have just referred, he said that the trial judge, while highlighting the criticisms which had been made on behalf of the plaintiff of that evidence, had made no reference to the criticisms which had been made on behalf of his clients of the plaintiff's evidence in relation to the same matters and that, in the result, the charge was seriously unbalanced in favour of the plaintiff. The trial judge, having heard the various requisitions by counsel in relation to the charge, indicated that he would recall the jury in relation to some of them, but he would not do so in relation to the matters to which I have just referred. However, the following morning, on day 28, having heard further submissions from Mr. Feeney in the course of which he suggested to the trial judge certain specific matters in favour of the defendants to which he should draw the jury's attention, the trial judge gave the jury further directions during the course of which he drew the attention of the jury to the matters in question, while making it clear that he was doing so at the instance of counsel for RTÉ and the second named defendant.

In the course of his charge on day 27, the trial judge, in dealing with the question of a majority verdict, said

"… I want to deal with the way in which your vote, if it comes to that, will be dealt with. You decide the case either unanimously or on a majority verdict. You may, ladies and gentlemen of the jury, lose three of your members and yet come up with a majority verdict. So that if nine of you decide one way or the other, the other three's vote is rejected and the decision is come to on a majority.

"Now I want to give you a very important direction in this regard. Assume for the moment that three of your members when you are coming to decide on the liability issue should decide to vote against [the plaintiff], decide that she is not entitled to win, now those three must stand back from the assessment of damages because that makes sense when you consider it, that if those three people felt that she wasn't entitled to win, it may well be that their vote would pass on into the assessment of damages and they might well say something like this:

'Well, she wasn't entitled to damages in the first place anyway so I am going to give her the miserable award as follows.'

Therefore, if you are deciding on a majority of nine, ten, eleven the people that you lose at the early stage on the liability issue stand back and do not enter into any debate on the assessment of damages."

At the conclusion of the charge that evening, Mr. Feeney, in raising requisitions to the charge, said

"I would have thought if the nine jurors answered the first question 'NO' it is the same nine jurors who should deal with the second question as well and I did not think that it entirely clear from Your Lordship's direction. I think it is correct if you answer the first question 'YES', if nine jurors answer the first question 'NO', I would have thought it makes logical sense that the same nine should proceed to deal with question 2. It would be against my interest to say this, but I think that is the logic which has been followed in previous [sic], given that the three who have answered the first question have effectively identified that the plaintiff should lose the case."

In his ruling on the requisitions that evening, the trial judge made no reference to that requisition. The following morning, however, Mr. Feeney returned to the matter and indicated that he now took a different view. He said

"The infirmity that one is aiming to protect against is damages being dealt with by people. What I think is all twelve must be allowed to answer questions 1 and 2 and when it comes to damages, all nine must be in agreement in relation to questions 1 and 2.

Mr. Justice Morris: Yes

Mr. Feeney: I think that is the simple proposition. In other words, there is no reason in principle why if somebody has dealt with the factual determination in one, because the second one is a separate and stand alone one, that they should not as a jury be allowed to deal with it.

Mr. Justice Morris: Yes, and subject to anything [counsel for the plaintiff] says I think that is correct."

Counsel for the plaintiff, in the course of a lengthy response to the further requisitions being raised by Mr. Feeney that morning, said in relation to this matter:

"The only other point I want to mention to Your Lordship is that I accept what Mr. Feeney does say in relation to the 9:3 point, the housekeeping point that he raised at the outset. I have no difficulty in that regard and I would accept his submission in that regard."

The jury retired to consider their verdict at 11:44 a.m. They returned at 3:59 p.m., when the foreman handed a note to the trial judge. The following exchanges ensued:

"Mr. Justice Morris … The note reads as follows:

"To the judge, on question 1 – 3 we are seeking clarification regarding the definition of majority in this case."

Is that correct?

Foreman of the jury: Yes.

Mr. Justice Morris: Am I understanding you correctly, you want to know the circumstances in which a majority decision can be accepted?

Foreman of the jury: Yes.

Mr. Justice Morris: Very good. First of all, on question No. 1, I do not think there could be any mystery about that. I think the question is:

"Have the defendants proved that the plaintiff induced [Mr. Howard] to evade his lawful obligations to pay tax by not availing of the tax amnesty?"

Now three of you ladies or gentlemen can disagree with the other nine. Taking an example, supposing that nine of you, and I am only taking this as an example, you understand me, supposing nine of you felt that the defendants had not proved that to your satisfaction but three of you were of a different opinion, in those circumstances the question is have the defendants proved that the plaintiff induced [Mr. Howard] to evade his tax obligations and supposing, as I say, that nine of you decided that they had not proved that, the answer would be "NO" to the first. Now you have lost three of your members at this stage. Now you go to question No. 2. Those three ladies or gentlemen that you have lost can come back into play because that is a completely different question, a completely different question in the sense have they established that proof to your satisfaction in relation to the other four people. Now let us assume for the moment that you decided that they have not proved that, at that stage the plaintiff is succeeding on both of those cases. Now you are going on to assess damages. The damages that you will assess under question 4 will be assessed by the nine that voted in favour of the plaintiff all the way down. Do you understand?

Foreman of the jury: Yes.

Mr. Justice Morris: So as I explained to you yesterday afternoon, the reason for dropping the three that you have lost on the way is because those three voting against the plaintiff on the liability issue might make up their mind 'well, she doesn't deserve to get money anyway' and for that reason give her very low damages. So that is why you will drop the three that we have been talking about when it comes to assessing damages. Does that cover the point?

Foreman of the jury: Yes.

Mr. Justice Morris: Very good, thank you very much.

Mr. Feeney: Was the question in relation to question 3 or question 4 My Lord?

Mr. Justice Morris: 1 – 3.

Mr. Feeney: Because I think Your Lordship has dealt with 1, 2 and 4 but not 3. I am sorry.

Mr. Justice Morris: No, I am very grateful, Mr. Feeney. So I am going to deal with question No. 3 now …"

The trial judge then proceeded to explain the significance of question 3 to the jury, but without referring at any point to the majority that would be required for an answer to that question. The exchanges continued as follows:

Foreman of the jury: If it is a majority, can twelve of us decide question 3?

Mr. Justice Morris: Can the twelve of you decide it? Yes.

Mr. Feeney: I think it might be better if we mentioned it in the absence of the jury as to if there was, say, a 10:2 just as an example, on question 2, it might be desirable to hear the parties in relation to, if I am assuming if was a 10:2 in question 2, who are the parties that would participate in question 3?

Mr. Justice Morris: Mr. Foreman, ladies and gentlemen, accept my answer for the moment unless we send for you. Thank you."

The jury then left court and the exchanges between the trial judge and counsel continued as follows:

"Mr. Justice Morris: Mr. Feeney, before I hear you, and I am grateful for any guidance that any of the Bar have to offer, my thinking is this. The authorities as I know them have established that the only reason why you can't have someone who voted against the liability voting on the issue of damages would be that person might be, as I have said to the jury, prejudiced or, in other words, reluctant to give any worthwhile damages in view of his views on liability. I do not see any reason why he should not embark on a consideration of number 3. Does anybody disagree with that?

Mr. Feeney: I think there is a certain inherent logic to the extent that you are not asking them to assess damages, My Lord.

Mr. Justice Morris: That is encouraging indeed. Thank you, Mr. Feeney, I am so grateful.

Mr. Feeney: I do not want to in anyway …

Mr. Justice Morris: Very well. Unless anybody has any problem with that ruling, I will leave it stand.

Mr. Feeney: Is that there can be a 9:3 or a 10:2 majority?

Mr. Justice Morris: On questions 1 and 2 and yet have the twelve.

Mr. Feeney: Yes.

Mr. Mohan [for the plaintiff]: Yes, I agree to leave it at that.

Mr. Justice Morris: Thank you very much."

That concluded that exchanges between the trial judge and counsel on this topic. At 4:42 p.m., the jury returned, the foreman informed the judge that they had reached a verdict and the issue page was handed to the judge with the answers given as already indicated.

Submissions of the parties

On behalf of the plaintiff, Mr. Eoin M^cCullough S.C. submitted that the memorandum of the 30^th July, 1990 was clearly at best hearsay evidence of the practice alleged to be current in the Financial Advice and Services Division of NIB. He submitted that where, as here, counsel was not in a position to put it to the witness being cross-examined that the author of the document would say that it had been sent to her, he was not entitled to do any more than invite the witness to read the document without its being read in court. He would then have been entitled to ask her, in the light of the document, whether she was adhering to her evidence that she was not aware of any practice in her division of advising or encouraging customers to evade tax. He said that, if the plaintiff had refused to accept as true what the document purported to record, its contents could not have been evidence against her and a fortiori could not have been opened to or handed to the jury. He submitted that, having regard to the critical nature of this evidence, it was entirely wrong that the jury should have been aware of the contents of the letter from such an early stage of the trial. He cited in support of these submissions the statements of the law in Archbold on Criminal Pleading, Evidence and Practice (2003 Edition) at para 9.2, para 8.135 and paras 9.7 and 9.8, R. –v- Seaham 11.Cr. App. Reps, 13; R. –v- Gillespie & Anor 51 Cr. App. Reps, 172; R. –v- Morris Cross 91 Cr. App. Reps, 115; and the decision of this court in Moloney –v- Jury's Hotel Ltd., (unreported; judgment delivered 12^th November, 1999).

On behalf of RTÉ and the second named defendant, Mr. Feeney submitted that the document was in fact admissible in evidence, since it had been prepared by Mr. Cooney as a memorandum to be sent to the five financial advisors working in his department, including the plaintiff and he had also given evidence that the matters dealt with in the memorandum would also have been raised at meetings with the financial advisors. The jury had been fully and properly directed by the trial judge to consider the cross-examination of the plaintiff in the light of the fact that the memorandum had never been sent to her.

As to the form of the questions left to the jury, Mr. M^cCullough submitted that the trial judge was in error in drawing no distinction between the questions relating to RTÉ and the second named defendant on the one hand and Mr. Howard on the other hand. The trial judge had ruled that Mr. Howard was not entitled to rely on the dealings between the plaintiff and other customers in support of his plea of justification and it followed inevitably that he was not entitled to the benefit of an answer in the negative to question 3. He submitted that, the jury having found for the plaintiff in respect of question 1, it followed that the plaintiff was thereafter entitled to recover the appropriate damages as against Mr. Howard.

As to the submission that, in any event, Mr. Howard would have been entitled to rely on the plaintiff's dealings with other customers by way of mitigation of damage, Mr. M^cCullough submitted in the first place that it would have been necessary for him to plead an intention to rely upon such material, citing the decision of the House of Lords in Speidel –v- Plato Films Ltd. [1961] AC 1090 and of this court in Browne –v- Tribune Newspapers Plc. [2001] 1 IR 521, 530. He submitted, in the second place, that in any event this evidence was not directed to the plaintiff's general reputation, but rather was of specific acts of alleged misconduct and that, accordingly, Mr. Howard could not rely on the evidence under the rule in Scott –v- Sampson [1882] 8 QPT 49, which had recently been applied by this court in Browne –v- Tribune Newspapers Plc.. He accordingly submitted that, in the case of Mr. Howard, the plaintiff had succeeded in her claim and that it should be remitted to the High Court for an assessment of damages only.

On behalf of Mr. Howard, Mr. Paul O'Higgins S.C. submitted that, since the answer of the jury to question 2 meant that they had decided that the plaintiff had advised or encouraged persons other than Mr. Howard to evade tax, it followed that, even if Mr. Howard had failed in his plea of justification, any damages to which he was entitled were necessarily reduced to "vanishing point". Their answer to that question had as its inevitable consequence a finding that her reputation in the relevant area was of no value and she would have been entitled at best to contemptuous damages or no damages at all. He cited in support of this submission the decision of the House of Lords in Grobbelaar –v- Newsgroup Newspapers Ltd. [2002] 4 All ER 732.

As to the further directions given by the trial judge to the jury on day 28, following further submissions by counsel on behalf of RTÉ and the second named defendant, Mr. M^cCullough submitted that, in the first place, the trial judge had never indicated the basis on which he had decided to alter the ruling he had given at the close of the hearing on day 27 and that this procedure was unfair. He further submitted that there was a very serious risk that the jury would give undue weight to a charge made by a trial judge consisting entirely of criticisms of the plaintiff, given to them on a separate day and in isolation from any material to the opposite effect. He also submitted that, in the further directions given by him on day 28, he had not repeated the proper warning given by him to the jury on the previous day that the decision on the facts in the case was essentially one for them. Mr. M^cCullagh further submitted that the trial judge was in error, when giving the further directions in referring to two criticisms of the plaintiff's evidence in respect of matters which had never been put to her in cross-examination. He submitted that, in these respects, the fundamental requirement that a trial must essentially be, and appear to be, fair had not been met, citing the judgment of Henchy J. in this court in Kelly –v- The Board of Governors of St. Laurence's Hospital [1988] IR 402.

On behalf of RTÉ and the second named defendant, Mr. Feeney submitted that the trial judge had been in error in regarding his function, in relation to the evidence of the five persons who had said that the plaintiff advised or encouraged them to evade tax, as being fulfilled once he had told them what the witnesses had said and that the plaintiff denied their evidence and had reminded them of the criticisms advanced of that evidence. He submitted that the trial judge should also have reminded the jury of the countervailing criticisms applicable to the evidence of the plaintiff and that, had he not acceded to the submissions on behalf of his clients the following day, there would have been a substantial wrong or miscarriage in the trial. Mr. Feeney further submitted that the trial judge had made it perfectly clear that the further considerations he was directing their attention to on the morning of day 28 had been drawn to his attention by the respondents. He had, moreover, again expressly reminded the jury that the assessment of the facts was exclusively a matter for them. As to the suggestion that the trial judge had failed to direct the jury's attention to two criticisms of the evidence of one of the witnesses, Mr. Duff, Mr. Feeney submitted that the relevant aspects of the evidence had not been challenged on behalf of the plaintiff in cross-examination of Mr. Duff and there had been no reference by counsel on her behalf to these matters in his closing address to the jury. He said that it followed that, in these circumstances, there was no unfairness to the plaintiff in the manner in which the trial judge had dealt with these matters in his further directions to the jury on day 28.

As to the directions given by the trial judge to the jury on the majority required for the answers to the questions, Mr. M^cCullough submitted that these were clearly wrong. Section 95 of the Courts of Justice Act provided that in every trial of a civil action in the High Court before a judge and jury, a majority vote of nine of the twelve members was necessary to determine the verdict. It had been held by this court in Arnott –v- O'Keeffe [1977] IR 1, that this provision meant that, when the jury was operating on a majority vote of nine of the twelve members, the verdict should be that of a particular nine and that when the verdict depended upon the answers to several components of the verdict the answers in all cases must be those of the same nine. The trial judge was entirely incorrect in directing the jury that it was only in relation to the assessment of damages that a minority who had answered one or more of the earlier questions could not form part of the majority.

On behalf of the defendants, Mr. Feeney and Mr. O'Higgins submitted that, to the extent that there was any misdirection on this issue, it was not in relation to a fundamental legal issue and had not resulted in any substantial wrong or miscarriage at the trial. It was entirely possible that the jury had answered each of the questions unanimously or that the same nine jurors had composed a majority in respect of each of the answers to questions 1 – 3. If the direction was erroneous, it might have operated in ease of the plaintiff when the jury came to answer question 3, since a majority in her favour on that question might have consisted in part of jurors who had been in the minority in answering question 2.

Mr. Feeney and Mr. O'Higgins further submitted that the directions by the trial judge on the necessary majority had been fully assented to by counsel for the plaintiff. It was, accordingly, not open to the plaintiff to raise the point for the first time in this court. An appellate court should not entertain such an argument, unless it was clearly such as to lead to a substantial miscarriage of justice, citing the unreported decision of the Court of Appeal in England in Bennett –v- Guardian Newspapers (judgment delivered 8^th July, 1998). They further submitted that it was in any event open to the parties to agree between themselves as to matters affecting the jury, citing the judgment of Walsh J. in Kielthy –v- Ascon Ltd. [1970] IR 122.

In reply to the last mentioned point, Mr. M^cCullagh submitted that, while the parties were undoubtedly entitled to adopt procedures by consent in relation to matters such as the admissibility of evidence, they could not, where the trial was by a judge and jury, acquiesce in a trial by a jury otherwise than in accordance with the legal requirements as to such a trial. Since the reaching of a verdict by a majority of at least nine members of the jury was a statutory requirement, the parties were not entitled to depart from it, any more than they would be entitled to agree on a jury chosen and empanelled other than in accordance with the requirements of the law or to the jury deliberating on their verdict in a manner not permitted by the law, e.g. in public rather than in private.

Conclusions

Before considering the individual grounds of appeal relied on by the plaintiff, I should make some general observations.

Order 58, Rule 7(2) of the Rules of the Superior Courts (which applies only to trials with a jury) provides that

"A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge of the trial was not asked to leave to them, unless in the opinion of the Supreme Court some substantial wrong or miscarriage has been thereby occasioned in the trial; and if it appears to such court that such wrong and miscarriage affects part only of the matter in controversy, or some or one only of the parties, the Supreme Court may give final judgment as to part thereof, or as to some or one only of the parties, and may direct a new trial as to the other part only, or as to the other party or parties."

It was pointed out by Henchy J. in Kelly –v- Board of Governors of St. Laurence's Hospital [1988] IR 402 that the rule applies where there has been a wrong or miscarriage "in the trial", as distinct from the result of the trial. It would follow that the verdict of the jury should not be allowed to stand where the direction or ruling found to be erroneous was of such a character as to render the trial itself unfair or to give it the appearance of lack of fairness.

In this context, the fact, if it be the fact, that the ground on which it is sought at the appeal to argue that the direction or ruling was erroneous was not advanced at the trial, although not necessarily a conclusive factor, can undoubtedly be of considerable importance in determining whether the trial was either essentially unfair or lacking in the appearance of fairness.

I next consider in turn the four grounds of appeal relied on by the plaintiff.

(a) Admissibility of memorandum of 30^th July, 1990

In considering this ground of appeal, it should be borne in mind that the trial judge ruled as inadmissible, because it was not relevant to any issue which the jury had to determine, evidence as to any alleged policy on the part of NIB to encourage the sale of particular investment portfolios to persons interested in concealing undeclared monies in so-called "offshore" accounts. The memorandum of 30^th July, 1990 was, however, adduced in evidence on a different basis, i.e. that it was evidence of a practice in the division of which the plaintiff was a member of encouraging customers or potential customers to invest in such portfolios as a method of concealing undeclared income.

The objection to this memorandum was that it was inadmissible as hearsay evidence and did not come within any of the acknowledged exceptions to the rule against the admission of such evidence. That objection proceeded on the assumption that since there was no evidence, either in the form of an admission by the plaintiff or evidence by the author of the memorandum, that it had been sent to the plaintiff, it was inadmissible under the rule against hearsay.

I am satisfied that this assumption was erroneous. The rule against hearsay renders inadmissible an out of court statement which is tendered as evidence of the truth of facts which the statement asserts. In this case, the person who wrote the memorandum, Mr. Patrick Cooney, gave sworn evidence that he was the author of the memorandum and that it accurately summarised the practice in the division of which the plaintiff was a member, although he disputed the suggestion that the expression "hot money" necessarily referred to sums which had not been declared to the revenue. That was a practice under which the members of the division were under instructions to encourage investors with "hot money" to make it available for rapid investment in certain offshore investment funds. The jury were entitled to infer from his evidence that it was a practice of which the plaintiff was aware, as demonstrated by the following passage during his cross-examination (day 20):

"267Q. And you say that there would have been meetings in relation to this [the memorandum] any way?

A. As a unit we would have met most weeks pertaining to investment matters.

268Q. So can I take it then that even though the letter was not sent that the same things would have been said at your meetings as are contained in the letter?

A. On and off, yes. We would have had meetings most Monday mornings, we would have just discussed the way stock markets were for the particular week etc.

269Q. So the letter would merely reflect what was being said by you to the investment consultants any way?

A. Well, this letter was not actually sent."

The memorandum, accordingly, was not tendered as evidence of the truth of any facts which it asserted. It was no more than written confirmation of oral evidence which its author gave on oath in the witness box. As such, it was not, in my view, in any sense hearsay evidence. If Mr. Cooney had denied that any such practice existed in the division, the letter could undoubtedly have been put to him in cross-examination so as to show, for the purpose of damaging his credibility, that he had made inconsistent statements on a previous occasion. Conversely, if that had been the burden of his evidence and the memorandum contained some form of warning to the members of the division not to encourage taxpayers to evade their obligations, it would legitimately have been challenged as being hearsay which was inadmissible under the rule against self-corroboration. That not being the position, it was never at any stage properly regarded as hearsay and, indeed, in evidential terms was of virtually no importance, once it transpired that it had never been sent to the plaintiff, but remained admissible as evidence of a practice in the division of which its author gave oral evidence.

That evidence was unarguably relevant to the issue as to whether the plaintiff had given the advice which she was alleged to have given to Mr. Howard and the other four customers of NIB. The fact that the document had not been sent to the plaintiff, because of the intervention of the First Gulf War, did not render Mr. Cooney's evidence hearsay: his evidence as to the practice in the division was given in court and was capable of being tested on cross-examination and the jury were in a position to assess his demeanour and credibility. It is the absence of those features of out of court statements which render them inadmissible under the hearsay rule as evidence of the truth of any facts which they assert. Since Mr. Cooney had declined to attend a consultation with the defendants' legal advisors, counsel for RTÉ and the second named defendant could do no more than ask the plaintiff whether she had ever received the document and make it clear that the author of it would be giving evidence. He would have been properly criticised if he had not put the evidence in question to the plaintiff in cross-examination.

As to the authorities relied on by Mr. M^cCullough, three of them were decisions in appeals from verdicts in criminal trials where the accused gave evidence and were cross-examined as to documents of which other persons were the authors, but the authors themselves had not given evidence. The cases constitute an important line of authority as to the procedure which should be properly adopted by the prosecution in such circumstances so as to ensure that the documents are not seen by the jury unless and until the accused person admits that he or she has received them. They do not, however, appear to me to support the submissions advanced by Mr. M^cCullough.

Similar considerations apply to the decision of this court in Moloney –v- Jury's Hotel Ltd.. In that case, again, the doctors who were the authors of the medical reports had never been called to give evidence and the statements in the reports tending to discredit the plaintiff were clearly hearsay.

I am satisfied that the document was properly admitted in evidence and that this ground of appeal has not been established.

(b) The form of the questions

The plaintiff has taken issue with the form of the questions left to the jury on the ground that no distinction was drawn, in relation to question 3, between the position of RTÉ and the second named defendant on the one hand and Mr. Howard on the other hand. It was accepted that the former were entitled to rely on an answer in their favour to question 2 as determinative of their liability when the jury came to consider question 3, since in answering question 3 the jury were deciding whether the defence of partial justification available under s. 22 of the Defamation Act, 1961 had been established. Since, as ruled by the trial judge, Mr. Howard could not rely on a favourable answer to question 2 in support of his plea of justification, the argument ran, he could only have been entitled to avail of that evidence in mitigation of damage and not as establishing a plea of partial justification. Because, however, he had not in his pleadings relied on these matters in mitigation of damages, the jury should not have been allowed to take them into account in his favour with the result that the plaintiff was awarded no damages as against him. It was also argued that the evidence in question in any event was as to specific acts of misconduct alleged against the plaintiff rather than evidence of general reputation, only the latter being admissible under the rule in Scott –v- Sampson.

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

"In actions for libel and slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before trial he furnished particulars to the plaintiff of the matters as to which he intends giving evidence."

In this case, Mr. Howard had pleaded that the statement complained of was true in substance and in fact and, accordingly, it does not appear that this rule was in the event applicable. Moreover, Mr. Howard did not adduce the evidence himself by way of evidence in chief, as the rule envisages. It was evidence which was legitimately before the jury, because the plaintiff had elected to join her claim against Mr. Howard with the claim against RTÉ and the second named defendant in the same action, and not because Mr. Howard sought to adduce it in evidence himself.

I next consider the argument that the evidence should, in any event, have been excluded, because of the decision in Scott –v- Sampson that evidence of specific acts of misconduct by the plaintiff, as distinct from evidence of a general bad reputation, is not admissible in mitigation of damages. The principle is said to be based on the difficulty that any other rule would create for the plaintiff in showing "a uniform propriety of conduct during his whole life" and would give rise to interminable issues having only a remote bearing on the real issue in the case. Although it was regarded as correctly stating the law in the decision of the former Supreme Court in Kavanagh –v- The Leader, decided in 1955 and eventually reported in [2001] IR 538, there is, however, at least one older Irish authority to a different effect, i.e. Bolton –v- O'Brien [1885] 16 LR(IR) 97. Moreover, as pointed out in the decision of this court in Browne –v- Tribune Newspapers Plc. [2001] 1 IR 521, the Law Reform Commission in their report on the Civil Law of Defamation (1991) recommended that the law should be clarified by permitting the defendant to introduce in mitigation of damages any matters, general or particular, relevant at the date of the trial to that aspect of the plaintiff's reputation with which the defamation was concerned.

It has also been held by the Court of Appeal in England in Pamplin –v- Express Newspapers [1988] 1 WLR 116 that, despite the rule in Scott –v- Sampson, the defendant is entitled to rely in mitigation of damages on any evidence properly before the jury, including evidence of specific acts of misconduct or other evidence adduced in support of an unsuccessful plea of justification.

I am satisfied that where, as here, evidence is before the jury of specific acts of misconduct which were relevant to that aspect of the plaintiff's reputation with which the defamation was concerned, there is no reason in principle why a defendant should not be allowed to rely on such evidence by way of mitigation of damages. Since the purpose of the law of defamation is to compensate a plaintiff for damage to his or her reputation, it would be singularly unsatisfactory if a jury were obliged to award anything other than nominal or contemptuous damages to a plaintiff whom they had found in effect not to be entitled to any reputation in the relevant area. While the procedure actually adopted of, in effect, allowing Mr. Howard to rely on an answer to question 3 which was unfavourable to the plaintiff may not have been, in procedural terms, the best way of eliciting the verdict of the jury, it is clear that they could not have come to a significantly different conclusion had the questions been framed in such a way as to draw the suggested distinctions between the position of RTÉ and the second named defendant on the one hand and Mr. Howard on the other hand. If they had, such a verdict would have to be set aside as perverse or replaced with an award of nominal damages.

It may be noted that the latter was the course taken by the majority of the House of Lords in Grobbelaar –v- Newsgroup Newspapers Ltd., where the defendant newspaper had alleged that a footballer had accepted bribes and, in return for the bribes, had let in, or attempted to let in, goals during the course of games. The verdict of the jury was interpreted in both the Court of Appeal and the House of Lords as treating the "sting" of the libel as not being justified. It was also interpreted, however, as meaning that the appellant had made a corrupt agreement with and corruptly accepted money from the person in question. In the course of his speech, Lord Bingham of Cornhill said:

"The tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection."

I am satisfied that the same considerations apply in this case.

It follows that, if the failure of the trial judge to frame the questions in the manner proposed on behalf of the plaintiff constituted a misdirection by the trial judge, there was in the result no substantial wrong or miscarriage in the trial and I would reject this ground of appeal.

(c) The additional directions to the jury

The first criticism advanced of what was described as a "recharge to the jury" on day 28 was that the trial judge adopted a different approach to the plaintiff's requisitions from that which he had voiced at the end of day 27. However, a trial judge is entitled to a considerable degree of latitude in these matters and, since he was clearly of the view that he should give further directions to the jury in the light of counsel's submissions, that is not a ground which would justify the intervention of this court. As for the argument that it unbalanced the charge to an unacceptable degree, I think that it did no more than draw the attention of the jury to matters which were clearly of significance and which, on one view, should have been referred to in his charge the previous day. Moreover, the trial judge made it clear that he was drawing the attention of the jury to these matters because he had been requested so to do by counsel for the defendant, a factor which must be taken into account in considering any suggested lack of balance in the charge. As to the criticism that, when dealing with the aspects of Mr. Duff's evidence to which he had been requested to draw the attention of the jury he did not point out that they had not been put to the plaintiff in cross-examination, it must be pointed out that Mr. Duff was not challenged in cross-examination on these matters.

I am satisfied that the trial judge was entitled, if he thought it appropriate, to give the further directions which he did on day 28 and that this ground of appeal has not been established.

(d) The directions as to a majority verdict

Section 95 of the Courts of Justice Act, 1924 provides that

"In every trial whether in the High Court or the Circuit Court of a civil case before a judge and jury, the jury shall consist of twelve members and a majority vote of nine of those twelve members shall be necessary and sufficient to determine the verdict. The judge shall so inform the jury and the verdict of such nine members or upwards shall be taken and recorded as the verdict of the jury, without disclosure of the dissentients, if any such there be."

The directions of the trial judge as to the necessary majority and the exchanges between himself, counsel and the foreman of the jury have been set out in full in an earlier part of this judgment. It is clear that the attention of the judge was not drawn to the decision of this court in Arnott –v- O'Keeffe [1977] IR 1.

Arnott –v- O'Keeffe was a personal injuries action which was tried by a judge and jury and which arose out of a collision between the plaintiff's motorcycle and the defendant's motor car. Three questions on liability were left to the jury, i.e. was the driver of the defendant's car negligent, if so, was the plaintiff negligent and, if so, what were the respective degrees of fault between the motorist and the plaintiff. The trial judge told the jury

"You may all be unanimous in the answers you give to each question but if you cannot get all of your colleagues unanimous, you must get at least nine of the one opinion before you can write down the answer to any question. There must be at least nine …"

Counsel for the plaintiff pointed out to the trial judge that he had not told the jury that, if there were a majority, "it must be the same majority right through". The trial judge said that he did not accept that proposition. The jury found both the motorist and the plaintiff negligent and apportioned fault between them.

The plaintiff appealed on a number of grounds, one of them being that this direction was wrong in law. It was unanimously held by this court (Walsh J., Kenny J. and Parke J.) that the trial judge had not informed the jury correctly of the requirements of s. 95 of the Act of 1924 and that this had resulted in a mistrial.

In his judgment, Walsh J. pointed out that nobody except the jury knew whether there was a lack of unanimity in respect of any matter, but the appeal had to be approached on the basis that there might have been. That also obviously applies in the present case. The learned judge went on:

"If the sole question before a jury was the simple and single one of whether the jury finds for the plaintiff or finds for the defendant, then a simple statement to the effect that at least nine of the members of the jury must be of the one opinion before the question can be answered would be sufficient. That was not this case and, nowadays, it would rarely, if ever, be the case in view of the practice insisted upon by this court that the specific and separate issues falling for a decision must be left to the jury."

The learned judge went on to consider what the consequences might be if the view taken by the trial judge, i.e. that any nine members of the jury were sufficient to constitute the necessary majority for the purpose for answering any question, was correct. He said:

"If this were correct, it could lead to some very curious results. For example, a particular nine might be of the view that a defendant was guilty of negligence but only six of that nine might be of opinion that the plaintiff was guilty of negligence. If that six could be reinforced by the three who were in the minority on the first question then the questions would be decided by two different groups. If the first nine had prevailed, the verdict would have been one in favour of the plaintiff with no finding of contributory negligence against him. If the second group prevailed the result would be different. But what was the result when both the separate groups are operating simultaneously?

"In the days prior to 1961 when contributory negligence was an absolute offence, the plaintiff would have lost his action if the second group prevailed whereas the result would have been a finding in favour of the plaintiff on the negligence issue and a disagreement on the contributory negligence issue if the view of the first group prevailed. When one translates such a situation into a case where there are several questions the possibility of such cross-voting could give rise to such a bewildering variety of combinations and permutations that it would be utterly impossible to determine what was, in the words of the statute 'the verdict of such nine members'. It is 'the verdict of such nine members' which shall be 'sufficient to determine the verdict'.

"It appears to me that the statute clearly intended that when the jury was operating on a majority vote of nine of the twelve members the verdict should be that of a particular nine and that when the verdict depended upon the answers to several components of the verdict the answers in all cases must be those of the same nine. The Act did not preclude other members of the jury joining in the verdict, that is to say, adding their voice in support of the answers agreed upon by the particular nine on any question on which there was not unanimity. The correct direction to a jury on the matter which s. 95 of the Act of 1924 requires the trial judge to explain to them is one which informs them that, in the absence of unanimity, the verdict should be that of at least nine members of the jury and that, when there are several questions to be answered, if there is not unanimity on the way each of them is to be answered then there must be a majority of at least nine and that the same nine must concur in the answer to be given to each of the questions even though the number agreeing upon the answer is greater than nine. In this way, and in this way only, can a verdict of a jury which has depended upon the answers to several questions be said to be the 'verdict of such nine members or upwards'."

In his judgment, Kenny J. said:

"The verdict of the jury does not consist of their answer to any specific question. It is their answers to all the questions. This is made clear by the words 'of such nine members or upwards shall be taken and recorded as the verdict of the jury'. It is essential that the judge should inform the jury that before they can bring in a majority verdict there must be nine members of them who agree with all the answers to the questions which have been submitted to them. It is not sufficient to justify a majority verdict that there are nine members of the jury in favour of each answer on any specific question. There must be nine who agree with all the answers; if there is not such a majority, they should be told that they should disagree."

In his judgment, Parke J. said:

"In my view the correct instruction of the provisions of s. 95 of the Courts of Justice Act, 1924 clearly requires that the same nine members of the jury must be included in the majority answering each question and that it is the duty of the judge so to direct the jury. The 'verdict' is the sum total or result of any specific questions which may be asked of them. In order to constitute a 'verdict' there must be at least nine members of the jury who agree with the answers to all the questions."

Two features of that case are of importance. The first is that counsel for the plaintiff, in his requisitions at the end of the charge, indicated that the appropriate direction was that the answer to each of the questions must be that of the same nine members, but the trial judge declined to accept that submission. In the second place, it was an action in negligence where the first question was as to whether the driver of the defendant's motor car had been negligent and the second question was as to whether, if she was, the plaintiff was also negligent.

The significance of the second distinction becomes apparent when one considers the passage in the judgment of Walsh J. in which he discusses the different possibilities that could arise if the majority answering those two questions on liability was differently composed. In the typical negligence action – I am leaving out of consideration cases where defences such as inevitable accident or volenti non fit iniuria arose – a finding by the jury that the defendant was not negligent would have had as its necessary implication a finding that the accident was the fault of the plaintiff and that, accordingly, the plaintiff was negligent. If, in the example postulated by Walsh J., a minority who had concluded that the defendant was not negligent were allowed to form part of the majority finding that the plaintiff was guilty of contributory negligence, one would have a result understandably described by Walsh J. as "very curious". Only six of the jury, on such a hypothesis, could be said to have arrived at an independent determination that the plaintiff was guilty of contributory negligence: the dissenting minority on the first question had already resolved that issue and to take them into account as part of the majority on the second question would seem entirely unjustifiable, if one was seeking to arrive at a verdict of "nine members and upwards" as required by the statute.

When one considers questions 1 and 2 in the present case, the position is different. It is, of course, the case that, if there were a dissentient minority against the plaintiff on the first question, they may be assumed to have either believed Mr. Howard or disbelieved the plaintiff. Undoubtedly, their assessment of the credibility of the plaintiff on the first question would have been a factor when they were answering the second question. They might have preferred the evidence of the plaintiff to each of the four customers concerned. Conversely, they might have preferred the evidence of any one or more of those four to that of the plaintiff. If they formed part of a majority in favour of the defendants on the second question, they could have done so as the result of an independent assessment of the respective credibility of the witnesses concerned which was not predetermined by any conclusion they may have reached on the first question.

As to question 3, it is of course possible that this question was answered unanimously. Alternatively, it may have been answered by the same majority of nine which found in favour of the defendants on question 2. In either case, no difficulty arises. It is, of course, possible though unlikely, that a minority of one or more jurors who answered question 2 in favour of the plaintiff formed part of the majority which answered question 3 in favour of the defendants. Apart from this being a somewhat unlikely possibility, it would not, in any event, have resulted in an answer by those jurors which was vitiated by the prior determination of a fundamental issue of liability, as arose in Arnott –v- O'Keeffe.

If, however, the answer to question 3 had been in favour of the plaintiff, which it was not, the majority in her favour on that answer could have included a dissentient minority of one or more who had also been in her favour in answering question 2. It would certainly seem anomalous that those members of the jury who had decided in favour of the plaintiff on question 1 and who formed a minority in her favour on question 2 could have constituted a majority against the defendants in answering question 3: since they would have already concluded that the defence of justification had failed in it entirety, it is difficult to see how they could have arrived at any conclusion against her when considering question 3.

It follows that, in the circumstances of the present case, the only significant anomaly that might have resulted from the directions ultimately given by the trial judge would have been if a differently composed majority had answered question 3 in favour of the plaintiff. That did not happen.

I have no doubt that it would have been preferable if the trial judge had directed the jury in strict accordance with the requirements of s. 95 of the 1924 Act as they were explained by this court in Arnott –v- O'Keeffe. Counsel for the plaintiff, however, expressly and unreservedly acquiesced in the directions being given by the trial judge. It is also clear that, in the light of their answers to the three questions, one can be satisfied that a majority of at least nine answered the critical questions 2 and 3 in favour of the defendants and that no anomaly of any significance would result from one or more of the dissentient minorities in the earlier questions making up the majority of nine which answered questions 2 and 3.

I would entirely accept, as Mr. M^cCullough in the course of his skilful arguments on behalf of the plaintiff urged, that, in civil actions as in criminal actions, the parties cannot by their apparent consent, adopt a form of trial by jury which does not meet the essentials of that form of adjudication under our law. Although they are permitted to challenge individual members of the jury either peremptorily or for cause shown, they cannot agree between themselves on the composition of the jury. They cannot by their consent ensure that the jury is composed exclusively of persons of either sex or of a particular ethnic background and they cannot agree that its deliberations are to be in public rather than in private. It may be, although it does not arise for determination in this case, that they cannot agree to a jury who would be required to reach their deliberations unanimously or by a majority of less than the nine prescribed by statute. But the essential issue in this case is whether, in the light of the directions ultimately given by the trial judge, one could conclude that the "verdict of the jury" was not determined by "a majority vote of nine of those twelve members".

It must be assumed that the answers given to each of the three questions in this case were assented to by at least nine members of the jury. In that sense, it is beyond argument that the verdict of the jury was determined by a majority vote of nine of the twelve members as required by s. 95 of the 1924 Act. While a jury should always be told that a group of nine members should be common to each majority where more than one question is left to them, as decided in Arnott –v- O'Keeffe, I am satisfied that, in the circumstances of this case, it has not been demonstrated that any anomalous or inappropriate consequence could have resulted from the failure to give that direction in its complete form in the present case. While the situation might well have been different had counsel for any one of the parties urged the trial judge to give the direction approved in Arnott –v- O'Keeffe, I am satisfied that, in a case where the directions were acquiesced in without reservation by the party who now argues that they were incorrect, the court should not order a retrial unless it is satisfied that a substantial wrong or miscarriage resulted from the directions given. The possibility, let alone the probability, of any such wrong or miscarriage not having been established in this case, it follows that this ground of appeal also fails.

(e) Costs

The trial judge, having heard submissions, made an order for costs in favour of RTÉ, the second named defendant and Mr. Howard against the plaintiff.

While it was conceded on behalf of the plaintiff that under O. 99,

Rule 1(3) of the Rules of the Superior Courts, the costs of every action are to follow the event, the rule also envisaged that the court, "for special cause mentioned in the order", could direct otherwise. It was urged on behalf of the plaintiff that the trial judge should have found that, in two respects, there was "special cause" for determining that costs should not follow the event.

In the first place, it was submitted that it was inappropriate for the plaintiff to bear the costs incurred by Mr. Howard and that he should have been required to pay the plaintiff's costs or that, at the least, there should be no order as to costs between the plaintiff and Mr. Howard. It was submitted that the finding of the jury that the defendants had not proved that the plaintiff induced Mr. Howard to evade his tax obligations constituted a "special cause" for so providing in the order as to costs. It was said that this finding was "of immense significance" to the plaintiff and that, in these circumstances, she had, in the terminology employed by the English Court of Appeal in Roache –v- Newsgroup Newspapers Ltd. [1998] EMLR 161 and Reynolds –v- Times Newspapers Ltd. [1998] 3 All ER 961, obtained "something of value" in the form of the answer to question 1, to obtain which she had to institute the proceedings. Given that, in the correspondence which preceded the initiation of the proceedings, it had been made clear that the plaintiff was not seeking damages from Mr. Howard and was merely seeking a retraction and apology and that Mr. Howard persisted in his defence and throughout the trial in his claim that the allegations were true, it would be inappropriate for the plaintiff to suffer in costs where the jury had found his allegation not to be true.

It was also urged that the trial judge should have taken into account the fact that Mr. Howard had been indemnified by RTÉ in respect of both costs and damages and that, in the result, there was no need for two legal teams to be employed effectively on behalf of RTÉ.

Secondly, it was submitted that the order for costs in favour of RTÉ and the second named defendant should have reflected the fact that the broadcast by RTÉ of Mr. Howard's allegation was the central matter that led to the initiation of these proceedings. It was also urged that a considerable amount of time at the hearing had been occupied by evidence and submissions as to the allegations made by Mr. Howard. In these circumstances, it was submitted that the trial judge should have held that there was "special cause" for making no order in favour of costs to RTÉ and the second named defendant or, in the alternative, a limited order for costs only.

The order for costs in this case was essentially a matter within the discretion of the trial judge and this court should only intervene if satisfied that he proceeded on some erroneous principle of law in ordering the plaintiff to pay the costs of all three defendants. I am satisfied that there was no such error of law in his approach. It is acknowledged that prima facie the principle that costs followed the event applied and he was entitled, in my view, to hold that circumstances relied on by the plaintiff did not constitute a "special cause" within the meaning of O. 99 r. 1(3).

In the language traditionally used in actions for libel and slander, the "sting" of the alleged libel in this case was that the plaintiff, while in the employment of NIB, had advised or encouraged one or more customers or potential customers of the bank to evade their tax obligations by concealing money in particular investment portfolios. The jury found that this allegation was true in substance and in fact in the case of one or more of those customers and that, in the result, her reputation had not been materially injured by the allegation, found by the jury not to have been proved, that she had advised or encouraged Mr. Howard to evade his tax obligations. The plaintiff had instituted the proceedings in order to vindicate her reputation and the jury having found that there had been no injury to her reputation, it followed that the purpose of instituting the proceedings had failed in the case, not merely of RTÉ and the second named defendant, but also of Mr. Howard. It must also be borne in mind that it was the plaintiff who elected to join Mr. Howard in the proceedings and, while she was entitled so to do, she could equally have vindicated her reputation by suing RTÉ and the second named defendant alone. In joining Mr. Howard in the proceedings, she accepted the risk that, in the event of the action failing against him, he would be entitled to recover his costs against her.

I am also satisfied that, for the same reason, the fact that RTÉ chose to indemnify Mr. Howard in respect of his costs is not relevant in determining whether the plaintiff should pay those costs. Having elected to sue Mr. Howard in these proceedings, he was entitled for his part to be separately represented and any arrangements he succeeded in making with any other party in relation to the payment of his costs had no bearing on the plaintiff's ultimate liability in respect of those costs, in the event of her claim against Mr. Howard failing.

I am also satisfied that there is no substance in the plaintiff's submission that there should be no order for costs or, at best, a limited order for costs in favour of RTÉ and the second named defendant because the jury decided the first question in her favour. Since the "sting" of the libel relied on was the allegation that the plaintiff had advised one or more persons to evade their tax obligations and the plea of justification on behalf of RTÉ and the second named defendant was critically not confined to the allegation in respect of Mr. Howard, it followed inevitably that the fact that the jury answered question 1 in favour of the plaintiff provided no basis for making a limited award of costs only in favour of RTÉ and the second named defendant. Ultimately, the findings in favour of those defendants on those questions was what essentially determined the outcome of the case, i.e. a failure on the part of the plaintiff to satisfy the jury that her reputation had been materially injured by the untrue allegations in respect of Mr. Howard, given their finding that she had advised or encouraged one or more other customers or potential customers to evade their tax obligations.

I am satisfied that, in these circumstances, there is no ground for interfering with the exercise by the trial judge of his discretion as to costs.

I would dismiss the appeal and affirm the order of the High Court.

THE SUPREME COURT

APPEAL NO. 124/01

Keane C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

BETWEEN/

BEVERLEY COOPER FLYNN

PLAINTIFF/APPELLANT

AND
RADIO TELEFIS EIREANN, CHARLIE BIRD AND JAMES HOWARD

DEFENDANTS/RESPONDENTS

Judgment delivered on the 28^th day of April, 2004 by Denham J.

1. Beverley Cooper Flynn, the plaintiff/appellant, hereinafter referred to as the plaintiff, brought an action in the High Court for damages for libel against Radio Telefis Eireann, Charlie Bird and James Howard. The proceedings arise out of a series of six broadcasts transmitted by Radio Telefis Eireann, hereinafter referred to as RTE, between the 19^th June and the 1^st July, 1998. The plaintiff pleaded that the words published by the defendants meant and were understood to mean that: (a) the plaintiff advised and induced the third named defendant to evade his lawful obligation to pay tax by investing his money in a particular way; (b) the plaintiff advised and encouraged the third named defendant to evade the payment of tax at 15% on undeclared income and assets; and (c) the plaintiff advised and conspired with other named persons for the purpose of tax evasion. The trial in the High Court commenced on 6^th February, 2001 and lasted twenty eight days. The verdict was given by the jury on 3^rd March, 2001.

2. The questions asked of the jury and their answers are as follows:

Question No. 1

Have the defendants proved that the plaintiff induced the third named defendant to evade his lawful obligation to pay tax by not availing of the tax amnesty?

If the answer is "no" proceed to question 2.

If the answer is "yes" proceed no further.

Answer to Question No. 1

No.

Question No. 2

Have the defendants proved that the plaintiff advised or encouraged other persons – being those referred to in the evidence – to evade tax?

If the answer is "no" proceed to question 4 to assess damages.

If the answer is "yes", proceed to question 3.

Answer to Question No. 2

Yes.

Question No. 3

In view of the finding to question 2 has the plaintiff's reputation suffered material injury by reason of the matters published relating to the third named defendant?

Answer to Question No. 3

No.

Question No. 4

If the answer to question 1 and 2 is "no" assess damages.

(a) General damages _______

(b) Aggravation of such damages _______

Total _______

Question No. 5

If the answer to question 1 is "no" and the answer to questions 2 and 3 is "yes", assess damages to the material injury to the plaintiff's reputation.

(a) General damages None

(b) Aggravation of such damages None

Total _______

3. On 4^th April, 2001 the High Court heard argument on the issue of costs. On 5^th April, 2001 the learned trial judge delivered judgment ordering that each of the defendants recover from the plaintiff the costs of the action when taxed and ascertained. The plaintiff has appealed against the order and judgment of the High Court. The notice of appeal recites many grounds of appeal based on submitted errors of fact and law of the learned trial judge.

4. Keane C.J. has set out fully in his judgment the facts and issues of this appeal, which I gratefully adopt. However, one issue in particular has concerned me and it is on that I write.

5. The significant ground of appeal which has concerned me is that relating to the law on majority voting of the jury. The plaintiff has submitted that the learned trial judge ought to have informed the jury that a majority of at least nine is required to furnish an answer to a question on the issue paper, and that, if they were considering more than one question, a particular group of nine must be common to every majority.

6. The learned trial judge addressed the issue of majority voting in his charge given on 22^nd March, 2001, Day 27. The transcript of Day 27, at p. 120-121, provides:

"Finally, I want to deal with the way in which your vote, if it comes to that, will be dealt with. You decide the case either unanimously or on a majority verdict. You may, ladies and gentlemen of the jury, lose three of your members and yet come up with a majority verdict. So that if nine of you decide one way or the other, the other three's vote is rejected and the decision is come to on a majority.

Now I want to give you a very important direction in this regard. Assume for the moment that three of your members when you are coming to decide on the liability issue should decide to vote against Ms. Cooper-Flynn, decide that she is not entitled to win, now those three must stand back from the assessment of damages because that makes sense when you consider it, that if those three people felt that she wasn't entitled to win, if may well be that their vote would pass on into the assessment of damages and they might well say something like this; 'Well, she wasn't entitled to damages in the first place anyway so I am going to give her the miserable award as follows.' Therefore, if you are deciding on a majority of 9, 10, 11, the people that you lose at the early stage on the liability issue stand back and do not enter into any debate on the assessment of damages."

7. On the next day, after a further charge by the learned trial judge, the jury posed a question. The transcript of 23^rd March, 2001, Day 28, at p. 51 sets out the exchanges:

"(JURY ENTER COURT – 3:59)

MR. JUSTICE MORRIS: Mr. Foreman, can I be of

assistance?

FOREMAN OF THE JURY: Yes.

MR. JUSTICE MORRIS: Thank you very much.

(NOTE HANDED TO THE COURT)

The note reads as follows:

'To the Judge,

On question 1-3, we are seeking

clarification regarding the definition

of majority in this case.'

Is that correct?

FOREMAN OF THE JURY: Yes.

MR. JUSTICE MORRIS: Am I understanding you correctly, you want to know the circumstances in which a majority decision can be accepted?

FOREMAN OF THE JURY: Yes.

MR. JUSTICE MORRIS: Very good. First of all, on question number 1, I do not think there could be any mystery about that. I think the question is:

'Have the defendants proved that the plaintiff induced the third named

defendant to evade his lawful obligations to pay tax by not availing of the tax

amnesty?'

Now three of you ladies or gentlemen can disagree with the other nine.

Taking an example, supposing that nine of you, and I am only taking this as an

example, you understand me, supposing nine of you felt that the defendants

had not proved that to your satisfaction but three of you were of a different

opinion, in those circumstances the question is have the defendants proved that

the plaintiff induced the third named defendant (Mr. Howard) to evade his tax

obligations and supposing, as I say, that nine of you decided that they had not

proved that, the answer would be 'no' to the first. Now you have lost three of

your members at this stage. Now you go on to question number 2. Those

three ladies or gentlemen that you have lost can come back into play when you

are dealing with question number 2 because that is a completely different

question, a completely different question in the sense have they established

that proof to your satisfaction in relation to the other four people. So those can

come back into play again. Now let us assume for the moment that you have

decided that they have not proved that, at that stage the plaintiff is succeeding

on both of those cases. Now you are going on to assess damages. The

damages that you will assess under question 4 will be assessed by the nine that

voted in favour of the plaintiff all the way down. Do you understand?

FOREMAN OF THE JURY: Yes.

MR. JUSTICE MORRIS: So as I explained to you yesterday

afternoon, the reason for dropping the three that you have lost on the way is

because those three voting against the plaintiff on the liability issue might

make up their mind, 'Well, she doesn't deserve to get money anyway' and for

that reason give her very low damages. So that is why you will drop the three

that we have been talking about when it comes to assessing damages. Does

that cover the point?

FOREMAN OF THE JURY: Yes.

MR. JUSTICE MORRIS: Very good, thank you very much.

MR. FEENEY: Was the question in relation to question 3

or question 4, my Lord?

MR. JUSTICE MORRIS: 1-3.

MR. FEENEY: Because I think your Lordship has dealt

with 1, 2 and 4 but not 3. I am sorry.

MR. JUSTICE MORRIS: No, I am very grateful, Mr. Feeney. So I

am going to deal with question number 3 now. That question is:

'In view of the finding of question 2, has the plaintiff's reputation suffered

material injury by reason of the matters published relating to the third named

defendant?'

We are assuming for the moment with that question, that you have found that

Ms. Cooper-Flynn did not induce Mr. Howard to buy this personal portfolio by

reason of saying; 'Why would you give the Government 15%?' We are

assuming that you have found in favour of the plaintiff on question number 1.

Now we are assuming also that you have found against the plaintiff on

question number 2, that you are finding that she did induce the other four

people to buy the portfolio for the purposes of evading tax, what you are asked

now to do is to decide; 'Very good, what sort of a character does that leave us

thinking she had, having regard to the fact that she was going around the place

selling these portfolios for the purpose of evading tax?' And you ask yourself

the question; 'Did the publication relating to Mr. Howard which we have

found to be defective or false, did that damage her reputation in any way?'

The question that you are asked in number 3 is:

'In view of the finding on question 2, has the plaintiff's reputation been

materially injured by reason of the matters published in relation to the third

named defendant?'

Has her reputation been materially injured by reason of what they said about

her in relation to Mr. Howard? I cannot help you on that. That is something

that you are going to have to make up your mind for yourself and I will be

trespassing on your job if I try to carry the matter any further, but that is the

job that you have to do. If you find that there has been no material interference

with her reputation by the publishing of the matters relating to Mr. Howard,

then you will find that and it is a matter for you whether or not you will award

her damages. If on the other hand you find that even though she was selling

this product to the four other people by inducing them to evade tax and so

forth, but at the same time what they said about her in relation to Mr. Howard

did materially damage her character, then you will award her whatever

damages you consider to be appropriate. Very good, that is as far as I can

carry it with you. If I go any further than that, I will be trespassing on your

job.

FOREMAN OF THE JURY: If it is a majority, can twelve of us decide

question 3?

MR. JUSTICE MORRIS: Can the twelve of you decide it? Yes.

MR. FEENEY: I think it might be better if we mentioned

it in the absence of the jury as to if there was, say, a 10:2 just as an example,

on question 2, it might be desirable to hear the parties in relation to, if I am

assuming it was a 10:2 in question 2, who are the parties that would participate

in question 3.

MR. JUSTICE MORRIS: Mr. Foreman, ladies and gentlemen,

accept my answer for the moment unless we send for you. Thank you.

(JURY LEAVE COURT – 4:08)"

Having addressed the issue of a majority verdict on questions number 1, 2 and 4, the learned trial judge and counsel then returned to the issue of a majority verdict on question number 3. The transcript provides:

"MR. JUSTICE MORRIS: Mr. Feeney, before I hear you, and I am

grateful for any guidance that any of the Bar have to offer, my thinking is this.

The authorities as I know them have established that the only reason why you

can't have someone who voted against the liability voting on the issue of

damages would be that that person might be, as I have said to the jury,

prejudiced or, in other words, reluctant to give any worthwhile damages in

view of his views on liability. I do not see any reason why he should not

embark on a consideration of number 3. Does anybody disagree with that?

MR. FEENEY: I think there is a certain inherent logic to

the extent that you are not asking them to assess damages, my Lord.

MR. JUSTICE MORRIS: That is encouraging indeed. Thank you,

Mr. Feeney, I am so grateful.

MR. FEENEY: I do not want to in any way …

MR. JUSTICE MORRIS: Very well. Unless anybody has any

problem with that ruling, I will leave it stand.

MR. FEENEY: Is that there can be an 9:3 or a 10:2

majority?

MR. JUSTICE MORRIS: On questions 1 and 2 and yet have the

twelve.

MR. FEENEY: Yes.

MR. MOHAN: Yes, I agree to leave it at that.

MR. JUSTICE MORRIS: Thank you very much."

Thus the issue of the law on majority verdicts in relation to the first three questions was addressed by the learned trial judge. Counsel were alert to the issue. This was not a case of inadvertence. The issue having been dealt with by the learned trial judge counsel for the plaintiff and the first and second defendants agreed to leave the issue stand as stated by the learned trial judge. These are all relevant factors on this appeal.

8. The law on majority voting of a jury in a civil case is stated in s. 95 of the Courts of Justice Act, 1924, which provides:

"In every trial whether in the High Court or the Circuit Court of a civil case before a judge and jury, the jury shall consist of twelve members and a majority vote of nine of those twelve members shall be necessary and sufficient to determine the verdict. The judge shall so inform the jury and the verdict of such nine members or upwards shall be taken and recorded as the verdict of the jury, without disclosure of the dissentients, if any such there be."

Thus, in a civil case (as is the one before the court on this appeal), before a judge and jury, the jury shall consist of twelve members and a majority of at least nine of those twelve shall be necessary to achieve a verdict. The statute specifically provides that the trial judge shall so inform the jury. Therefore, a verdict of nine or upwards shall be taken and recorded as the verdict of the jury. The section also provides that the recording of such a majority verdict shall be without disclosures of dissentients, if any.

9. Section 95 of the Courts of Justice Act, 1924 was considered by this court in Arnott v. O'Keefe [1977] I.R. 1. As it is an important case on the issue of majority jury verdicts I consider it in some detail. Arnott arose out of a road traffic accident and the issues were relatively simple. The plaintiff was injured and sustained loss as a result of a collision between the motor cycle which he was riding and a motor car driven by the wife of the defendant. The plaintiff claimed damages from the defendant in the High Court for his injuries and loss which he claimed were caused by the negligence of the driver of the car. At the trial counsel for the plaintiff submitted to the trial judge that there was no evidence of the plaintiff having been negligent and that any question left to the jury on the issue of negligence should be framed so as to specify the particular act or omission which the jury were being invited to condemn as negligence. Counsel also asked the trial judge to explain the statutory requirements as to majority verdicts. However, the trial judge did not charge the jury in relation to the majority required to answer each question. The jury found that each driver had been negligent and appointed 60% of fault to the defendant and 40% to the plaintiff. Damages were assessed by the jury answering five questions on the issue paper, a judgment for 60% of the total damages was awarded to the plaintiff. The plaintiff appealed. This court (Walsh, Kenny and Parke J.J.) allowed the appeal holding that the finding of the jury that the plaintiff was negligent was not supported by the evidence which established that the defendant's driver had created an emergency and that the plaintiff in reacting to the emergency had failed to escape to safety through an alleged four foot gap. It was held that the provisions of s. 95 of the Act of 1924 imposes a duty on the trial judge to inform the jury that a majority of at least nine members is required to furnish an answer to a question appearing on the issue paper. The issue was addressed by Walsh J. who stated, at p. 4:

"In the present case the trial judge's instructions to the jury on the question of majority verdict, which by virtue of the statute he is obliged to give them, are contained in the following extract from his charge to the jury:-

'You may all be unanimous in the answers you give to each question but if you cannot get all of your colleagues unanimous, you must get at least nine of the one opinion before you can write down the answer to any question. …'

The learned trial judge made no further reference in his charge to this question. Nine separate issues were left to the jury to be decided. Five of these related to the ingredients of damages, two to the questions of negligence, and two to the questions of fault. The jury answered each of the questions. These answers were the component parts of the verdict of the jury.

…

In my opinion, the judge's directions to the jury on this question did not fulfil the requirements of s. 95 of the Act of 1924. The section expressly requires the judge to inform the jury that a vote of nine of the members shall be necessary and sufficient to determine the verdict. Nobody save the jury knows whether in the present case there was a lack of unanimity in respect of any matter; nevertheless, one must approach this question on the basis that there may have been.

Before a jury discharges its function in relation to the verdict it must be correctly instructed in accordance with the statute.

If the sole question before a jury was the simple and single one of whether the jury finds for the plaintiff or finds for the defendant, then a simple statement to the effect that at least nine of the members of the jury must be of the one opinion before the question can be answered would be sufficient. That was not this case and, nowadays, it would rarely, if ever, be the case in view of the practice insisted upon by this Court that the specific and separate issues falling for decision must be left to the jury.

The learned trial judge was correct in telling the jury that a disagreement would result if, upon any question, a majority of nine could not be obtained. However, it appears to have been his intention, as one may adduce from the words used to the jury as corroborated by his reply to the requisition on the point raised by counsel for the plaintiff, that any nine members of the jury was sufficient to constitute the necessary majority for the purpose of answering any question. If this were correct it could lead to some very curious results. For example, a particular nine might be of the view that a defendant was guilty of negligence but only six of that nine might be of the opinion that the plaintiff was guilty of negligence. If that six could be reinforced by the three who were in the minority on the first question then the questions would be decided by two different groups. If the first nine had prevailed, the verdict would have been one in favour of the plaintiff with no finding of contributory negligence against him. If the second group prevailed the result would be different. But what is the result when both the separate groups are operating simultaneously?

In the days prior to 1961 when contributory negligence was an absolute defence, the plaintiff would have lost his action if the second group prevailed whereas the result would have been a finding in favour of the plaintiff on the negligence issue and a disagreement on the contributory negligence issue if the view of the first group prevailed. When one translates such a situation into a case where there are several questions the possibility of such cross voting could give rise to such a bewildering variety of combinations and permutations that it would be utterly impossible to determine what was, in the words of the statute, 'the verdict of such nine members.' It is 'the verdict of such nine members' which shall be sufficient to determine the verdict.

It appears to me that the statute clearly intended that when the jury was operating on a majority vote of nine of the twelve members the verdict should be that of a particular nine and that when the verdict depended upon the answers to several components of the verdict the answers in all cases must be those of the same nine.

The Act did not preclude other members of the jury joining in the verdict, that is to say, adding their voice in support of the answers agreed upon by the particular nine on any question of which there was not unanimity. The correct direction to a jury on the matter which s. 95 of the Act of 1924 requires the trial judge to explain to them is one which informs them that, in the absence of unanimity, the verdict should be that of at least nine members of the jury and that, when there are several questions to be answered, if there is not unanimity on the way each of them is to be answered then there must be a majority of at least nine and that the same nine must concur in the answer to be given to each of the questions even if the number agreeing upon the answer is greater than nine. In this way, and in this way only, can a verdict of a jury which is dependent upon the answers to several questions be said to be 'a verdict of such nine members or upwards.'

In my view the failure of the trial judge to correctly inform the jury in accordance with the requirements of s. 95 of the Act of 1924 resulted in a mistrial of the action."

Kenny J. held at p. 19:-

"One of the objections made by counsel for the plaintiff to the charge of the trial judge related to the way in which the judge dealt with the right of a jury to bring in a majority verdict. …

The verdict of the jury does not consist of their answer to any specific question. It is their answers to all the questions. This is made clear by the words 'of such nine members or upwards shall be taken and recorded as the verdict of the jury.' It is essential that the judge should inform the jury that before they can bring in a majority verdict there must be nine members of them who agree with all the answers to the questions which have been submitted to them. It is not sufficient to justify a majority verdict that there are nine members of the jury in favour of each answer on any specific question. There must be nine who agree with all the answers; if there is not such a majority, they should be told that they should disagree."

Parke J. held, at p. 23:-

"The second point which arises in the case does not seem to have been a subject of previous judicial authority. On the completion of the judge's charge, counsel for the plaintiff objected that this did not include a proper direction as to the majority necessary for the proper answering of the questions. The trial judge had informed the jury that the required majority must be not less than nine but he did not tell them that, in answering each of the questions, the same nine persons must be included in this majority. The learned trial judge refused to re-direct the jury on this ground on the basis that he did not accept that any such principle existed. In my view the correct construction of the provisions of s. 95 of the Courts of Justice Act, 1924, clearly requires that the same nine members of the jury must be included in the majority answering each question and that it is the duty of the judge so to direct the jury. The 'verdict' of a jury is the sum total or result of any specific questions which may be asked of them. In order to constitute a 'verdict' there must be at least nine members of the jury who agree with the answers to all the questions. Accordingly, I am satisfied that there was a misdirection to the jury in the present case."

10. Unfortunately Arnott was not brought to the attention of the learned High Court judge. No party to this action requested the court to vary or overrule Arnott.

11. The issues in Arnott were simple in comparison to this case. There was only one defendant, and there were fewer factual and legal issues. The principle as to majority verdicts was identified in those circumstances. This may be seen by a consideration of the analysis by the learned judges.

12. There was a single initial issue before the jury, negligence. Thus on a single issue, or components of a single issue, the same nine persons should make a decision. If the questions were set so that they were components of a single issue then such questions should be decided by the same majority as decided the preceding question. But questions need not necessarily be so formulated. Questions may not be components of a whole, nor may they be dependent on one another, especially where there are multiple defendants.

13. Arnott does state that the same nine jurors must decide components of an issue, and if issues are co-dependent then the same nine must decide such particular issue leading to a verdict. Arnott was a case with relatively simple issues at stake. It may be contrasted to this case with its multiple parties and complex issues. I am satisfied that Arnott does not mean that the same nine jurors must decide all issues in a case where there are separate issues which are not dependent upon each other nor which are components of a single issue and which relate to separate defendants. Unlike the hypothetical case described by Walsh J. in Arnott, there are multiple separate issues in this case which are not all co-dependent or components of a single determination and which relate to different defendants.

14. The complexity of this case, and the diverse separate issues, relating to different defendants, may be seen in the questions. Indeed, the questions for the jury to determine were consolidated and perhaps did not themselves adequately reflect the complexity of the case. The difficulty of having multiple issues and multiple defendants is apparent in the questions. However, having considered the case carefully it illustrates to me the rational decision-making of a sophisticated jury on complex issues.

15. While considering the words of s. 95 of the Courts of Justice Act, 1924 the requirement that the existence of dissentients (if any) should not be disclosed is noteworthy. It may be that this aspect of the statutory law was not brought appropriately to the attention of all involved in this case. It is an important aspect of a verdict upon which the Oireachtas has stated the law clearly.

16. However, whether or not there were majority verdicts, the law on majority verdicts is provided for in s. 95 of the Courts of Justice Act, 1924 and is applicable. In this case no party sought to argue that the learned trial judge was entirely correct in his direction to the jury on the issue of majority verdicts. However, it is also true that the parties accepted his ruling and did not seek any further statement or clarification on the matter at a time when all or any could have so sought.

17. The circumstances in which the issue on the law on majority voting by the jury arose and was considered is relevant. The issue of the law on majority voting was expressly addressed by the learned trial judge in the High Court. In his original charge the learned trial judge instructed the jury in a manner which, while not totally comprehensive, would not be such as to ground an application for a mistrial. In reply to the question posed by the jury the learned trial judge dealt appropriately with questions number one and two. They related to different persons, they were different questions, and the same majority would not be required to answer as a majority to questions number one and two. Then, as to question number four, he said "the damages that you will assess under question 4 will be assessed by the nine that voted in favour of the plaintiff all the way down." This question did not infact arise for decision because of the ultimate finding of the jury to question number three.

The judge's charge as to the answers to the questions may be viewed as somewhat intricate. However, to some extent that is because the questions themselves were somewhat imperfect.

Counsel for the first and second named defendants raised the possibility of a majority on question two and the query as to who might then participate in answering question three. Counsel indicated that it might be better mentioned in the absence of the jury. The learned trial judge told the jury to accept his answer unless he sent for them. They were never sent for on this issue. This then is at the kernel of the matter and the appeal. In the absence of the jury the learned trial judge referred to the logic of why a juror who had found against a plaintiff on liability should not be part of the further vote. He asked counsel:

"I do not see any reason why he should not embark on a consideration of number 3. Does anyone disagree with that?"

Counsel on behalf of the first and second named defendants said that there was a certain inherent logic. Counsel for the plaintiff agreed to leave the matter stand. No other counsel raised any query on the issue.

18. The run of the trial is also an important aspect. In an appeal of a criminal case the court pays particular regard to the run of a trial in a criminal case. As Finlay C.J. said in The People (D.P.P.) v. Ryan (7/7/1986) 3 Frewen 107, at p. 112:

"In the ordinary way, this Court pays particular regard to the run of a trial in a criminal case, and therefore, where there is a complaint of a deficiency or error in the charge of the trial judge, looks usually to the question as to whether counsel for the accused has at the hearing seen the omission or fault as bearing on the justice of the case and made a requisition for its correction."

This obiter dicta is referring us to the core – the justice of the case in a criminal trial. Similarly, in an appeal in a civil case regard should be given to the run of the trial and the decisions of the parties and their counsel. While such circumstances may not be determinative of issues such as jurisdiction, they may be relevant factors in the exercise of discretion. In an action such as this, where the issues are complex and have been addressed specifically by the trial judge and accepted by counsel for the parties, these are relevant factors in considering a submission that there should be a new trial.

19. It is vital also to consider the role of the jury, for the role of the jury is critical. The jury makes the decisions on fact, including the kernel issue as to whether the plaintiff's reputation suffered material injury. Appellate courts have been slow to interfere with decisions of juries. This is so especially in defamation actions where the role of the jury is pivotal. The unique position of the jury in actions such as this was pointed out by Walsh J. in Quigley v. Creation Ltd. [1971] I.R. 269 at p. 272:

"Basically, the question of libel or no libel is a matter of opinion and opinions may vary reasonably within very wide limits. When a jury has found that there has been a libel, this Court would be more slow to set aside such a verdict than in other types of actions and it would only do so if it was of opinion that the conclusion reached by the jury was one to which reasonable men could not or ought not have come."

As a consequence of the pivotal role of the jury in a defamation action this Court is slow to set aside such a decision. In this case twelve members of the community, the jury, gave over a month of their time to listen to the evidence and give a considered verdict on the issues of the case, including as to whether the plaintiff's reputation suffered materially in the circumstances. I would be reluctant to intervene with their decision unless required by law or the Constitution.

20. The discretion of a court in defamation actions was addressed in Grobbelaar v. News Group Newspaper Ltd. [2002] 1 WLR 3024, a case of the House of Lords in the United Kingdom, which I find similar to Irish jurisprudence. In Grobbelaar the plaintiff was a well known professional footballer who from 1981 was the goalkeeper for a prominent English team. In 1994 the defendant newspaper was approached by a person who claimed that the plaintiff had acted corruptly. Arrangements were made for recordings of a conversation with the plaintiff. In those meetings the person, posing as a principal for persons involved in betting on the results of football games, put proposals to the plaintiff that he be paid for attempting to influence the results of specific games by deliberately letting in goals. The plaintiff was recorded responding positively to the proposed conspiracy and accepting a cash payment. The jury found for the plaintiff and made an award of £85,000 damages. On the defendant's appeal the Court of Appeal held that the award of £85,000 was consistent with the jury having found not only that the plaintiff had not engaged in any actual match fixing but also that he had not been party to any corrupt agreement and that such a finding was in the face of the audio and video evidence supporting the corrupt agreement allegations, perverse. It accordingly quashed the jury's verdict. On the plaintiff's appeal to the House of Lords it was held, allowing the appeal, that an appellate court should not find the verdict of a jury on liability to be perverse unless there was no rational explanation for it; that, although any finding by the jury that the plaintiff had not entered into a corrupt conspiracy would have been, on the evidence before it, plainly wrong, the jury had been entitled to find that the sting of the articles lay not in the allegation of conspiracy but in that of match fixing on the field of play and the verdict in favour of the plaintiff was consistent with the jury having come to that conclusion; and that, accordingly, since it had been open to the jury to find that the sting of the libel lay in the allegation of match fixing and it had been entitled on the evidence to find it had not been justified, the Court of Appeal ought not to have overturned the jury's verdict on liability. But that, although the restoration of the jury's verdict entitled the plaintiff to judgment, there was no justification for a court to award substantial damages to a person shown to have no reputation deserving of legal protection, and the plaintiff's conduct as demonstrated in the evidence before the jury had destroyed the value of his reputation; and that, accordingly, the jury had erred in making an award of damages of £85,000. As there was power in the appellate committee's inherent jurisdiction to substitute the order which it concluded the Court of Appeal should have made, an award of £1 nominal damages would be substituted.

Lord Bingham of Cornhill said at p. 3036:

"The tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection. Until 9 November 1994 when the newspaper published its first articles about him, the appellant's public reputation was unblemished. But he had in fact acted in a way in which no decent or honest footballer would act and in a way which could, if not exposed and stamped on, undermine the integrity of a game which earns the loyalty and support of millions. Even if the newspaper had published no more than what, on my interpretation of the jury's verdict, it was entitled to have published, the appellant would have been shown to have acted in a way which any right thinking person would unequivocally condemn. It would be an affront to justice if a court of law were to award substantial damages to a man shown to have acted in such flagrant breach of his legal and moral obligations."

I would adopt the same approach to the circumstances of this case. In this case the sting of the defamation alleged was the issue as to whether the plaintiff had advised persons to evade tax obligations.

21. In general, an appellate court will only interfere with a decision by a jury in defamation proceedings where there are strong grounds so to do. In the 10^th Edition of Gatley on Libel and Slander at paragraph 36.19 at p. 1065 it is stated:

"Only on very strong grounds will the court in an action for defamation interfere or set aside a verdict or grant a new trial on the ground that the verdict is unreasonable or perverse. An appellate court ought not to find the verdict of a jury on liability to be perverse unless there is no rational explanation for it."

I would adopt this as a correct statement of the law and apply it to the circumstances of this case.

22. The burden on the plaintiff, when seeking an order for a new trial, is significant. The Rules of the Superior Courts, O. 58 r. 7(2) provide:

"(2) A new trial shall not be granted on the ground of mis-direction or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the Judge at the trial was not asked to leave to them, unless in the opinion of the Supreme Court some substantial wrong or miscarriage has been thereby occasioned in the trial; and if it appear to such Court that such wrong or miscarriage affects part only of the matter in controversy, or some or one only of the parties, the Supreme Court may give final judgment as to part thereof, or as to some or one only of the parties, and may direct a new trial as to the other part only, or as to the other party or parties."

23. Thus at issue in this case is whether there has been a substantial wrong, or, a miscarriage of justice. In dismissing an appeal against a jury decision of defamation, in Lim v. Lawless and Ors., 19^th June, 1991, the Court of Appeal (Civil Division) of England and Wales, Beldam L.J. (with whom Leggat L.J. and Fox L.J. agreed), held:

"After reviewing the evidence to which we were referred and the judge's summing-up, I am unable to say that there was in this case a clear miscarriage of justice. On the contrary, I was satisfied that there was evidence before the jury from which they must have held not only that the pith of any defamatory statement in the article was fully made out but that, even if any of the sting remained, it would not significantly have diminished in the minds of right thinking members of the community the reputation of a professional nurse who had been clearly shown to have disregarded interests of her patients which should have been clearly shown to have disregarded interests of her patients which should have been her overriding concern. The effect of s. 5 of the Defamation Act is, I believe, to do no more than make clear the principle stated by Lord Shaw of Dunfermline in Sutherland v. Stopes [1925] A.C. 47 at page 81 that:

'… in libel cases a view meticulously taken … of the words of a libel is not sought for, but the opinion of the jury is accepted as conclusive and final on justification if it applies truly to the substantial matter, criminal, nefarious or contemptible, which the libel as a whole did affirm.'

I would dismiss the appeal."

I find this persuasive authority as to the position of the opinion of the jury and the essence of the case.

Therefore it may be seen that the pivotal position of the jury, at the heart of a decision on defamation, is underpinned by the Rules of Court, the nature of the appeal and the underlying common law.

24. Question No. 3 addressed the issue of the plaintiff's reputation. In this consolidated question reference is made to her reputation in the context of the jury's answer as to her advices to other persons and the matters published relating to the third named defendant. The conduct of the plaintiff in relation to her advices to the other persons and the third named defendant were of the same nature. Consequently, accepting as I do that the evidence was properly before the jury as to her reputation, it was open to the jury to reach the conclusion it did on her reputation. The plaintiff chose to sue the defendants in one action and cannot now argue that the jury could find that she had two contradictory reputations, which would be a consequence of her submission. In a single case, as here, with multiple defendants and a wider frame of issues, a verdict cannot be that she has multiple (contradictory) reputations.

25. On the submissions made on behalf of the plaintiff as to the law on majority verdicts, in view of the factors in the case, the nature of the case (a defamation case), the pivotal role of the jury, the charge and recharge given by the learned trial judge, the agreement of counsel to leave it at that, the complexity of the case with multiple parties, the consolidated nature of the questions, in all the circumstances, where it has not been established that there has been a substantial wrong or a miscarriage of justice, I would not interfere with the decision of the jury given after a trial of 28 days and I would not direct a new trial.

26. As to the other grounds of appeal raised on behalf of the plaintiff, I agree with the judgment of Keane C.J.

27. Thus, for the reasons given, I would dismiss the appeal on all the grounds of appeal.

THE SUPREME COURT

No. 124/01

Keane C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

BETWEEN:

BEVERLY COOPER-FLYNN

PLAINTIFF/APPELLANT

and RADIO TELEFÍS EIREANN, CHARLIE BIRD AND JAMES HOWARD

DEFENDANTS/RESPONDENTS

Judgment delivered the 28^th day of April 2004 by McGuinness J.

I have had the benefit of reading the judgment of the Chief Justice and I agree with him that this appeal should be dismissed. The Chief Justice has in his judgment fully set out both the factual background to the case and the course of the proceedings in the court below; I have nothing useful to add to his analysis in this regard.

I would like, however, to add a few comments of my own on the final ground of appeal considered by the Chief Justice, that is, the directions given by the learned trial judge as to a majority verdict.

This ground of appeal was set out in the notice of appeal as follows:

"The learned trial judge erred in law and in fact in that he:

(a) failed properly or adequately to direct the jury on the issue of majority voting having regard to the questions put to it.

(b) Failed to record whether there was in fact a majority vote by the jury and in respect of which questions there was such majority vote.

(c) Failed to indicate to the parties in clear terms the nature of the difficulties faced by the jury when they sought his guidance on the principles applicable to majority voting.

(d) Failed adequately to advise the jury on the principles applicable to majority voting when it sought his guidance.

(e) Erred in law and in fact in directing the jury that where there was a majority of them in favour of the plaintiff in question 1 that all twelve members of the jury should go on to consider question 3 when it should only be those who found in the plaintiff's favour in question 1."

In submissions to this court counsel for the plaintiff relied in the main on sub-paragraphs (a), (d) and (e) above. It should perhaps be noted that sub-paragraph (e) in this ground of appeal refers to the relationship between possible majorities of the jury in questions 1 and 3, but makes no reference to question 2. It must also be borne in mind that the matter of the learned trial judge's directions to the jury on majority verdicts was not raised by way of requisition by counsel for the plaintiff at the trial. In fact the only queries in regard to this aspect of the trial judge's directions were raised by counsel for the respondent. Counsel for the plaintiff specifically accepted the directions and rulings of the trial judge.

The questions put to the jury at the trial were as follows:

"(1) Have the defendants proved that the plaintiff induced the third named defendant to evade his lawful obligation to pay tax by not availing of the tax amnesty?

If the answer is 'NO' proceed to question 2. If the answer is 'YES' proceed no further.

(2) Have the defendants proved that the plaintiff advised or encouraged other persons – being those referred to in the evidence – to evade tax?

If the answer is 'NO' proceed to question 4 to assess damages. If the answer is 'YES' proceed to question 3.

(3) In view of the finding to question 2, has the plaintiff's reputation suffered material injury by reason of the matters published relating to the third named defendant?

(4) If the answer to questions 1 and 2 is 'NO' assess damages.

(a) General Damages______

(b) Aggravation of such damages_______

(c) Total____________

(5) If the answer to question 1 is' NO' and to questions 2 and 3 is 'YES' assess damages to the material injury to the plaintiff's reputation.

(a) general damages_________

(b) aggravation of such damages___________

(c) Total____________"

The jury answered question 1 "NO", question 2, "YES" and question 3 "NO". While on these answers it would appear unnecessary to proceed to question 5, after some discussion with the trial judge the jury answered question 5 by awarding no general or aggravated damages to the plaintiff.

The matter of a possible majority verdict was dealt with during the learned trial judge's trial to the jury. It also arose subsequently both in exchanges between counsel and the judge and in answer to a question put to the judge by the jury.

In the course of his charge to the jury on day 27 of the trial (page 120) of the transcript the learned judge said:-

"Finally, I want to deal with the way in which your vote, if it comes to that, will be dealt with. You decide the case either unanimously or on a majority verdict. You may, ladies and gentlemen of the jury, lose three of your members and yet come up with a majority verdict. So if nine of you decide one way or the other, the other three's vote is rejected and the decision is come to on a majority.

Now I want to give you a very important direction in this regard. Assume for the moment that three of your members when you are coming to decide on the liability issue should decide to vote against Ms Cooper-Flynn, decide that she is not entitled to win, now those three must stand back from the assessment of damages because that makes sense when you consider it, that if those three people felt that she was not entitled to win, it may well be that their vote would pass on into the assessment of damages and that they might well say something like this; 'well, she was not entitled to damages in the first place anyway so I am going to give her the miserable award as follows.' Therefore if you are deciding on a majority of nine, ten, eleven, the people that you loose at the early stage on the liability issue stand back and do not enter into any debate on the assessment of damages."

At the end of that day in the absence of the jury, counsel for the first and second named defendants, Mr Feeney, raised what he described as a housekeeping matter as follows:

"Two housekeeping matters, My Lord. I would have thought that if the nine jurors answered the first question 'NO' it is the same nine jurors who should deal with the second question as well and I did not think that was entirely clear from your lordship's direction. I think it is correct if you answer the first question 'YES', if nine jurors answer the first question 'NO', I would have thought it makes logical sense that the same nine should proceed to deal with question 2. It would be against my interest to say this, but I think that is the logic which has been followed in previous, giving that the three who have answered the first question have effectively identified that the plaintiff should lose the case."

In his reply to requisitions by counsel at the end of that day the learned trial judge referred to the point made by Mr Feeney as follows:

"Now in relation to the first point, described by Mr Feeney as a housekeeping point that is to say that it would be open to the jury to give no damages if there was a finding of 'YES'; to question no. 2, I was of the impression that I had made that clear but less there be any doubt about that, I will recharge the jury on that."

On the following morning, again in the absence of the jury, Mr Feeney returned to this subject. The following exchange took place. (Day 28 page 3 of transcript):

"Mr Feeney:

I asked for the jury to be kept out so I would be able to address you briefly on two matters in the absence of the jury. The first is to say I believe I was wrong in something that I indicated to you yesterday having had the opportunity to think about it, what I described as a housekeeping point. If Your Lordship looks at the questions, I suggested that if some people answered the first question that they then might be disqualified from answering the second, I think in principle that just cannot be right.

Mr Justice Morris:

I agree with you, Mr Feeney.

Mr Feeney:

The infirmity that one is aiming to protect against is damage as being dealt with by people. What I think is that all 12 must be allowed answer questions 1 and 2 and when it comes to damages, all nine mut be in agreement in relation to questions 1 and 2.

Mr Justice Morris:

'Yes".

Mr Feeney:

I think that is the simple proposition. In other words, there is no reason in principle why if somebody has dealt with the factual determination in one, because the second one is a separate and stand alone one, that they should not as a jury be allowed to deal with it.

Mr Justice Morris:

Yes, and subject to anything Mr Cooney says I think that is correct."

Further submissions by way of requisitions were made by both Mr Feeney and by Mr O'Higgins, counsel for the third named defendant. These were replied to by senior counsel for the plaintiff, Mr Mohan. At page 30 of day 28 Mr Mohan dealt with the majority question as follows:

"The only other point I want to mention to Your Lordship is that I accept what Mr Feeney does say in relation to the 9:3 point, the housekeeping point that he raised at the outset. I have no difficulty in that regard and I would accept his submission in that regard."

No further reference was made to this question before the jury retired to consider their verdict. During the course of the afternoon however the jury returned to the court to put a question to the judge. This was done by the foreman of the jury handing a note to the court which read as follows:

"To the judge,

On question 1 – 3, we are seeking clarification regarding the definition of majority in this case."

The judge then asked the foreman of the jury whether he understood correctly that the jury wished to know the circumstances in which a majority decision could be accepted. The foreman replied in the affirmative.

The learned judge answered as follows:

"First of all on question no. 1, I do not think there could be any mystery about that. I think the question is:

'Had the defendants proved that the plaintiff induced the third named defendant to evade his lawful obligations to pay tax by not availing of the tax amnesty?'

Now three of you ladies or gentlemen can disagree with the other nine. Taking an example, supposing that nine of you, and I am only taking this as an example, you understand me, nine of you felt that the defendants had not proved to your satisfaction but three of you were of a different opinion, in those circumstances the question is have the defendants proved that the plaintiff induced the third named defendant (Mr Howard) to evade his tax obligations and supposing, as I say, that nine of you decided that they had not proved that, the answer would be 'NO' to the first. Now you have lost three of your members at this stage. Now you go on to question no. 2. Those three ladies or gentlemen that you have lost can come back into play when you are dealing with question no. 2 because that is a completely different question, a completely different question in the sense have they established that poof to your satisfaction in relation to the other four people. So those can come back into play again. Now let us assume for the moment that you have decided that they have not proved that, at that stage the plaintiff is succeeding on both of those cases. Now you are going on to assess damages. The damages that you will assess under question 4 will be assessed by the nine that voted in favour of the plaintiff all the way down. Do you understand?

Foreman of the jury:

Yes.

Mr Justice Morris:

So as I explained to you yesterday afternoon, the reason for dropping the three that you have lost on the way is because those three voting against the plaintiff on the liability issue might make up their mind, 'Well, she does not deserve to get money anyway' and for that for reason give her very low damages. So that is why you will drop the three that we have being talking about when it comes to assessing damages. Does that cover the point?.

Foreman of the jury:

Yes."

At that point Mr Feeney intervened to ask whether the jury's question was in relation to question 3 or to question 4. He suggested that the judge had dealt with questions 1, 2 and 4 but not with question 3. The judge then went on to deal with question 3:

"So I am going to deal with question no. 3 now. That question is 'in view of the finding of question 2, has the plaintiff's reputation suffered material injury by reason of the matters published relating to the third named defendant?' We are assuming for the moment with that question that you have found that Ms Cooper-Flynn did not induce Mr Howard to buy this personal portfolio by reason of saying 'why would you give the Government 15%?' We are assuming that you have found in favour of the plaintiff on question no. 1. Now we are assuming also that you have found against the plaintiff on question no. 2, that you are finding that you did induce the other four people to buy the portfolio for the purposes of evading tax, what you are asked now to do is to decide: 'very good, what sort of a character does that leave us thinking she had, having regard to the fact that she was going around the place selling these portfolios for the purposes of evading tax?' and you ask yourself the question: 'did the publication relating to Mr Howard which we have found to be defective or false, did that damage her reputation in any way?'"

The judge then repeated the wording of question 3 and went on to say:

"Has her reputation been materially injured by reason of what they said about her in relation to Mr Howard? I cannot help you on that. That is something that you are going to have to make up your mind for yourself and I will be trespassing on your job if I try to carry the matter any further, but that is the job that you have to do. If you find that there has been no material interference with their reputation by the publishing of the matters relating to Mr Howard, then you will find that and it is a matter for you whether or not you will award her damages. If on the other hand you find that even though she was selling this product to the four other people by inducing them to evade tax and so forth, but at the same time what they said about her in relation to Mr Howard did materially damage her character, then you will award her whatever damages you consider to be appropriate. Very good, that is as far as I can carry it with you. If I go any further than that, I will be trespassing on your job.

Foreman of the jury:

If it is a majority, can twelve of us decide Question 3?

Mr Justice Morris:

Can the twelve of you decide it? Yes."

The following exchange then took place:

"Mr Feeney:

think it might be better if we mentioned it in the absence of the jury as to if there was, say, a 10:2 just as an example, on Question 2, it might be desirable to hear the parties in relation to, if I am assuming that it was a 10:2 in Question 2, who are the parties that would participate in Question 3.

Mr Justice Morris:

Mr Foreman, ladies and gentlemen, accept my answer for the moment unless we send for you. Thank you."

The jury then left the court. The exchange continued as follows:

"Mr Justice Morris:

Mr Feeney before I hear you and I am grateful for any guidance that any of the Bar have to offer, my thinking is this. The authorities as I know them have established that the only reason why you cannot have someone who voted against the liability, voting on the issue of damages would be that that person might be, as I have said to the jury, prejudiced or, in other words, reluctant to give any worthwhile damages in view of his views on liability. I do not see any reason why he should not embark on a consideration of no. 3. Does anybody disagree with that?

Mr Feeney:

I think there is a certain inherent logic to the extent that you are not asking them to assess damages, My Lord.

Mr Justice Morris:

That is encouraging indeed. Thank you,

Mr Feeney, I am so grateful.

Mr Feeney:

I do not want to in any way………

Mr Justice Morris:

Very well. Unless anybody has any problem with that ruling, I will leave it stand.

Mr Feeney:

Is that there can be a 9:3 or a 10:2 majority?

Mr Justice Morris:

On questions 1 and 2 and yet have the twelve.

Mr Feeney:

Yes.

Mr Mohan:

Yes, I agree to leave it at that.

Mr Justice Morris:

Thank you very much."

In his submissions to this court counsel for the plaintiff relied in the main on section 95 of the Courts of Justice Act 1924, as interpreted by this court in the case of Arnott v O'Keeffe [1977] I.R.1. This case does not seem to have been cited in the court below. It is a case concerning personal injuries arising out of a road traffic accident in which questions of the degrees of negligence of both the plaintiff and the defendant arose. Section 95 of the Courts of Justice Act 1924 provides as follows:

"In every trial whether in the High Court or the Circuit Court of a civil case before a judge and jury, the jury shall consist of twelve members and the majority vote of nine of those twelve members shall be necessary and sufficient to determine the verdict. The judge shall so inform the jury and the verdict of such nine members or upwards shall be taken and recorded as the verdict of the jury, without disclosure of dissentients, if any such there be."

The wording of the section in itself does not deal specifically with the position that might arise where the jury has to deal with more than one question in order to "determine" the verdict. This question was, however, authoritatively dealt with in the Arnott v O'Keeffe case in which this court held that the provisions of section 95 of the Act of 1924 imposed a duty on the trial judge to inform the jury that a majority of at least nine members was required to furnish an answer to a question appearing on the issue paper and that, where several questions appeared, a particular group of nine members must be common to every majority. Three judgments were delivered by Walsh J., Kenny J and Parke J. respectively.

Walsh J. analysed some of the problems which might arise if different majorities were to decide the related questions of the respective degrees of negligence of the plaintiff and the defendant in that case. Walsh J. stated (at page 5):-

"If the sole question before a jury was a simple and single one of whether the jury finds for the plaintiff or finds for the defendant, then a simple statement to the effect that at least nine of the members of the jury must be of the one opinion before the question can be answered would be sufficient. That was not this case and, nowadays, it would rarely, if ever, be the case in view of the practice insisted upon by this court that the specific and separate issue falling for decision must be left to the jury.

The learned trial judge was correct in telling the jury that a disagreement would result if, upon any question, a majority of nine could not be obtained. However, it appears to have been his intention, as one might deduce from the words used to the jury as corroborated by his reply to the requisition on the point raised by counsel for the plaintiff, that any nine members of the jury was sufficient to constitute the necessary majority for the purpose of answering any question. If this were correct it could lead to some very curious results. For example, a particular nine might be of the view that a defendant was guilty of negligence but only six of that nine might be of opinion that the plaintiff was guilty of negligence. If that six could be reinforced by the three who were in the minority on the first question then the questions would be decided by two different groups. If the first nine had prevailed, the verdict would have been one in favour of the plaintiff with no finding of contributory negligence against him. If the second group prevailed the result would be different. But what is the result when both the separate groups are operating simultaneously?

In the days prior to 1961 when contributory negligence was an absolute defence, the plaintiff would have lost his action if the second group prevailed whereas the result would have been a finding in favour of the plaintiff on the negligence issue and a disagreement on the contributory negligence issue if the view of the first group prevailed. When one translates such a situation into a case where there are several questions the possibility of such cross-voting could give rise to such a bewildering variety of combinations and permutations that it would be utterly impossible to determine what was, in the words of the statute, the verdict of such members.' It is 'the verdict of such nine members' which shall be 'sufficient to determine the verdict.'

It appears to me that the statute clearly intended that when the jury was operating on a majority vote of nine of the twelve members the verdict should be that of a particular nine and that when the verdict depended upon the answers to several components of the verdict the answers in all cases must be those of the same nine. The Act did not preclude other members of the jury joining in the verdict, that is to say, adding their voice in support of the answers agreed upon by the particular nine on any question on which there was not unanimity. The correct direction to a jury on the matter which section 95 of the Act of 1924 requires the trial judge to explain to them is one which informs them that, in the absence of unanimity, the verdict should be that of at least nine members of the jury and that, when there are several questions to be answered, if there is not unanimity on the way each of them is to be answered then there must be a majority of at least nine and that the same nine must concur in the answer to be given to each of the questions even though the number agreeing upon the answer is greater than nine. In this way, and in this way only, can a verdict of a jury which is dependant upon the answers to several questions be said to be 'the verdict of such nine members or upwards'".

While Kenny J. and Parke J. did not deal with the question in such detail they reached the same conclusion.

Kenny J. in his judgment (at page 19 of the report) stated:

"The verdict of the jury does not consist of their answer to any specific question. It is their answers to all the questions. This is made clear by the words 'of such nine members or upwards shall be taken and recorded'. It is essential that the judge should inform the jury that before they can bring in a majority verdict there must be nine members of them who agree with all the answers to the questions which had been submitted to them. It is not sufficient to justify majority verdicts that there are nine members of the jury in favour of each answer on any specific question. There must be nine who agree with all the answers; if there is not such a majority, they should be told that they should disagree."

Parke J. (at page 23) dealt with the issue as follows:

"The second point which arises in the case does not seem to have been a subject of previous judicial authority. On the completion of the judge's charge, counsel for the plaintiff objected that this not include a proper direction as to the majority necessary for the proper answering of the question. The trial judge had informed the jury that the required majority must be not less than nine, that he did not tell them that in answering each of the questions, the same nine persons must be included in this majority. The learned trial judge refused to redirect the jury on this ground on the basis that he did not accept that any such principle existed. In my view the correct construction of the provisions of section 95 of the Courts of Justice Act 1924 clearly requires that the same nine members of the jury must be included in the majority answering each question and that it is the duty of the judge so to direct the jury. The 'verdict' of a jury is the sum total or result of any specific questions which may be asked of them. In order to constitute a 'verdict' there must be at least nine members of the jury who agree with the answers to all the questions. Accordingly, I am satisfied that there was a misdirection to the jury in the present case."

I have set out the various directions concerning majority verdicts given by the learned trial judge to the jury at some length, since it is necessary to place them in the context of the law set out in section 95 of the 1924 Act as interpreted by this court in the Arnott case in order to decide whether some substantial wrong or miscarriage of justice has occurred in this trial. It is also necessary, in my view, to consider both the judge's directions in this case and the dicta of the learned judges in the Arnott case in the context of the facts of the respective cases. In particular the nature of the specific questions put to the juries in the respective cases must form part of this consideration.

In Arnott v O'Keeffe the issues to be tried arose from a single incident – a road traffic accident. The jury was asked to decide firstly whether the defendant was negligent and secondly whether the plaintiff was negligent. It was then asked to apportion the degrees of fault of the defendant and of the plaintiff. Finally it was asked to assess damages. The first two of these two questions were in a sense two sides of the same coin. The jury was weighing up the evidence of the cause of a single accident – did the defendant cause the accident or did the plaintiff cause it, or should the responsibility be shared between them and in what proportion? It is in this scenario that the careful analysis by Walsh J. of the "very curious results" which could arise if the first and second questions were to be decided by two separate groups is established. When "both the separate groups are operating simultaneously" they could reach contradictory conclusions about the single event which was in issue. The danger of contradictory verdicts is again illustrated by Walsh J. in the example which he gives of cases prior to 1961 which I have quoted above (at page 6 of the report).

Clearly, the decision of this court in Arnott is an authoritative statement of the law. It seems to me, however, that there is at least a degree of difference between the inter-relationship of the questions put to the jury in Arnott and the inter-relationship of the questions put to the jury in the present case. While the allegations made concerning the plaintiff by the third named defendant, Mr Howard, and the allegations made by the other four witnesses called by RTE dealt with similar subject matter, they did not deal with a single incident as in the case of a road traffic accident. There is no logical contradiction in a member of the jury deciding that he or she did not accept Mr Howard's evidence and therefore answering "no" to question 1, but then deciding that he or she did accept the quite separate evidence of the other four witnesses and thus answering "yes" to question 2. This was obviously the view taken by the learned trial judge when, in reply to the jury's request for clarification, he said:

"Those three ladies or gentlemen that you have lost can come back into play because that is a completely different question, a completely different question in the sense had they established that proof to your satisfaction in relation to the other four people."

It seems to me that there is justification in the circumstances of the instant case for the view taken by the learned trial judge.

In a number of his directions to the jury the learned trial judge made clear his concern that any juror who had held against a plaintiff on liability should not have any part in the assessment of damages. Indeed it might be said that he stressed this aspect of majority verdicts at the expense of all other considerations. It must be accepted that the judge's purpose in giving these particular directions was to avoid any injustice to the plaintiff. He made this very clear to the jury. This aspect of his directions and rulings cannot be faulted.

The situation with regard to the third question , which dealt with material injury to the plaintiff's reputation, is somewhat more difficult in that the only direction given on it to the jury was given in reply to a query by Mr Feeney. The judge at that time gave no reasons for his decision that the question could be decided by all twelve jurors. In the event, however, both counsel for the plaintiff and counsel for RTE accepted this ruling.

In summary, the rulings given by the learned trial judge were not in accordance with section 95 of the 1924 statute as interpreted in Arnott. Based on the considerations set out above, did this misdirection result in an unfair trial and should it lead to an order for a re-trial?

Order 58 rule 7(2) of the Rules of the Superior Courts provides:

"A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence or because the verdict of the jury was not taken upon a question which the judge of the trial was not asked to leave to them, unless in the opinion of the Supreme Court some substantial wrong or miscarriage has been thereby occasioned in the trial; and if it appears to such court that such wrong a miscarriage affects part only of the matter in controversy, or one only of the parties, the Supreme Court may give final judgment as the part thereof, or as to some or one only of the parties, and may direct a new trial as to the other part only, or as to the other party or parties."

During the course of this trial no requisition was raised by counsel for the plaintiff on the judge's ruling on majority verdicts. Counsel for the first and second named defendants, Mr Feeney, raised tentative queries but did not press them. No reference was made either to the 1924 statute or to Arnott v O'Keeffe. At the conclusion of the judge's reply to the jury's request for clarification counsel for both parties expressed themselves satisfied. Thus there was no complaint of unfairness on this ground made at the trial by the parties.

I have already referred above to the contextual differences between the questions put to the jury in this case and those in the Arnott case. In my view no real difficulty arises in regard to questions 1, 2 and 5. There is a degree of doubt in regard to question 3. It must, however, be borne in mind that this court does not and cannot know whether this or any of the questions was decided unanimously or by a majority.

As far as this ground of appeal is concerned it does not appear to me that any "substantial wrong or miscarriage" has been occasioned in the trial and I consider that this ground of appeal must fail.

In relation to the other grounds of appeal I am in complete agreement with the Chief Justice.

I would, therefore, dismiss the appeal.

THE SUPREME COURT

Keane C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

124/01

BETWEEN/

BEVERLY COOPER-FLYNN

Plaintiff/Appellant

and RADIO TELEFÍS ÉIREANN, CHARLIE BIRD AND JAMES HOWARD

Defendants/Respondents

JUDGMENT of Geoghegan J. delivered the 28th day of April 2004

I have had the benefit of reading the judgment of the Chief Justice and I agree with him that this appeal should be dismissed. I think it appropriate, however, to make some observations of my own on the only two grounds of appeal which gave me any real difficulty. The first of these was the failure of the learned trial judge to give correct directions to the jury in relation to majority findings. The second was the alleged inadmissibility in evidence of the bank memorandum produced by the bank witness, Mr. Cooney.

In relation to majority verdicts in civil actions, the legal position is governed by s. 95 of the Courts of Justice Act, 1924, which reads as follows:

"In every trial whether in the High Court or the Circuit Court of a civil case before a judge and jury, the jury shall consist of twelve members and a majority vote of nine of those twelve members shall be necessary and sufficient to determine the verdict. The judge shall so inform the jury and the verdict of such nine members or upwards shall be taken and recorded as the verdict of the jury, without disclosure of the dissentients, if any such there be."

The interpretation of the section standing alone is not without difficulty but fortunately that difficulty has been removed by a clear decision of this court in Arnott v. O'Keeffe [1977] I.R. 1 a case which does not seem to have been cited in the court below. I will be returning to that case in more detail but at this stage it is sufficient to note that the case is clear authority for the view that if a number of questions go to the jury they must either each be answered unanimously by the jury or alternatively, if there is a majority of nine or more in relation to any one of them that same majority in terms of personnel must be in agreement on all the other questions. Unfortunately, this was not made clear by the learned trial judge. It would appear that the draftsman of the section and the trial judge had one thing in common. They both concentrated their minds on the correct and, indeed, just concept that if a plaintiff wins his or her case by majority verdict that same majority should assess the damages. The separate problems which could arise from different majorities answering different questions (including, as in this case, a question the answer to which could have a dramatic bearing on damages) before ever the issue of assessing damages was reached did not loom large, if at all, in their thinking.

The section itself contains the expression "the verdict" in three different places. In context, the expression seems to relate to the final result of the case. It seems strange that the section was not drafted in a more elaborate way to cover the problems arising out of separate questions relating to liability and, indeed, separate questions relating to liability on the one hand and assessment of damages on the other particularly as the word "verdict" at the time of the passing of the Act was regularly used in two different senses. There was a distinction between general verdicts and special verdicts. In civil cases a general verdict was a statement as to who had won the case with an assessment of damages if it was the plaintiff or the sum awarded if the issue was one of assessment only. Special verdicts on the other hand were findings of specific facts upon which it was the duty of the court to enter judgment according to law (see Halsbury "The Laws of England"1st ed. Vol. 18 p. 257). S. 95 by its express wording does not really cover the problem as to what is to happen if there are a number of different questions and different majorities become involved in the determination of them.

Initially, the learned trial judge said this to the jury:

"... I want to deal with the way in which your vote, if it comes to that, will be dealt with. You decide the case either unanimously or on a majority verdict. You may, ladies and gentlemen of the jury, lose three of your members and yet come up with a majority verdict. So that if nine of you decide one way or the other, the other three's vote is rejected and the decision is come to on a majority.

Now I want to give you a very important direction in this regard. Assume for the moment that three of your members when you are coming to decide on the liability issue should decide to vote against Ms. Cooper-Flynn, decide that she is not entitled to win, now those three must stand back from the assessment of damages because that makes sense when you consider it, that if those three people felt that she was not entitled to win, it may well be that their vote would pass on into the assessment of damages and they might well say something like this:

'Well, she wasn't entitled to damages in the first place anyway so I am going to give her the miserable award as follows.'

Therefore, if you are deciding on a majority of nine, ten, eleven the people that you lose at the early stage on the liability issue stand back and do not enter into any debate on the assessment of damages."

A significant sentence in that direction to the jury is "you decide the case either unanimously or on a majority verdict." I think that what the judge meant by the word "the case" in that context was the liability issue and that he did not address his mind to the separation of questions involved in relation to the RTÉ liability issue and still less did he address his mind to the problem of what was to happen if RTÉ lost on the first question but won on the second and Mr. Howard who is only involved with the first question won in respect of it. This oversight while regrettable was understandable because like the draftsman of the section the main concern of the trial judge was to ensure that members of the minority on the liability issue did not attempt to cause detriment to the plaintiff when it came to the assessment of damages. This particular analysis is not all that relevant but I have engaged in it with a view to emphasizing that had the judge omitted to direct the jury that if the plaintiff won by a majority the same majority must be agreed on the assessment of damages that would have been an altogether more serious omission if in fact the plaintiff had won than the omission in his charge in this case.

As I already adverted to, any problems arising out of the interpretation of s. 95 were resolved by Arnott v. O'Keeffe. There were three judgments delivered in that case by Walsh J., Kenny J. and Parke J. respectively. Walsh J. after illustrating some of the problems which could arise if different majorities were deciding different questions summed up the position as follows at p. 6.

"It appears to me that the statute clearly intended that when the jury was operating on a majority vote of nine of the twelve members the verdict should be that of a particular nine and that when the verdict depended upon the answers to several components of the verdict the answers in all cases must be those of the same nine. The Act did not preclude other members of the jury joining in the verdict, that is to say, adding their voice in support of the answers agreed upon by the particular nine on any question on which there was not unanimity."

Kenny J. in his judgment dealt with the issue as follows at p. 19 of the report.

"The verdict of the jury does not consist of their answer to any specific question. It is their answers to all the questions. This is made clear by the words 'of such nine members or upwards shall be taken and recorded as the verdict of the jury'. It is essential that the judge should inform the jury that before they can bring in a majority verdict there must be nine members of them who agree with all the answers to the questions which have been submitted to them. It is not sufficient to justify a majority verdict that there are nine members of the jury in favour of each answer on any specific question. There must be nine who agree with all the answers; if there is not such a majority, they should be told that they should disagree."

Parke J. at p. 23 took the same view and he put it this way:

"The second point which arises in the case does not seem to have been a subject of previous judicial authority. On the completion of the judge's charge, counsel for the plaintiff objected that this did not include a proper direction as to the majority necessary for the proper answering of the question. The trial judge had informed the jury that the required majority must be not less than nine but he did not tell them that, in answering each of the questions, the same nine persons must be included in this majority. The learned trial judge refused to redirect the jury on this ground on the basis that he did not accept that any such principle existed. In my view the correct construction of the provisions of section 95 of the Courts of Justice Act, 1924, clearly requires that the same nine members of the jury must be included in the majority answering such question and that it is the duty of the judge so to direct the jury. The 'verdict' of a jury is the sum total or result of any specific questions which may be asked of them. In order to constitute a 'verdict' there must be at least nine members of the jury who agree with the answers to all the questions. Accordingly, I am satisfied that there was a misdirection to the jury in the present case."

After Arnott's case the law became crystal clear but the learned trial judge did not direct the jury in accordance with it. None of the parties through their respective counsel objected. Not only that, there was express approval of the judge's direction. Before I comment on the effect of that approval as I see it, I think it desirable to refer back to the sequence of events and debate in relation to this issue. I intend merely to summarise it as it is dealt with in full detail in the judgment of the Chief Justice.

At the end of the learned trial judge's charge, counsel for the plaintiff raised one issue by way of requisition. This related to comments which the trial judge had made in relation to a portfolio scheme in that the judge had suggested to the jury two options in relation to it but that in the view of counsel a third option should also have been suggested. No requisition or objection was raised by counsel for the plaintiff in relation to the part of the charge dealing with majority verdicts. I do not say this by way of any criticism. Counsel may well have considered that what the jury was told by the judge would result in a perfectly fair trial of the issues as far as the plaintiff was concerned. The failure to make any objection, however, is a relevant factor (among others) in considering the issue of whether a new trial should be ordered by reason of the technically defective direction of the judge though to some extent the failure by counsel at that stage to object became less relevant in the light of subsequent events to which I will be referring.

Immediately following on the requisition by counsel for the plaintiff, counsel for RTÉ raised requisitions the first two of which he described as " housekeeping matters". He expressed the view to the trial judge that he "would have thought" if the nine jurors answered the first question "No" it is the same nine jurors who should deal with the second question as well and that this did not clearly emerge from the judge's direction. Counsel expressed the view that if nine jurors answered the first question "No" the same nine should proceed to deal with question 2. Counsel's second point was that the judge had not made it clear that if the jury answered the first question "No" and the second question "Yes", when they went to deal with question 3 it was open to them to give no damages. Counsel went on to elaborate the point this way:

"That is clearly a matter. Indeed I would say as a matter of law if they found that the plaintiff had encouraged others to evade tax, that as a matter of law it is not open to them to richly reward, which are the words Your Lordship used. It would in law, in my submission, not be appropriate if they have found that the person encouraged or advised people to evade tax, that in those circumstances they firstly must be told that it is absolutely open to them under section 22 to give no damages and under no circumstances in those circumstances would the damages in any way be equated with 'richly' which is one of the examples which Your Lordship gives."

Counsel for RTÉ then went on to make other requisitions relating to more substantive matters.

It was then the turn of counsel for Mr. Howard. He confined his requisitions to the substantive points already raised and did not deal with the so-called "housekeeping" points.

By that time the jury had been sent away until the following day and on the following morning counsel for RTÉ addressed the judge in the absence of the jury and indicated that overnight he had changed his mind and had come to the conclusion that it could not be right that some persons who might have answered the first question would be disqualified from answering the second. At that point the judge expressed agreement with counsel. Counsel then elaborated on his view as follows:

"The infirmity that one is aiming to protect against is damages being dealt with by people. What I think is that all twelve must be allowed answer questions 1 and 2 and when it comes to damages, all nine must be in agreement in relation to questions 1 and 2."

After other matters had been dealt with, counsel for the plaintiff said the following:

"The only other point I want to mention to Your Lordship is that I accept what Mr. Feeney does say in relation to the 9: 3 point, the housekeeping point that he raised at the outset. I have no difficulty in that regard and I would accept his submission in that regard."

At this stage I would signpost that those were strong words coming from counsel for the plaintiff but as I indicated earlier they may have been motivated by a perception that that was in every respect a fair mode of trial. In those circumstances, I consider that this court should only order a new trial based on this ground of appeal if it is compelled by law to do so. I will be returning to this point but a further factual development relating to it arose to which it is important to refer.

The judge recharged the jury then in relation to some of the substantive issues and in relation to one of the "housekeeping matters" but did not address them again on majority decisions. The jury, however, in the course of its deliberations decided to come back into court for assistance. The foreman handed a note to the trial judge which read as follows:

"To the judge,

On question 1-3, we are seeking clarification regarding the definition of majority in this case."

The judge then asked the foreman did that mean that the jury wanted to know the circumstances in which "a majority decision can be accepted". The foreman answered "Yes". The judge dealt with it as follows:

"Very good. First of all, on question number 1, I do not think there could be any mystery about that. I think the question is:

'Have the defendants proved that the plaintiff induced the third-named defendant to evade its lawful obligations to pay tax by not availing of the tax amnesty?'

Now three of you ladies or gentlemen can disagree with the other nine. Taking an example, supposing that nine of you, and I am only taking this as an example, you understand me, supposing nine of you felt that the defendants had not proved that to your satisfaction but three of you were of a different opinion, in those circumstances the question is have the defendants proved that the plaintiff induced the third-named defendant (Mr. Howard) to evade his tax obligations and supposing, as I say, that nine of you decided that they had not proved that, the answer would be 'No' to the first. Now you have lost three of your members at this stage. Now you go on to question number 2. Those three ladies or gentlemen that you have lost can come back into play when you are dealing with question number 2 because that is a completely different question, a completely different question in the sense have they established the proof to your satisfaction in relation to the other four people. So those can come back into play again. Now let us assume for the moment that you have decided that they have not proved that, at that stage the plaintiff is succeeding on both of those cases. Now you are going on to assess damages. The damages that you will assess under question 4 will be assessed by the nine that voted in favour of the plaintiff all the way down. Do you understand?"

The foreman agreed that he did understand. The judge continued as follows however:

"So as I explained to you yesterday afternoon, the reason for dropping the three that you have lost on the way is because those three voting against the plaintiff on the liability issue might make up their mind, 'well, she doesn't deserve to get money anyway' and for that reason give her very low damages. So that is why you will drop the three that we have been talking about when it comes to assessing damages. Does that cover the point?"

The foreman agreed that it did. But at that point counsel for RTÉ Mr. Feeney raised the query as to whether the jury's question related to question 3 or question 4 on the issue paper. It had, of course, referred to questions 1 to 3 and Mr. Feeney pointed out that the learned trial judge had dealt with questions 1, 2 and 4 but not question 3. The judge agreed and he then addressed the jury as follows:

"So I am going to deal with question number 3 now. That question is:

'In view of the finding on question 2, has the plaintiff's reputation suffered material injury by reason of the matters published relating to the third-named defendant?'

We are assuming for the moment with that question, that you found that Ms Cooper-Flynn did not induce Mr. Howard by this personal portfolio by reason of saying 'why would you give the government 15 per cent'.

We are assuming that you found in favour of the plaintiff on question number 1. Now we are assuming also that you have found against the plaintiff on question number 2, that you are finding that she did induce the other four people to buy the portfolio for the purposes of evading tax, what you are asked now to do is to decide:

'Very good, what sort of character does that leave us thinking she had, having regard to the fact that she was going around the place selling these portfolios for the purpose of evading tax?'

And you ask yourself the question;

'Did the publication relating to Mr. Howard which we have found to be defective or false, did that damage her reputation in anyway'?".

The judge then read out for the second time question 3 and said that he could not help the jury further but he did tell them that if they found that there was no material interference with the plaintiff's reputation by the publishing of the matters relating to Mr. Howard then the jury would find that and that it would be a matter for them whether to award damages or not. The judge directed that if on the other hand the jury found that even though the plaintiff was selling this product to the four other people by inducing them to evade tax but at the same time what they said about her in relation to Mr. Howard did materially damage her character, then the jury should award her whatever damages the jury considered to be appropriate. The foreman was clearly still troubled by the majority issue because he then asked the judge: "If it is a majority, can twelve of us decide question 3? The judge answered: 'Yes' to that question. Counsel for RTÉ, Mr. Feeney, intervened to suggest that there should be discussion about this in the absence of the jury at which point the judge sent the jury back to the room but told them to accept his answer for the moment unless they were sent for. The learned trial judge then addressed Mr. Feeney as follows:

"Mr. Feeney, before I hear you, and I am grateful for any guidance that any of the Bar have to offer, my thinking is this. The authorities as I know them have established that the only reason why you can't have someone who voted against the liability voting on the issue of damages would be that person might be, as I have said to the jury, prejudiced or, in other words, reluctant to give any worthwhile damages in view of his views on liability. I do not see any reason why he should not embark on a consideration of number 3. Does anybody disagree with that?"

Mr. Feeney replied that there was "a certain inherent logic" to the extent that the jury was not being asked to assess damages. Finally, the judge indicated that unless anybody had any problem with his ruling he was leaving it stand. Mr. Feeney asked if that meant that there could be a nine to three or a ten to two majority. The answer of the trial judge as set out in the transcript is "on questions 1 and 2 and yet have the 12". There is probably some error in the transcript at that point but I think it is reasonably clear what the judge had in mind. Most importantly counsel for the plaintiff said: "Yes, I agree to leave it at that."

A number of questions arise in considering whether the directions by the learned trial judge in this regard should lead to a retrial given that they did not comply with s. 95 of the Courts of Justice Act, 1924 as interpreted by this court in Arnott v. O'Keeffe cited above. It is trite law that a single misdirection on some matter by a trial judge in his charge to a jury whether on the civil or the criminal side does not necessarily lead to a new trial if, in the overall interests of justice, a new trial is not required. That principle is, I think, an ordinary common law principle in its history but, as the Chief Justice has pointed out, it is also expressly incorporated into the Rules of the Superior Courts. In the ordinary way there are no particular statutory directions as to how a judge charges a jury. The first question which arises here is does the fact that s. 95 of the 1924 Act involves a statutory prescription to the trial judge alter the ordinary principles which would apply in considering whether a misdirection should lead to a new trial or not. In my opinion, it does not. If there was an intention by the Oireachtas of Saorstát Éireann that the section should have that effect, in my view, it would have said so. The Oireachtas would have been well aware of the ordinary principles relating to a judge's charge in criminal and civil trials and the principles relating to whether a misdirection could lead to a quashing of a conviction or the setting aside of a civil verdict whether leading to a new trial or not. I take the view, therefore, that the fact that the rules concerning what a judge is to tell the jury in relation to majority verdicts have been incorporated in a statute does not give them any additional solemnity relative to other essential directions in a charge. I would, therefore, reject any argument based on the simple fact that the prescription is contained in a statute.

The second question which arises is whether, if conceivably the answers to the questions might have been different had the correct direction been given, that automatically means a "substantial wrong or miscarriage has been thereby occasioned in the trial" within the meaning of O. 58, r. 7(2) of the Rules of the Superior Courts as interpreted by Henchy J. in Kelly v. Bord of Governors of St. Laurence's Hospital [1988] I.R. 402. I am firmly of the view that it does not have that meaning. Even if I was wrong about that and it did have that meaning, I would not be convinced that there would be a mandatory requirement for a new trial under O. 58, r. 7(2). The rule after all has been couched in negative terms. The issues on the trial of this action went to the jury on a basis that was accepted as fair by the judge and all the parties. I entirely agree with the analysis of the Chief Justice in his judgment of the questions and the inherent logic in the answers to them. A new trial in these circumstances would involve the setting aside of the finding in favour of the plaintiff as well as the finding against her. There would have to be a new trial on all issues which would itself be a gross injustice to the defendants and, particularly, Mr. Howard. This trial was obviously mounted at enormous expense and took twenty-nine days. To order a new trial now on the basis of a direction to the jury which was consented to by all the parties would clearly be unjust. It is undoubtedly true that there may circumstances where some fundamental error is made in a direction to a jury and where notwithstanding assent to it by the parties an appellate court should nevertheless order a new trial. An example might be if the plaintiff had won her case and had then been awarded damages which she believed to be inadequate in circumstances where no direction had been given to the jury that the same majority had to be involved in the damages issue as in the liability issue. But that is not the case here and indeed in other respects also as the Chief Justice has pointed out the case can be distinguished on its facts from Arnott v. O'Keeffe. I would, therefore, reject this ground of appeal.

The only other ground of appeal which I have regarded as arguable is the admissibility of the document ultimately proved by Mr. Cooney. I agree with the view of the Chief Justice that the hearsay rule was not infringed. There is an introductory statement relating to hearsay in the second edition of "The Law of Evidence in Ireland" by Caroline Fennell at p. 255 which is worth quoting. The author says the following:

"Cross describes the rule against hearsay as follows:

'… a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any facts stated'.

The rule operates, therefore, to potentially exclude informal or oral remarks, formal written statements, sworn testimony in previous proceedings, as well as gestures, signs, photographs, etc. The reason behind this exclusionary rule affecting otherwise relevant and probative evidence, is that if the maker of the statement does not testify, he is not available for cross-examination (per Wigmore:

'The greatest legal engine ever invented for the discovery of truth'), nor can his demeanour be observed or credibility tested. Moreover, it is desirable that the best evidence be available to the court and that the danger of inaccuracy through repetition be avoided."

The learned author goes on to point out that the rule "is located in the faith in the power of cross-examination; distrust of the jury's ability to evaluate hearsay; and a fear that if allowed, the courts would be swamped with hearsay evidence." As the Chief Justice has pointed out the document in this case was produced by its author in the witness box who was subject to cross-examination and it was tendered ultimately not as evidence of the truth of its contents but as a statement of the practice in the division in the bank of which the plaintiff was a member.

That last distinction is crucial in my view. Originally, it had obviously been assumed by the legal advisers and counsel of RTÉ that the document had been circulated and would have come into the hands of the plaintiff/appellant in the ordinary way. At the stage, therefore, when the document was put in cross-examination to the appellant it was with a view to it being ultimately proved by Mr. Cooney that such a document had been prepared and therefore existed and that the appellant would have been aware of it. In the event it emerged from the evidence of Mr. Cooney that the document, though prepared, was never circulated and, therefore, it did not come into the possession of the appellant. This meant that the document could not be availed of by the respondents to establish knowledge by the appellant of the contents of the document as such. However, the learned trial judge admitted it into evidence as a statement of the practice in the appellant's division of the bank, given that Mr. Cooney was adducing oral evidence of the practice of that division and had given evidence to the effect that he had prepared the document for circulation. If, for some reason or other, there was, for example, an independent inquiry into what the practice of the division at the relevant time was, the memorandum even though unissued would be highly relevant in the ascertainment of the true position. Is it to be said that, though clearly relevant and probative, this document cannot be produced in a court of law by reason of the hearsay rule? For the reasons given by the Chief Justice, I am satisfied that once the purpose of the production of the document was with a view to establishing the practice in the division and nothing more, it did not infringe the hearsay rule. This does not mean of course that it did not have a probative function as against the appellant. The jury was entitled to form a view as to what the practice in the division was and then to draw reasonable inferences from the whole of the evidence as to the likely awareness and/or participation of the appellant in that practice.

In making these observations, I am accepting for the purposes of the judgment the view of the learned trial judge that permitting evidence of a practice in the division of the bank of which the appellant was a member was not in conflict with the general ruling made by the judge that evidence relating to the policy of the bank was inadmissible. While I have some misgivings as to whether the two rulings are wholly reconcilable, I have come to the conclusion that the distinction made by the trial judge was probably correct. I have very little doubt that if at the time that the trial judge made the ruling in relation to the policy of the bank, he had been informed of the precise status of the memorandum he would not have ruled it out. Even if there is some difficulty about reconciliation with the general ruling I do not think that any injustice was caused and I certainly do not think that a new trial would be warranted on that account. It must also be pointed out that there does not appear to have been any objection on behalf of the plaintiff to the document being circulated among the jury before Mr. Cooney gave evidence. I would, therefore, reject this ground of appeal also.

In relation to the other grounds of appeal, I am in complete agreement with the Chief Justice and there is nothing which I can usefully add. I would, therefore, dismiss the appeal.

THE SUPREME COURT

Keane C.J.

Denham J.

M^cGuinness J.

Geoghegan J.

Fennelly J.

124/01

BETWEEN

BEVERLY COOPER-FLYNN

Plaintiff/Appellant

and RADIO TELEFÍS ÉIREANN, CHARLIE BIRD AND JAMES HOWARD

Defendants/Respondents

JUDGMENT delivered on the 28^th day of April, 2004 by FENNELLY J.

I agree fully with the reasoning of Geoghegan J with regard to the issue of the misdirection of the jury on majority voting. This is not a case where counsel failed to take a point in his client's interest. Counsel for all parties were seeking the correct formulation of the direction on the issue. It was not an issue in which any party had a particular interest. I agree, especially, that, where there has been such a long and costly trial, it would be a great hardship to any of the parties, particularly the successful defendants, to put them to the cost and trauma of a new trial.

I agree with the Chief Justice with regard to the form of the questions and, in particular, the right of the third-named defendant to rely on section 22 of the Defamation Act, 1961.

There is, however, one aspect of this matter upon which I would like to comment. The learned trial judge, at an early stage of the trial, ruled that the third-named defendant would not be allowed to rely on evidence that the plaintiff had advised investors other than that defendant to evade tax. The reason for the ruling was that the third-named defendant had served on the plaintiff's solicitors, two weeks before the commencement of the trial, particulars of the his plea of justification. At that stage of the trial, many weeks before the questions were settled, nobody appears to have adverted to the possible application of section 22. No appeal has been taken from the decision of the learned trial judge to refuse to allow the third-named defendant to rely on the evidence of the plaintiff's dealings with other investors. I cannot help commenting that it is difficult to see how the plaintiff was disadvantaged in the trial by having to confront evidence of justification on behalf of the third-named defendant, which was, in any event, going to be presented by the first two defendants. The ruling has, however, implications for the form of the third question. By necessary implication, the third-named defendant would have been permitted to rely on this evidence, if he had given notice in good time. In reality, the judge's ruling made little difference to the evidence before the jury. The evidence upon which the third-named defendant was refused leave to rely was given, in any event. That seems to me to undermine the argument that, having got a favourable answer to the first question, the plaintiff was simply entitled to have the damages assessed.

I am giving a separate judgment on the question of the admission and use of the letter of 30^th July 1990. I consider that its raises important issues regarding the admissibility of the contents of documents. On all other issues, I agree with the judgment of the Chief Justice.

I will deal, therefore, with the letter of 30^th July 1990, its admissibility, its use and its claimed damaging effect. The appellant, whom I will describe as the plaintiff in the context of the trial, attaches great importance to this letter. Counsel submits that it was wrongly admitted into evidence, wrongly placed and left before the jury for a major part of the trial, that it was seriously damaging to the appellant and that its use rendered the trial unsatisfactory.

I do not need to repeat the account of the matter contained in the judgment of the Chief Justice. It is necessary to consider the basis on which such a document could be relevant and, therefore, admissible. It is not the plaintiff's own document and, therefore, does not fall into that category of document upon which a person may be cross-examined as representing a prior inconsistent statement (section 4 of the Criminal Procedure Act, 1965). Here, the defendants wished to introduce the letter primarily so as to show that the appellant was aware of a policy in the National Irish Bank, in which she was an employee, of assisting clients to evade payment of lawful tax. If she knew of the letter, particularly if she received it, that object would be achieved.

On its face the letter appeared to be addressed to people working with or under the author of the letter, Mr Patrick Cooney, the Investment Manager in the Financial Advice and Services Division (FASD) of the bank. However, as the evidence subsequently disclosed, the "letter" was not sent. Thus, it was not truly a letter at all. It might be better to call it a draft. It came from Mr Courtney's file in the FASD and was addressed: "Hi Guys." It contains advice as to how "we," meaning bank employees would advise "people who have money invested offshore already or whose money is "Hot."" The appellant, in her evidence, readily accepted that the expression "hot money" connoted money upon which lawful tax had not been paid. She said: "I take "hot" money to mean, I would refer to it as undeclared money to the Revenue." It was put that it would not be legitimate money and she repeated: "My understanding would be undeclared money to the Revenue, or undeclared money to somebody."

It is true that the appellant herself and, later, Mr Cooney suggested that the expression could have a different meaning, connected with the investment funds of active or risk-taking investors. I would not propose to delay on this point. The way the letter is expressed is highly suggestive of a taint of illegality, not least because of the mention in the same sentence of "money invested offshore." It is not necessary, when assessing the likely effect on a jury, to go behind the appellant's own primary understanding of the expression as connoting undeclared funds. In that context and, in the context of the trial it was capable of being damaging.

However, in order for it to be truly evidence against the appellant, it was essential to show that the plaintiff knew of the letter. The fact is that there was no evidence that she did. Indeed, the evidence is to the contrary. The plaintiff herself denied, in the clearest terms, ever receiving it. Not only that, but, as was established many days later, when Mr Cooney came to give evidence, the letter had never, in fact, been sent out. The first Gulf war erupted contemporaneously and the consequent perturbances in international financial markets sufficiently preoccupied all concerned with the world of banking and investment to cause the letter to be neglected.

According to the appellant, the damage had been done. The jury were all given copies on Day 4, when it was first put to the plaintiff in cross-examination. Accordingly, it was in their possession at least up to Day 20, when it emerged that the letter had never been sent to the plaintiff.

To say the least, this was not at all a satisfactory situation. The letter, as I have said, was undoubtedly capable of being damaging to the plaintiff. That was indeed the defendants' purpose: if she had received the letter, she knew that the bank had a policy of facilitating tax evasion. If that could be shown, the letter was both relevant and admissible. Unfortunately, the letter was put to the plaintiff on a basis that turned out to be incorrect. The origin of the problem was that the defendants were in the unusual position for a defendant in litigation of being unable to say whether a witness they intended to call, Mr Cooney, would say that the letter had been sent to the plaintiff. Indeed, they made this clear to the judge during the argument on admissibility in the absence of the jury. At the time when they sought to put the letter into evidence, the defendants were not in a position to say whether the letter had been sent to or received by the plaintiff. At most, they could say that they assumed that a draft letter found on the file of the head of FASD had, in fact, been sent out. In these circumstances, it is difficult to understand the declared intention of the defendants to cross-examine the plaintiff to the effect that her evidence would be untrue if she were to deny receiving the letter.

It is important to note that counsel for the plaintiff specifically objected to the procedure proposed by the defendants. He told the court that his instructions were that the plaintiff would deny having received the letter. He said that it would be unfair to have the letter before the jury for many days before it could be determined whether the defendants' evidence would establish whether it had been sent. He suggested, as a means of overcoming this difficulty, that the defendants should prove, in the absence of the jury, whether the letter had been sent before it was put to the plaintiff. The defendants objected to this course.

The primary basis on which the defendants argued that the letter was admissible against the plaintiff was that she had received it and knew of its contents. As an alternative, it was argued that it was admissible as evidence of the policy of the bank. I will deal with these in turn

Counsel for the appellant has cited a number of cases, which appear pertinent to the first claimed basis of admission. It is vital to bear in mind that the letter was being proffered in order to establish, not merely that Mr Cooney had written the letter, but that the plaintiff knew about it and, therefore, was specifically aware that, as an employee of the bank she was expected to assist in furthering a policy of assisting illegal tax evasion. Thus, if she had not received the letter, it was simply not admissible for this purpose. It could not be placed before the jury at all without proof that she was on notice of its contents.

All three of the cited authorities are criminal appeals. In each case, prosecuting counsel had cross-examined the accused about the contents of a document which had not been proved. The principles regarding the admissibility of evidence, in the absence of statutory intervention, are the same, whether the case is civil or criminal. The headnote of R v Seham Yousry 11 Cr App. Rep. 13 CA, page 13 states: "Counsel ought not to suggest to the jury, by cross-examination or otherwise, the contents of a document which he is not entitled to put in evidence." In a prosecution for criminal libel concerning the claim of the accused to be married to the prosecutor, counsel for the latter, in cross-examination of the accused held in his hand a piece of paper, and instead of saying: "Look at this piece of paper; do you adhere to your answer?" he described it as a report from the Cairo police as to the appellant's origin and invited her counsel to look at it. The latter was sufficiently on guard not to do so. Lord Coleridge J. described this procedure as being designed to produce the effect that the Cairo police had produced a report so damaging to the accused that her counsel dare not look at it. He continued:

"Now, that was inadmissible in evidence, and in our judgment that was a wholly wrong method to adopt. Counsel for the prosecution, holding documents in his hands which he cannot put in, has no right to suggest to the jury in any way what they are………."

R v Gillespie and another 51 Cr. App. Rep. 172 concerned a prosecution for falsification of accounts and forgery of the manageress and cashier of a women's clothing shop. Sales dockets were put to the accused in cross-examination, without calling the employees who prepared them as part of the prosecution case. Winn L.J. speaking for the Court of Appeal (Criminal Division) considered it to be "elementary … that it is not competent to prove a fact against an accused person by producing a document in which that fact is recorded without calling the maker of the document to say that what he wrote in the document represented a true statement of fact." Later he said:

"…if a document is produced to a witness and the witness is asked: "Do you see what that document purports to record?" the witness may say: "I see it, I accept it as true," in which case the contents of the document become evidence against him: or he may say: "I see what is written there, I do not accept it as true," whereupon that which is purported to be recorded in the document is not evidence against that person; it becomes non-evidence, the document itself being nothing more than hearsay."

In the case of R v Morris Cross (1990) 91 Cr. App. Rep. 115, a case of alleged insider trading, the same court were asked to consider the action of counsel for the prosecution in putting to the accused a purported statement of a non-witness and cross-examining him about it. McCowan L.J. in the judgment of the Court stated:

"The right course would have been for the judge to send the jury out and consider the objection calmly. It would have been apparent to him that the right way to handle the matter was for [counsel for the prosecution] to allow the appellant time to read the document and then to ask him if the contents were true. That this is the right way to handle the mater is clearly shown by the case of Gillespie and Simpson…… If the matter had been handled in that way, and the appellant had said that the contents were true, he could then have been cross-examined about those contents. If, on the other hand, he had said they were not true, that would have been the end of the matter. As it was [counsel] was allowed to go on cross-examining about the document although the appellant had never agreed that its contents were true".

I conclude that the letter should not have been placed before the jury on the first basis, without establishing that the plaintiff had received it. Counsel for the defendants was entitled to put the letter to her, without identifying it to the jury, ask her to read it and then ask whether she had received it. If she denied this, she could not have been cross-examined about its contents, until it was established that Mr Cooney would contradict her on this. This indeed seems to have been the initial understanding of the learned trial judge. He said on Day 4: "The letter would be passed to the witness; the witness would be asked "did you get that letter?" If she said "I never got it," why would we open the contents of the letter to the jury?" If Mr Cooney had said that the letter had been sent to the plaintiff, the judge should then have been asked to recall the plaintiff for cross-examination about its contents. In fairness to the defendants, he would have been bound to accede to such an application. An alternative, though more unusual course, would have been, as suggested by counsel for the plaintiff, to call Mr Cooney, in the absence of the jury. If he had confirmed the sending of the letter, the plaintiff might have been cross-examined about it in the normal order. In the present case, if either of these courses had been adopted, no problem would have arisen. The document would simply have had to be put aside.

The foregoing is confirmed by the decision of this Court in Moloney v Jury's Hotel Ltd. (Unreported 12^th November 1999), a decision upon which counsel for the plaintiff relied, at the trial, in opposing the admission of the letter. That was a personal injuries action, where the High Court judge had relied on statements contained in medical reports, whose authors had not been called, in a manner which tended to the discredit of the plaintiff. Barrington J considered that he should not have considered this evidence for that purpose. He said:

"In making [his] analysis the learned Trial Judge referred to two hospital notes which he assumed tended to undermine a portion of the Plaintiffs evidence and to support that of [another witness]. The trouble is that neither note is evidence. While either note could have been put to the Plaintiff in cross-examination (and one was) the cross-examiner would have been bound by her answer. The persons who made these notes were not called to give evidence. They were not cross-examined and the possibility that either, or both, of them might have made a mistake was not explored. There is also the fact that the notes are mutually contradictory and inconsistent with the nature of the Plaintiffs injuries as described by all the doctors who gave evidence. These notes are of no evidential value and should not have been used by the Trial Judge to detract from the weight of the Plaintiffs testimony."

I then turn to consider the alternative claim that the letter was admissible as evidence of the policy of the bank. I leave aside the question of whether the policy of the bank was admissible at all against the plaintiff. Counsel for the plaintiff strongly disputed its relevance. In general, I tend to agree with him. I do not think the defendants were entitled to deploy as against the plaintiff any policy of the bank of which she was not shown to be aware. However, there is a simpler and more basic evidential rule which, in my opinion, should have led to the exclusion of the letter.

The letter is not a public document. Nor is it the type of private document, such as a will, a deed or a contract, which itself stands as evidence of a legal transaction. Nor is it a business record, recording transactions carried out.

The purpose for which the defendants wished to use the letter was to show that Mr Cooney had stated that employees should assist clients of the bank to evade tax. I ask how the letter could advance that objective. The answer is clear. Mr Cooney had allegedly stated, in writing, in July 1990, that the bank had such a policy. A statement, whether oral or written, made on another occasion is hearsay and, unless one of the exceptions to the hearsay rule applies, it is inadmissible. It is no answer to call the author of the written statement and ask him to verify it. He is then being asked to give evidence of his own statement on an earlier occasion. I test this conclusion by asking whether he would have been permitted to give evidence of an earlier oral statement made to persons other than the plaintiff. He could, of course, have been asked to state whether he had communicated such a policy to staff. He was never, in fact, asked any such question. Thus, Mr Cooney gave no positive evidence that the bank had a policy of assisting its clients to evade payment of tax. He was merely asked to produce an earlier written statement of his own. This was hearsay evidence.

In my opinion, these are basic propositions of our law of evidence. They receive confirmation from the following passage from Archbold, Criminal Pleading Evidence and Practice (2003) paragraph 9-2, page 1165:

"Having regard to the definition of hearsay, any statement in a document will be hearsay and inadmissible if the purpose for which it is sought to tender it in evidence is to rely on the truth of the statement, unless the document can be brought within one of the exceptions to the hearsay rule."

The authors cite bankers' books admissible by virtue of the Bankers' Books Evidence Acts as a well-known exception to the rule.

Mr Cooney, by being asked to verify that he had written the letter, (which he had never sent), was being asked to give evidence of his own earlier statement to unidentified persons. Mr Cooney's evidence of his own earlier statements contained in the letter was, in my view, inadmissible in principle. The reasons are encapsulated in the following statement taken from The Law Reform Commission Working Paper on "The Rule against Hearsay" (Working Paper No. 9 --- 1980), page 50:

"The hearsay rule excludes the out-of-court statements of witnesses insofar as they are tendered as evidence of the facts asserted. However, such a statement may also be relevant to the credibility of the witness in that it reveals consistency or inconsistency with his testimony in court. But even if it is sought to be proved only for this limited purpose, it may be excluded by the rule against self-corroboration, sometimes called the rule against narrative. According to this, a witness may not give evidence that, on a past occasion, he made a statement consistent with his testimony in court and other witnesses may not be called to prove that he made any such statement. Any previous statement inconsistent with his testimony in court may be proved but such a statement may only be used to discredit the witness's sworn testimony and is not evidence of the facts asserted in it."

The rule against self-corroboration has been modified in England by the Civil Evidence Act, 1968. Prior to that, the statement of Holmes J in Coll (1889) L. R. Ir. 522 that "evidence of a witness cannot be corroborated by proving statements to the same effect previously made by him," was regarded in England as a correct statement of the law. (see Phipson on Evidence, 14^th ed. Par 12-56). If Mr Cooney could not give evidence of the letter to corroborate evidence actually given by him, a fortiori he could not give such evidence in isolation and, in effect as the sole evidence of the alleged fact.

I am, therefore, satisfied that the letter should not have been placed before the jury on the primary basis claimed until it had been established that the plaintiff had received it and should not have been admitted in evidence on the second claimed basis. The letter was, therefore, improperly admitted into evidence.

That conclusion, however, will not lead automatically to an order being made for a new trial. Both the Chief Justice and Geoghegan J, in their judgments, refer to Order 58, rule 7(2) Of the Rules of the Superior Courts, which provides:

"A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge of the trial was not asked to leave to them, unless in the opinion of the Supreme Court some substantial wrong or miscarriage has been thereby occasioned in the trial; and if it appears to such court that such wrong and miscarriage affects part only of the matter in controversy, or some or one only of the parties, the Supreme Court may give final judgment as to part thereof, or as to some or one only of the parties, and may direct a new trial as to the other part only, or as to the other party or parties."

The principal case cited on this issue is Kelly v Board of Governors of St. Laurence's Hospital [1988] I.R. 402, which is not an entirely satisfactory authority. Only Finlay C.J. and Henchy J, in their dissenting judgments referred to the rule. Both were of opinion that the trial judge had misdirected the jury in failing to refer, in his charge, to the evidence of the defendant's expert. Henchy J additionally considered that he had misdirected them as to the law. Walsh J, with whom Hederman J agreed simply stated, at page 412, that the failure to refer to the expert's evidence "was not capable of leading to an injustice on the particular facts of this case." McCarthy J expressed a similar view. Nonetheless, Henchy J undoubtedly correctly summarised the effect and meaning of the rule, when he said:

"It should be noted, however, that the requirement is a substantial wrong or miscarriage "in the trial", not "in the result of the trial". A new trial, therefore, may be ordered when there has been a substantial wrong or miscarriage, be it substantive or procedural, in the trial."

In spite of the first sentence in this passage, he went on to say:

"I find it impossible to say that there may not have been a different result if the judge had directed the jury's attention to Dr. Malone's evidence."

The wrong or miscarriage is not, therefore, unconnected with the result of the trial. It must be something liable to contribute to a miscarriage in the result.

In the present case, it is necessary to consider whether, in the context of the trial as a whole, "some substantial wrong or miscarriage has been …… occasioned in the trial" by reason of the "improper admission" of evidence of the letter.

A number of matters lead me to the conclusion that the Court should not order a new trial in the present case.

The trial was of exceptional length: twenty nine days. Evidence relating to the letter was confined to two or three of these. The plaintiff was cross-examined about it on day 4. The gist of the cross-examination was that she had received the letter, which she strenuously denied. In this she was clearly vindicated. When the defendants sought to lead evidence about the letter, counsel for the plaintiff intervened to demand that it be proved that it had been sent. Counsel for the defendants posed a question suggesting that the letter had been sent as part of the "normal course," only to be told that it was not. A cogent explanation was given: the intervention of the Gulf War. It seems to me that this sequence was as likely to redound more to the discredit of the defendants than that of the plaintiff.

The learned trial judge then specifically warned the jury, "in the strongest possible terms" that the plaintiff had been cross-examined on the basis that she had received the letter and that they should now view that cross-examination "only in the light of the fact that she never got this letter…"

I am, of course, of the opinion that the learned trial judge should not then have admitted the letter on the apparent alternative basis that it was evidence of the policy or practice of the bank. In this connection, it is worthwhile noting that the learned trial judge drew a distinction, in his charge to the jury between the policy of the bank and the plaintiff's awareness of it:

"So I want to warn you that I don't think it helps over much to concentrate on the actual merits or demerits of this product [the CMI Portfolio Bond] unless you are satisfied that Beverly Cooper-Flynn knew exactly where she was going. If she knew that this was a red hot product that was going to facilitate tax evasion, then by all means take a long hard look at the product and blame her for what she knew. What I am saying to you is that it seems to me that it is only fair that she should not be blamed and carry the responsibility for what may have happened in the boardroom of the bank."

It must also be remembered that a principal plank of the defendants' defence of justification was that the plaintiff had assisted the third-named defendant, who was identified by name early on in the story, to evade tax. The evidence of this defendant and that of his daughter could be said to have been at least as prejudicial to the plaintiff as the contents of the letter. Yet the jury were required to and did in fact consider this defendant's defence on its own separate merits and distinguish it from that of the other unnamed investors. They rejected that evidence.

Most crucially, the jury had the evidence of the other four investors whom the plaintiff was alleged to have assisted to evade the payment of lawful tax in addition to the cases of two other investors which were raised with the plaintiff in cross-examination. I propose to refer to the principal features of this body of evidence. It is right, of course, to say that the plaintiff strenuously denied having advised any investor to evade tax.

Mr Patrick Duff was a farmer and the owner of a licensed premises, hardware and other business in Bailieborough, County Cavan. He had built up very substantial savings. He had £174,000 in a "bogus" non-resident account, with a false English name and address, at the Bailieborough Branch of National Irish Bank. From the end of 1991, he met the plaintiff regularly for advice on his investments. She knew about the account just mentioned. He said he was thinking of availing of the tax amnesty announced on 25^th May 1993. The plaintiff said: "Oh, no, no, why avail of the amnesty, why lose 15% of your earned money when you can put it into a fund that I will manage for you." She advised him that, if she left the money in the account where it was, the revenue would find out. If he invested the money in the CMI portfolio, the money in the account would go to a numbered account in the Isle of Man and his name would never appear on any document. In 1996, Mr Duff invested £168,000 from the account in the CMI portfolio.

Mrs Joy Hall lived in Monaghan and had businesses in Monaghan and Enniskillen. She held some building society accounts, in respect of which she had not declared the interest to tax. The plaintiff advised her to place the money in a CMI portfolio account, which would be in the Isle of Man, under a number and her name would not appear on it. Confidentiality would be complete and the Revenue would not know of it.

Mr Sean Roe was a coach operator from Shercock, County Cavan. He had also engaged for many years in buying and selling a variety of articles. He kept his money in "various accounts," including in National Irish Bank He had failed to return his earnings to the revenue. He became increasingly concerned that he was doing wrong and wanted to have the matter of his taxes "tidied up." He was introduced to the plaintiff around the middle of 1993. He told her that he had "monies all over the place and that [he] was a bit unhappy that they were undeclared monies, and [he] was unhappy that the tax man was going to catch up with [him]." The plaintiff suggested an "offshore investment" and said that "the money would never be declared to the Revenue, the Revenue would never find out about it, that it was as safe as houses." Mr Roe suggested availing of the tax amnesty, but the plaintiff said there was no need to go for the amnesty as the money would be safe. She said Mr Roe had worked hard for his money and there was no point in giving away any of it.

Mrs Joan Quigley was a farmer's widow living in Dundalk. Her late husband had had an undeclared bank account in Newry, which she inherited. In 1993, she heard of the impending tax amnesty. Through the National Irish Bank, she was introduced to the plaintiff, whom she met several times. Mrs Quigley told her about the undeclared money in the Newry bank account and asked about the amnesty. The plaintiff advised against it but said "to go into the CMI scheme." She said it was perfectly safe. Mrs Quigley would have a number and "how could the Revenue trace a number?"

All of these witnesses were cross-examined in great detail. There was at least one unexplained inconsistency in relation to Mrs Quigley, who said she had received the plaintiff's advice against the amnesty in April 1993, whereas it was not announced until 25^th May of that year. Mrs Quigley said that she had seen some advance publicity.

The plaintiff was also cross-examined about dealings with the affairs of two other investors. She had dealt with a publican, who said he had £30,000 sterling in cash, £26,000 on deposit in the Isle of Man and a deposit of IR£46,000 in his wife's maiden name. It was put to her that these three circumstances should have caused alarm bells to ring suggesting that these funds were not properly declared. She maintained that she thought it perfectly possible that a publican in Naas would have accumulated £30,000 sterling in cash from his business there.

She was also cross-examined about the case of a £113,000 sterling policy, sold by the plaintiff, to an investor who died. The monies were acknowledged by the family of the deceased to represent undeclared funds. The plaintiff accepted that she had made no inquiries from the manager at the local National Irish Bank as to whether he knew that the funds were undeclared. She was strongly pressed on the fact that no action appeared to have been taken to report the matter to the Revenue. She said that she told her immediate boss, but agreed that she had taken no other action.

In my estimation, the totality of this evidence was sufficient to nullify any residual possible prejudicial effect of the wrongly admitted letter. All four of the individual investors, who gave evidence, described in detail their dealings with the plaintiff. The jury were entitled to consider that they painted a consistent picture of the plaintiff's response, when confronted with problems of clients with undeclared funds. The jury were entitled to think that there was a common thread running through the three cases in which clients consulted the plaintiff about the tax amnesty.

In view of the explicit instruction of the learned trial judge that the plaintiff had not received the letter, I do not consider that, assessed in the light of all the evidence before the jury, it can have had a significant impact on the jury's decision to answer the second question as they did. I do not think there was a "substantial wrong or miscarriage." I would not direct a new trial. For all these reasons, I agree that the appeal should be dismissed.